[Senate Hearing 112-436]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 112-436

              OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               ----------                              

                            NOVEMBER 8, 2011

                               ----------                              

                          Serial No. J-112-50

                               ----------                              

         Printed for the use of the Committee on the Judiciary










                                                        S. Hrg. 112-436

              OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                            NOVEMBER 8, 2011

                               __________

                          Serial No. J-112-50

                               __________

         Printed for the use of the Committee on the Judiciary










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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York              JON KYL, Arizona
DICK DURBIN, Illinois                JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island     LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
AL FRANKEN, Minnesota                MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware       TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director


















                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     2
    prepared statement and attachments...........................  1207
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................  1265

                               WITNESSES

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

                         QUESTIONS AND ANSWERS

Responses of Eric H. Holder, Jr., to questions submitted by 
  Senator Grassley:
    Jon Corzine, August 24, 2009.................................    52
    Pat Quinn, November 9, 2009..................................    92
    Robert F. McDonnell, February 10, 2011.......................   141
    Jack Markell, November 9, 2010...............................   162
    Chris Collins, July 15, 2009.................................   183
    Ed Emmett, June 4, 2009......................................   233
    Pat Quinn, November 9, 2009..................................   257
    Mitch Daniels, January 29, 2010..............................   316
    Michael R. Bloomberg, January 15, 2009.......................   363
    Roosevelt Allen, Jr., December 7, 2009.......................   421
    Robert Moore, March 31, 2011.................................   455
    Lyndon Bode, January 25, 2011................................   485
    Stephen Nodine and Sam Cochran, January 15, 2009.............   517
    Carlos A. Gimenez, August 24, 2011...........................   560
    Michael A. Delaney, April 7, 2011............................   600
    Index........................................................   628
    Sonny Perdue, January 15, 2009...............................   629
    David A. Paterson, August 14, 2009...........................   697
    Marlin N. Gusman, September 11, 2009.........................   729
    Howard R. Bradley, August 26, 2011...........................   761
    Martin O'Malley, October 7, 2009.............................   780
    Michel Claudet, January 18, 2011.............................   836
    Andre J. Spano, November 19, 2009............................   862
    Attachment A through E.......................................   904
Responses of Eric H. Holder Jr. to questions submitted by 
  Senators Whitehouse, Klobuchar, Franken, Grassley, Hatch, Kyl, 
  Sessions, Graham, Cornyn, Lee, and Coburn......................  1090

                       SUBMISSIONS FOR THE RECORD

Firearms Trace Data, Department of Justice, Washington, DC, Dec. 
  1, 2006 through September 30, 2011, report.....................  1206
Holder, Eric H., Jr., Attorney General, U.S. Department of 
  Justice, Washington, DC, statement.............................  1253
    October 7, 2011, letter to Senator Leahy and others..........  1260
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont:
    March 10, 2011, letter to Eric Holder, Jr....................  1268
    June 23, 2011, letter to Eric Holder, Jr.....................  1269
    November 7, 2011, letter to Cynthia A. Schnedar..............  1270
National Fraternal Order of Police, Chuck Canterbury, National 
  President, November 2, 2011, letter to Senator Leahy...........  1271
Salt Lake City Tribune, November 5, 2011, article................  1273
Schnedar, Cynthia A., Acting Inspecter General, Washington, DC, 
  October 28, 2011 letter to Senator Leahy                         1275
Weich, Ronald, Assistant Attorney General, Department of Justice:
    April 18, 2011 letter to Senator Leahy.......................  1284
    October 31, 2011 letter to Senator Leahy.....................  1286

