[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]







                  UNITED STATES DEPARTMENT OF JUSTICE

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

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 3, 2011

                               __________

                           Serial No. 112-127

                               __________

         Printed for the use of the Committee on the Judiciary











      Available via the World Wide Web: http://judiciary.house.gov
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                       COMMITTEE ON THE JUDICIARY

                      LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT, 
BOB GOODLATTE, Virginia                  Virginia
DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana                  MAXINE WATERS, California
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania             DEBBIE WASSERMAN SCHULTZ, Florida
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
[Vacant]

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















                            C O N T E N T S

                              ----------                              

                              MAY 3, 2011

                                                                   Page

                           OPENING STATEMENTS

The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Chairman, Committee on the Judiciary.......     1
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     3

                                WITNESS

The Honorable Eric H. Holder, Jr., Attorney General, United 
  States Department of Justice
  Oral Testimony.................................................     4
  Prepared Statement.............................................     6

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Melvin L. Watt, a 
  Representative in Congress from the State of North Carolina, 
  and Member, Committee on the Judiciary.........................    39
Response to Question posed by the Honorable J. Randy Forbes, a 
  Representative in Congress from the State of Virginia, and 
  Member, Committee on the Judiciary.............................    53

                                APPENDIX
               Material Submitted for the Hearing Record

Responses to Questions for the Record from the U.S. Department of 
  Justice........................................................    89

 
                  UNITED STATES DEPARTMENT OF JUSTICE

                              ----------                              


                          TUESDAY, MAY 3, 2011

                          House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Committee met, pursuant to call, at 10:17 a.m., in room 
2141, Rayburn House Office Building, the Honorable Lamar Smith 
(Chairman of the Committee) presiding.
    Present: Representatives Smith, Sensenbrenner, Coble, 
Gallegly, Goodlatte, Lungren, Chabot, Issa, Pence, Forbes, 
King, Franks, Gohmert, Jordan, Poe, Chaffetz, Griffin, Marino, 
Gowdy, Ross, Adams, Quayle, Conyers, Nadler, Scott, Watt, 
Lofgren, Jackson Lee, Waters, Cohen, Johnson, Quigley, Chu, 
Deutch, Sanchez, and Wasserman Schultz.
    Staff Present: (Majority) Sean McLaughlin, Chief of Staff 
and General Counsel; Allison Halataei, Parliamentarian; Richard 
Hertling, Deputy Staff Director; Crystal Jezierski, Counsel; 
Jennifer Lackey, Staff Assistant; and Perry Apelbaum, Minority 
Staff Director and Chief Counsel.
    Mr. Smith. The Judiciary Committee will come to order. 
Without objection, the Chair is authorized to declare a recess 
of the Committee at any time. We welcome everyone here, but 
particularly our guest today, the Attorney General of the 
United States, Eric Holder. I am going to recognize myself for 
an opening statement and then the Ranking Member for his 
opening statement. This morning we welcome Attorney General 
Eric Holder to the Committee for an oversight hearing on the 
U.S. Department of Justice. First, I would like to thank the 
Attorney General for supporting the reauthorization of the 
expiring PATRIOT Act provisions. I also appreciate his support 
of a mandatory data retention policy to help law enforcement 
officials track dangerous pedophiles and keep children safe.
    Although he may not want to take credit for this next item, 
I should also thank the Attorney General for the decision not 
to try certain terrorists in the U.S. It is the right decision 
and will ensure justice for the families of the 9/11 victims. 
Terrorists remain intent on carrying out their plots to destroy 
America. The killing of Osama bin Laden is a victory in 
America's efforts to combat terrorism. But the terrorist threat 
does not end with Bin Laden's death. In the year since 9/11, 
al-Qaeda has expanded and splintered into smaller groups and 
rogue terrorists around the world. This makes it harder for us 
to detect and deter plots against Americans both here, at home 
and abroad.
    Despite Sunday's victory, we cannot afford to leave our 
intelligence community without the resources it needs to 
dismantle terrorist organizations, identify threats from groups 
and individuals and interrupt terrorist plots, so Congress must 
reauthorize the PATRIOT Act. Our laws should keep pace with the 
evolving terrorist threat, but they must also keep pace with 
rapidly changing technology. Nowhere is this more apparent than 
with the dramatic increase in the proliferation and exchange of 
child pornography. Today pedophiles can purchase, view or 
exchange this disturbing material with near impunity.
    Child pornography on the Internet may be our fastest 
growing crime in America increasing by an average of 150 
percent a year. Better data retention will assist law 
enforcement officers with the investigation of child 
pornography and other Internet-based crimes. When investigators 
develop leads that might save a child or apprehend a 
pornographer, their efforts should not be impeded because vital 
records were destroyed.
    While I appreciate the Department's support on these 
important matters, I am concerned that in some cases, this 
Administration may have placed political and ideological 
considerations above enforcing the law. Earlier this year, the 
Department abandoned its obligation to defend the Defense of 
Marriage Act, a Federal law enacted by Congress and signed by 
President Clinton to protect the institution of marriage. It 
seems the President's personal political views regarding the 
law may have trumped the obligations of the Department of 
Justice.
    Another example of selective enforcement is the 
Administration's views when it comes to immigration laws 
enacted by the States. The Justice Department sued Arizona for 
enacting a law that mirrors Federal immigration law. The 
Administration justifies its actions by claiming that the 
Arizona law wrongly supersedes Federal authority. But what 
about a law recently enacted in Utah that creates a guest 
worker program for illegal immigrants. This undermines Federal 
immigration law and yet the Administration has taken no action. 
Similarly, the Justice Department refuses to defend Congress' 
constitutional authority to determine national drug policy. 
Marijuana distribution is illegal under Federal law regardless 
of whether it is used recreationally or medicinally. But rather 
than enforce Federal drug laws, the Department directed Federal 
prosecutors not to bring charges against marijuana dispensaries 
in the States that have taken it upon themselves to legalize 
medical marijuana. And just last week, it was reported that the 
Department has dropped its criminal probe of a lawyer who 
admitted leaking classified information on the terrorist 
surveillance program.
    This case should have been a slam dunk for the Department 
since the attorney admitted to violating the law. But the 
President's ideological opposition to the TSP program may have 
stopped a legitimate criminal investigation. The Justice 
Department has a solemn duty to defend the laws of the land as 
enacted by Congress without politics or prejudice. And I am 
concerned that there seems to be a pattern of selectively 
enforcing the law based on the Administration's political 
ideology. I do want to thank the Attorney General for coming 
today, and we look forward to hearing from him on these and 
many other issues. The gentleman from Michigan, Mr. Conyers, 
the Ranking Member of the Judiciary Committee, is recognized 
for his opening statement.
    Mr. Conyers. Thanks, Chairman Smith. Once again, we welcome 
the Attorney General, Eric Holder. Most of us have known him 
for more than a number of years in his various positions in the 
government. And I welcome you here and praise your standing up 
for the rule of law, especially in the area of national 
security where you were the Attorney General that supported the 
end of using torture. And you released legal memos on this 
subject that proved that what you were doing was right and some 
of those legal memos were incorrect.
    Now, for the things that we want you to improve on. I start 
off with the fact that the worst economic upheaval since the 
Depression, with all the suffering and damage that it has 
caused citizens and their family, there is, to my knowledge, 
not one single prosecution on any of the Wall Street barons 
that have created this economic mess. The systemic abuses not 
only have not ended, but are still going on as far as I am 
concerned.
    In the area, General Holder, of the approach to crack 
cocaine cases under the Fair Sentencing Act, that the 
Department would continue to seek extreme sentences that have 
been rejected as a policy matter by both the executive and the 
legislative branch is disappointing. And more needs to be done 
to ensure that the so-called pipeline cases are handled in a 
just manner.
    And the area of antitrust enforcement and merger review, we 
are getting more discussion about this, but our economy 
continues to become more and more dominated by global 
megafirms, and just about every merger that has come through 
the Department of Justice's front door has made it out alive. 
And I know that you are getting ready to block one large 
merger, but antitrust is still underutilized in the Department 
of Justice, and I want to help work with you if we can to 
increase the use of antitrust enforcement as these global 
megafirms get larger.
    And then in the national security area, the State secrets 
privilege policy is deeply troubling to me. And of course, the 
Department has become more transparent of late, and I 
appreciate that the State secrets report recently transmitted 
to our Committee, there is still a lot of decision-making that 
remains flawed. This privilege to me is a threat to the 
separation of powers and to the right of every citizen to 
lawfully fight back against government abuse and must be 
reigned in. Outside of those minor observations, we welcome you 
to the Committee, General Holder. Thank you, Mr. Chairman.
    Mr. Smith. Thank you, Mr. Conyers. Without objection, other 
Members' opening statements will be made a part of the record. 
We are pleased to welcome today's witness, United States 
Attorney General Eric H. Holder, Jr. On February 3, 2009 
Attorney General Holder was sworn in as the 82nd Attorney 
General of the United States. Attorney General Holder has 
enjoyed a long and distinguished career of public service. 
Joining the Department through the Attorney General's Honors 
Program in 1976, he became one of the Department's first 
attorneys to serve in the newly-formed public integrity 
section.
    He went on to serve as a judge of the Superior Court in the 
District of Columbia and the U.S. Attorney for the District of 
Columbia as well. In 1997, Mr. Holder was named by President 
Clinton to be the Deputy Attorney General. Prior to becoming 
Attorney General, Mr. Holder was a litigation partner at 
Covington and Burling, LLP in Washington, D.C.
    Mr. Holder, a native of New York City, attended Columbia 
University graduating in 1973 and Columbia Law School from 
where he graduated in 1976. Mr. Attorney General, we look 
forward to hearing your testimony and welcome you again to 
today's hearing. And please proceed.

   TESTIMONY OF THE HONORABLE ERIC H. HOLDER, JR., ATTORNEY 
          GENERAL, UNITED STATES DEPARTMENT OF JUSTICE

    Attorney General Holder. Well, thank you, Chairman Smith, 
Ranking Member Conyers. Chairman Smith, that was a wonderful 
introduction, except for the part where you mentioned the dates 
that I graduated from law school and college. People are now 
calculating how old I am. And I am of an age where I am 
sensitive to that. Other than that, thank you. But also 
distinguished Members of the Committee, good morning, and thank 
you for this opportunity to discuss the critical work of our 
Nation's Department of Justice. Now, as I have stated often, no 
aspect of our work is more important or more urgent than 
protecting the American people.
    Mr. Smith. Mr. Attorney General, would you pull your mic a 
little bit closer so that we can hear you better. Thank you.
    Attorney General Holder. Protecting the American people is 
our most fundamental responsibility. Two days ago with the 
death of Osama bin Laden, the leader of al Qaeda and the 
world's most wanted terrorist, our Nation made historic 
progress in fulfilling this responsibility and in achieving 
justice for the nearly 3,000 innocent Americans who were 
murdered on September 11, 2001. This achievement was the result 
of a steadfast almost decade-long effort, one that spanned two 
Administrations and was advanced by many dedicated military and 
civilian leaders, intelligence and law enforcement officers, 
diplomats and policymakers, investigators, prosecutors and 
counterterrorism experts. For the last 2 years, President Obama 
has made certain that efforts to kill or to capture Osama bin 
Laden remained a central focus in our Nation's fight against 
terrorist threats. For the President's national security team, 
achieving this goal has been at the forefront of our work, even 
as we continued and strengthened broader efforts to dismantle 
and defeat terrorist networks and to use every tool available 
to combat national security threats both at home and abroad.
    Now, the Justice Department has played a vital role in this 
ongoing fight against terrorism. During the last 2 years, we 
have helped to identify and to disrupt plots to attack New York 
City's subway system and plots to deploy weapons of mass 
destruction in Texas, Oregon and Washington State. We have 
secured guilty pleas, as well as long sentences and actionable 
intelligence from terrorists intent on harming our people, our 
allies and our interests. And the Department has charged more 
defendants in Federal Court with the most serious terror-
related offenses than in an any 2-year period in our Nation's 
history. Through the use of robust military, intelligence and 
law enforcement operations this Administration has sent a clear 
and unequivocal warning to those intent on harming the American 
people. You will be pursued and you will be brought to justice. 
Although we can all be proud of Sunday's successful operation 
and we can all be encouraged by the way that thousands of 
Americans have joined together at this defining moment in our 
fight against terrorism, we cannot become complacent.
    The fight is far from over. Just yesterday, I ordered the 
Department's prosecutors and law enforcement agencies to be 
mindful that Bin Laden's death could result in retaliatory 
attacks in the United States or against our interests overseas. 
And I have instructed Department officials, as well as our 
State and local partners, to maintain focus on our highly 
effective counterterrorism and deradicalization efforts. I have 
also reiterated what President Obama said on Sunday evening 
that the United States is not, and never will be at war with 
Islam. Bin Laden was not a Muslim leader, he was a mass 
murderer of Muslims in many countries, including our own. We 
cannot, and we will not lose sight of this fact. And I pledge 
that at every level of today's Justice Department, we will 
remain focused on our paramount obligation to protect the 
citizens that we serve. Using every available resource and 
appropriate tool, including the Federal Court system, we will 
be vigilant against both international and domestic threats, 
and we will continue to utilize the critical authorities that 
are provided under the provisions of the PATRIOT Act, which I 
hope Congress will move promptly to reauthorize for a 
substantial period of time.
    On this issue, I want to thank Chairman Smith for his 
leadership and for his strong support. Beyond our national 
security work, the Department will take steps to build on 
current efforts to combat violent crime and financial fraud and 
to defend the rights of all Americans, especially the most 
vulnerable among us.
    And let me say, finally, that our country and the world 
have really just witnessed an historic moment. What we make of 
it now is up to us. Osama bin Laden has been brought to 
justice. A brutal terrorist will no longer be free to order the 
murder of innocent people across the globe. And just as we came 
together nearly a decade ago in the aftermath of the most 
devastating attack in America's history, I believe we must come 
together again. On 9/11, our Nation was united as never before 
by tragedy, by grief and by a shared sense of loss.
    Today, we must be united by a collective resolve and a 
common purpose to protect our homeland and to protect our 
people, to honor the values that have made our Nation great and 
to build on the extraordinary progress that has been achieved 
in protecting the people we are all privileged to serve. So 
thank you, Mr. Chairman. I will be more than glad to respond to 
any questions that you might have.
    [The prepared statement of Attorney General Holder 
follows:]