 
              OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE

                              ----------                              


                       TUESDAY, NOVEMBER 8, 2011

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:07 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Kohl, Feinstein, Schumer, Durbin, 
Whitehouse, Klobuchar, Franken, Coons, Blumenthal, Grassley, 
Hatch, Graham, Cornyn, Lee, and Coburn.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. I understand we will have a lot of 
attendance this morning, so I will probably run the clock a 
little bit more diligently than usual, including for myself. I 
am glad to have Attorney General Holder back with us as we 
continue our important focus on oversight.
    When Attorney General Holder was here in May, details were 
just emerging about the successful military and intelligence 
operation that killed Osama bin Laden, which did provide a 
measure of justice and closure for Americans resulting from the 
horrific attacks of September 11th. That was not an isolated 
success; during the last few years, the Obama administration 
has successfully reinvigorated, retooled, and refocused our 
National security efforts.
    Now, the Attorney General, as he is in any administration, 
is a key member of that national security team. Under his 
leadership, the Justice Department last month foiled an 
assassination attempt in the United States of the Saudi 
Ambassador to the United States and prevented a major act of 
terrorism on U.S. soil. Last week, four men in Georgia were 
arrested in a domestic terrorism plot, accused of planning to 
use guns, bombs, and the toxic poison ricin to kill Federal and 
State officials. Earlier this year, the Christmas Day bomber, 
who was convicted in Federal court, pled guilty and faced a 
possible life sentence.
    Now, we have to ensure that we do all we can to assist 
efforts to bring terrorists to justice by providing the 
administration with the full array of authorities and options 
we need in our counterterrorism efforts. In my view, and a view 
that I know is shared by the Director of National Intelligence 
and the Attorney General, it is, of course, shortsighted for 
Congress to hamstring those efforts. As we proceed, we should 
remember that between September 11, 2001, and the end of 2010, 
438 suspects were successfully prosecuted by the Bush and Obama 
administrations on terrorism charges in Federal courts. Now, at 
the same time, six have been convicted in military 
commissions--only six. Five of those were from plea bargains.
    Now, the record over the last 3 years with respect to crime 
has also been outstanding. Over the past 3 years, crime rates 
have fallen rather than risen, which is contrary to normal 
experience during such difficult economic times. So as we 
proceed, each one of us is going to have questions about 
matters that concern us, but we should not lose sight of the 
big picture and the fact of what the Justice Department is 
doing to keep us safe and secure.
    This morning there will be more questions about the Bureau 
of Alcohol, Tobacco, Firearms, and Explosives' gun-trafficking 
investigations along our southern border. Attorney General 
Holder, it should be noted, has reiterated and reinforced that 
longstanding Department of Justice policy prohibits the 
transfer of firearms to known criminals without the proper 
monitoring or controls by law enforcement. Administration 
officials have testified at 17 Congressional hearings about 
these matters, including six held before this Committee.
    I urge that as they engage in important oversight, Senators 
respect the need for law enforcement and prosecutors to do 
their jobs to address the serious threat of violence posed by 
these brutal drug cartels. I do not think anyone wants to 
hamper the efforts of law enforcement agents against the 
Mexican cartels, including the ongoing criminal investigation 
and prosecution related to the tragic murder of Agent Brian 
Terry.
    So I thank the men and women of the Department of Justice 
who work hard every day to keep us safe and uphold the rule of 
law. I thank the Attorney General for returning to the 
Committee. I look forward to his testimony. And I have kept 
within my time as I will fully expect everybody else to.
    Senator Grassley?

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE 
                            OF IOWA