                               __________

    Mr. Smith. Thank you, Mr. Attorney General.
    And I will recognize myself for questions. The first is 
this: At the end of the month, there are three temporary 
provisions of the PATRIOT Act that are set to expire. A lot of 
people say that we might exaggerate the significance of the 
ability of those provisions to enable us to gather 
intelligence. Would you comment on how important those three 
provisions are and whether you feel that they should be 
extended?
    Attorney General Holder. Well, we believe, I believe, it is 
absolutely essential that these expiring provisions be 
reauthorized. We never want to see these Acts, these 
provisions, expire. The fact that they have sunsetted 
periodically and have required us to come back periodically to 
get them reauthorized is not helpful to us. We need certainty. 
Our prosecutors, our investigators, need certainty in that 
regard.
    So our hope is that these provisions will be reauthorized 
for as long as we possibly can. If they were done on a 
permanent basis, that is not something that we would object to. 
I am trying to confront the political reality in trying to get 
to the necessary votes in the House, the necessary votes in the 
Senate, and my hope would be that at a minimum, we would 
reauthorize these provisions for a substantial period of time.
    Mr. Smith. Thank you, Mr. Attorney General. My next 
question goes to something that I mentioned in my opening 
statement, and that is the importance of data retention by ISPs 
to allow us to go after the child predators on the Internet. 
Has the absence of data retention or significant periods of 
time for data retention hampered your ability to go after these 
individuals?
    Attorney General Holder. I can't point to a specific case, 
but I am concerned that the lack of retention periods will 
hamper our ability to get at important cases among the ones 
that you mentioned, child pornography, but also in the 
terrorist field, national security field is something that we 
are talking about with our European counterparts where they 
want to have data retention periods that are substantially 
shorter than what I think is appropriate.
    But I think the concern that you have expressed with 
regards to the retention of data is something that is worthy of 
our attention.
    Mr. Smith. Okay. Thank you. Mr. Attorney General, as I 
mentioned in my opening statement, it seems to me that we have 
had the appearance that the Department of Justice has chosen to 
prosecute cases based upon political ideology rather than equal 
justice under law. And some of the examples that come to mind 
are, for example, the decision of the Department of Justice to 
sue Arizona on an immigration bill that that State passed, but 
then not to Utah for the immigration laws that that State 
passed. And it seems to me that the Department probably should 
be consistent in its application of the law.
    Also you reopened an investigation into CI interrogations 
earlier in your tenure, and yet you ended a criminal probe into 
the lawyer who publicly admitted leaking classified information 
on the terrorist surveillance program. Again, I mentioned that 
in my opening statement. This does give the appearance of a 
pattern of selectively enforcing a law, and I wanted to ask you 
for your comment as to whether that appearance is accurate or 
not.
    Attorney General Holder. Well, let me be very clear. With 
regard to those matters and in all the other work that this 
Department of Justice does, we apply the facts as we find them, 
we apply the law as we find it, we do what we do and make 
decisions without any regard for political considerations. 
Frankly, the work of the Department could be made a lot easier 
if we listened to the critics, if we listened to the pundits, 
if we looked at the polls. That is not what we do, it is not 
what I have asked the men and women of the Department.
    Mr. Smith. But you understand that the examples I mentioned 
give that appearance whether that is accurate or not? Do you 
see the inconsistency that I point out and feel that that is 
not accurate or do you think that there is an appearance of 
inconsistency there?
    Attorney General Holder. Well, I don't see necessarily the 
inconsistency or the appearance of political considerations 
that you mentioned. For instance, with regard to the Utah law, 
that is a law that doesn't go into effect until 2013. It has 
always been Department of Justice policy to try to work with 
States to see if there is a way in which we can reach an 
agreement without us having to actually file suit. So we will 
look at the law and if it is not changed to our satisfaction by 
2013, we will take all the necessary steps.
    Mr. Smith. Okay. Thank you, Mr. Attorney General. The 
Ranking Member has yielded his initial time to the gentlewoman 
from Florida, Ms. Wasserman Schultz, so she will be recognized 
for her questions now.
    Ms. Wasserman Schultz. Thank you so much. And I thank the 
Ranking Member and the Chairman. General Holder, it is good to 
see you again, and I know that you are going to really be 
surprised about the subject about which I am going to ask you, 
but that would be our focus and your priority, which I am 
thrilled continue to be a priority on the exploitation of our 
Nation's children. We have worked hard to implement the Protect 
Our Children Act. And the National Strategy on Child 
Exploitation, Interdiction and Prevention Report that came out 
last year details that there are hundreds of thousands of 
criminal suspects in the U.S. engaged in child pornography 
trafficking.
    Just to give everyone an idea, according to the Office of 
Juvenile Justice and Delinquency Preemption in 2009, our 
Internet Crimes Against Children Task Forces made over 3,000 
arrests and identified over 1,000 child victims. Since passage 
of the Protect our Children Act of 2008, the funding though has 
remained relatively the same, about $30 million. In the 111th 
Congress, under the Democratic leadership we passed a budget 
that included $60 million for our ICAC task forces, and we know 
that with every dollar that we add, we can make it that much 
more likely to actually rescuing a child victim.
    So wouldn't you agree that by doubling the ICAC task force 
budget that we would have an opportunity to rescue that many 
more children?
    Attorney General Holder. Well, let me say that we have 
certainly enjoyed working with you. The focus that you have 
placed on this issue I think is totally appropriate. I hope it 
will be a legacy item for this Department of Justice that 
people will see that we stood up for our Nation's most 
vulnerable and most important citizens, our children. And the 
work that you have done with us I think has been extremely 
effective.
    The ICAC task forces, I think, again, have been extremely 
effective and we want to support them in every way that we can. 
We are unfortunately confronted with budget realities that make 
it extremely difficult to do all the work that we want to do. 
But with regard to those task forces we want to try to expand 
them to the extent that we can, support the ones that do exist 
and then try to ring out efficiency, so that we can in some 
ways make sure these budgetary problems don't get in the way of 
the very important work that we have done together.
    Ms. Wasserman Schultz. Let me just point out, the 
Administration has been incredibly supportive and has made it a 
priority. My concern is that we made a commitment in the 111th 
Congress to continue to increase the funding for the ICAC task 
forces, and in this Republican Congress, I am quite concerned 
that that same commitment won't be met. Now, the Chairman has 
been--Chairman Smith has been incredibly committed to making 
sure that we can go after these child predators. I am hopeful 
that his influence rises to the top so we can ensure that 
continued commitment.
    I want to also just touch on a letter that I sent to you 
about Sholom Rubashkin which we sent in December. And it is a 
case where the judge has been accused accurately of some ex 
parte communication and excessive sentencing. And I won't get 
into it here, but if we could follow up with you on that and 
get a response from the Department, I would appreciate it very 
much. Because it appears both the sentence has been--that the 
sentence is incredibly excessive and the judge who levied the 
sentence engaged in inappropriate ex parte communication.
    So if we could follow up with you on that that would be 
great. And then lastly, I just want to ask you about the gas 
prices task force, because I think that it is fantastic that 
the Administration has set up the task force. If we look--I 
just want to review the current situation because most people 
aren't aware of this. According to the Energy Information 
Agency under the U.S. Department of Energy as of a week ago, 
this is a week ago, the U.S. crude oil reserves that we had 
were at 363,125 barrels, which is higher than at any point 
during the 8 years of the Bush administration. Our total 
petroleum imports are at their lowest level since 1997.
    Domestic oil production for the last 2 years is up. And in 
the Gulf of Mexico, we have larger production now than at any 
point in the last two decades, at 1.64 million barrels a day, 
which is double the production in 1992. Yesterday though the 
average price at the pump was $3.96, up over a dollar from a 
year ago this week when it was $2.90. So with all the good news 
about supply, one would think that there must be a dramatic 
increase in the demand for gasoline that drives those 
increases, but that is just not the case.
    So it seems like there is something that smells in Denmark. 
Can you tell us specifically how the fraud working group, which 
again, I think, is really a very aggressive way of pursuing 
that the facts and separating fact from fiction and helping to 
get to the bottom of how we can explore manipulation, explore 
collusion and fraud, and tell us how Congress can assist you in 
this effort.
    Attorney General Holder. Well, there are certainly market 
forces that are at work. And I don't want to oversell what it 
is that we will be doing, but to the extent that there are 
inappropriate attempts to manipulate the market, that there is 
price gouging, other things of that nature that have had a 
devastating impact on average Americans who are trying to, in 
these tough economic times, make do, that will be the focus of 
this task force. We have partners from the Federal Government, 
as well as our State and local counterparts, State attorneys 
general, district attorneys, all of whom will be coming 
together to look at this situation to see if there are people 
who are doing things that are inappropriate, and to the extent 
that they are we will hold them accountable.
    This is a serious effort by a dedicated group of people 
that, as I said, is pretty wide ranging. It involves 
prosecutors, investigators, at a variety of levels. We will 
look at this on both the civil and the criminal sides.
    Ms. Wasserman Schultz. I thank the Ranking Member and the 
Chairman for their indulgence, and yield back the balance of my 
time.
    Mr. Smith. The gentleman from Wisconsin, Mr. Sensenbrenner, 
former Chairman of the Judiciary Committee, is recognized for 
his questions.
    Mr. Sensenbrenner. Thank you very much. Thank you for 
coming, General Holder. I would like to ask a few questions 
relative to the Department's February 23rd decision not to 
defend the constitutionality of section 3 of the Defense of 
Marriage Act. And as a result, the House of Representatives is 
going to have to hire outside counsel at our own expense to be 
able to make sure that this issue is properly argued before the 
court. Why did you do it?
    Attorney General Holder. Well, we had a unique situation in 
the Second Circuit where this case--where the decision was 
made. We had, in prior instances, been in circuits where the 
courts of appeals had a defined standard, a rational basis 
standard. In the Second Circuit, we had for the first time a 
circuit that had not looked at the issue, had not come up with 
an applicable standard. When the Department looked and had to 
make the determination as to what the appropriate standard was, 
given the nature of the way in which gay people had been 
treated in this country, given the nature of the reasons for 
the passage of the statute, it was our feeling that a 
heightened scrutiny test had to be applied.
    Applying the heightened scrutiny test, we did not think 
that the statute would pass constitutional muster, and as a 
result, thought that we could not make reasonable arguments in 
defense of the statute, something that is done extremely rarely 
but happens occasionally. And I recommended to the President 
that we not defend the statute and he agreed with that 
recommendation.
    Mr. Sensenbrenner. Well, sexual preference has never been a 
protected class in any of our civil rights laws. And my 
understanding is that the vast majority of the courts disagree 
with the Second Circuit, and believe that the lower standard, 
which is rationally related to a legitimate government interest 
is the one that applies. Now, evidently, the President has 
decided to take the opinion of one court to the exclusion of 
other courts to make this decision that he will not execute the 
laws that he took an oath to enforce.
    Attorney General Holder. No, I mean, these instances happen 
occasionally. In fact, there is a Federal statute that 
anticipates this. And under that statute, when the Attorney 
General decides not to defend the statute a letter is sent to 
Congress, as I did in this case, and as I have done in other 
instances. The reason for the determination, though, was, as I 
said, this different standard. And the fact that much has 
changed since the passage of the bill 15 years or so ago, the 
Supreme Court has ruled that criminalizing homosexual contact 
is unconstitutional. Congress has repealed the Don't Ask, Don't 
Tell policy. Since the lower courts have----
    Mr. Sensenbrenner. But Congress has never repealed or 
modified the Defense of Marriage Act, and this law has been on 
the books for over 15 years. And you were the Deputy Attorney 
General at the end of the Clinton administration and this 
concern was never raised. And now all of a sudden, 2 years into 
the Obama administration, the President and you apparently have 
decided that section 3 is unconstitutional. You know, I know 
you have got to pivot around a little bit in this business but 
the Constitution hasn't been pivoting around.
    Attorney General Holder. Yeah, but circumstances have 
changed, and that is what I have been saying.
    Mr. Sensenbrenner. Is it political circumstances or legal 
circumstances?
    Attorney General Holder. No, as I said, if you look at the 
history of discrimination coupled with what Congress has done 
with regard to don't ask don't tell, what the Supreme Court has 
said----
    Mr. Sensenbrenner. Well, don't ask don't tell, with all due 
respect, sir, was a personnel issue in the Defense Department. 
And the decriminalization of homosexuality, that was the 
criminal law. DOMA does not deal with either of these two 
items. DOMA was an attempt to define for Federal purposes that 
marriages between one man and one woman. And 45 States in this 
country have also reached that conclusion, either through a 
constitutional amendment ratified by the people, as was the 
case in Wisconsin, or through statutory enactments by the 
legislature.
    You know, my concern on this, Mr. Attorney General, and it 
is deeply troubling, is that the President has decided to usurp 
the function of Congress in making laws which a former 
President has signed and also to usurp the function of the 
courts by saying that this law is unconstitutional; well, that 
is not his job. Now, I guess what I can say is that I certainly 
would support an effort to have the cost of Congress' defending 
this provision that the President and you have refused to do so 
come out of the Justice Department's appropriation so that the 
message is sent down the street that an Attorney General or 
President can't willy-nilly decide that a law that they may 
have voted against if they had been in Congress at the time is 
unconstitutional.
    Well, my time is up. And, you know, let me say I haven't 
said the last about this, but you made the wrong decision. And 
I think that there ought to be a little bit of skin off the 
Department's back as a result of the wrong decision being made, 
and I yield back.
    Attorney General Holder. Well, with all due respect, in 
addition to the determination that I made and the President 
agreed with, which is based strictly on an assessment of the 
legal situation in front of us, there are several lower courts 
that have ruled that the DOMA itself is unconstitutional. And 
the notion that this is somehow something that ought to be, as 
you said, taken off the backs of the Department of Justice in a 
financial way, I think, is inappropriate. The lawyers in the 
Department of Justice who would have worked on that case, 
believe me, have more than a full-time job, and they will have 
to use the time that might have been used in the DOMA defense, 
they will use it in other areas, so I don't think that that is 
inappropriate.
    Mr. Smith. Without objection, the gentleman from Wisconsin 
is recognized for an additional 30 seconds.
    Mr. Sensenbrenner. Mr. Attorney General, I guess what I can 
say is that we are in a tough budget time, and we all know we 
are in a tough budget time. If you take the position that this 
should come out of Congress' budget, which we willingly cut on 
the second day of the session, essentially what you are saying 
is that there shouldn't be money, government money, to pay a 
lawyer to argue the constitutionality of this law.
    And you know I am one of those that believes that everybody 
is entitled to a lawyer no matter how wrong their position may 
be. And you know, what you are saying is, well, just because 
you and the President have decided not to defend DOMA because 
you and the President have decided it is unconstitutional there 
should be some kind of financial shifting around so that the 
lawyer gets paid for because this is a serious constitutional 
question, and the best lawyers in the country ought to argue 
both sides of the case, and I yield back.
    Mr. Smith. The gentleman's time has expired. The gentleman 
from New York, Mr. Nadler, is recognized.
    Mr. Nadler. Thank you. I am very heartened to hear from 
the----
    Attorney General Holder. Can I just say, I don't disagree 
with Mr. Sensenbrenner in the sense that good lawyers ought to 
be involved in this matter, and you apparently hired Mr. 
Clement, who is a great lawyer. But Congress, it seems to me, 
has the ability to pass an appropriation to pay Mr. Clement for 
the defense, a great defense that I am sure he will render. To 
take it out of the Justice Department, however, I think is 
inappropriate.
    Mr. Nadler. I am delighted to hear the observation of the 
gentleman from Wisconsin, and I look forward to his--that 
everyone is entitled to a lawyer, and I look forward to his 
support to greatly increase appropriations for legal services 
and legal aid so that people who need lawyers in this country 
can get it, and we will be working together on that, I am sure. 
Mr. Attorney General, I want to offer my sincere appreciation 
to the Administration for its daring and successful mission to 
eliminate Osama bin Laden. I want to commend our military, our 
intelligence personnel and the Administration for never 
forgetting 9/11, and for continuing to pursue terrorists and 
bringing them to justice. And please bring that message back to 
the President.
    As you well know, during the last Congress a number of us 
worked tirelessly to pass the 9/11 Health and Compensation Act 
so that we can properly honor, remember and care for the 
victims of 9/11. This new law reopens the Victims' Compensation 
Fund which will allow those still suffering and dying from 
their work at Ground Zero to finally apply for financial 
compensation for their losses. You and I have met about setting 
up the fund, and again, I want to encourage you to make rapid 
progress on appointing a special master, setting up the 
mechanisms necessary to process claims and doing everything you 
can to ensure that those still suffering from the attacks will 
get the compensation they deserve. And I hope you will let us 
know if there is anything we can do to help ensure that 
implementation of the Act goes as smoothly as possible.
    Now, getting back to the little discussion of DOMA, I don't 
believe that the Administration had any choice in the matter at 
all by looking at the legal precedence. And tell me if it isn't 
true that Mr. Sensenbrenner was a little mistaken because he 
said you chose one circuit over the others.
    In fact, a number of circuits had established the rational 
relationship test, the Second Circuit hadn't established any 
test, which is why you had to look into the position of the 
Department in the Second Circuit case what should you do. Not 
whether you agreed to the Second Circuit or not is a new 
question which you had to consider for the first time in a new 
circuit. But isn't it true that the cases in the other circuits 
that determine that the rational relationship test was the 
right test all were done pre-Lawrence and post-Bowers. In other 
words, they were all done in a legal context in which the 
Supreme Court had said that the act of consensual sodomy, the 
homosexual act itself, could be properly made a crime. This was 
specifically--that was a 1986 case--was specifically overturned 
by the 2003 case of Lawrence which said you couldn't do that. 
And this had to give an entirely new context and there had been 
no determination by any court as far as I know, but certainly 
by any circuit, of the proper scope of review, or standard of 
review after the Lawrence case.
    And if you look at the normal criteria for determining the 
standard of review that the Supreme Court has enjoined upon us 
as to what a suspect classification is, et cetera, does this 
class have a history of discrimination, does it have the 
political power to stop the discrimination, et cetera, et 
cetera, it meets all the tests and you really had no choice but 
to go that route.
    Attorney General Holder. Well, I would agree with you. I 
mean, the legal environment, the legal landscape, has 
fundamentally changed since some of those earlier decisions 
were made by those other circuits. And we confronted in the 
Second Circuit, a jurisdiction or a circuit that had not ruled 
and so therefore we had to examine the legal environment as it 
exists today.
    And on that basis, not on any political basis, but on a 
legal basis, a constitutional basis, the recommendation that I 
made to the President was that there was not a reasonable 
argument that could be made in favor of the constitutionality 
of DOMA, and the President agreed.
    Mr. Nadler. In a context after Lawrence, not just in the 
context of social change?
    Attorney General Holder. Exactly. In terms of what the 
courts have said, understanding what the court said and when 
they said it, what the Supreme Court said, what many lower 
courts have said, and in looking at the right to decide what 
the appropriate standard was.
    Mr. Nadler. Well, I commend you for that determination. I 
think it was compelled by the courts. And I certainly hope that 
we will not start trying to intimidate the Department in terms 
of its legal decisions through the use of the appropriations 
process. That would be wholly inappropriate.
    Let me switch topics if I may. We have here your letter 
from Ron Weich, actually, on the State Secrets Doctrine. And 
you make some very interesting points. But the key point is the 
courts should have the information, you are going to exercise 
this power very sparingly, et cetera, et cetera, but it is 
still a power the executive is going to use.
    In the Ninth Circuit, in the initial decision of the Ninth 
Circuit, I thought, the most important sentence was a sentence 
where the three-judge panel said the executive cannot be its 
own judge. And all the criteria which you set forward in this 
letter are fine criteria, but they all say, in effect, trust 
the Department, trust the executive branch, no recognition of 
separation of powers.
    And my contention is that you say in here that the courts--
the Department recognizes that courts have an essential and 
independent role to play in reviewing the executive's 
assertion. It should be in approving the executive's assertion. 
There should be secret proceedings and so forth if necessary, 
but the key is that the courts should have to okay or not an 
assertion of the fact that--a motion to dismiss on the grounds 
of executive privilege should have to be okayed by the court, 
not simply noted by the court regardless of how restrained and 
proper the executive is. That seems to be fundamental to our 
system of checks and balances and completely missing from the 
Department's position.
    Attorney General Holder. What we have tried to do, what I 
have tried to do is really reform the process by which the 
invocation of that privilege is made. There are a whole series 
of levels of review that have to be agreed to, including by the 
highest levels in the Department of Justice, and I ultimately 
must agree that the invocation of the privilege is appropriate. 
Since this new process was put in place, we have only invoked a 
privilege on two occasions, and we only will do it in those 
instances where it is necessary to protect national security 
and not to hide anything that might have been inappropriately 
done by the executive branch.
    Mr. Nadler. All of which----
    Mr. Smith. The gentleman's time has expired.
    Mr. Nadler. May I have one additional minute?
    Mr. Smith. The gentleman is recognized without objection 
for an additional 30 seconds.
    Mr. Nadler. All of which may be true, and all of which may 
be exercised properly by you and maybe by your successor or 
not, but the decision is still reserved for the Department, not 
the court, and that is the fundamental problem which I think is 
inconsistent with our general system of government.
    Attorney General Holder. Well, as I said, I think we have 
in place a new process that handles the concerns that you have, 
and we make sure that these invocations of the privilege are 
rare and are appropriate.
    Mr. Nadler. Thank you.
    Mr. Smith. The gentleman's time has expired. If you can 
double-check this mic for me please. The gentleman from North 
Carolina, Mr. Coble, is recognized for his questions.
    Mr. Coble. Thank you, Mr. Chairman. General Holder, good to 
have you on the Hill. Mr. Attorney General, last June, the 
Justice Department contacted Alamance County in my district to 
inform the County Board of Commissioners that it was commencing 
an investigation concerning allegations of discriminatory 
policing and unlawful searches and seizures. The county assures 
me that there is no factual basis for these allegations. At a 