    Senator Grassley. This is a very important hearing, Mr. 
Chairman. There are a lot of issues to bring up. However, over 
the time that the Attorney General was last here, I have 
concentrated my oversight on Operation Fast and Furious. Just 
over 9 months ago, Attorney General Holder sat in my office, 
and I handed him two letters I had written to Acting Director 
Kenneth Melson of ATF. My letter mentioned: one, the death of 
Border Patrol Agent Terry; two, the allegations that ATF had 
sanctioned the sale of hundreds of assault weapons to straw 
buyers; three, the allegations that two of those weapons had 
been found at the scene of Agent Terry's death; and, four, the 
allegations that the whistleblowers who provided this 
information were already facing retaliation from the agency.
    Just 4 days later, the reply from the Department explicitly 
stated that the whistleblower allegations were false. It also 
claimed that, ``ATF makes every effort to interdict weapons 
that have been purchased illegally and prevent their 
transportation to Mexico.''
    In the 9 months since then, mounting evidence has put the 
lie to that claim. Documents contradicting the Department's 
denials came to light. Then six ATF agents testified powerfully 
at two House oversight hearings. They also confirmed that gun 
walking occurred in Operation Fast and Furious.
    Just last week, Assistant Attorney General Lanny Breuer 
admitted in this room that the Department's letter to me in 
February was absolutely false. But it gets worse. Mr. Breuer 
also admitted that he knew all along it was false. He could not 
recall whether he helped edit it. However, he knew it was false 
because he was aware of previous a gun-walking operation called 
Wide Receiver. Yet he remained silent for 9 months. He was 
aware that Congress had been misled, yet made no effort to 
correct the Department's official denial.
    Much has been said recently about guns being walked in 
Operation Wide Receiver during the Bush era. It does not matter 
for me when it happened. We need answers. Bush era prosecutors 
refused to bring the case; however, under Mr. Breuer's 
leadership, headquarters revived it despite the gun-walking 
issues. It was Mr. Breuer's responsibility to clearly 
communicate that gun walking was unacceptable and to institute 
oversight and safeguards to ensure that it did not happen 
again. He did not do that.
    Mr. Breuer admitted before this Committee last week that 
one of his deputies informed him of gun walking in Wide 
Receiver in April of 2010. He also admitted that the same 
deputy approved at least one of the wiretap applications in 
Operation Fast and Furious. In order to justify tapping the 
phone of a private citizen, the law requires that agencies show 
they have tried everything else first. But the very same facts 
that would show the need to obtain the wiretap would also show 
that the Department knew these individuals were trafficking in 
weapons.
    The Government should have stopped the flow of guns to 
these criminals. Anyone reviewing the wiretap affidavits would 
probably know that was not happening. I would also add that 
this tragedy should not be used to call for new gun control. 
The straw buyers in Fast and Furious were already breaking the 
law. They should have been interdicted and arrested nearly a 
year earlier than they were. The faulty statistics cited by 
some about U.S. guns in Mexico include U.S. weapons sold to 
foreign militaries, weapons that were transferred in to Mexico 
years ago, guns from Fast and Furious, stolen weapons, and many 
other sources.
    As we learn more about the utter failure to enforce our 
existing gun laws in Fast and Furious, I am eager to hear from 
the Attorney General whom he plans to hold accountable. I also 
want to know how he plans to prevent another tragedy like this 
in the future.
    But let me be clear. The bottom line is that it does not 
matter how many laws we pass if those responsible for enforcing 
them refuse to do their duty, as was the case in Fast and 
Furious.
    Thank you, Mr. Chairman.
    Chairman Leahy. Well, thank you very much.
    Attorney General Holder, would you please stand and raise 
your right hand? Do you swear that the testimony you are about 
to give before this Committee will be the truth, the whole 
truth, and nothing but the truth, so help you God?
    Attorney General Holder. I do.
    Chairman Leahy. Thank you. Please go ahead, sir.

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

    Attorney General Holder. Thank you. Chairman Leahy, Ranking 
Member Grassley, and distinguished members of this Committee, I 
appreciate the opportunity to appear before you today.
    Over the last 3 years, I have been privileged to address 
this Committee on numerous occasions--and to partner with many 
of you--in advancing the goals and the priorities that I think 
we all share. I am extremely proud of the Department's historic 
achievements over the last 2 years.
    Despite significant financial constraints, we have 
effectively confronted a range of national security threats and 
public safety challenges, and I am especially pleased to report 
that our efforts to combat global terrorism have never been 
stronger.
    Since I last appeared before this Committee in May--just 3 
days after the decade-long hunt for Osama bin Laden came to a 
successful end--the Department has achieved several additional 
milestones. For example, last month, we secured a conviction 
against Umar Farouk Abdulmutallab for his role in the attempted 
bombing of an airplane traveling from Amsterdam to Detroit on 
Christmas Day 2009. We also worked closely with our domestic 
and international partners to thwart an attempted plot--
allegedly involving elements of the Iranian Government--to 
assassinate the Saudi Arabian ambassador to the United States 
on American soil. We have also disrupted numerous alleged plots 
by homegrown violent extremists, including one targeting a 
military recruiting center in Washington State and another 
targeting U.S. soldiers in Texas. Meanwhile, in one of the most 
complex counterintelligence operations in history, we brought 
down a ring involving ten Russian spies. And just last week, a 
Federal jury in Manhattan convicted Viktor Bout, one of the 
world's most prolific arms dealers, for his efforts to sell 
millions of dollars' worth of weapons--including 800 surface-
to-air missiles and 30,000 AK-47s--for use in killing 
Americans.
    On other fronts, the Department has made extraordinary 
progress in protecting civil rights, combating financial fraud, 
safeguarding our environment, and advancing our fight against 
violent crime. We have filed a record number of criminal civil 
rights cases. And in the last fiscal year, our Civil Rights 
Division's Voting Section opened more investigations, 
participated in more cases, and resolved more matters than in 
any other similar time period in the last dozen years. This 
section is also immersed in reviewing over 5,500 submissions 
for review under Section 5 of the Voting Rights Act, including 
redistricting plans and other proposed State and local election 
law changes that would impact the access that some Americans 
would have to the ballot box.
    We have also worked to ensure that States do not institute 
an unconstitutional patchwork of immigration laws. In recent 
months, the Department has challenged immigration-related laws 
in several States that directly conflict with the enforcement 
of Federal immigration policies. Not only would these laws 
divert critical law enforcement resources from the most serious 
public safety threats, they can lead to potentially 
discriminatory practices and undermine the vital trust between 
local jurisdictions and the communities that they serve.
    The Department has also focused its efforts on the fight 
against financial fraud over the last 2 years by spearheading 
the interagency Financial Fraud Enforcement Task Force and 
successfully executing the largest financial and health care 
fraud takedowns in history. In addition, we secured a 
conviction in the biggest bank fraud prosecution in a 
generation, taking down a nearly $3 billion fraud scheme. And 
through our aggressive enforcement of the False Claims Act, a 
law significantly strengthened in recent years by this 
Committee, we have secured record-setting recoveries that have 
exceeded $8 billion since January of 2009.
    Now, I am proud of these and many other achievements, and I 
am committed to building on this progress. Although I hope to 
spend much of our time together discussing the work that is 
ongoing throughout the Department, I would like to take a 
moment to address the public safety crisis of guns flowing 
across our border into Mexico and the local law enforcement 
operation known as ``Fast and Furious'' that has brought 
renewed public attention to this shared national security 
threat.
    Now, I want to be very clear: Any instance of so-called gun 
walking is simply unacceptable. Regrettably, this tactic was 
used as part of Fast and Furious, which was launched to combat 
gun trafficking and violence on our Southwest Border. This 
operation was flawed in its concept and flawed in its 
execution. And, unfortunately, we will feel the effects for 
years to come as guns that were lost during this operation 
continue to show up at crimes scenes both here and in Mexico. 
This should never have happened. And it must never happen 
again.
    To ensure that it will not, after learning about the 