mutually convenient time, Mr. Attorney General, I would like to 
meet with you and/or the appropriate staffer of Justice 
regarding this matter.
    Attorney General Holder. We are, I guess, in the process of 
trying to negotiate with the sheriff's office to get some 
relevant documents, and apparently there has been partial 
compliance with our document request. But to the extent that 
you have concerns, I am sure that we can work out some 
interaction between our staffs.
    Mr. Coble. I thank you for that. An important element, Mr. 
Attorney General, of our Federal bankruptcy laws is a 
requirement that debtors consult with an approved agency to 
receive a briefing and budget analysis for the credit 
counseling agency prior to filing for bankruptcy relief. To 
ensure high quality standards for pre-filing counseling, the 
executive office of the United States trustee is charged with 
approving nonprofit budget and credit counseling agencies that 
may provide this service. There are allegations that the 
trustee office has approved a number of credit counseling 
agencies that are not meaningfully interacting with debtors 
prior to certifying that they have completed the prerequisite 
pre-filing counseling.
    There are also allegations that many of these nonprofit 
agencies are related or linked to for-profit entities. Are you 
familiar with these allegations?
    Attorney General Holder. I have heard--I am not intimately 
familiar with them, but I have heard conversations in the 
Department about the subject that you are talking. I know that 
we are looking at these matters. To the extent that you have 
information though that you think we have not adequately 
addressed, again, that would be information you can share with 
us I will make sure that the appropriate people in the 
Department examine it.
    Mr. Coble. And I thank you for that. If you would get back 
to us on what you find out as well. Finally, Mr. Attorney 
General, as has been mentioned, we are in a cutting mode on the 
Hill, as you know. What are your priority areas for cuts?
    Attorney General Holder. I always like to have the question 
asked the other way.
    Mr. Coble. Well, I didn't mean to induce laughter when I 
asked that question, Mr. Attorney General.
    Attorney General Holder. You know, we are mindful of the 
fact that we have tough budgetary times, and the Department has 
to step up as other executive branch agencies have. We have our 
priority areas which all revolve around the protection of the 
American people; national security, financial fraud, prevention 
of violent crime, the protection of the most vulnerable among 
us. We want to have an adequate budget that will allow us to do 
those kinds of things. There are budget proposals that are 
floating around. We have talked to our counterparts at OMB and 
have made known to them what our priorities are. And my hope is 
that recognition will be made of the unique responsibilities 
that the Justice Department has and that a budget that will 
allow us to serve the American people in a way that I describe 
will be actually enacted.
    Mr. Coble. I thank you for that. Mr. Chairman, I yield back 
prior to the illumination of the red light.
    Mr. Smith. Thank you, Mr. Coble. The gentleman from 
Michigan, Mr. Conyers, is recognized for his questions.
    Mr. Conyers. Thank you, Chairman. One of the things that I 
hope we can take a new look at is the State secrets privilege 
in which the exclusion of evidence from a legal case based 
solely on affidavits submitted by the government stating that 
the court proceedings might disclose sensitive information 
which could endanger national security causes the information 
to go and the case collapses.
    And I think that is a serious problem in the way the 
previous Administration and this one is proceeding. What 
bothers me, General Holder, is that there have been cases 
challenging the use of rendition, of wiretapping, of torture, 
and the Administration has used the secret privilege, State 
secret privilege, to have these lawsuits dismissed. I think it 
is very troublesome and problematic, and I am wondering if a 
number of us here can begin to persuade you to reexamine the 
use of this technique, because it makes it very hard to 
challenge those in those cases to bring a case against the 
government.
    Attorney General Holder. Well, I certainly heard the 
concerns that were expressed by Members of this Committee, and 
frankly other Members of Congress and people outside of 
Congress. And I was concerned myself about the invocation of 
the privilege, and I think that I have put in place a regiment 
that, as I indicated to Mr. Nadler, would make the use of the 
privilege rare and appropriate and transparent to the extent 
that we can. We have sent a report to Congress about the 
invocation of the privilege which has not been done before. I 
put in place a series of review steps that did not exist 
before, and required that the Attorney General himself or 
herself actually sign off on any invocation of the privilege, 
all of which is new. And it would seem to me that that, I 
think, would deal with many of the concerns, if not all of the 
concerns, that have been raised. But, I mean, this is a fluid 
process. And to the extent that there are other ideas that you 
or other Members of the Committee have, I would be more than 
glad to listen to them, work with you and see if there are 
further changes that we need to make.
    Mr. Conyers. Well, thank you. And I am familiar with that 
new report. But look, many in the legal community don't think 
that it changes really very much, and we have got a lot more 
meeting to do and discussion, and I am glad you are open to it. 
Let me turn now to antitrust. Now, the antitrust division has 
been dormant for many years in my view. And the global 
corporations get larger and larger and larger. It works against 
our economy, it certainly takes jobs away from this country as 
badly as we need them. And I haven't seen one major case in 
which your Department has refused to approve a significant 
merger.
    Now, isn't there some way we can begin to review that? And 
I would like to be able to meet with you and others on this 
Committee that think we can make a good case that it is not 
good law, it is terrible for the economy, and that it would be 
the right thing to do to start refusing it. DOJ hasn't refused 
one merger.
    Attorney General Holder. Well, we have, I think, a very 
vigorous antitrust policy, we have got a great Assistant 
Attorney General, Christine Varney, who is the head of the 
antitrust division, and I think that she has, in fact, 
revitalized the work of the antitrust division. To the extent 
that proposed mergers have come before the antitrust division, 
they have oftentimes been approved, but approved with 
conditions that were required by the Department; changes in 
business practices, divestment of certain components in the 
business that it sought to merge. And I think that the way in 
which Christine is going about it, the men and women of the 
antitrust division are going about their enforcement activities 
is appropriate. Again, based only on the facts and law there 
are mergers that we presently have that we are in the process 
of considering. I can't talk about those. But in the 
examination of those proposed mergers, we will be vigorously 
enforcing the antitrust laws.
    Mr. Conyers. Thank you, Chairman Smith.
    Mr. Smith. Thank you, Mr. Conyers. The gentleman from 
Virginia, Mr. Goodlatte, is recognized for his questions.
    Mr. Goodlatte. Thank you, Mr. Chairman. And General Holder, 
thank you very much for coming to be with us today. A few weeks 
ago, Director Mueller testified before this Committee and 
highlighted the threat of cyber crime. Please let us know what 
measures the Department is currently taking to strengthen our 
Nation's cyber security.
    Attorney General Holder. Well, it is an issue that is a 
great concern to us in the Department. We have within our 
criminal division a computer crimes section that does a great 
deal of work dealing with issues that come before it. It has 
been publicly revealed about steps, enforcement steps, that we 
have taken with regard to a matter that was centered I guess in 
Connecticut with regard to I guess what we call botnets. The 
national security is potentially threatened by cyber issues. 
There is economic fraud that can be perpetrated through the use 
of cyber components. We work with the FBI and other agencies 
within the executive branch to try to deal with these cyber 
issues; child pornography, as was indicated before. A whole 
variety of things can happen.
    I mean, the cyber world can be such a positive force, but 
also the potential for great negative activity is there, and so 
we are very active in a variety of ways in dealing with these 
cyber issues.
    Mr. Goodlatte. Are there additional tools that the Congress 
can provide to the Department that would help you in this 
critical mission?
    Attorney General Holder. Well, I think that is actually a 
very good question, because the reality is that the cyber 
issues evolve. And what was state-of-the-art 6 months ago isn't 
state-of-the-art necessarily today. And to the extent that we 
can come before this Committee, work with Members of this 
Committee, in looking at the issues that we are confronting 
now, or that we expect that we will have to confront in 6 
months, a year from now, and make legislative requests, that 
would be certainly something that we would appreciate, and I 
would take advantage of that offer.
    Mr. Goodlatte. Well, thank you. And so I take it you would 
be willing to work with us to identify these additional tools 
and try to enhance our Nation's cyber security, as well as your 
ability to combat cyber crime?
    Attorney General Holder. Oh, absolutely, absolutely.
    Mr. Goodlatte. Another subject area I wanted to get into 
relates to intellectual property, which is a subset of cyber 
crime, if you will. There is a great interest on both sides of 
the Capitol in legislation to better protect the public by 
enhancing respect for intellectual property online.
    One of the proposals being considered has been to give the 
Department enhanced authority to petition Federal courts to 
block access to Web sites, many of which may be based outside 
the United States, which are dedicated to offering 
illegitimate, physical and digital goods to American consumers.
    In this regard, I wonder if you can address some key 
concerns. First, do you have suggestions for how this Committee 
can ensure that such new authorities are used often enough to 
serve as a meaningful deterrent to the scope of illicit online 
activity?
    Attorney General Holder. Well I think you are again right 
to identify that as an issue that is of legitimate concern. I 
went to Hong Kong and to China a few months ago and gave a 
speech in Hong Kong about this very issue. I raised with 
Chinese officials who I met with about the concerns that our 
government has with regard to these matters. To the extent that 
we can identify the need for new tools or to the extent that 
there is proposed legislation, we would want to work with you, 
look at that legislation, and see if, in fact, there are ways 
in which we can either pass it, modify it, but there are huge 
economic concerns, huge economic concerns around the issue that 
you have raised.
    Mr. Goodlatte. What protections does the law currently 
provide before the government can seize or seek forfeiture of a 
domain name? And are there any additional steps you believe are 
necessary to ensure that the constitutional requirements are 
met, that legitimate users of these domains are protected?
    Attorney General Holder. The difficulties there really are 
constitutional in nature. And to the extent that we can craft 
bills that allow the Department to seize domain names, to take 
other actions and do so in a constitutional way, that is 
something that I think we should explore. And we don't have all 
the answers in the Department with regard to how that 
legislation might be crafted.
    And so I think working with this Committee and, frankly, 
other Senators who have raised this issue as well, I think 
would be a wise use of our time.
    Mr. Goodlatte. And given that around 100 Web sites have 
been ordered seized by Federal courts under existing 
authorities, what's your best estimate of a number of Web sites 
you might expect the Department would be able to target on an 
annual basis if something along the lines of the existing law 
was enacted to reach sites that are wholly based outside our 
borders?
    Attorney General Holder. I don't know if I could give you a 
real good specific numerical estimate. But I can say that with 
different tools, given the nature of the threat that we face, 
that we would have substantially greater than the hundred or so 
that you have mentioned. If we had those additional tools, as I 
said, working with you to identify the tools that we need, and 
making sure that those tools are constitutional in nature would 
be of great use to the Department.
    Mr. Goodlatte. Thank you. Thank you, Mr. Chairman.
    Mr. Smith. Thank you, Mr. Goodlatte.
    The gentleman from Virginia, Mr. Scott, is recognized for 
his question.
    Mr. Scott. Thank you, Mr. Chairman. And welcome, Mr. 
Attorney General.
    In your prepared remarks you talked about the importance of 
all religions getting along. You are aware that then-Senator 
Obama, in Zanesville, Ohio, said that if you get a Federal 
grant, you can't use that grant money to proselytize to the 
people you help, and you can't discriminate against them or the 
people you hire on the basis of religion.
    Is it possible in this Administration today for someone to 
apply for a Federal grant and articulate an intention to 
discriminate against people of particular religions? For 
example, they don't want to hire Catholics, Jews, and Muslims; 
would they be entitled to run a Federal program?
    Attorney General Holder. Well, I want to say that we want 
to make sure that we partner with faith-based organizations in 
a way that is consistent with our values, in a way that's 
constitutional, and we will continue to evaluate any legal 
questions or concerns that are raised with regard to----
    Mr. Scott. Does that mean, yes, they can get a Federal 
grant and discriminate?
    Attorney General Holder. We don't want to be in a position 
where people are, in fact, getting Federal grants and 
discriminating.
    Mr. Scott. But you have at least one Administration 
official who has suggested that they are going to deal with 
discrimination on a, quote, case-by-case basis. What kind of 
cases would ``We don't hire Catholics, Jews, and Muslims'' be 
okay?
    Attorney General Holder. Obviously, that kind of situation 
would not be okay, would not be legally appropriate. It would 
be inconsistent with our values.
    Mr. Scott. Is it legal under this Administration?
    Attorney General Holder. It's not a question of it being 
legal under this Administration. It is a question of what the 
law says.
    Mr. Scott. Does this Administration provide grants to 
organizations that actively discriminate based on religion or 
not?
    Attorney General Holder. We don't want to do that. We try 
not to do that, but the question is, what----
    Mr. Scott. Wait a minute. Either you do or you don't. Do 
you not give grants to organizations that actively discriminate 
based on religion or not?
    Attorney General Holder. The attempt we make is not to do 
that. As I have indicated, our hope is that we do something--
the grants that we give are consistent with the law, but beyond 
that are consistent with our values.
    Mr. Scott. We don't have time to go into the legal memo of 
June 29, 2007. Could we give, could you for the record provide 
the Administration analysis of that legal counsel memo which 
essentially suggested that the Religious Freedom Restoration 
Act of 1993 provides a virtual exemption to statutory 
nondiscrimination provisions? Could you provide that to us for 
the record?
    Attorney General Holder. I'm sorry. Provide you----
    Mr. Scott. With whether or not the status of that policy 
and whether or not that legal counsel memo is still in effect. 
Could you provide that for the record?
    Attorney General Holder. As I understand it the memo is 
still in effect, as I understand it.
    Mr. Scott. That the Religious Freedom Restoration Act gives 
organizations a virtual exemption to statutory 
nondiscrimination provisions?
    Attorney General Holder. If you are talking about the 2007 
OLC world vision opinion?
    Mr. Scott. So if you are running a Head Start program, if 
they are running a Head Start program, they can discriminate. 
Even though there is a statutory provision prohibiting 
discrimination, they can discriminate anyway?
    Attorney General Holder. What I was saying was with regard 
to that specific OLC opinion, we are not in the process of 
reconsidering it. That is not something, as I understand it----
    Mr. Scott. I'm not talking about the memo, I'm talking 
about the policy. Can they discriminate, notwithstanding a 
specific statutory prohibition against discrimination, they can 
discriminate anyway based on that interpretation?
    Attorney General Holder. Obviously, discrimination cannot 
occur; that is, that contravenes Federal law.
    Mr. Scott. Well, let me ask a number of questions. My time 
is running out. Let me ask a number of questions just for the 
record since we don't have time for the answers.
    The Prison Rape Elimination Act regulations apparently 
overlooked juveniles prosecuted and jailed as adults. We want 
to work with you on making sure that they are covered.
    We also understand that the changes we made in the crack 
cocaine law are still not being applied for those who committed 
their crimes before the law went into effect. We need to know 
what changes need to be made since we have ascertained that 
those are unjust laws.
    We also want to ask you whether or not you believe poker is 
a game of chance or a game of skill, and whether or not the 
anti-gambling laws apply to poker as they would for roulette 
and other games like that.
    If I could get another 30 seconds, Mr. Chairman, just to 
ask the questions for the record, the news reports have talked 
about the compromise of a lot of identity information. 
Prosecution of identity theft and organized retail theft--not 
shoplifting--but organized, including E-fencing and everything 
else, are resource-intense activities. If you could give us an 
idea of what kinds of resources are needed to effectively 
combat identity theft, consumer identity theft and organized 
retail theft.
    Also, on reentry, your prepared remarks talked about the 
importance of reentry and that you are studying what works and 
what doesn't work. We know that a lot more applications are in 
than we have money to fund. And so we would like to know how 
that study is going, and also hope that you are going to 
continue to support the Federal Prison Industries, if you can 
give us a comment on that, that has shown to have a significant 
reduction on recidivism.
    Mr. Smith. The gentleman's time is expiring.
    Mr. Scott. And I appreciate the Chairman's indulgence.
    Attorney General Holder. I would be more than happy to 
answer all those questions except the one about whether poker 
is a game of chance or skill. That is beyond my capabilities.
    Mr. Smith. Thank you, Mr. Scott.
    The gentleman from California, Mr. Lungren, is recognized.
    Mr. Lungren. According to ESPN, it's a sport.
    Mr. Attorney General, in 1996 while I was Attorney General 
of California, we helped work with the Congress to pass the 
Antiterrorism and Effective Death Penalty Act. One of the 
things was to try and create incentives for States to improve 
their habeas corpus procedures and to allow an expedition of 
their consideration by Federal courts. Unfortunately, no court 
ever found any State to do that.
    So in 2005, we passed legislation which changed that 
responsibility for certifying a State from the courts to the 
Attorney General. You published draft regulations in March 
2011. The comments on the draft are due June 2011. I would hope 
that I could have your commitment that we will move on this, 
since this goes all the way back to 1996.
    Attorney General Holder. Yeah. I mean, we have tried to 
move this as quickly as we can.
    Mr. Lungren. As long as I have your commitment, that's all 
I need. I would just say that with respect to DOMA, it would 
have been helpful if the President of the United States, as a 
former constitutional law professor during the time he was 
running for President, would have indicated that he had some 
constitutional questions about the DOMA when he was going 
around the country saying that he believes that marriage is 
between one man and one woman. These newfound understandings of 
the Constitution after one is elected are somewhat troubling, 
and particularly when it goes to the question of defending a 
law that was duly passed by the Congress and signed by a 
President.
    Mr. Attorney General, do you support and approve the action 
the President and the U.S. military took in going to Pakistan, 
killing Osama bin Laden and taking his body?
    Attorney General Holder. I think that the acts that we took 
were both lawful, legitimate, and appropriate in every way. The 
people who were responsible for that action, both in the 
decision making and the effecting of that decision, handled 
themselves I think quite well.
    Mr. Lungren. Can you tell us for the public record whether 
we can therefore be assured that any intelligence which led to 
this capture and killing of Osama bin Laden was not the result 
of enhanced interrogation techniques?
    Attorney General Holder. Well I think, as has been 
indicated by other Administration spokesmen, there was a mosaic 
of sources that led to the identification of the people who led 
to bin Laden.
    Mr. Lungren. I understand that. But were any pieces of that 
mosaic a result of enhanced interrogation techniques?
    Attorney General Holder. I do not know.
    Mr. Lungren. If that were the case, would that have made 
the action we took against Osama bin Laden illegal?
    Attorney General Holder. No. I think that in terms of the 
attenuation to the extent that--let's assume that that were 
true--those acts might have been problematic and the action 
that was taken just 2 days ago I think was sufficiently long, 
so that the action would still be considered legal.
    Mr. Lungren. Could we have used the same tactics against 
Khalid Sheikh Mohammed when we captured him in Pakistan as we 
did against Osama bin Laden? Would that have been lawful?
    Attorney General Holder. Could we have----
    Mr. Lungren. Used the same tactics against Khalid Sheikh 
Mohammed when we captured him in Pakistan as we did against 
Osama bin Laden? That is, killed him rather than capture.
    Attorney General Holder. The aim with regard to bin Laden 
was to kill or capture him. I would think that with regard to 
Khalid Sheikh Mohammed, we could probably apply those same 
standards of kill or capture. We had the ability to capture him 
as opposed to kill him.
    Mr. Lungren. Does it seem in some ways inconsistent or a 
difficulty for moral relevance to say that it is per se so 
shocks the conscience that one would subject Khalid Sheikh 
Mohammed to waterboarding, but it would not shock the 
conscience to put a bullet in his brain?
    Attorney General Holder. One has to take into account a 
whole variety of things and when you are on the scene, you want 
to get the person who you are trying to capture, but you also 
have to make sure that you are protecting the lives of the 
people who are on our side and who put themselves at risk. And 
it is for that reason that there is a safety component there 
and the kill-or-capture component raises itself in a way that 
it would not when it comes to the interrogation of Khalid 
Sheikh Mohammed or somebody else.
    Mr. Lungren. Since you opposed a military commission trial 
for Khalid Sheikh Mohammed, would you have opposed a commission 
trial for Osama bin Laden had he been captured and not killed?
    Attorney General Holder. Well, that is a hypothetical. I'm 
not sure that it is particularly relevant.
    Mr. Lungren. Well, you have taken a strong position against 
military commissions. And the reluctance that you showed toward 
closing Guantanamo, you issued a rather strong statement about 
your disappointment with the Congress with respect to both our 
efforts to keep Guantanamo open and our efforts to have 
military tribunals. So I think it is an appropriate question to 
ask you whether or not, since you opposed a military trial for 
Khalid Sheikh Mohammed, whether you would have opposed a 
military trial for Osama bin Laden and rather given him the 
protections of a civilian trial?
    Attorney General Holder. Well, my position is oftentimes 
mischaracterized. And on the same day that I indicated that it 
made sense--tactical sense to put Khalid Sheikh Mohammed in a 
civilian court, I sent five or six other cases to military 
tribunals, military commissions. I don't have a problem with 
the military commissions. But the decision that I made in the 
Khalid Sheikh Mohammed case was based on my review of the 
facts, the evidence, and tactical decisions, tactical decisions 
that no Member of Congress had the ability to see, that I did.
    Mr. Lungren. So it is tactical rather than civilian courts 
being the one that can uphold the constitutional notions of 
fair play as opposed to a military tribunal?
    Attorney General Holder. I think our military commissions, 
in fact, especially since they have been modified, are 
constitutional and can give fair trials. But the decision with 
regard to Khalid Sheikh Mohammed dealt with a whole variety of 
things that I uniquely had access to, and that's why I made 
that decision and why I have been so vehement in my comments 
about what I think is an inappropriate and wrong decision by 
Congress to block our ability to try the case in that form.
    Mr. Lungren. Thank you, Mr. Chairman.
    Mr. Smith. Thank you, Mr. Lungren.
    The gentleman from North Carolina, Mr. Watt, is recognized 
for his questions.
    Mr. Watt. Thank you, Mr. Chairman. Welcome, Attorney 
General Holder.
    I'm going to submit with--if I can get unanimous consent, a 
copy of a letter I received from the Attorney General for North 
Carolina, asking me about funding for the elimination of meth 
lab cleanup. You may not have the information at your hand; but 
if you could, just let me know what the basis was for the U.S. 
DEA halting all funding across the country for meth lab 
hazardous waste cleanup. Apparently it's having substantial 
adverse impact not only in North Carolina but throughout the 
country, and it would be helpful to know why they stopped that 
funding.
    I ask unanimous consent to submit a copy of a letter and I 
will give----
    Mr. Smith. Without objection, the letter will be made a 
part of the record.
    [The information referred to follows:]
    

    
                               __________

    Mr. Watt. In August of 2010, after a joint working group of 
antitrust and FTC economists and senior attorneys and public 
workshops and comment opportunities, the Department of Justice 
made a substantial revision to its horizontal merger 
guidelines.
    Let me ask you three questions and then I'll just give you 
the rest of the time to respond, to the extent you can, and if 
you don't have time maybe you could provide written responses.
    First of all, could you briefly explain the impetus for the 
revisions and describe generally what the Department hoped to 
achieve in making the changes?
    Second, could you highlight some of the most significant 
changes made to the guidelines, and briefly assess the impact 
these changes have had on recent merger reviews?
    And third, what role, if any, did the new guidelines have 
in the Department's analysis of the merger between Google and 
ITA in particular; and if there are other mergers that these 
guidelines were significant in, I would like to have your 
response, probably in writing, to the last question.
    But if you could respond briefly to the first two questions 
that would be helpful.
    Attorney General Holder. I think what I would like to do is 
be able to give you a more detailed response in writing, but to 
say that the changes that we made that were done under the 
leadership of our Assistant Attorney General Christine Varney 
were all designed to make the Department's enforcement efforts 
more effective, to revivify the antitrust division, and to 
ensure that as we look at matters we have the tools that we 
need and that those tools are transparent, so that people 
understand where the Department is coming from, that people 
have some degree of certainty they can understand how things 
have to be structured. All, as I said, with the aim toward 
making the enforcement of our antitrust laws as effective as we 
can and we are as aggressive as we can.
    With regard to the specific questions that you have asked, 
we will get you something in writing.*
---------------------------------------------------------------------------
    *As of September 10, 2012, Mr. Watt nor the Committee had received 
a response from the Dept. of Justice.
---------------------------------------------------------------------------
    Mr. Watt. Is it likely that this new approach is going to 
make it less likely--it seems to me that you are moving toward 
a more compromised approach, as opposed to an enforcement 
approach, of saying this violates the antitrust laws; 
therefore, we will not approve it.
    And am I misreading that or--and I think that may be the 
discomfort that Mr. Conyers was raising earlier, that there 
have been no disapprovals, not that we are looking for 
disapprovals--is this a shift in poll policy in the Department, 
I guess, is a better question.
    Attorney General Holder. To the extent that you are 
concerned or others are concerned that we are somehow stepping 
back from being aggressive in the enforcement of the antitrust 
laws, I want to put your minds at ease. That is not what we are 
attempting to do. In fact, we take these cases and examine them 
one by one, as we have to. And as I think I indicated to Mr. 
Conyers with regard to the decisions that have been made, we 
have oftentimes required things of the parties before the 
mergers were approved. The fact that there has not been one 
that has been rejected, I would have to look to make sure that 
is accurate. Let's assume that that is true; that is not an 
indication that there is any timidity on the part of the 
antitrust division, the Justice Department, to enforce the 
antitrust laws, or any indication going forward, some of the 
more high-profile ones that we are now in the process of 
considering, might not pass muster.
    Mr. Watt. Thank you, Mr. Chairman.
    Mr. Smith. Thank you, Mr. Watt.
    The gentleman from Ohio, Mr. Chabot, is recognized.
    Mr. Chabot. Thank you, Mr. Chairman.
    Mr. Attorney General, I would like to comment on the 
gentleman from Virginia, Mr. Scott, whom I agree with on one of 
the few issues I think we agree on: the importance of the 
Federal Prison Industries. And I would encourage you to look 
into that matter.
    I think it's an important program. I think once we have 
people locked up--at this level, it is Federal prisons, I have 
dealt with them at the local level as well--I think we ought to 
make sure we are utilizing those resources, and most of them 
are going to be out in the street someday, and to the extent 
that they can get job skills and improve themselves so that 
when they are back out, some at least can become productive 
citizens. I think that is very important.
    Let me move to an entirely different topic, then, and that 
is Guantanamo Bay, or Gitmo. I have been there three times. The 
first time I was there was shortly after it opened. It was 
about 9 years ago, not much to it at the time; that's where we, 
of course, held the detainees or terrorists or enemy 
combatants, whatever terminology one prefers to use now, or 
even back then, most of them captured in Afghanistan. And the 
reason, of course, we set up Gitmo is we needed a safe and 
secure place to keep the most dangerous people, essentially the 
worst of the worst, the terrorists, most of them, and the goal 
was not to do it on U.S. soil. And at that time they were at 
Camp X-ray within Guantanamo Bay. It really wasn't much more 
than a bunch of cages out there and I think a great disservice 
was done when we had initial photographs and they had bags over 
their heads and they were kneeling and the impression, the 
wrong impression, was given that that's the way we kept them 
all the time. And the world press pretty much went wild and it 
was, I think, a blow to the stature of the United States around 
the world because that's not how these prisoners are treated 
for the most part. At its zenith--and I was there the second 
time about 5 years ago, and then most recently about 1 month 
ago, and so I have seen it pretty recently and through the 
whole process.
    At its height we had somewhere around 800 detainees is what 
my information is there. We are now down to about 172. A number 
of them have been transferred back to the countries of their 
origin. In some cases, the countries didn't want them back, and 
we tended to try to give back the folks that we thought were 
least dangerous to the country. But even at that, the record 
shows that about 25 percent have taken up arms again against 
the United States or some other country, essentially, so one 
out of four have become terrorists again. And that to me is 
very disturbing.
    And they are treated--there is a lot of allegations out 
there about how terribly they are treated; for example, the 
waterboarding. First of all, the waterboarding that's out 
there, this did not occur at Guantanamo Bay; is that a fact, 
Mr. Attorney General?
    Attorney General Holder. I think that is correct.
    Mr. Chabot. So no waterboarding there. So first of all, 
when we hear that term and we have an equivalent that it's 
torture, people can think what they think, but the definition 
is it is not torture, but it didn't happen at Guantanamo Bay, 
and I think that is an important point to make. When prisoners 
are there, they probably eat better than they have in their 
lives, get the same medical treatment that our own soldiers 
get, they have cable TV, 22 channels, exercise equipment, a 
Koran, a prayer rug, clothing, access to legal care, among 
other things. Would that be accurate, sir?
    Attorney General Holder. I don't know about all the 
specifics. I was in Guantanamo shortly after I became Attorney 
General. And it is a place that I think treats people as they 
should be treated. I don't know about all the details that you 
have just gone through.
    Mr. Chabot. And there is a separate section and it's 
classified, so I can't go into a lot of this. But there's about 
20 people there. The worst of the worst is Khalid Sheikh 
Mohammed. But I think our men and women in uniform have been 
really disparaged unfairly, and these are quality people who 
have handled a tough job with great professionalism and 
restraint. Are you familiar with the term a Gitmo cocktail?
    Attorney General Holder. A Gitmo cocktail? I think I know 
what that is.
    Mr. Chabot. Yes. And it is what you think it is. It's fecal 
matter and other pretty horrific things that get thrown by 
prisoners at our guards, and even under those circumstances 
there's an awful lot of restraint that is handled there. But I 
know this is one thing where I agree with the Administration 
now, where they have changed their opinion about closing down 
Gitmo and also bring those people back here to the United 
States. There's absolutely--that was a terrible idea, sir, to 
bring them to the United States and try them here; to have the 
anti-American vile mindset of some of these radical jihadists 
spread among the prisoners in our Federal prisons, and that's 
where they ought to be tried. We shouldn't give people an 
opportunity--can I have 30 seconds Mr. Chairman?
    Mr. Smith. The gentleman is recognized for an additional 30 
seconds, without objection.
    Mr. Chabot. Thank you. To give a master propagandist like 
Khalid Sheikh Mohammed a soapbox to spew that anti-American 
venom around the world is just not the way to go. So I commend 
you for bringing them back here now--excuse me--for keeping 
them at Gitmo. We also built a $16 million court facility there 
that was virtually unused. And so now it is going to be used, 
and should be, and full speed ahead with that. Thank you.
    Mr. Smith. Thank you, Mr. Chabot.
    The gentlewoman from California, Ms. Lofgren, is recognized 
for her questions.
    Ms. Lofgren. Thank you, Mr. Chairman.
    And thank you, Mr. Attorney General, for being here today. 
A couple of years ago the Immigration Subcommittee held a 
hearing on ICE's raid of a meatpacking plant in Postville, 
Iowa. And the factory workers there were literally rounded up 
and herded into a cattle area and then figuratively treated 
like cattle. They had group hearings with shared counsel, no 
translation services, and very questionable guilty pleas and 
prison time.
    Judge Mark Bennett who sentenced a number of the immigrants 
said this about that proceeding: ``I found the plea agreement 
[that the immigrants were asked to sign] personally and 
professionally to be offensive, and I thought it was a 
travesty, and I was embarrassed to be a United States District 
judge that day.''
    Now that was then, this is now. One way to look at these 
prosecutions is the impact in terms of due process rights and 
our adherence to law as to the defendants. Another way to look 
at it is how are we using our resources. I've had my--the 
attorneys on the Subcommittee--take a look at the data, and I 
understand that illegal reentry after deportation is now the 
most prosecuted Federal felony in the United States, and that 
misdemeanor prosecutions of immigration offenses in border 
districts has tripled from 2007 to 2010, and that these 
prosecution decisions--making reentry felony prosecutions the 
most commonly prosecuted felony, Federal felony--has come at 
the expense of prosecuting other crimes, and nonimmigration 
felony prosecutions in nonborder districts have declined 6 to 8 
percent in the same time frame.
    Now I raise this because many of us when we go home every 
week, get this question from our constituents: As far as we can 
tell, the Department has not brought a single prosecution of a 
high-ranking Wall Street executive or major financial firm in 
the wake of the Wall Street scandals that contributed to the 
global economic crisis. So it looks to me that the Department 
is spending its resources prosecuting nannies and busboys who 
are trying to get back to their families, illegally reentering, 
and yet we have not brought any prosecutions on the bandits on 
Wall Street who brought the Nation and the world to the brink 
of financial disaster.
    Could you explain these priorities, Mr. Attorney General?
    Attorney General Holder. Well, there's a lot packed into 
that question. The fact that there are so many prosecutions 
along the border is an indication of the nature of the problem 
that we confront. This Administration has always stood for a 
comprehensive approach to----
    Ms. Lofgren. No. No. No. I would like to know about the 
lack of Wall Street prosecutions.
    Attorney General Holder. All right. I was just dealing with 
some things that you said. The fact that we have these 
prosecutions on the border is not any indication that we are 
not taking the Wall Street potential offenses seriously. We 
have prosecuted a great many cases that deal with fraud with 
regard to the mortgage area, with regard to financial schemes.
    A case was brought, just decided in the last couple of 
weeks, a $3 billion fraud scheme that involved Colonial Bank, 
Mr. Lee Farkus. The Department is looking right now at the 
report prepared by Senator Levin's Subcommittee that deals with 
Goldman Sachs. People have to disabuse themselves of the notion 
that somehow or other this Department of Justice, the 
prosecutors who look at these cases, don't want to bring these 
cases. They come to the Department of Justice to look at 
matters like this to apply the law, look at the facts, and to 
bring these cases. We are extremely aggressive in that way.
    Ms. Lofgren. May I ask how many investigators and U.S. 
Attorneys are assigned to the prosecution of executives on Wall 
Street who may have committed misconduct?
    Attorney General Holder. I can't give you an exact number. 
But I can tell you that a substantial number of people in the 
Southern District of New York, as well as the criminal division 
here in Washington, numerous FBI agents----
    Ms. Lofgren. Maybe we can get that number after this 
hearing.
    I would like to turn to the whole mortgage industry. There 
was tremendous misconduct undertaken relative to the mortgage 
industries, including fraud. And as you are aware, I am sure, 
all 50 attorneys general have engaged in settlement discussions 
with banks about their misconduct. Recently the Comptroller of 
the Currency released a draft cease-and-desist order which one 
expert described as the regulatory equivalent of a Potemkin 
Village.
    I'm wondering if you could tell us--I understand the 
Department is also engaged in the negotiations--what should the 
top priorities for a global settlement of legal claims against 
the servicing industry include? Do you concur with the 
attorneys general's outlined settlement, or do you have a 
different approach?
    Attorney General Holder. Well, I'm not sure you can say 
that the attorneys general are a model. They have a variety of 
approaches. Tom Perrelli, who is the Associate Attorney 
General, is intimately involved in that process, and we are 
trying to work with the financial institutions as well as the 
State attorneys general to try to work our way through an 
appropriate settlement.
    Ms. Lofgren. Well, they have a framework and I'm just 
wondering if you agree with that framework or not.
    Attorney General Holder. Well, there is a framework. But 
there are still a whole bunch of different views, believe me. 
There's a stated framework. But in terms of the interaction 
that goes on in these negotiations, there are a variety of 
positions that we are trying to harmonize and trying to work 
with the financial institutions to reach a conclusion.
    Ms. Lofgren. If I could ask for unanimous consent for 30 
seconds, Mr. Chairman. Could you tell us if the----
    Mr. Smith. The gentlewoman is recognized for an additional 
30 seconds.
    Ms. Lofgren [continuing]. If the settlement discussions 
fail, are you prepared to prosecute these institutions, since 
that is the basis for the settlement discussions?
    Attorney General Holder. If the negotiations fail, if there 
is a basis for prosecutions, we will bring them.
    Ms. Lofgren. Thank you, Mr. Chairman.
    Mr. Smith. Thank you Ms. Lofgren.
    The gentleman from California, Mr. Issa, is recognized for 
his questions.
    Mr. Issa. Thank you, Mr. Chairman.
    Mr. Attorney General, I would like to thank you for the 
work that the U.S. attorney Laura Duffy is doing in San Diego 
going after coyotes, going after gun traffickers at the border. 
The work in my border district area of making our city safer, 
because the crime in Mexico often stops at the border, because 
her work and willingness to prosecute human traffickers and gun 
traffickers is very much appreciated. So just so you hear two 
sides of the California story for a moment.
    Mr. Attorney General, we have two Border Patrol agents who 
are dead, who were killed by guns that were allowed, as far as 
we can tell, to deliberately walk out of gun shops under the 
program often called ``Fast and Furious.'' This program, as you 
know--and the President has been asked about it, and you have 
been asked about it--allowed for weapons to be sold to straw 
purchasers, and ultimately many of those weapons are today in 
the hands of drug cartels and other criminals.
    When did you first know about the program officially, I 
believe, called ``Fast and Furious''? To the best of your 
knowledge, what date?
    Attorney General Holder. I'm not sure of the exact date but 
I probably heard about Fast and Furious for the first time over 
the last few weeks.
    Mr. Issa. Now that you have been briefed on it, the 
President has said on March 22 that you didn't authorize it. 
Did your Deputy Attorney General James Cole authorize it?
    Attorney General Holder. I'm sorry, did the----
    Mr. Issa. The Deputy Attorney General, James Cole----
    Attorney General Holder. Did he--I didn't hear. Did he----
    Mr. Issa. Did the Deputy Attorney General authorize it?
    Attorney General Holder. My guess would be no. Mr. Cole, I 
don't think was in the Department at the time that operation 
started.
    Mr. Issa. But he has been aware of it much longer.
    Attorney General Holder. Been aware of it much longer?
    Mr. Issa. Than you have, since you have only been aware of 
it a few weeks. How about the head of the criminal division, 
Lanny Breuer, did he authorize it?
    Attorney General Holder. I'm not sure whether Mr. Breuer 
authorized it. You have to understand the way in which the 
Department operates although their operations--this one has 
gotten a great deal of publicity.
    Mr. Issa. Yeah, there are dead Americans as a result of 
this failed and reckless program. So I would say that it hasn't 
gotten enough attention, has it, Mr. Attorney General?
    Attorney General Holder. Not necessarily. There's an 
investigation that is underway----
    Mr. Issa. I'm aware of that investigation. Let me follow up 
with a couple of questions.
    Attorney General Holder. We will have to look at that to 
see exactly what happened with regard to that----
    Mr. Issa. Mr. Attorney General----
    Attorney General Holder. I take very seriously the 
allegations----
    Mr. Issa. Mr. Attorney General, do you take seriously a 
subpoena signed by the Clerk of the House?
    Attorney General Holder. Of course.
    Mr. Issa. After 14 days waiting for a letter to be signed 
or acknowledged or responded to, we sent a subpoena signed by 
the Clerk of the House. Thirty-two days later, last night, your 
people responded by giving us 92 pages, representing three 
documents that were public records already, all are available, 
and saying that the other 400 or so responsive pages were not 
going to be produced. Do you stand by that? And were you aware 
of that?
    Attorney General Holder. I think we indicated that the 
other 400 pages would be made available for review, to be 
accurate, I think. So those in essence were being made 
available as well.
    Mr. Issa. And that took 32 days to get that answer.
    Attorney General Holder. The information was gathered as 
quickly as it could. I have taken steps to enhance our ability 
to to respond to subpoenas and document requests in that 
regard. I was not satisfied with the pace at which these things 
were happening. And as I said, I have taken some steps to make 
sure that we are more responsive.
    Mr. Issa. Mr. Attorney General, do you agree that Congress 
has an independent responsibility, particularly when U.S. 
persons have been killed because of a failed and reckless 
program, to investigate those who authorized, approved, knew 
about it, and in some other way were responsible for it?
    Attorney General Holder. As I indicated to you last night 
when we spoke about this at the White House, I think there is a 
legitimate oversight responsibility that Congress has. But I 
think also Congress has to use that oversight responsibility in 
a responsible way. We have cases, 20 matters, that will go to 
trial in June of this year----
    Mr. Issa. Mr. Attorney General, isn't it true that those 
cases that will go to trial in June--I have very limited time, 
I'm sorry--those cases are basically a bunch of meth addicts 
who did the buying, that you do not have what this program was 
supposed to produce, you don't have the kingpins, you don't 
have the places it went. What you have are the people that you 
already had on videotape, many many months before indictments 
were brought. Isn't this true?
    Attorney General Holder. There are cases that are important 
that we are trying to bring, that we want to try successfully, 
and they are part of a scheme. You can't look at a case as an 
individual matter and think it is unimportant, because small 
cases lead to larger ones. And that's why it's important----
    Mr. Issa. I would ask unanimous consent for an additional 
30 seconds.
    Attorney General Holder. That's why these cases are 
important, and that is why----
    Mr. Smith. Without objection, the gentleman is recognized 
for an additional 30 seconds.
    Mr. Issa. Mr. Attorney General, my final question, though, 
is from what you are saying about a scheme and so on, do you 
stand by this program; in other words--and it's not a 
hypothetical, really--if you knew this program, knew about this 
program 90 days ago, 180 days ago, would you have allowed it to 
continue? And if not, then what are you going to do about the 
people who did know and allowed it to continue?
    Attorney General Holder. Well, what I have told people in 
the Department of Justice is that under no circumstances in any 
case, that any investigation that we bring, should guns be 
allowed to be distributed in an uncontrolled manner.
    Mr. Issa. So that would be consistent with the March 9 
letter from Deputy Attorney General James Cole in which he said 
that we should not design or conduct undercover operations 
which include guns crossing the border; if we have knowledge 
that guns are about to cross the border, we must take immediate 
action to stop the firearms from crossing the border and so on. 
That's your policy today.
    Attorney General Holder. That is our policy. That has 
certainly been the policy that I have tried to impose since I 
was Attorney General.
    Mr. Issa. And isn't Fast and Furious inconsistent with that 
policy?
    Attorney General Holder. Well that's one of the questions 
that we'll have to see, whether or not Fast and Furious was 
conducted in a way that's consistent with what Jim wrote there, 
what I have said today, and that's what the Inspector General 
is, in fact, looking at.
    Mr. Issa. And will you agree to work with both this 
Committee, of course, and the other Committee investigating 
this as to--we're not looking at the straw buyers, Mr. Attorney 
General, we're looking at you, straw purchasers; we're looking 
at you, we're looking at your key people who knew or should 
have known about this, and whether or not your judgment was 
consistent with good practices and whether or not, instead, the 
Justice Department is basically guilty of allowing weapons to 
kill Americans and Mexicans.
    So will you agree to cooperate with that investigation both 
on the House and Senate side?
    Attorney General Holder. We'll certainly cooperate with all 
the investigations, but I'm going to take great exception to 
what you just said. The notion that somehow or other this 
Justice Department is responsible for those deaths that you 
mentioned, that assertion is offensive. And I want to tell 
you----
    Mr. Issa. But what if it's accurate, Mr. Attorney General?
    Attorney General Holder [continuing]. That it is the policy 
of the Justice Department to make sure that we do all that we 
can to protect law enforcement agents. It is one of the reasons 
why I have tried to look at a whole variety of methods, 
techniques that we can use to protect the lives of law 
enforcement agents. It is something that this country is not 
focused enough on.
    Over the last 2 years, the rate at which our people in law 
enforcement have been killed has risen about----
    Mr. Issa. What am I going to tell Agent Terry's mother 
about how he died at the hand of a gun that was videotaped as 
it was sold to a straw purchaser fully expecting it to end up 
in the hands of drug cartels?
    Attorney General Holder. We'll have to see exactly what 
happened with regard to the guns that are at issue there. And I 
have attended funerals. This is something that isn't 
theoretical, this is not political, this is extremely real for 
me as Attorney General.
    Mr. Issa. It is for us, too. I thank the gentleman.
    Mr. Smith. The gentleman's time has expired.
    Attorney General Holder. I have had to look into the eyes 
of widows, of mothers who have have lost sons. I have felt 
their pain. And the notion that somehow, some way, we are less 
than vigilant, less than strong in our determination to keep 
the people who put their lives on the line every day to protect 
the American people, that we're not doing all that we can to 
protect them is inconsistent with the facts, inconsistent with 
the people who serve in the Department of Justice.
    Mr. Smith. Thank you, Mr. Attorney General.
    The gentlewoman from Texas, Ms. Jackson Lee, is recognized 
for her questions.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    Mr. Attorney General, I consider these opportunities a 
chance for us to work as a team. We are, in fact, a team. I 
have been privileged to serve on this Committee since being 
elected to the United States Congress. And it is an honor 
because we hold in our hands, as you do, the lives of Americans 
as it relates to the laws of this land.
    First of all, I too want to add my appreciation for what I 
know was a combined effort on the capturing and, of course, the 
ending of the evil actions of Osama bin Laden. Obviously the 
intelligence and various law enforcement officers, certainly 
the CIA at the lead, certainly had over the years a 
longstanding effort. And I thank you, the expanded team and 
President Barack Obama, and it should be said over and over 
again. I thank you also for the very astute team, legal talent, 
that you have combined under your leadership at the DOJ. And 
what I would like to see most of all is our enhanced 
cooperation. We have worked together in the past.
    And I have a series of questions, some of which I want to 
have answers. But I would really like you to, say, be in touch 
with--and that person, please have them be in touch with me in 
my office. Some of these require a detailed answer.
    You may not have had the details. I associate myself with 
Congresswoman Wasserman Schultz on the Rubashkin case, Rabbi 
Solomon Sholom Rubashkin, excuse me. And I think we can talk 
about this very briefly only because this person has been 
convicted and has been sentenced for 27 years. It is a 
nonviolent crime, first offender, they have eight or seven or 
nine children, maybe ten children, and they have been 
disallowed bail while they're on appeal, I think on the basis 
of an issue of a flight risk.
    I would ask for a review of this case on the basis of the 
potential of bail. And I need to work with someone on that. 
I've given you the parameters and I don't want to engage, and I 
want to do it not as interfering in a prosecution which is 
already done, it's the question of a bail.
    The second question very quickly is regarding the 
communication management units, 60 to 70 individuals are in it, 
two-thirds are Muslims, it is a very harsh unit. A story was 
told us by Sara Joyyousi, that was her dad, no communication 
with his children. I'd like to know what your thoughts are 
about the practices surrounding CMUs and whether or not they 
are extremely harsh in light of the population. It seems to me 
that that needs to be someone getting back to me, if you would, 
and that is on the CMUs.
    The IRS criminal division, we have had a lot of colorful 
stores about actors and others, but it's serious when it comes 
to our neighbors and friends. I would like to meet with the 
IRS, DOJ, IRS or individual dealing with the ability to resolve 
what seems to be innocent cases, meaning bad facts, payroll 
taxes--I know sends horns out of our head--but individuals who 
have been in small business, who have had some mishaps in their 
health and they are now caught up in this system. I really 
think we're better than this. And I really think the Justice 
Department is better than this. And I think we have the 
latitude, as a barred lawyer, as someone who has a license, I'm 
certainly aware of ex parte contacts, but I would be very 
interested in having that opportunity. On those three, would 
you be able to let me work with individuals under your staff?
    Attorney General Holder. We will try to certainly look at 
the requests that you have made and get information back to 
you.
    Ms. Jackson Lee. I would greatly appreciate that, 
particularly on Rabbi Rubashkin and why he cannot have a bail.
    Let me go now to the ATF situation. We had a report by the 
OIG that indicated that the greater guns, that long guns have a 
shorter time to crime than handguns in Mexico. We know that the 
ATF has no permanent director. But I believe that, as the OIG 
has said, that ATF needs to have reporting responsibility and 
be able to get data and be able to have more enforcement 
opportunities of these AK-47s that are killing people on both 
sides of the border with these horrible drug cartels. What is 
your answer to that?
    Attorney General Holder. Well, we have certainly proposed 
that with regard to long guns along the border with one to four 
States, that there be a reporting requirement if somebody buys 
two long guns over the space of 5 days that are larger than 22-
caliber, if they are semi-automatic, and if they have 
detachable magazines. It's a proposal that OMB is in the 
process----
    Ms. Jackson Lee. So we are working on that. I have a short 
period of time, and I will pursue it further with you. I would 
like to see that happen.
    Specifically with respect to Harris County, I have a whole 
series of questions, but I will get on and ask them in writing. 
We submitted to the Justice Department a police brutality tape 
regarding Chad Holy and have asked for the Justice Department 
to investigate. We have heard nothing from that. We have heard 
announcements from Seattle and Miami, Florida, and nothing from 
Houston, Texas. I also need to have a status report, I would 
like your answer on this, status reports on the question of the 
Harris County jail. You issued a report that there were 
constitutional violations. The question is: What has been the 
oversight of the Department of Justice and have they completed?
    I also want to ask the question--I would ask for an 
additional 30 seconds so you can answer this--the issue of the 
ContinentalUnited merger that is finished. I want to thank your 
assistant attorney general for antitrust for a very open 
discussion. But I would like to know whether there is a follow-
up and whether or not we need to strengthen the Clayton Act's 
section 7A for the Justice Department, because we frankly feel 
there is no oversight.
    Could you answer the question about the brutality case, 
excessive force and why there has not been a response, and 
including that in a police brutality situation? And then what 
is the status of the Harris County jail?
    Attorney General Holder. We will try to get you answers to 
all of those questions and I might ask for a budgetary 
increase, given the nature of all of the things you have now 
put on our plate. But we will get you answers to all----
    Ms. Jackson Lee. Well I can say, Mr. Attorney General, I am 
one of your strongest advocates and supporters, and so I expect 
no less from you. And as relates to budgets, you can be sure 
that Sheila Jackson Lee will not be asking to cut the COPS 
budget of 600 million. You might want to answer whether that 
will hurt you. Or the FBI at 83 million. Anything that I will 
be doing will be increasing the funding for the Department of 
Justice, because I believe in what you do both in terms of your 
juvenile division and your civil rights division.
    And if I could add one more thing, I need to understand 
what you're doing with respect to redistricting and the 
oversight over the numbers of cases that will be coming forward 
and the involvement of the Department of Justice.
    Attorney General Holder. We will certainly answer all those 
questions. I was kidding you, but you have been a big supporter 
of the Department, and for that we are very thankful 
institutionally, and I thank you very personally for all the 
support you've given me over the years.
    Ms. Jackson Lee. I will add amendments so that you can get 
more money on this appropriation. I'm sure Chairman Smith will 
support me on those amendments and greater funding for the 
Department of Justice.
    Mr. Smith. Thank you, Ms. Jackson Lee.
    Ms. Jackson Lee. Thanks. I yield back.
    Mr. Smith. The gentleman from Virginia, Mr. Forbes, is 
recognized.
    Mr. Forbes. Thank you, Mr. Chairman. And Mr. Attorney 
General, thank you for being here.
    Forgive me for talking quickly but I only have 5 minutes. I 
want to begin, I was interested that the Ranking Member 
deferred his questions at the beginning today to the head of 
the Democratic National Committee who asked two questions, one 
relating to gas prices and the other child pornography. So I 
would like to pick up on these two questions.
    The first one on gas prices was this: The indication was 
that somehow this spike-up is a result of illegal activity by 
major oil companies in terms of either price gouging or illegal 
influence in the market. Six months before the Administration 
came into office in July of 2008, it was the highest spike we 
had, $4.11. The President talked about it in the campaign; the 
Administration came in concerned about energy and the price of 
gas at the pump.
    In the last 2\1/2\ years since you've been in office, can 
you tell us what evidence you have uncovered that you can 
present to the Committee today that the prices at the pump have 
been affected by illegal activities of major oil companies in 
terms of price gouging or illegal influences on the market?
    Attorney General Holder. Well, the purpose of the task 
force will be to examine----
    Mr. Forbes. I'm sorry to interrupt you. I'm talking about 
evidence that you currently have, not task forces or studies. 
But in 2\1/2\ years, have you uncovered any evidence that you 
can present to this Committee today of such activities?
    Attorney General Holder. I'm not prepared to present them 
at this point. But what we tried to with the task force----
    Mr. Forbes. So you don't have any to present to us today. 
Have you made any prosecutions?
    Attorney General Holder. But the task force would look at 
all this stuff and see what has happened over the course of 
time----
    Mr. Forbes. When did you set up the task force, Mr. 
Attorney General?
    Attorney General Holder. The task force was constituted 
over the last couple weeks.
    Mr. Forbes. Last couple of weeks. So we have had 2\1/2\ 
years, knew these concerns were there, and except for the last 
2\1/2\ weeks you've done nothing to ascertain if we have any 
such evidence, and you have none to present to the Committee 
today?
    Attorney General Holder. Well, given the situation that we 
are now confronting that is relatively recent in terms of the 
recent price hikes that we have seen----
    Mr. Forbes. But we knew, Mr. Attorney General, in July it 
was higher. Today it's 3.9 per gallon, it was $4.11 then. No 
prosecutions, no recommendations of any changes to the law from 
anything you have found out in the last 2\1/2\ years.
    Let me skip that and go to the pornography issue.
    Do you believe that there's any connection, we've talked 
about child pornography, do you believe there's any connection 
between hard-core adult pornography and child pornography, 
human trafficking, violence to women and sexually violent 
behavior?
    Attorney General Holder. There are a number of things that 
you have put together there, and there are relationships 
between certainly some of them. And we have certainly tried to 
look at those violence against women issues.
    Mr. Forbes. Which ones do you feel there is no connection 
to, so I can take that one off the table? Let me repeat them. 
Human trafficking. Any connection?
    Attorney General Holder. With?
    Mr. Forbes. Between hard-core pornography and human 
trafficking.
    Attorney General Holder. Probably, yes, there is probably 
some connection.
    Mr. Forbes. Violence to women, yes or no?
    Attorney General Holder. Probably.
    Mr. Forbes. Sexually violent behavior?
    Attorney General Holder. That, I don't know.
    Mr. Forbes. So you don't know if there's any connection 
between hard-core pornography and sexually violent behavior?
    Attorney General Holder. I don't know.
    Mr. Forbes. How about child pornography?
    Attorney General Holder. Probably, yes.
    Mr. Forbes. Okay. Of those, then, can you tell me how many 
agents that you have had assigned to investigate hard-core 
pornography in the United States right now?
    Attorney General Holder. We have a child enforcement and 
obscenity section that looks at these patterns----
    Mr. Forbes. No, no. Hard-core pornography, not on child 
pornography, hard-core adult pornography.
    Attorney General Holder. Congressman, if you let me answer 
the question, I have an answer for you.
    Mr. Forbes. Sure. Go ahead.
    Attorney General Holder. But I have to speak.
    Mr. Forbes. Go ahead.
    Attorney General Holder. We have to work this out. You ask 
a question and give me a chance to answer.
    Mr. Forbes. And if I can get time, I would love to take as 
much time----
    Attorney General Holder. I would be more than glad to give 
you more than 5 minutes if the Chairman is willing to do that. 
We have a child enforcement and obscenity section that handles 
as part of its responsibilities examination of obscenity 
matters. It is not only a child exploitation section, it looks 
at obscenity matters more generally, and has recently been 
reformed to include a task force that looked at strictly 
obscenity matters, that has now been moved into CEOS.
    Mr. Forbes. We had a task force that was set up under the 
previous Administration that got 52 convictions for hard-core 
pornography cases. Have you disbanded that task force?
    Attorney General Holder. It has not been disbanded. It has 
been incorporated into CEOS.
    Mr. Forbes. Can you tell me how many prosecutions in the 
last 2\1/2\ years of hard-core pornography cases this 
Administration has undertaken and how many convictions you have 
obtained?
    Attorney General Holder. We have a number, and I can get 
that number to you. I don't have it at my finger tips.
    Mr. Forbes. Will you get that number for us?
    Attorney General Holder. Yes.
    [The information referred to follows:]
    