allegations raised by ATF agents involved with Fast and 
Furious, I took action. I asked the Department's Inspector 
General to investigate this matter, and I ordered that a 
directive be sent to the Department's law enforcement agents 
and prosecutors stating that such tactics violate Department 
policy and will not be tolerated. More recently, the new 
leadership at ATF has implemented reforms to prevent such 
tactics from being used in the future, including stricter 
oversight procedures for all significant investigations.
    Now, today I would like to correct some of the inaccurate 
and, frankly, some of the irresponsible accusations surrounding 
Fast and Furious. Some of the overheated rhetoric might lead 
you to believe that this local, Arizona-based operation was 
somehow the cause of the epidemic of gun violence in Mexico. In 
fact, Fast and Furious was a flawed response to and not the 
cause of the flow of illegal guns from the United States into 
Mexico.
    As you all know, the trafficking of firearms across our 
Southwest Border has long been a serious problem--one that has 
contributed to the approximately 40,000 deaths in Mexico in the 
last 5 years. As Senator Feinstein highlighted last week, of 
the nearly 94,000 guns that have been recovered and traced in 
Mexico in recent years, over 64,000 of those guns were sourced 
to the United States of America--64,000 of 94,000 guns sourced 
to this country.
    The mistakes of Operation Fast and Furious, serious though 
they were, should not deter or distract us from our critical 
mission to disrupt the dangerous flow of firearms along our 
Southwest Border. I have supported a number of aggressive, 
innovative steps to do so, and our work has yielded significant 
successes.
    We have built crime-fighting capacity on both sides of the 
border by developing new procedures for using evidence gathered 
in Mexico to prosecute gun traffickers in U.S. courts; by 
training thousands of Mexican prosecutors and investigators; by 
successfully fighting to enhance sentencing guidelines for 
convicted traffickers and straw purchasers; and by pursuing 
coordinated, multi-district investigations of gun-trafficking 
rings.
    This year alone, we have led successful investigations into 
the murders of U.S. citizens in Mexico, created new cartel-
fighting prosecutorial units, and secured the extradition of 
104 defendants wanted by U.S. law enforcement--including the 
former head of the Tijuana Cartel.
    Now, this work has undoubtedly saved and improved lives in 
the United States as well as in Mexico, and I am personally 
committed to combating gun trafficking and reducing the 
alarming rate of violence along the Southwest Border by using 
effective and appropriate tools.
    Now, like each of you, I want to know why and how firearms 
that should have been under surveillance could wind up in the 
hands of the Mexican drug cartels. But beyond identifying where 
errors occurred and ensuring that they never occur again, we 
must be careful not to lose sight of the critical problem that 
this flawed investigation has highlighted: We are losing the 
battle to stop the flow of illegal guns to Mexico. This means, 
I believe, that we have a responsibility to act. And we can 
start by listening to the agents, the very agents who serve on 
the front lines of this battle and who testified here in 
Congress. Not only did they bring the inappropriate and 
misguided tactics of Operation Fast and Furious to light, they 
also sounded the alarm to Congress that they need our help.
    ATF agents who testified before a House Committee this 
summer explained that the agency's ability to stem the flow of 
guns from the United States into Mexico suffers from a lack of 
effective enforcement tools. One critical first step should be 
for Congressional leaders to work with us to provide ATF with 
the resources and the statutory tools it needs to be effective. 
Another would be for Congress to fully fund our request for 
teams of agents to fight gun trafficking.
    Unfortunately, earlier this year the House of 
Representatives actually voted to keep law enforcement in the 
dark when individuals purchase multiple semi-automatic rifles 
and shotguns in Southwest Border gun shops. Providing law 
enforcement with the tools to detect and to disrupt illegal gun 
trafficking is entirely consistent with the constitutional 
rights of law-abiding citizens, and it is critical to 
addressing the public safety crisis along the Southwest Border.
    As someone who has seen the consequences of gun violence 
firsthand--and who has promised far too many grieving families 
that I would do everything in my power not only to seek justice 
on behalf of their loved ones, but also to prevent other 
families from experiencing similar tragedies--I am determined 
to ensure that our shared concerns about Operation Fast and 
Furious lead to more than headline-grabbing Washington 
``gotcha'' games and cynical political point scoring.
    We have serious problems to address, and we have sacred 
responsibilities to fulfill. We must not lose sight of what is 