    
    
                               __________

    Mr. Forbes. Can you also let us know, if you would, how 
many attorneys that you have assigned to adult hard-core 
pornography and how many agents that you have assigned to adult 
or hard-core pornography.
    And if you would, when you give that to us, would you let 
us know the evidence that you've received of any major oil 
companies' illegal activities that have resulted in gas prices, 
evidence you have today; secondly, any prosecutions you have 
had to date; and third, any recommendations you've made to 
change the laws.
    And with that, Mr. Chairman, my time is up.
    Mr. Smith. Thank you, Mr. Forbes.
    Attorney General Holder. With regard to the oil question, 
the task force that we're putting together would look at not 
only what is going on now, but what has happened over the past, 
and make determinations about whether or not there are 
inappropriate market manipulations or price gouging. Which is 
not to say that we are not dealing with something that might be 
market-driven. We don't go into this with any preconceived 
notions. And what the task force will look at is the situation 
and then make appropriate determinations and then we'll take 
action that is appropriate. We don't go into this with any 
preconceived notions, though.
    Mr. Forbes. Mr. Attorney General, my point was that we knew 
this was a big problem in July 08, we've gone 2\1/2\ years, and 
we've just set up a task force 2 weeks ago.
    Attorney General Holder. In July 2008, I was not the 
Attorney General of the United States, just for the record.
    Mr. Smith. The gentleman from Tennessee, Mr. Cohen, is 
recognized for his questions.
    Mr. Cohen. Thank you, Mr. Chairman.
    Mr. Attorney General, you were asked a question earlier 
which reminded me--you smiled when the question was asked, kind 
of a smile--and it reminded me of a nice article I read on the 
web this morning that said that President Obama, when he 
engaged in activities over the weekend, going to Alabama, going 
to Florida, dealing with Mr. Trump at the dinner, and all those 
things, that he had a poker face. Now, it's been said, I 
believe, that you and the President have played poker together. 
Is that correct?
    Attorney General Holder. No. I've never played poker with 
the President. I don't know if the President plays poker.
    Mr. Cohen. You don't know that.
    Attorney General Holder. I don't know.
    Mr. Cohen. Let me ask you this. You seem to think that 
maybe you didn't know whether it was skill or luck in poker. Do 
you think Phil Ivy is just lucky? He's the world's greatest 
poker player. Do you think he is lucky, and Annie Duke, or do 
you think they have some skill involved?
    Attorney General Holder. I'm not sure I know who Mr. Phil 
Ivy is, but I'm sure there is some degree of skill that is 
involved in this. I'm not a poker player myself.
    Mr. Cohen. You're not. I didn't realize that. You might 
become one, because it's one of the rapidly increasing popular 
activities in America, and it has been going on for years. And 
people used to play at tables, like in the kitchen they play 
poker. Now they do it on the Internet because there are things 
that--it's amazing the things you do on the Internet. I even 
got one of these. I'm moving into the age.
    Attorney General Holder. I've got one, too.
    Mr. Cohen. You pay bills and you do things you used to not 
do there, but you do them. Do you think we really ought to be 
spending a lot of time in trying to deal with Internet poker 
and/or do you think we should find a way to make it legal, to 
tax it, and to bring revenue in to help pay for the folks that 
Mr. Sensenbrenner wants to take out of your budget?
    Attorney General Holder. Well, we have to enforce the law 
as it exists. And there are laws on the books with regard to 
Internet gambling that we have to enforce. We recently 
announced an action in the Southern District of New York. It is 
for, I guess, Congress to decide what the law is going to be, 
and then we will enforce those laws.
    Mr. Cohen. I agree with you generally. I understand there 
were civil rights laws in the forties and fifties that the 
government had to defend. And then maybe 10, 12, 15 years 
later, after Thurgood Marshall's arguments and the Court's 
agreement, that they realized those weren't valid laws, and the 
law changed because society changed, people's thinking changed?
    Same thing with DOMA. There are certain laws and things 
change, and you change. Even though it's the law Congress 
passed, there's a change in the cultural lag and it kind of 
catches up and the people's perception of it changes. Some of 
the same people that gave us DOMA, most of them gave us the 
laws against Internet poker. It was that family's value crowd 
that, yeah, and--quotes--and they gave us those laws, but 
sometimes they might not have been the right laws. And some of 
Mr. Forbes' folks, so you could be prosecuting some of those 
obscenity cases with some of the people you've otherwise got 
concerned with some of these laws concerning Internet poker. 
And there are priorities. We can't do everything.
    Don't you think that maybe in the priority range, that 
Internet poker would be down at the bottom of the level and 
beneath obscenity and hard-core pornography and child rape and 
things like that?
    Attorney General Holder. Well, there are a whole variety of 
things that we have responsibility for. The cases that we 
brought, for instance, in the Southern District of New York 
involve pretty substantial amounts of money in big financial 
institutions. And I think those cases are appropriate.
    There are going to be some other cases in this area that 
aren't really Federal cases because they're not really large 
enough--the degree of harm is not serious enough. Even within a 
certain class of cases, certain ones are going to be worthy of 
our attention and then some will not be.
    Mr. Cohen. Did the Southern District coordinate with the 
Criminal Division or you particularly about the policies of 
your office which has been kind of in flux underlying the 
decision to effectively criminalize poker, going after these 
folks?
    Attorney General Holder. Yeah, the Southern District worked 
with the Criminal Division, worked with main Justice in the 
formulation of that case, though the primary responsibility was 
in New York.
    Mr. Cohen. We are coming down on time, which is my fault, 
but freedom is a big issue with me and the opportunity to do 
things. And a lot of people, the cocaine and crack sentencing, 
we made progress. But is the Department seeing that we are 
asking for sentences that are maybe on the lower range for 
those people that were indicted before the law changed?
    Attorney General Holder. I have told our prosecutors, I 
have given them discretion, so that they ask for sentences that 
are appropriate looking at the facts of each individual case. 
The Department is going to take a position with regard to 
whether or not the loss should be made retroactive before the 
sentencing commission. But while we are still in that process, 
I have asked my prosecutors to make sure that we only ask for 
sentences that are appropriate and consistent with the facts.
    Mr. Cohen. Expungement is an issue I am interested in, too. 
Do you believe we should have for like low-level crimes, 
whether misdemeanors, an expungement law on the Federal level, 
whereby after say 7 years a first offender for a nonviolent 
offense could get the record expunged to maybe get a job?
    Attorney General Holder. I think that is certainly 
something that I would want to work with the Committee on and 
consider. It is certainly something we had here in Washington, 
D.C., when I was a judge for a relatively small number of 
offenses, obviously nonviolent, so that the stigma that goes 
with a conviction, especially for younger people, might not 
harm their ability to get meaningful employment to otherwise 
make themselves productive members of society, and so the 
ability to have that as a tool in the Federal system is 
certainly something I am willing to consider.
    Mr. Cohen. The red light has come on, and I am going to do 
the hypothetical yield back the remainder of my time that 
doesn't exist. But I am going to bring up if I can in the extra 
30 seconds I know the Chairman is going to give me----
    Mr. Smith. Without objection, the gentleman is recognized 
for an additional 30 seconds.
    Mr. Cohen. Thank you. I am going to bring up an issue that 
the Chairman wouldn't want me to bring up, which is the fact 
that----
    Mr. Smith. In that case, he is not recognized for an 
additional 30 seconds.
    Mr. Cohen. The Memphis Grizzlies beat the San Antonio Spurs 
4-2. I know you play basketball with the President. Has he 
caught on to Zack Randolph in the Grizzlies of being a dynasty 
in the making----
    Mr. Smith. The gentleman's time has definitely expired.
    The gentleman from Arizona, Mr. Franks, is recognized for 
his questions.
    Mr. Franks. Well, thank you, Mr. Chairman.
    Thank you, General Holder, for being here.
    Sir, money is indeed the lifeblood of terrorism. Without 
funding terrorism, it would be nearly impossible. The 2008 Holy 
Land Foundation case was the largest terrorism finance case in 
U.S. history, as you well know. And according to the volumes of 
case history and evidence available on the Web site of the 
Federal Court of the Northern District of Texas, hundreds of 
U.S.-based persons or entities are listed as unindicted co-
conspirators who allegedly funneled millions of dollars to the 
designated terrorist organization Hamas under the guise of 
funding a Muslim charity.
    Now, the sources have told us that the case was the product 
of 19 years of investigations, consuming thousands of hours, 
thousands of man-hours of manpower and millions of dollars. But 
over the past year, the Department of Justice has signaled that 
it will not further prosecute this case, despite the voluminous 
evidence that the unindicted co-conspirators are financing 
terror from within the United States.
    Chairman Smith of this Committee and Chairman King of the 
Homeland Security Committee are interested, obviously, in 
learning why this case was dropped, as you well know. You have 
received correspondence recently from both of them. Now, you 
have claimed that the career attorneys made the decision to 
drop the case, but the press reports are saying that 
prosecutors, FBI agents and even your own spokesperson at DOJ 
are telling a different story. They claim that the decision to 
scuttle the largest terrorism finance case in U.S. history now 
spanning three Administrations was made not by career attornies 
but instead by senior Obama administration political 
appointees.
    Now, the scuttling of this case obviously has outraged the 
career lawyers. And according to Congressman King, we just 
learned from his office that his letter today was responded to 
in a completely unresponsive way. It never did speak to the 
questions that he asked. So I guess I ask you here then today, 
which individuals, and I hope you will say the names, which 
individuals are responsible for scuttling the Holy Land 
Foundation prosecutions of the unindicted co-conspirators?
    Attorney General Holder. Well, the premise of your question 
is inaccurate. There was no scuttling of the case.
    Mr. Franks. Do you intend to--I am sorry, I don't know what 
happened here. I didn't mean to do that. I wasn't yelling at 
you; the microphone kind of went off on me.
    Do you intend to prosecute these cases?
    Attorney General Holder. The decisions that were made not 
to prosecute those cases were made initially in the Bush 
administration and continue in this Administration. And I have 
to take exception----
    Mr. Franks. Let me just, I have to stop you on that. You 
claim that the decision to drop the case was a continuation of 
the approach taken by the Bush administration, but that really 
isn't true.
    The Bush administration successfully prosecuted the first 
round of defendants. They aggressively secured convictions on 
all 108 counts. And the first--you know, the first round didn't 
conclude until after, until 3 weeks after the election of 
Barack Obama, and essentially the Bush administration just ran 
out of time. They were pursuing this.
    And Peter King has said that, you know, it is hard to hide 
behind the deliberations of the Bush administration that pre-
date the successful prosecution of the Holy Land case. So you 
are obviously not following the Bush administration's path, 
because they did prosecute, and they got 108 convictions.
    Attorney General Holder. But a decision was clearly made in 
not indicting certain organizations and people in that initial 
case. That is why they were, as you said, unindicted co-
conspirators.
    But the other thing is that what you say about the concerns 
about the career prosecutors seems very inconsistent with press 
reports that I have read from the guy who handled that matter, 
a career prosecutor, who said that there was no political 
pressure brought to bear on anybody in connection with the 
decision not to proceed. That was in the Dallas Morning News, I 
believe that is the newspaper, and I would be more than glad to 
get a copy of that article.
    Mr. Franks. I am sorry the microphone is giving me so much 
trouble here, but let me just ask you, did you or the case 
abandon or not, did you do that?
    Attorney General Holder. No.
    Mr. Franks. Did anyone in your Department do that?
    Attorney General Holder. No.
    Mr. Franks. Okay. Were you personally involved in any 
decision to delay any prosecution of the case?
    Attorney General Holder. No.
    Mr. Franks. Have you communicated with the White House 
about the Holy Land Foundation case? Was the White House 
involved in any sort of issue to try to delay or not to 
persecute the case--prosecute the case?
    Attorney General Holder. No.
    Mr. Franks. Were any of the unindicted co-conspirators 
communicating outside the legal process now with the White 
House or the Department of Justice about the Holy Land 
Foundation case?
    Attorney General Holder. Not to my knowledge.
    Mr. Franks. All right. Well, I think my time is up here.
    And thank you, General, for coming.
    Mr. Smith. Thank you, Mr. Franks.
    The gentleman from Illinois, Mr. Quigley, is recognized for 
his questions.
    Mr. Quigley. Thank you, Mr. Chairman.
    Welcome.
    You know, coming from Chicago, I can't help reflect on the 
fact that there is a trial taking place there, and while I 
don't ask you to comment on that, I note that there always 
seems to be a trial taking place there or other places in the 
country that deal with public integrity.
    As you know, the court has struck down the honest services 
section of the statute, a very valuable tool that prosecutors 
had to go after public officials using their office for 
personal gain. We could really use your office's help preparing 
a replacement.
    I think it was probably appropriate the statute was struck 
down because it was probably, as they said, too vague. But I 
appreciate your comments on what we need to do to fill that 
void.
    Attorney General Holder. Well, that obviously is a very 
valuable tool. It has been used over the years in any number of 
instances. It is a statute that has had a somewhat troubled 
history. It has been declared unconstitutional. I guess that 
has been applied on at least a couple of occasions. So I think 
what we need to do is come up with a statute that will survive 
constitutional scrutiny once and forever. And obviously, we 
would be willing to work with this Committee and others so that 
we could have that tool back in place.
    Mr. Quigley. Thank you.
    And I would like to afford you the opportunity here to talk 
about another issue that is important to everyone here, and 
that is the recent extraordinary increase in police officer 
shootings across the country. I think since January, 29 police 
officers have been shot in this country. This is an increase in 
fatal police shootings of more than 50 percent over last year. 
I believe you convened a conference on this last month. I would 
again appreciate your office's help on what else we can do to 
help you in this vein.
    Attorney General Holder. That is something that is of great 
concern to me and is the reason why I convened that summit a 
few weeks ago. It is one of the reasons why we have tried to 
increase our funding of bullet-proof vests that are made 
available to State and local police agencies and why we have 
tried to now require that there be a mandatory wear policy, as 
well. We have something also called the VALOR program so that 
officers can be trained as to handle themselves in these 
situations when their lives are most likely to be put at risk. 
That is something I think that is really worthy of this 
Committee's time, certainly my time, and I would be glad to 
work with you in that regard to try to keep our law enforcement 
officers safe.
    Mr. Quigley. I can't help but inject another statistic that 
is bothering to me. The 29 officers fatally shot this year, 20 
were killed by individuals who would have been barred by 
Federal law from possessing guns. In my vein, this gets to the 
greatest loophole of all, and that is the gun show loophole. 
The fact that you could be barred from getting on an airplane, 
you can have multiple felonies, you could have been adjudicated 
as being dangerously mentally ill, but you can go to 33 States 
and go to a gun show and buy just about anything you want 
without a background check whatsoever. Your thoughts on this?
    Attorney General Holder. Well, I think we have to look at 
the laws that we have on the books. We need to certainly 
enforce them. We need to be asking questions about whether they 
are adequate, whether they are keeping our people safe, whether 
they are keeping law enforcement officers safe. And we also 
have to focus on, and I think the point you made is a very, 
very good one, who has these guns.
    It is not only a question of what guns we are dealing with, 
but also who has them. Obviously, everybody has Second 
Amendment rights. The Supreme Court has ruled that in the 
Heller case. This Department of Justice respects that decision. 
But I think questions can be asked about are there felons, too 
many felons who for whatever reason are in possession of guns; 
people who have mental issues, whether they should have guns; 
people who have domestic violence issues, whether they should 
have guns. There are a whole variety of questions as to the who 
that I think we should focus on as well.
    Mr. Quigley. And I agree. And to close, I would suggest to 
those who are very supportive of the Second Amendment that 
while that case did grant Second Amendment rights, that 
majority opinion did talk about limitations. One was who and 
one of the others was what. And I think it is fair to ask if 
you are out to protect your home or you are hunting deer, 
whether you need a 30 round clip. But that is my own editorial 
comment for the day.
    Thank you, Mr. Chairman, and I yield back.
    Mr. Smith. Thank you.
    Thank you, Mr. Quigley.
    The gentleman from Texas, Mr. Gohmert, is recognized.
    Mr. Gohmert. Thank you, Mr. Chairman.
    And thank you, Attorney General, for being here. I want to 
follow up on what Mr. Franks was talking about, the case 
involving the Holy Land Foundation. You have mentioned the 
Dallas Morning News article. I have a copy of it here. I have 
also got a copy of the political article. And the person you 
are talking about is Jim Jacks, who is the interim U.S. 
attorney for the Northern District of Texas, because the 
President has not made a nomination for U.S. attorney for the 
Northern District of Texas. So as long as Mr. Jacks stays in 
the good graces of the President, he serves at the will of the 
President or of the judges in that area; he might even get the 
nomination if he does a good enough job from the President. He 
serves at his will.
    So let's go to this. Are you aware that this same career 
prosecutor that you have mentioned filed pleadings in the case 
before Judge Solis and before the Fifth Circuit where he 
supported the decision of Judge Solis that there was evidence 
to keep the unindicted co-conspirators listed? Because some of 
them were wanting to be eliminated as co-conspirators, he filed 
documents with the court. And I am rather sensitive, as a 
former judge and chief justice, to lawyers filing things and 
saying things they don't believe. Because it seems that the 
position Mr. Jacks is taking now, which could be viewed as 
supportive of the President's position on some of the people 
and some of the organizations that are unindicted co-
conspirators, are inconsistent with his position in his 
pleadings. And I have copies of those as well.
    But the judge found after reviewing Mr. Jacks' pleading 
that there was plenty of evidence to keep them in as unindicted 
co-conspirators. Now, if a lawyer files something that he 
doesn't believe and he knows he doesn't believe it, some judges 
think it is a fraud upon the court that requires punitive 
actions to be taken. So I am also aware that when someone makes 
a statement to the Dallas Morning News, even if he believes it 
is not true, though it may help him in the political 
appointment, there is no actionable punitive measures that may 
be taken.
    So I wonder which Mr. Jacks' opinion we are relying on; the 
one that is the interim, that possibly hopes to be nominated or 
stay in that position, or the one that filed pleadings before 
the court.
    Now, are you aware that one of the unindicted co-
conspirators is the Islamic Society of North America, ISNA? 
Were you aware of that?
    Attorney General Holder. I don't have at the tip of my 
fingers all the unindicted co-conspirators. But there is not an 
inconsistency in----
    Mr. Gohmert. Wait a minute. My time is limited. I have to 
ask questions and get short answers. The FBI has recruited 
through the ISNA magazine. ISNA has advertised in FBI 
publication--in their publications. And even in the White 
House's own Deputy Assistant National Security Advisor went out 
and spoke and met with and spoke out at the--let's see, the All 
Dulles Area Muslim Society, or short for that is ADAMS, ironic. 
But Deputy National Security Advisor Denis McDonough even in 
his opening remarks thanked the president of ISNA and that 
thank you is on the White House Web site.
    So I am wondering, when you say that you nor anyone else, 
as I understood, in your Department assisted at all in the 
decision not to pursue prosecution of the most important 
funding case for terrorism in American history, do you need 
time to reflect on that, or can you absolutely be certain that 
no one in your Department had any consultation with Mr. Jacks 
or anyone making the decision in this case before the decision 
was made not to pursue it?
    Attorney General Holder. I am not sure that is the question 
I was asked. But beyond that, the notion----
    Mr. Gohmert. Well, that is the question I am asking. That 
went beyond Mr. Franks'.  That is the question I am asking.
    Attorney General Holder. Now, you asked me one question and 
you are saying--your question is what now?
    Mr. Gohmert. My question is very specific. Is there anyone 
in your Department who consulted with Mr. Jacks or whoever made 
the decision before the decision was made not to pursue any of 
the unindicted co-conspirators in the Holy Land Foundation 
trial?
    Attorney General Holder. It is my understanding that in 
fact there was contact between Washington national security 
professionals and the U.S. Attorney's Office in Texas in that 
regard. But one thing----
    Mr. Gohmert. Are those Washington national security 
professionals part of your Department, because that was the 
question?
    Attorney General Holder. Part of the National Security 
Division.
    Mr. Gohmert. But are they under you?
    Attorney General Holder. Yeah. The National Security 
Division is part of the United States Department of Justice.
    Mr. Gohmert. Did they consult with you in any way?
    Attorney General Holder. No.
    Mr. Gohmert. All right. Thank you. I see my time is up.
    Attorney General Holder. But one thing I want to say that I 
think is grossly unfair. You have cast aspersions on a person 
who I don't know, who has served, I understand, the United 
States Department of Justice and the people of this country 
quite well for a good number of years and you have implied that 
he would take a position in order to maintain a position as an 
acting U.S. attorney or to become the U.S. attorney.
    These are the kinds of things that you know will get 
reported in the newspapers. People don't know this gentleman. 
They will wonder about him. And I think that is a very unfair 
thing to do, given the fact that I don't think there is any 
basis for the assertions that you have made.
    Mr. Gohmert. Now, wait a minute. You are saying there are 
no basis for the assertions----
    Mr. Smith. The gentleman is recognized for an additional 30 
seconds.
    Mr. Gohmert. No basis for the assertions that he said one 
thing in the pleadings before the trial court and the same 
things before the pleadings in the Fifth Circuit and yet he 
comes out and says something entirely different later, that 
there is no evidence to support that, and basically what he is 
telling the Dallas News there was no basis for a case there. 
And you are saying I have no basis for saying that? I have got 
the Dallas News article. I have got the pleadings he filed. 
That is what I am basing that on.
    Attorney General Holder. No, it is not inconsistent, his 
saying that there is a basis to keep these people, these 
organizations as unindicted co-conspirators.
    Mr. Gohmert. Have you looked at the documents that were 
made available in this case before you say that I am being 
unfair by making allegations? Have you looked at the evidence 
in the case? Here is ISNA, here is documentation of the money 
they provided which ended up supporting terrorism as found by 
the court, and you are saying I have no basis for saying what I 
did. There is a basis for what he said before the Fifth Circuit 
and before the trial court. And so I don't appreciate the 
allegation that I am making unfounded allegations.
    Attorney General Holder. I am just responding to what you 
said. You essentially said that he would take a position in 
order to maintain a position. That is certainly what you 
implied.
    Mr. Gohmert. I raised the issue. And sir, I don't know how 
many cases you have ever tried in court or prosecuted, but I 
can assure you if you tried a case and you had someone with the 
impeachment material that was available for Mr. Jacks on his 
inconsistencies and you didn't pursue it, you would not be an 
effective trial lawyer. These are a basis for impeachment of 
his stating that there was no politics involved because there 
was no case there.
    Mr. Smith. The gentleman's time has expired.
    Mr. Scott. Mr. Chairman, the Attorney General was trying to 
explain why there was no inconsistency and he kept getting cut 
off. Could the Attorney General respond to the question----
    Mr. Gohmert. I was responding to the allegations about me 
having no basis for my statements, and I deserve to have a 
chance to respond to those.
    Mr. Scott. Can the Attorney General respond?
    Mr. Smith. Does the Attorney General have anything to add?
    Attorney General Holder. I was simply saying that the 
notion that the filing of something that says that these 
people, organizations, should be treated as unindicted co-
conspirators is not inconsistent with this notion that there 
wasn't political pressure brought to bear on that decision. I 
don't see how one necessarily affects the other.
    And you know, I am going to stick up for my people. That is 
what I am doing. I am not going to let people who work in the 
United States Department of Justice have their characters 
assailed without any basis.
    That might be something that people in this Committee feel 
is easily done. It is not going to happen as long as I am 
Attorney General of the United States. It is just not going to 
happen.
    Mr. Smith. Thank you, Mr. Attorney General.
    Mr. Gohmert. Now, Mr. Chairman, I should have a chance to 
respond since there are allegations made about me. But I do 
appreciate the Attorney General now letting us know that Mr. 
Jacks is one of his people. Thank you.
    Attorney General Holder. As are the 114,000 other people 
who work in the United States Department of Justice.
    Mr. Smith. Thank you, both.
    Mr. Gohmert. So he is part of your Department?
    Attorney General Holder. These are my people.
    Mr. Smith. Thank you, both.
    The gentlemen from Florida----
    Mr. Gohmert. So people in your Department did make that 
decision not to prosecute?
    Mr. Smith. The gentleman's time has expired.
    The gentleman from Florida, Mr. Deutch, is recognized for 
his questions.
    Mr. Deutch. Thank you, Mr. Chairman.
    General Holder, thank you for being here. The Wall Street 
Journal reported today that the U.S. Has filed a lawsuit 
against Deutsche Bank for lying repeatedly about the quality of 
mortgages so that they could profit from the resale. According 
to the lawsuit, when selecting mortgages from the Federal 
Housing Administration's insurance program, Deutsche Bank did 
not consider whether the borrowers would be able to repay. In 
clear violation of Federal Housing Administration's mortgage 
insurance program, these government-insured mortgages were then 
sold off, earning the bank a massive profit while leaving 
homeowners to face foreclosure and the government on the hook 
to pay billions of dollars in insurance claims. The claims are 
startling, and the charges highlight the efforts to seek profit 
at any cost while leaving thousands of people and their 
families to lose their homes and the taxpayers being forced to 
pay for the bank's actions.
    First, I would like to commend you for the Department's 
vigorous pursuit of these charges against Deutsche Bank, and I 
would like to ask whether--first, whether the Department is 
investigating any other large banks in possible deceptive 
actions that they may have taken to fuel the mortgage crisis 
that the country has been facing? We will start with that.
    Attorney General Holder. Well, we have a very active 
program under way looking at a variety of players in the 
mortgage field. We brought a number of cases already. There are 
a number of investigations that are pending.
    Mr. Deutch. Next, would the Department pursue criminal 
charges that would result in jail time for the heads of these 
large banks and servicers if it is found that they knowingly 
took actions like those described in the lawsuit filed against 
Deutsche Bank?
    Attorney General Holder. The scrutiny that we would bring 
would not simply be at the organizations and be looking to 
punish the organizations. If there are individuals who have 
taken actions that would warrant individual liability, that is 
something that we will pursue as well.
    Mr. Deutch. And if I could just pursue one possible line of 
prosecution that has been raised. I would love your thoughts on 
it. And that is under Sarbanes-Oxley, the requirements under 
Sarbanes-Oxley, that executives at Wall Street firms have to 
establish and maintain adequate systems in internal control; 
that they have got to regularly test those controls and make 
sure that they are adequate; and as I understand it, that that 
statute provides that in the case of knowingly making false 
claims, one would be subject to fines up to $1 million and 
imprisonment of up to 10 years; and that if those claims were 
willful, those violations were willful, fines then of up to $5 
million and jail time of up to 20 years in prison. Is this the 
basis--would this be the basis of potential claims against 
individuals in connection with the mortgage foreclosure cases 
that are being pursued?
    Attorney General Holder. Those are potential statutes. 
There are other statutes that we can bring, including some as 
old and tried and true as wire fraud and mail fraud. I mean, 
there are a whole variety of tools that we have, including 
those that you have mentioned, and we will try to make use of 
all of those as we continue in these investigations.
    Mr. Deutch. And so as you pursue these claims, at what 
point is the determination made? Obviously, my colleagues 
asked, others have asked, certainly been a big topic of 
conversation, while there is a $1 billion case that has been 
filed today, which I applauded you for, given the vast array of 
potential claims that could be, individual claims that could be 
brought, that would bring the potential of criminal violations, 
when might we expect to see some of those cases filed as well?
    Attorney General Holder. I mean, that is hard to predict. 
We are serious about the investigating that we are doing, and 
it is always hard to determine exactly when decisions will be 
made either to prosecute or to decline prosecution. All I can 
tell you is that we are looking at these cases seriously. We 
are going to pursue them aggressively, and as soon as we can 
make a determination and share that with the American people, 
we will.
    Mr. Deutch. So then there is, just to conclude, General 
Holder, there is--we should know, the Members of this Committee 
and the American people should know that your Justice 
Department is vigorously investigating these potential claims 
and that under Sarbanes-Oxley and a whole array of other 
statutes, the possibility for criminal prosecution against 
individuals in connection with the mortgage foreclosure crisis 
is real and we should look forward to the potential of those 
cases being brought?
    Attorney General Holder. I mean, I don't want to over 
promise, but the possibility that those cases could be brought, 
yes, that is certainly the case. I mean, we are in the process 
of looking at a whole variety of these matters, and it is 
possible that criminal prosecutions will result. Civil actions 
might result. We are going to try to take whatever enforcement 
action we can to try to hold people responsible where that is 
appropriate.
    Mr. Deutch. Thank you.
    And I yield back, Mr. Chairman.
    Mr. Smith. Thank you, Mr. Deutch.
    The gentleman from Utah, Mr. Chaffetz, is recognized.
    Mr. Chaffetz. Thank you, Mr. Attorney General. I appreciate 
you being here. I would like to go back to Project Gunrunner 
and Operation Fast and Furious. You said that in just the last 
few weeks is when you had heard this. The President made 
statements to this in a report on Univision back on March 22nd. 
Were you aware of this operation before the President or after 
the President made those comments?
    Attorney General Holder. My guess would be probably before 
the President.
    Mr. Chaffetz. Who briefed the President about this? He 
obviously knew something about it, he made a statement about 
it. Who briefed the President?
    Attorney General Holder. I don't know.
    Mr. Chaffetz. Who would typically--who would do that? If 
not the Attorney General, who would brief the President on 
this?
    Attorney General Holder. Well, I mean, we have a White 
House contacts policy so that the Justice Department interacts 
with the White House Counsel's Office. Now, I don't know what 
process goes on from the White House Counsel within the White 
House.
    Mr. Chaffetz. Let me move on. Are you familiar with the 
President's comments then on March 22nd? He said, quote, there 
may be a situation here in which a serious mistake was made. If 
that is the case, then we will find out and we will hold 
somebody accountable. Would you agree with that comment or not 
agree with that comment?
    Attorney General Holder. Yeah, I would agree with that.
    Mr. Chaffetz. Would you agree that there were some serious 
mistakes made in this situation?
    Attorney General Holder. I don't know. That is one of the 
things that we are trying to investigate. That is what I have 
asked the Inspector General to look at.
    Mr. Chaffetz. Now, it has been reported that at the death 
of Brian Terry, one of our Border Patrol agents, that there 
were guns from the operation found at that scene. Is that in 
dispute?
    Attorney General Holder. I don't know that to be factually 
accurate. I don't know. I have heard that. I have asked the 
Inspector General to look into that, and I am awaiting that 
report.
    Mr. Chaffetz. Is there a scenario if those guns were found 
at that scene where--is there a possible scenario where 
mistakes weren't made and yet we have guns at the scene of the 
death of one of our Border Patrol agents?
    Attorney General Holder. I think that is right. I think if 
those facts are in fact accurate, I suspect that mistakes in 
fact were made.
    Mr. Chaffetz. Now, this program was approved by the Justice 
Department. My understanding is in January of 2010. I guess I 
am struggling to understand why an operation as big and as 
large and as important as this has not come to your attention 
for more than a year after it was originally authorized. Can 
you help me understand that?
    Attorney General Holder. Well, you have to understand that 
something you described as big, in comparison to all the other 
things that are going on in the Department at any one given 
time, might not seem quite as large. I have, as I said, 114,000 
or 115,000 employees; the FBI, the ATF, the DEA. You know, a 
whole variety of things that we talked about here today.
    Mr. Chaffetz. I guess my concern is here is an operation 
where we are knowingly allowing more than 1,500 guns to go 
across the border, maybe with good intention but obviously with 
consequence that is unparalleled. I am just not aware of us on 
a regular basis allowing and knowingly, allowing guns to be put 
in the hands of bad guys and now we got--I just don't 
understand why that doesn't come to your attention.
    Also, my understanding is that they are receiving task 
force money. And these types of programs, the task force must 
be approved at some very high levels, including the level of 
deputy attorney general. Who did know about this? Who did 
authorize this, and when did they authorize it?
    Attorney General Holder. Again, that is part of what the 
Inspector General will be looking at; who exactly was involved, 
what the level of knowledge was, who should be held accountable 
if in fact there were mistakes that were made. That is what the 
Inspector General will be looking at.
    Mr. Chaffetz. So it is not--is it your intention to not 
comply with our subpoena because the attorney--because 
Inspector General is doing that? Or do you believe--that is, 
are you precluded from complying with the subpoena because the 
IG is looking into it, or can you do both simultaneously?
    Attorney General Holder. We can do both simultaneously. 
What I have asked is that with regard to replying to the 
subpoenas, that we try to minimize the impact on the ongoing 
cases. It is not the Inspector General's report. And we have 
tried to come up with ways in which we will make information 
available to the Committee in a timely fashion and not harm 
those ongoing investigations.
    Mr. Chaffetz. The ATF office involved in this was evidently 
the Phoenix office. Are there any other ATF offices that you 
are aware of that may have been involved or engaged in this?
    Attorney General Holder. May be involved in?
    Mr. Chaffetz. In the Project Gunrunner or Operation Fast 
and Furious, or was it just the Phoenix office?
    Attorney General Holder. I don't know.
    Mr. Chaffetz. Let me move to a different issue if I could 
in my short time here. I just recently went down to the border 
with Mexico. I think one of the statistics that the Border 
Patrol puts out there is that they only have 15 percent, 15 
percent operational control. What do we need to do to secure 
the border? Because I was shocked and surprised. I mean, I went 
for hours in places right along the border where there is 
nothing more than a barbed wire fence cut in many places and 
never even saw a Border Patrol agent. So we are pouring a lot 
of resources into this. But what from your opinion do we have 
to do to actually secure the border, because it is not 
happening?
    Attorney General Holder. Well, I think that the situation 
along the border is better now than it probably ever has been--
--
    Mr. Chaffetz. But how do you come to that conclusion?
    Attorney General Holder. You base it on the number of 
people who are stopped, the amount of drugs we recover, the 
number of guns that are recovered.
    Mr. Chaffetz. So if that stat goes up, if the number of 
apprehensions goes up, is it better, or is it if the number of 
apprehensions goes down, is it better?
    Attorney General Holder. It depends on a whole bunch of 
things. It certainly is a function of the number of people who 
are trying to get in. It also is a function of how effective 
our enforcement efforts are, which is not to say that there 
aren't still issues or still problems along the border. And I 
think we have to do all we can to secure our border. And I 
think that one of the ways in which we do that is to really 
look comprehensively at this whole immigration question.
    Mr. Chaffetz. No doubt. I think that we have got to fix 
illegal immigration and do a lot of other things. But the 
statistic of apprehension, if it goes up, are we doing a better 
job securing the border, or if apprehensions go down, are we 
doing a better job securing the border?
    Attorney General Holder. As I said, that is a difficult one 
to answer.
    Mr. Chaffetz. I know, that is why I asked you.
    Attorney General Holder. You can say that if we are 
apprehending more people, that means we are stopping more 
people coming through. On the other hand, if we are getting 
fewer people, it is entirely possible our enforcement efforts 
are working and fewer people are trying to get in. It is a 
difficult question to answer.
    Mr. Chaffetz. I at some point would love to know the answer 
to that question, Mr. Chair, but I appreciate it. Thank you.
    Mr. Smith. Thank you, Mr. Chaffetz.
    The gentleman from Puerto Rico, Mr. Pierluisi, is 
recognized.
    Mr. Pierluisi. Greetings, Mr. Holder.
    In the brief time that I have, I want to address the 
problem of drug-related crime in Puerto Rico. Through the first 
3 months of this year, 301 homicides were committed in Puerto 
Rico, a 35 percent increase over the same period last year. And 
this is unacceptably high for 3.8 million people.
    You might say, you know, why am I raising this local issue? 
Well, the fact of the matter is that unfortunately Puerto Rico 
has long been a transshipment point for drugs coming into the 
U.S. mainland, so this is tied to the U.S. as a whole.
    When I look at the Federal Government's efforts to combat 
drug-related violence in Puerto Rico, I am troubled that key 
DOJ offices on the island have vacancy rates between 17 percent 
and 57 percent. From speaking with you and others at the 
Department, I understand that apparently you are having 
difficulty recruiting agents for places like Puerto Rico, high-
crime localities or high-cost localities.
    And I wonder, how are you making these decisions? When you 
assign personnel throughout the Department, different agencies; 
ATF, DEA, FBI, to your knowledge, I mean, are you taking into 
account homicide rates, for example, the level of violence, 
issues such as recruitment difficulties? Are you giving any 
incentives to your agents to locate in places like Puerto Rico, 
or it could be Miami or it could be LA, I mean, different 
places, maybe Detroit, places facing high crime at a certain 
point in time, New Orleans? How are you doing this?
    Attorney General Holder. We try to deploy our resources in 
places where they are most needed. And the concerns you raise 
are legitimate ones, not only because Puerto Rico is a 
transshipment point, which is right, but because people who 
live in Puerto Rico are American citizens and are deserving of 
the protection of their government.
    We try to come up with ways in which we get investigators 
and agents into places that need them, such as Puerto Rico, by 
coming up with incentives, by coming up with what we call TDYs, 
temporary duty, by putting people there for--if people don't 
want to relocate, putting people there for maybe 90 days, 180 
days, something along those lines, to try to keep the numbers 
up.
    We are doing the best we can trying to get our resources to 
the places where they are most needed. You and I have talked 
about this issue. And I am very concerned about the homicide 
rate in Puerto Rico and the influence of drugs on that part of 
our country, part of our Nation, on the island.
    Mr. Pierluisi. One other thing, in looking at this issue, I 
got statistics from all the different agencies within your 
Department but for the FBI. Would you assist me in providing me 
that this is the number of positions that you have authorized 
or available and the number that are vacant? I just want to 
compare. And I believe I should have this information.
    Attorney General Holder. I will get you that information.
    Mr. Pierluisi. Thank you so much.
    I yield back the a balance of my time.
    Mr. Smith. Thank you, Mr. Pierluisi.
    The gentleman from South Carolina, Mr. Gowdy, is 
recognized. 
    Mr. Gowdy. Thank you, Mr. Chairman.
    Attorney General Holder, if you would, I would be indebted 
to you if you would let the AUSAs and the Federal law 
enforcement officers in the District of South Carolina know how 
grateful I am for their service and how much I appreciate they 
do a fantastic job. And I am sure it would mean more to them to 
hear it from you than it would from me. So if you would let 
them know that, I would be grateful to you.
    Attorney General Holder. Well, I thank you for that, and I 
will pass it on. I will make a point to do that.
    Mr. Gowdy. Thank you. And what I hope to do with the 
remainder of my time is have a constitutional conversation with 
you as opposed to a political conversation.
    You do not disagree that Congress has the authority to 
define marriage. Your position is not that the interstate 
commerce clause doesn't allow us--you are not making a States' 
right argument; you are making an argument based on the three 
tiers of constitutional scrutiny, right?
    Attorney General Holder. Typically marriage has been 
defined as something that has been seen as something that is a 
State issue as opposed to the Federal Government.
    Mr. Gowdy. It is. But there are thousands of instances 
where Congress has to define what the family is in order to be 
instructive with respect to other statutes. So you are not 
challenging that Congress has the authority to define marriage.
    Attorney General Holder. I think we may be quibbling here, 
but not define marriage as much as to define in Federal 
statutes how married people are to be treated, something along 
those lines; I think I would agree in that regard.
    Mr. Gowdy. All right. And would you agree with me that the 
rational basis test is the appropriate test to be used with 
respect to consanguinity, the marrying of family members, that 
is the appropriate test, right, rational basis? You are not 
arguing for a heightened level of scrutiny on whether or not 
cousins can marry each other?
    Attorney General Holder. No, I would not argue that. I 
don't know if there is law on that. But again, off the top of 
my head, I am not sure that you would need a heightened 
scrutiny standard in that regard.
    Mr. Gowdy. And age restrictions, we wouldn't need a 
heightened level of scrutiny with respect to age restrictions?
    Attorney General Holder. No. There is a four-part test I 
have right here that I don't think you have a heightened 
scrutiny as well.
    Mr. Gowdy. And we don't need an intermediate or heightened 
level of scrutiny with respect to polygamy, right?
    Attorney General Holder. I would think not.
    Mr. Gowdy. And since Lawrence, two Courts of Appeals have 
upheld a rational basis test for sexual orientation. So that is 
two that have upheld the rational basis; one that has applied a 
heightened level of scrutiny. So my question is, why would you 
single out the one Court of Appeals that has applied a higher 
level of scrutiny ignoring the two that applied to a rational 
basis test? That just strikes me as a political calculation and 
not a constitutional calculation.
    Attorney General Holder. No, not a political calculation. I 
think what we had to do was look at--you know, Courts of 
Appeals make decisions that sometimes the Department of Justice 
will disagree with. To the extent that Courts of Appeals have 
taken different views of what the appropriate level of scrutiny 
is, we think those Courts of Appeals are wrong. The Supreme 
Court will ultimately have to decide this issue. But I want to 
assure you and everybody else that the decision that we made 
with regard to DOMA did not have a political component to it; 
it was a legal determination.
    Mr. Gowdy. I want to believe you, I really do. I mean that 
earnestly. But you know, when I was an AUSA, there was a Court 
of Appeals that said that law enforcement officers didn't have 
to read Miranda warnings anymore. It was an unusual opinion, 
and it was one we didn't follow. It was one Court of Appeals 
that ruled that way. There are--heavens knows, the Ninth 
Circuit Court of Appeals is presumptively wrong, so we don't 
change our course of conduct when the Ninth Circuit--I said 
that, not you, right. When the Ninth Circuit Court of Appeals 
comes up with something crazy, we don't change our course of 
action. It is difficult to explain why it is not a political 
calculation or a decision when two Courts of Appeals post-
Lawrence have said the rational basis test is the one that 
applies and only one has argued for a heightened level of 
scrutiny, it is tough to see how that is not political.
    Attorney General Holder. I think one example, and I might 
be wrong in this one, but if my memory serves me correctly, 
when it came to the Dickerson case, the Fourth Circuit 
indicated that that statute was passed to essentially overrule 
Miranda. I think the Fourth Circuit said that that statute was 
in fact constitutional. The Justice Department just argued 
against that statute, said that it was unconstitutional, before 
the Supreme Court. So you have the Justice Department both 
arguing in the Supreme Court against the statute passed by 
Congress and also taking on a Federal Court of Appeals. So 
there is a basis, there is history to these kinds of actions 
that we took with regard to DOMA. It is unusual. It is, you 
know, rare, but it happens on occasion.
    Mr. Gowdy. But you would agree the Supreme Court has never 
applied a ightened level of scrutiny to sexual orientation, so 
there is no precedent from the Supreme Court and only one of 
the Courts of Appeals has even suggested there is a heightened 
level of scrutiny while two have not.
    And Mr. Chairman, could I have 30 seconds just to ask one 
other question?
    Mr. Smith. Without objection.
    Mr. Gowdy. Thank you, Mr. Chairman.
    We will continue this conversation hopefully at some other 
point.
    You said that there were tactical reasons to try terrorists 
in a civilian court rather than military tribunals. You would 
agree the evidentiary rules are more relaxed in military 
tribunals than in civil court.
    Attorney General Holder. There are certain rules; they are 
not as lax. The difference is not as great as some people 
think. Certainly with regard to hearsay, you can get more 
hearsay evidence in the military commissions than you can 
Article III courts.
    Mr. Gowdy. Discovery rules are different.
    Attorney General Holder. Slightly.
    Mr. Gowdy. Jury qualification and selection is certainly 
different.
    Attorney General Holder. Yeah, different systems there.
    Mr. Gowdy. Right. So, I mean, to the extent you can, what 
tactical decisions made you believe that it was better to try 
these defendants in civilian court than in military court, 
because you used the word tactical, and as a prosecutor, I am 
thinking more likely to get a conviction.
    Attorney General Holder. Well, you would be right when it 
comes to tactical and how I view that. What I don't want to do, 
with all due respect, because you have asked questions I think 
in good faith, I don't think I can answer that question out of 
concern that what I might say could have a negative impact on 
the case that is pending now in these military commissions. The 
tactical reasons or tactical concerns that I saw, were I to 
reveal them might give to the defense an opportunity to raise 
issues that otherwise might not exist.
    Mr. Gowdy. Fair enough.
    Thank you, Mr. Chair.
    Mr. Smith. Thank you, Mr. Gowdy.
    Attorney General Holder. But I do want to say, Mr. Gowdy, I 
appreciate what you have said about the assistants there, and I 
will share with them those good thoughts.
    Mr. Gowdy. Thank you very much.
    Mr. Smith. The gentleman from Georgia, Mr. Johnson, is 
recognized for his questions.
    Mr. Johnson. Thank you, Mr. Chairman.
    Mr. Attorney General, I welcome you here today. And as head 
of the Justice Department, you are responsible for, among other 
things, enforcing the Federal criminal laws, defending the 
United States against civil actions and also protecting our 
national security. Now, at a time when your Department has been 
adversely impacted by the ravenous budget cutting, I was 
puzzled by one of my colleagues on the other side's questioning 
you about the allocation of your precious resources to the 
issue of adult hardcore pornography.
    And I really would like to know what is adult hardcore 
pornography? But because my time is limited, I will forego that 
question.
    But Mr. Attorney General, over the last couple of years, 
you have successfully prosecuted many terrorist cases, and in 
fact, under your leadership, the Justice Department has 
successfully prosecuted more terrorists than any other 2-year 
period in history. The recent military operation which led to 
the death of Osama bin Laden is a testament as to how this 
Administration handles national security in a disciplined 
fashion, using all the tools at its disposal that are available 
in an effort to protect the American people.
    And I must take this opportunity to recognize the great, 
the fabulous success of the mission which was carried out by 
the CIA and the Joint Special Operations Command that resulted 
in the apprehension of Osama bin Laden over the weekend.
    And I know that your Department is just as effective when 
it comes to prosecuting terrorists, and I deeply regret the 
fact that your decision to prosecute Khalid Sheikh Mohammed, 
the mastermind of 9/11, your decision to prosecute him in the 
civil--I mean in the criminal courts of this country, I regret 
that Congress, politicians in Congress usurped your ability to 
exercise the discretion that you have with respect to where to 
try that gentleman.
    And because he will be tried in a secret military tribunal, 
many of the things about the case that have not been publicly 
revealed will not be revealed, and so the American people will 
be left without the information, which I think would generate 
true closure for them in this matter.
    I appreciate all that you have done at Justice to protect 
all Americans at home and abroad, and I applaud the Justice 
Department's commitment to transparency. Under your leadership, 
the Department has processed a record number of Freedom of 
Information Act requests, and you have testified before this 
Committee numerous times, and your dedication to State and 
local law enforcement by supporting the COPS program certainly 
does not go unnoticed, especially in this tight economy.
    Now, General Holder, I sent you a letter on March 28th of 
this year requesting information pertaining to three Federal 
intelligence contractors; HBGary Federal, Palantir Technologies 
and Berico Technologies, who collectively refer to themselves 
as Team Themis. Are you familiar with my letter?
    Attorney General Holder. I can't say that I am.
    Mr. Johnson. Well, in that letter, I expressed concern that 
the three firms may have broken the law by conspiring to harm 
American citizens using illegal techniques, such as hacking, 
planting malware, blackmail and fraud. Nineteen of my 
colleagues in the House of Representatives echoed those serious 
concerns in a letter sent to House Committee chairs earlier in 
March, and I also requested copies of all Department of Justice 
contracts with those firms within 10 days.
    I have grave concerns that the law may have been broken, 
and I understand that there are many demands on your time and 
that your staff is busy, but will you commit to looking into 
that matter?
    Attorney General Holder. Yeah, we will--I have a great 
staff, many of whom are right behind me, and they are 
undoubtedly taking notes right now with regard to the letter 
you talked about--I hope they are--about March 28th.
    Mr. Johnson.Well, I hope they are also.
    Attorney General Holder. They are writing. They are 
writing.
    Mr. Johnson. Okay. I would appreciate you all getting back 
to me. And when additional information arises, I will 
definitely send it to you on that case. And with that, I will 
yield back. Thank you.
    Mr. Smith. Thank you, Mr. Johnson.
    The gentleman from Iowa, Mr. King, is recognized for his 
questions.
    Mr. King. Thank you, Mr. Chairman.
    I thank Attorney General Holder for his long testimony 
here, and this is always a challenge and always an interesting 
day to serve on this Committee when the Attorney General of the 
United States is to testify before the Judiciary Committee, and 
I do appreciate it.
    I have a series of subjects I would like to examine, 
perhaps not in the depth that some of the others have. But I 
recall your testimony here roughly a year ago, and we had a 
discussion and exchange about Arizona's SB1070 law. And at that 
time, I had asked you if there was a provision in the 
Constitution that you believed it had violated or if there was 
Federal preemption that it had perhaps violated or if there was 
any controlling case law that it perhaps crossed the line on 
it. At that point, you weren't prepared to respond to that. And 
I don't ask you to do that today, but to make this point that 
subsequent to that, then, of course, Justice filed a lawsuit 
against Arizona. And in reading that, I come across this--it 
seemed to be something I hadn't encountered before--a careful 
balance that makes the case that Congress has established a 
careful balance between the various and sometimes competing 
immigration laws, and it is the job of Justice and the other 
departments to maintain that careful balance, just to put that 
in summary.
    Attorney General Holder. I am sorry, again, what kind of 
balance? I couldn't hear you.
    Mr. King. A careful, careful balance. And I have been 
involved in a lot of immigration debates, and I don't know that 
anyone has alleged they had introduced legislation on 
immigration that was designed to achieve or enhance a careful 
balance. And so I just ask if that, I will call it illegal 
theory, the careful balance theory, does that exist anywhere 
else in law that you know of?
    Attorney General Holder. Well, the positions that we have 
taken in that lawsuit have been upheld by both the District 
Court and a Court of Appeals, theories that we have brought. 
The theories that we have used, which I think are mainstream 
theories, as I said, by two courts now that have said that we 
are in the right.
    Mr. King. Boy, this is the microphone. It is not Trent 
Franks' fault. The careful balance theory, however, regardless 
of the two courts ruling, and we are on our way to the Supreme 
Court, I presume, do you know that that careful balance theory 
exists anywhere else in law?
    Attorney General Holder. To the extent that we have used 
particular theories, particular phrases, I am sure that the 
lawyers who filed those briefs did so carefully, did so with 
regard to----
    Mr. King. Attorney General, just let the record show I 
think it is a unique theory myself, and I would be very 
interested if there is any other place that you could direct my 
reference. It seems to me that that is the one that is 
convenient for this case. And if there is--if it is out there 
anywhere, I would like to know the answer to that.
    But let me move on. And that is--and I didn't ask you the 
question whether you read SB1070. But we have another piece of 
legislation out there now that has been passed by one of the 
States; it is called HB116. That is Utah's legislation that I 
will just contend for the sake of simplified vernacular creates 
Utah as a sanctuary state. Have you examined and have you read 
HB116?
    Attorney General Holder. I have read the Utah law.
    Mr. King. And have you made a determination on whether to 
bring suit against Utah?
    Attorney General Holder. No, we have not. As I indicated I 
think in a prior question, what we typically do is try to 
interact with the State and try to work our way through any 
disagreements we might have without bringing suit. The statute 
doesn't go into effect until 2013, I understand. We are 
prepared to bring suit if that is necessary, but that is a 
decision we will make in about a year or so.
    Mr. King. Let me just make the point that if Arizona is 
preempted, then Utah establishing a sanctuary Sate certainly is 
preempted. I would make that point between us here today.
    And I move on, also, you have reviewed since your last 
testimony before this last Committee the sworn testimony of the 
Christian Adams and Chris Coates before the Civil Rights 
Commission under oath when they had made the point that the 
Justice Department has a racial component to the equation of 
whether they will enforce discrimination if it disadvantages a 
minority. Have you reviewed that testimony, and do you accept 
it as truthful, their sworn testimony?
    Attorney General Holder. I have not reviewed the testimony, 
but their characterization of that is totally inaccurate.
    Mr. King. And I just ask, have you then looked into the 
Department and evaluated, done a further investigation, 
though--I mean, you disagree with that, but have you actually 
done an extra investigation within your own Department to 
satisfy yourself, or was that your judgment a year ago and is 
that just simply your same judgment today?
    Attorney General Holder. No. If you look at the assertions 
that they have made, it seems to me that they are inconsistent 
with the findings that the Office of Professional 
Responsibility has made looking at the whole Black Panthers 
matter where the OPR made the determination that politics, race 
did not play a part both in the filing of the case or in the 
decision as to how the case was disposed of, which seems to me 
is inconsistent with what they are claiming.
    Mr. King. And Mr. Attorney General, I point out that I 
believe that Thomas Perez was less than truthful with this 
Committee when he testified that they achieved the highest 
penalty involved under the law.
    And I just ask unanimous consent for an additional minute.
    Mr. Smith. Without objection, the gentleman is recognized 
for an additional 30 seconds.
    Mr. King. Thank you, Mr. Chairman.
    I also wanted to bring up the issue of Pigford Farms. And 
can you cite for this Committee the authorization that you had 
or may believe you had to open up negotiations for a second 
round of Pigford Farms we refer to as Pigford II?
    Attorney General Holder. The Attorney General has the 
ability to settle cases. That is part of what the--that is I 
think an inherent part of what the Attorney General's----
    Mr. King. Would you cite the 2008 farm bill as the 
authorization for that specifically to conclude Pigford II?
    Attorney General Holder. I am not sure I quite understand 
your question.
    Mr. King. Well, I can understand why. And then, so I would 
ask, did you negotiate with John Boyd on settlement for Pigford 
II?
    Attorney General Holder. Did I?
    Mr. King. Yes, or did anyone from your office authorized by 
you do so?
    Attorney General Holder. I am not sure I know who Mr. Boyd 
is.
    Mr. King. That is instructive to me, and I won't push my 
time limits any further.
    Thank you, Mr. Attorney General. I appreciate it.
    Mr. Smith. Thank you, Mr. King.
    The gentlewoman from California, Ms. Chu, is recognized.
    Ms. Chu. Thank you, Mr. Chair.
    Thank you, Mr. Attorney General, for being here. Two nights 
ago, President Obama announced that Osama bin Laden had been 
killed. And as Americans around the country rejoiced, President 
Obama also reminded us that on that day, no matter where we 
came from, what God we prayed to or what race or ethnicity we 
were, we were united as one American family.
    But in the wake of 9/11, we have seen a disturbing increase 
of hatred and discrimination against the Muslim community in 
America and those thought to be Muslims, such as South Asians 
and Sikh Americans. Most recently the House Homeland Security 
Committee in fact held hearings that targeted the American 
Muslim community.
    Considering the importance that intelligence information 
played in finding Osama bin Laden, how could an antagonistic 
relationship between an American Muslim community and law 
enforcement hurt our efforts to combat any homegrown terrorist 
threat, and what have you been doing to engage the community 
and maintain their trust?
    Attorney General Holder. Well, I think that is a good 
question. If there were an antagonistic relationship between 
law enforcement and those communities, that would have a 
negative impact on our ability to protect the American people.
    What we have seen is a pretty consistent level of 
cooperation and provision of information from the Muslim 
community here in the United States. We have started a series 
of outreach efforts where I think the Department of Justice has 
been leading the way in order to dispel myths, make sure that 
there are open lines of communication, make sure that people 
understand that our aim is to protect all Americans, Muslim 
Americans as well as everyone else. And to the extent that 
there is discrimination or inappropriate actions directed 
toward that community, our Civil Rights Division has tried to 
step in and take action.
    Ms. Chu. Then let me ask about a guidance that the DOJ has. 
Even 10 years after 9/11, there is racial and religious 
profiling against the South Asian, Muslim and Sikh communities, 
and it is of widespread concern. I do commend the Department 
and especially the Civil Rights Division, the FBI and the U.S. 
Attorney General's Office, which has investigated over 750 
incidents involving violence, threats and vandalism and arson 
against Arabs, Muslim, Sikhs and South Asian Americans in the 
United States between 9/11 and March 2007. And in June 2003, 
the DOJ issued guidance banning the practice of racial 
profiling. Giving evidence that shows that racial profiling is 
ineffective and counterproductive, policies that prohibit it 
are certainly admirable. However, there needs to be much more 
strength on this kind of guidance. And the guidance doesn't 
profile--doesn't ban profiling on the basis of religion or 
national origin and lacks a meaningful enforcement mechanism. 
What is the progress of the review that I believe that you are 
doing right now involving this guidance? Where is it at?
    Attorney General Holder. Well, I would say, first, as a 
general matter, the use of profiling techniques is not 
generally good law enforcement, is not generally good law 
enforcement. We have under review the policy that was initiated 
back, I believe, in 2003. That review is under way, and my hope 
would be that I will have some recommendations from the group 
that is looking at that policy.
    Ms. Chu. And I certainly would urge that you do look at the 
issues of religion and national origin, as well as the 
enforcement mechanisms.
    Let me also say that the DOJ has engaged in this much 
needed outreach, and I certainly acknowledge that, but there 
certainly is also a need to better institutionalize current ad 
hoc initiatives. Would the DOJ consider formalizing the 
initiative to combat post-9/11 discriminatory backlash within 
the Civil Rights Division of the DOJ by designating a special 
counsel for post-9/11 discrimination and a special counsel for 
religious discrimination?
    Attorney General Holder. Well, that is an interesting idea. 
I think that we have laws that our Civil Rights Division 
traditionally enforces that handle those kinds of issues. We 
have a community relations service as well in the Justice 
Department that can contribute in this regard. So I think we 
have the tools that we need, and we certainly have the 
dedication of the people who are career employees and who will 
be there after I leave as Attorney General who I think will 
remain dedicated to the enforcement of those regulations and 
those laws.
    Ms. Chu. I hope you might consider that.
    And my last question has to do with hate crime statistics. 
And the Hate Crime Statistics Act mandates the collection of 
data on hate crimes, but it lumps together those acts that are 
anti Muslim or anti Arab, hence, those acts that are actually 
committed against Sikh Americans or South Asian American are 
not distinguished. Would the Department of Justice consider 
formally tracking hate crimes suffered by Arabs, Hindus, Sikhs 
and South Asians separately?
    Attorney General Holder. I think that is something we could 
consider. I think the greater the amount of granularity we have 
with regard to who is the victims of these kinds of acts, the 
more effective we can be in our enforcement efforts. So I think 
your suggestion is a good one, and that is certainly something 
that we can consider and work with you in trying to determine 
whether that is something that we can appropriately do.
    Ms. Chu. Thank you and I yield back.
    The Chairman. Thank you Ms. Chu.
    Before I recognize the gentleman from Arizona, Mr. Quayle, 
for his questions, let me say that two votes have been called, 
and we will need to stand in recess and go vote and then we 
will return, Mr. Attorney General, if that is all right with 
you. There are still several Members who would like to ask 
questions.
    The gentleman from Arizona.
    Mr. Quayle. Thank you, Mr. Chairman. And thank you, Mr. 
Holder.
    I just want to get some clarification on what you talked 
about with Mr. King. Is the reason that there hasn't been any 
action on the Utah case, is it based on just the fact that it 
is not getting implemented until 2013 and you still do see some 
possible supremacy clause violations within that law?
    Attorney General Holder. I think they are certainly issues 
that we see now. Our hope would be that between now and 2013, 
there might be some way that we can work our way through those 
concerns without having to bring a lawsuit. But if we have to, 
we will.
    Mr. Quayle. So just working through possibly the 
legislature, the State legislature passing a different law, 
making some amendments to that law?
    Attorney General Holder. Right. That way interpretations 
that the Attorney General might take of the law, there are a 
number of ways in which we might try to work our way through 
it.
    Mr. Quayle. Changing gears. But I read last month that the 
Wall Street Journal reported that the DOJ and the FTC have 
resorted to coin flips, sometimes trades and bargains when 
determining which agency might have jurisdiction over cases, 
which can cost the interested parties additional time and 
expenses.
    Recently the DOJ's anti-trust division, FTC and Congress 
have conducted investigations into online search engines and 
online advertising markets. As this area of our economy 
continues to grow, how do you plan on dividing the work between 
the agencies while preserving institutional knowledge and 
consistency?
    Attorney General Holder. That is a very good question, and 
something that we are trying to work our way through.
    The FTC and the Justice Department anti-trust division have 
generally been in a good place in dividing up responsibility 
for anti-trust enforcement. There have, however, been instances 
where we have not been on the same page and I think we need to 
get together and try to work together and that is what we are 
trying to do. To figure out what the rules of the road are 
going to be so that we don't end up with as you indicated 
either coin flips or other ways in which we decide these 
matters.
    Mr. Quayle. So the DOJ and the FTC are working together to 
try to get some guidance and see who is going to be overseeing 
those matters?
    Attorney General Holder. Yes.
    Mr. Quayle. The other question I have is what role do you 
think that the anti-trust division has in helping to maintain 
an online marketplace that rewards without necessarily 
foreclosing new competition and preventing ideas from reaching 
consumers?
    Attorney General Holder. I think the anti-trust division, 
it is an interesting way that you phrase it but I think it is 
right. Anti-trust is generally seen as trying to stop mergers 
consolidation but I think the effect, the collateral, the 
impact of that work is to make sure that things are kept open, 
things are kept free and that is especially important when one 
looks at cyber issues, the Internet, where innovation happens 
so rapidly and where consolidation is not necessarily a good 
thing. And so we are constantly looking in that sphere for 
things that might inhibit the growth, the development of the 
Internet.
    Mr. Quayle. And in those investigations, have you seen any 
active and actual bottlenecks or gatekeepers on the Internet 
that actually is keeping content from consumers? Have you seen 
any actual evidence of that? Or are we starting to get down to 
conjecture and it is going to the possibility of the 
gatekeepers rather than actual factual evidence pointing to 
that?
    Attorney General Holder. That was a good question. I am not 
sure that I am capable of answering that. We can get you 
something in writing from the folks in the anti-trust division 
who would be able to tell you more, in a more complete and 
contemporary way what concerns they have in that regard. I am 
not aware of any. But just because I am not doesn't mean that 
maybe there aren't things going on in the anti-trust division 
that would be responsive to your question.
    Mr. Quayle. So you don't know anything but you can give me 
information if there is any?
    Attorney General Holder. We will get you something.
    Mr. Quayle. Okay, perfect. Thank you, Mr. Holder.
    And with that, Mr. Chairman, I yield back.
    Mr. Smith. Thank you, Mr. Quayle.
    Mr. Attorney General, we will stand in recess for 20 
minutes and be back then.
    [recess.]
    Mr. Smith. The Judiciary Committee will reconvene. Welcome 
back, Mr. Attorney General.
    And the gentlewoman from California, Ms. Sanchez, is 
recognized for questions.
    Ms. Sanchez. Thank you, Mr. Chairman.
    Attorney General Holder, I want to thank you for joining us 
here today. It is always nice when the AG takes the time to 
come and talk about the many issues facing the Department of 
Justice and how they impact the population here in the United 
States. I want to start with a couple of quick questions 
regarding the anti-trust division first. As I am sure, the 
Members of the Committee are aware, one of the major issues 
facing the anti-trust division is the proposed merger of AT&T 
and T-Mobile. I serve on the Intellectual Property 
Subcommittee, and I am sure that they are going to be holding 
hearings to consider the various impacts of this merger.
    I just want to talk to you really quickly about the DOJ's 
investigation into this proposed merger and the questions I 
have specifically on this issue are, if you can give the 
Committee a sense of how long you expect that review to take, 
and then also what factors are you going to be considering as 
you review that merger?
    Attorney General Holder. I am not sure that I can give you, 
with any degree of certainty, how long the review would take. 
It will be one that will be done thoroughly and expeditiously, 
and then I think the normal things that would be considered 
will be the ones that will drive the inquiry, the whole 
question of what the impact of the merger will have on, the 
potential merger would have on consumers, on the market. It 
would be just a traditional analysis even though it involves 
some cutting edge technologies.
    Ms. Sanchez. Thank you. I want to talk to you a little bit 
about the state criminal alien assistance program. When I was a 
new Member of Congress, law enforcement came to visit me in my 
office to talk about how a reinterpretation by the Department 
of Justice had a profound impact on their budgets. SCAAP 
program was established to help reimburse State and local 
governments for the costs associated with housing undocumented 
criminals, but in 2003, the Department of Justice reinterpreted 
SCAAP in a way that caused a drastic drop in every State's 
reimbursement, and that has had repercussions throughout the 
law enforcement community at a time when, quite frankly, when 
law enforcement can least afford it. In my State of California, 
for example, SCAAP reimbursement payments have declined from 
$220 million in fiscal year 2002, that was prior to the 
reinterpretation of the statute, and it has dropped to 112 
million in fiscal year 2009.
    And as I am sure you are aware, many States are 
experiencing budget shortfalls and having to scale back on many 
services.
    And I am wondering if you would be willing to reexamine the 
award criteria for the SCAAP program and review the 
reinterpretation and see if that merits continuance?
    Attorney General Holder. When I testified before the Budget 
Committees, I was very conversant with SCAAP and where we were 
in terms of our budget. To be honest with you, I am not now. 
What I can do is promise to get you something that indicates 
where we are in our budget with regard to SCAAP and also look 
at that opinion and see how that impacts the----
    Ms. Sanchez. I don't want to get into the weeds of it, but 
it really is criteria that is nonsensical and doesn't make a 
lot of sense. I am asking if you would take the time to sort of 
review that opinion and figure out if that still makes sense?
    Attorney General Holder. We can do that.
    Ms. Sanchez. Okay, great. And then finally, I want to 
address an issue that some of my colleagues earlier asked you 
some questions but about the recent indictments of several 
online poker Web sites. Those have a significant impact on many 
of my constituents because I have heard a lot from them on this 
matter. As Mr. Cohen, I believe, stated, it is a game that is 
gaining in popularity and there are about 10 million Americans 
that currently play poker on line and it also ends up being 
about a $16 billion industry in this country.
    Now, I know that there has been successful regulation of 
online poker playing in places like Europe and Australia, and I 
happen to be a strong supporter of legislation that would 
legalize online gambling in this country and allow us to tax it 
reasonably and efficiently and make sure that people were not 
being cheated out of their money. I am sure you can appreciate, 
again, in challenging economic times, when States are 
experiencing deep budget shortfalls and the Federal Government 
is trying to find a way to get its fiscal house in order, that 
is one area in which we could potentially increase revenue for 
the coffers.
    So I am hoping that that is an area that you will look at, 
again, in terms of where you dedicate your precious resources. 
I think time would probably, in my humble opinion, be better 
spent dealing with bigger and more impactful, serious violent 
crimes, for example, than trying to trying to interrupt this 
industry which, as I said, has been efficiently regulated in 
other countries. And with that, I will yield back my time to 
the Chairman.
    Mr. Smith. Thank you, Ms. Sanchez.
    The gentlewoman from Florida, Mrs. Adams.
    Mrs. Adams. Thank you, Mr. Chairman.
    Mr. Holder, I have a few questions and I am going to go 
quickly because I only have 5 minutes and I would really like 
to have a lot more, to be honest with you. Earlier, I listened 
and you said there were determinations as to why to follow 
through on enforcing the law or not enforcing the law, and I 
have a couple of questions. We are a Nation of laws, are we 
not?
    Attorney General Holder. We are--I can't hear you.
    Mrs. Adams. We are a Nation of laws?
    Attorney General Holder. Yes.
    Mrs. Adams. And what determination, what do you do to 
make--what do you go through to determine which laws your 
agency will enforce or not enforce?
    Attorney General Holder. See, I wouldn't put it that way. I 
say we enforce all the laws. The question is----
    Mrs. Adams. Well, we would probably disagree on that and I 
am just wondering is there a process which you go through to 
determine which ones you will actively enforce and which ones 
you will inactively enforce?
    Attorney General Holder. I think it is a question of 
prioritizing. That is how I would say it.
    Mrs. Adams. So you have a process to prioritize the laws 
which you will enforce?
    Attorney General Holder. No. Prioritize our enforcement 
efforts. You try to find what is the potential greatest harms, 
for instance, when it comes to violent crime, what is the most 
impact when it comes to financial crime, given the limited 
resources we have on those determinations that is how we decide 
where we deploy our resources.
    Mrs. Adams. Well, as someone who comes from a law 
enforcement background, I know that I was tasked with enforcing 
the laws that were on the books. If there was something wrong 
with the law or we found there was an issue we went to our 
legislative branch to deal with those, and I would ask that you 
would do that, you would give us that opportunity because if 
they are on the books, the American people expect for us to 
enforce them.
    Do you not agree with that?
    Attorney General Holder. As I said, we enforce the laws. We 
take into account the impact.
    Mrs. Adams. But do you agree the American people expect us 
to enforce the laws that we have on our books?
    Attorney General Holder. Sure. And we do.
    Mrs. Adams. The other thing is with the final end to the 
chapter of bin Laden, and he is now deceased and I commend 
everyone involved with his capture and ultimate demise, my 
question to you is in last year, you reauthorized the 
reinvestigation of CIA operatives in Gitmo even after they were 
cleared once by career Department of Justice investigators.
    Were any of these CIA operatives involved in getting the 
detainee information that led to Osama bin Laden's death?
    Attorney General Holder. The inquiries that I ordered, I 
guess, was last year----
    Mrs. Adams. Were any of them involved?
    Attorney General Holder. The investigation that I ordered 
last year----
    Mrs. Adams. Were any of those involved in the ultimate 
information that----
    Attorney General Holder. I was trying to answer the 
question.
    Mrs. Adams. It is a yes or a no.
    Attorney General Holder. Well, I can't answer that way. The 
investigation I ordered last year was people who potentially 
went beyond the OLC opinions----
    Mrs. Adams. Who were previously cleared?
    Attorney General Holder. Well, their information that is 
being examined by a special prosecutor who had been appointed 
by----
    Mrs. Adams. But I am not asking exactly that. I was wanting 
to know were they involved in getting the information that 
ultimately caught bin Laden?
    Attorney General Holder. I am not in a position to answer 
that. I don't know. I am not allowed to answer the question.
    Mrs. Adams. Okay.
    Attorney General Holder. I am----
    Mrs. Adams. Maybe in another venue you can answer that for 
me.
    Attorney General Holder. No. What I am saying is that I was 
trying to answer the question. You are looking for yes or no. I 
don't think I can give you one in that way.
    Mrs. Adams. Okay. The task force that has been created, and 
I am looking forward to seeing the outcome of that task force, 
I know there is a lot of factors playing into what is going on 
with the prices of gas and oil, and a lot of people in America 
want answers, and I agree with them. They should be afforded 
those answers.
    One of the things I noted was that your central mission of 
financial fraud enforcement task force is to enhance the 
government's effectiveness and combat financial fraud. As part 
of your investigations, will you also be probing into the 
Department of the Interior for its efforts to restrict trade by 
closing lands and holding our natural resources hostage?
    Attorney General Holder. I am not sure that I am familiar 
with those allegations.
    Mrs. Adams. Well, we have had some closed, and permits 
pulled back, and people are wanting to know and have a right to 
know the answers to those questions, why? And if that plays 
into the cost, the American people would like to know if it 
does.
    Also, the value of the dollar. Is that playing into the 
cost of our oil and gas? Those are questions that I would hope 
that you will answer for the American people since you have 
created this--just one other thing. I am curious. Does your 
agency not have the authority to do this without this 
Commission being created?
    Attorney General Holder. Sure, we could. But in trying to 
be an effective task force, you bring into the task force those 
agencies that have particular expertise. And by combining that, 
we make a task force that is better than one that we might be 
able to create out of simple Justice Department personnel.
    Mrs. Adams. You had already started an investigation prior 
to the task force being created?
    Attorney General Holder. I couldn't hear you.
    Mrs. Adams. You had already started investigating prior to 
the task force being created?
    Attorney General Holder. No.
    Mrs. Adams. Thank you.
    Mr. Smith. Thank you, Mrs. Adams.
    The gentlewoman from California, Ms. Waters, is recognized.
    Ms. Waters. Thank you very much, Mr. Chairman.
    And I thank the Attorney General for the time that he is 
spending here today, and the fact that he waited for us to come 
back from the vote. I wanted to come over here despite the fact 
that I am Chairing a Subcommittee of the Financial Services 
Committee because I want to talk about mergers. I have spent, I 
spent an awful lot of time on the Comcast-NBC merger as you, a 
lot of people know. And I am concerned. I am concerned about 
consolidation.
    But Mr. Holder, it appears across all industries that anti-
trust enforcement under the Administration, under this current 
Administration does not appear to be much different from the 
previous Administration's kind of rubber-stamped approvals of 
multiple mergers and consolidations. The mergers of 
Ticketmaster, Live Nation, Continental-United, Southwest-
AirTran, Comcast-NBC and Google-ITA have all been approved by 
your anti-trust division. It appears that the anti-trust 
division is chartering new territory and positioning itself as 
more a regulator than a legal enforcement agency.
    The consent decrees from the Comcast-NBC, Google-ITA and 
other mergers attach conditions that temporarily require DOJ 
monitoring enforcement actions if breached. In my estimation, 
it takes more resources for DOJ to regulate through the 
Judiciary than to simply block or audit divestiture when 
appropriate.
    Is regulating through consent decree in areas such as 
competition over the Internet and tech industry really the most 
effective, efficient and transparent way to create rules of the 
road for merger reviews? It is kind of a dual question here. I 
just want to understand where you are going over there with 
these merger questions?
    Attorney General Holder. Well, I think the anti-trust 
division it is tough on enforcement where it finds violations 
of the anti-trust laws. And I don't think those consent decrees 
or those conditions that were placed on those mergers are 
insignificant. The anti-trust division doesn't go into this 
with a notion that we want to try to find a way in which we 
make a merger occur. You look at the anti-trust laws, apply 
them, and then make a decision as to whether or not a merger 
can go through or there are ways in which a merger might be 
constructed that it could. But we don't go into it with a 
presumption or a mindset that we want to make mergers occur. 
And I think that we have through the leadership of our 
assistant attorney general, I think we have been appropriately 
aggressive.
    Ms. Waters. Have you denied any since you have been there?
    Attorney General Holder. Let's see. I could probably get 
back to you with that. I am not sure.
    Ms. Waters. Well, let me just register this. I spent hours 
upon hours working on the Comcast-NBC merger and raised 
significant, we think, questions about that merger. We 
understand how they operate now. We learned an awful lot about 
some of the agencies and programs that came in to support them. 
We learned about how they make contributions to nonprofit 
organizations. We were not talking about whether or not you 
contribute to churches and civil rights groups and all of that. 
We were talking about whether or not your company, your 
business, is diverse, whether or not it is reflected in your 
management, we talked about whether or not the programming at 
NBC, et cetera, opened up opportunities for independent 
operators. We talked about some serious and significant issues. 
We got outplayed because they were able to roll in a lot of 
folks who had gotten contributions for their yearly conventions 
and their churches and all that of that. And I am just 
wondering whether or not those of who us who are concerned 
about consolidations and mergers should just stop fighting 
these things altogether and allow them to come in with the 
conditions that you think play well and you all just adopt 
those conditions and let these mergers could go through. I am 
really concerned about it.
    Attorney General Holder. Well, as I said, the anti-trust 
division is taking its enforcement responsibilities seriously. 
I think, again, as I said before, we are being appropriately 
aggressive in handling these matters in a way that is 
consistent with the law.
    Ms. Waters. I am going to ask you something that is very 
sensitive. At the time that we were fighting, at the time that 
we were trying to fight to get people to pay attention to 
Comcast and NBC and how huge this merger was, NBC, that is 
owned by GE, CEO was being considered to head up the 
President's business council. Are you aware of that?
    Attorney General Holder. I was not aware of it at the time. 
I am aware of it now.
    Ms. Waters. Was that something that should be taken into 
consideration as you made a decision about that merger?
    Attorney General Holder. It should not have been and was 
not taken into consideration.
    Ms. Waters. It should not have been taken into 
consideration?
    Attorney General Holder. It was not.
    Ms. Waters. Why not?
    Attorney General Holder. That is not the consistent with 
what the enforcement responsibilities are of the anti-trust 
division.
    Ms. Waters. At the time that you were considering the 
merger, the key player was GE that owned NBC, and it appears 
that there was a relationship here with the Administration and 
with GE that would cloud their objectivity about that merger. 
You don't think that is worth considering? Or you don't think 
that is in your mandate to consider?
    Attorney General Holder. No, we certainly shouldn't 
consider it, did not consider it. You have to understand that 
the Justice Department acts when it comes to its enforcement 
responsibilities independent of anything that the White House 
might be doing with regard to----
    Ms. Waters. Oh, the appointees on the FCC acts independent 
of the White House also? The DOJ and the FCC have nothing to do 
with each other when they are considering these mergers?
    Attorney General Holder. I am talking about the Justice 
Department and its responsibilities when it comes to the 
enforcement of the laws that are our responsibility, we act 
independently of other executive branch agencies----
    Ms. Waters. Including the FCC, you are not interacting with 
the FCC?
    Attorney General Holder. I was going to say there are 
instances where we will interact with other agencies if they 
have a particular expertise or if there is a reason for us to 
interact with them when it comes to a particular statute, but 
when it comes to our enforcement responsibilities and 
determinations as to whether or not the anti-trust laws were 
violated and if those were the responsibility of the Justice 
Department, we act in an independent manner.
    Ms. Waters. We are not talking about whether or not the 
anti-trust laws were violated past tense. We are talking about 
consideration of the request or the attempts to get the merger, 
and looking at all aspects of whether or not this merger is in 
the best interests of the citizens of this country, the people 
of this country, that is what I am talking about.
    Do you, in looking at that merger interact with the FCC who 
have appointees by the President and what is going on in that 
overall discussion?
    Attorney General Holder. Let's cut to the quick here. The 
Justice Department's determinations in that case or any other 
case is not affected by relationships that exist between the 
White House and the head of GE or anything like that. That 
didn't come into play in the determination that the Justice 
Department made in that case. That is the bottom line.
    Ms. Waters. And should not come into play.
    Attorney General Holder. And that is the bottom line.
    Mr. Smith. The gentlewoman's time has expired.
    Ms. Waters. Thank you. Thank you very much.
    Mr. Smith. The gentleman from Pennsylvania, Mr. Marino, is 
recognized for his questions.
    Mr. Marino. Thank you, Mr. Chairman. General, welcome. I 
want to thank you and your staff for waiting for us. I know how 
busy you are. I was U.S. attorney from 2002 to 2008 and I was 
very busy. I multiply that by a thousand for you and your 
staff, and I know how you multitask. So with that said, sir, I 
have to put in a plug for my middle district of Pennsylvania 
staff who I miss dearly and they made me look good.
    Attorney General Holder. Well, don't take this off Mr. 
Marino's time, but I tried my second and third cases in 
Scranton. I am an admirer of Judge Nealon, and he is a great 
judge and was very kind to a young lawyer when I was up there 
in the 1970's.
    Mr. Marino. I know what you mean. I tried several cases 
there.
    Let's just switch gears here for a moment and let's talk 
about the Federal Bureau of Prisons. We know over the years, we 
have had officers who have been murdered, killed by inmates. 
And no one knows better than I do the seriousness of when we 
talk about having officers carry guns and just visiting a 
Federal prison last week I sat down with the inmates and had a 
chance to talk with them a little bit about how things are 
operating.
    And you know some of those inmates stood up and were 
concerned about the safety of some of the guards believe it or 
not. I had to take what they were saying as the truth. But also 
the guards and I discussed the fact that the guards should not 
be carrying guns for obvious reasons at least between us. But, 
do you see any harm in the officers carrying mace, carrying a 
spray of some type? There is a situation where a guard was 
killed, he was stabbed several times by two inmates, got away 
from them down into another landing, they came down and 
finished him off. And I have to think that perhaps just the 
fact that having some mace to fight them off for a few seconds 
until help got there, it may have saved his life. So I would 
ask you to please consider that.
    Attorney General Holder. Yeah.
    Mr. Marino. And let me know what the downside is to that if 
you would because we couldn't come up with any other than the 
fact that an inmate could grab that but still there would be 
time to handle that situation. So if you would please.
    Attorney General Holder. I am not an expert in that field, 
but I am more than glad to run your suggestion by the folks at 
BOP and we will get back to you on what their response is.
    Mr. Marino. Thank you. Now I want to switch gears here to 
Countrywide Financial, particularly Angelo Mozilo. He was the 
former chair and CEO of Countrywide Financial. And the SEC 
filed charges against him and others on June 4, 2009, alleging 
that they failed to disclose to investors the significant 
credit risk that Countrywide was taking on as a result of its 
efforts to build and maintain market shares.
    The SEC's complaint further alleged that Mozilo engaged in 
insider trading while he was aware of material nonpublic 
information concerning Countrywide's increasing credit risk and 
the risk regarding the poor expected performance of Countrywide 
originated loans.
    This gentleman received or made over, from 2001 to 2006 470 
million in salaries and stock options and things of that 
nature. The Federal prosecutor in Los Angeles dropped these 
criminal investigations on this man in February 2011. He was 
assessed civil penalties to the tune of almost $68 million and 
I don't know all the facts, haven't read any indictments or 
anything or potential investigator reports, only what I read in 
the newspaper and catch from other individuals.
    But I understand this person is still enjoying his yacht 
out in the Mediterranean and based on the limited material that 
I read, I think there is a question there, I think there is a 
serious question that at least could have been brought before a 
grand jury to determine whether to indict. I can see why he 
probably wanted to hand over $68 million if he made 470 and not 
spending any jail time on that.
    If you are familiar with that, could you elaborate on it a 
little bit and if not, could you have someone look into that, 
please?
    Attorney General Holder. Well, I am not sure there is an 
awful lot of information we would be able to share. I am not 
intimately familiar with the case. In any case, I am not at all 
certain we would be in a position to share information about a 
closed matter, as you will remember from your DOJ days, that is 
not something that is typically done.
    What we try to do obviously is to look at these matters, be 
aggressive, we have good lawyers again as you know, around the 
country who look at these matters and try to make cases. And 
that is something that I hope I conveyed today, that these 
matters are examined by prosecutors who come to the Justice 
Department to try these matters, to investigate these matters 
and take these matters to court and then to hold people 
responsible.
    If determinations are made not to proceed, it is not for 
lack of trying. It is because they have made a determination 
that they can't.
    Mr. Marino. You made it very clear today. I applaud you for 
those efforts. My office was involved in prosecuting a case 
similar to this. And I never would question a U.S. attorney as 
to why they did or didn't. I am sure there are reasons. But 
this is the kind of situation where my constituents say, how 
can someone this wealthy get away with that, and you know how 
they are couching it in terms of wealth and get away with it. I 
know that is not the case with the Justice Department. Thank 
you so much for being here today, and I yield my time.
    Mr. Smith. Thank you, Mr. Marino.
    Mr. Attorney General, I would like to ask you a few 
questions just to follow up on some subjects that were raised 
earlier, and my guess is that there are easy answers.
    Does the Administration still favor having background 
checks conducted by those who purchase firearms at gun shows? 
We were told by your earlier answer whether the Administration 
had changed its earlier position or not, but do you still favor 
having those background checks conducted?
    Attorney General Holder. I will say that I think that 
having a system where people who are exercising their Second 
Amendment rights in purchasing firearms, we would all be better 
served by having background checks done. We are presently 
engaged in a dialogue with a variety of members of the firearms 
community. We will be having working group meetings at the 
Justice Department, we talk to retailers, a whole variety of 
people. We are in the process of trying to look at the state of 
the law and come up with proposals about things that we might 
consider to make the law better and to make the American people 
being more safe.
    Mr. Smith. But you do favor the background checks being 
conducted?
    Attorney General Holder. I would say that, as I said, I 
think the American people are better served and are more safe 
by having people exercising their rights in a way that when you 
get to a licensed firearms dealer, you have an instant 
background check done. I think that is a better way to do it.
    Mr. Smith. I am talking about at a gun show, though, and 
you do favor the background checks there?
    Attorney General Holder. I think that having everybody who 
purchases a gun----
    Mr. Smith. Everybody including that. Okay. I understand.
    You were asked a question earlier about price-fixing by oil 
companies. Are you aware of any oil companies who have engaged 
in that conduct? I know you appointed a task force that might 
or might not discover that. But are you aware of any of that 
type of activity today?
    Attorney General Holder. I am not aware of any activity 
like that today. I have to await the results of the 
investigation. That is what the investigation is for.
    Mr. Smith. I understand. In regard to my question about the 
Utah immigration law, when I ask why you weren't filing suit 
against Utah as you had Arizona, you said we are trying to work 
something out with them. What were you referring to when you 
said trying to work something out with Utah?
    Attorney General Holder. It would depend on what Utah does. 
Once we have raised the concerns that we have, the legislature 
might decide to change the law. There might be enforcement 
ways, there might be ways in which the law might be enforced 
that are consistent with how we view our immigration 
responsibilities.
    Mr. Smith. It would seem it is unconstitutional, at least 
it is suspect on its face because you have a law that professes 
to give legal status to people in the country who are here 
illegally. Why wouldn't, I don't know how you work that out, 
and it seems to be a clear violation of current immigration law 
so----
    Attorney General Holder. It might be. The law as it exists 
in 2011, it could be a violation that we would sue, by 2013, we 
may be in a position that we are in a different place.
    Mr. Smith. If they change the law, it would take something 
like that. Okay, fair enough. Do you still favor closing Gitmo? 
I wasn't sure by an earlier answer whether that was the case.
    Attorney General Holder. I have indicated and the President 
has indicated we both think the closure of Guantanamo would be 
in our national interests.
    Mr. Smith. Fair enough. Mr. General, thank you for being 
here today. Thank you for answering all of our questions and we 
will be in touch with you as well.
    Attorney General Holder. Okay, thank you.
    Mr. Smith. Before we adjourn, without objection, all 
Members will have 5 legislative days to submit additional 
written questions for the witness and to submit any additional 
materials for the record. With that, we stand adjourned. Thank 
you again.
    Attorney General Holder. Thank you.
    [Whereupon, at 2:25 p.m., the Committee was adjourned.]









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