really at stake here: lives, futures, families, and 
communities. When it comes to protecting our fellow citizens--
and stopping illegal gun trafficking across the Southwest 
Border--I hope that we can engage in a responsible dialog and 
work toward common solutions. And I hope that we can begin that 
discussion today.
    [The prepared statement of Attorney General Holder appears 
as a submission for the record.]
    Chairman Leahy. With that, I think we will begin the 
discussion. We have a number of issues besides that one, and I 
agree with you that if we are going to stop that flow of guns 
into Mexico--and I have heard the same thing from the Mexican 
authorities--we are going to have to take some steps here in 
this country. We cannot expect it all to be done across the 
border.
    Let me take up a few questions. I joined with Senator 
Feinstein and some other members of this Committee in the 
Intelligence Committee to ask the Majority Leader to refrain 
from bringing certain provisions in the defense authorization 
legislation before the Senate until significantly improved. I 
know the administration expressed serious concerns with the 
military detention and intervention provisions of the bill as 
reported from Armed Services. The way it was reported, it would 
significantly reduce the options for investigating terrorist 
threats. It actually lets all terrorists know which options are 
off the table, including those that have been most successful 
in bringing about convictions. Even the Heritage Foundation has 
argued the bill would deny the President needed flexibility.
    Would you agree that we need to keep our options open in 
countering terrorists and not start taking options off the 
table?
    Attorney General Holder. Yes, I would totally agree. We 
need to use all elements of American power in the fight against 
terrorism--our military power, our political power, the power 
that we have in our judicial system, military commissions. We 
need maximum amounts of flexibility, and we also have to be 
practical when it comes to the measures that Congress asks us 
in the executive branch to follow.
    Chairman Leahy. And the vast majority of our, almost by 
100:1, certainly by 90:1, convictions have been in our courts, 
not before military tribunals. Is that correct?
    Attorney General Holder. That is correct. There is no 
question that if one looks dispassionately at the history, our 
Article III system of courts has shown that they are fully 
capable of handling any matter that is brought before them.
    Chairman Leahy. And that was the same in both the Bush 
administration and the Obama administration.
    Attorney General Holder. That is correct.
    Chairman Leahy. Thank you.
    On September 30, 2011, it was reported that Anwar al-Awlaki 
was killed in an operation conducted by the United States in 
Yemen, and according to media accounts, the operation was 
conducted following the issuance of a secret memorandum issued 
by the Department of Justice which authorized the targeted 
killing of a U.S. citizen abroad. Without going into the facts 
of that particular operation, I had written to you last month 
asking for a copy of that memorandum. Is there any problem with 
providing this Committee with a copy of that memorandum even if 
it is required to be in a classified session?
    Attorney General Holder. Well, I first want to indicate 
that I will not address, cannot address whether or not there is 
an opinion in this area, but I understand, Mr. Chairman, your 
interest in this subject, and we are committed to working with 
you to answer your questions in an appropriate setting and to 
the extent that we can.
    Chairman Leahy. Thank you.
    In February, you notified Congress that the Department of 
Justice would no longer defend the so-called Defense of 
Marriage Act, DOMA, in legal circumstances in two cases. I had 
agreed with you, and I joined Senator Feinstein and others when 
she introduced the Respect for Marriage Act, which would repeal 
DOMA. This would allow all lawful marriages, provided the 
marriage was lawful in the State where it occurred, with equal 
access to Federal protections.
    In July, the President expressed his support for our 
Respect for Marriage Act. It is going to be considered by our 
Committee in a markup on Thursday of this week.
    Do you support the Respect for Marriage Act which would 
repeal DOMA?
    Attorney General Holder. The administration does. It is 
consistent with the policy that the Government has taken as a 
result of the position that we took in court, I guess in the 
Fourth Circuit, so the administration does support the passage 
of that bill.
    Chairman Leahy. And the Violence Against Women Act, which 
helped to transform our society and be more responsive to 
domestic violence and sexual assaults, focused on criminal 
justice system on more effectively investigating and 
prosecuting those serious crimes. We have had a lot of hearings 
in this Committee on that. It is now time to reauthorize it. 
Actually, this legislation began when Vice President Biden was 
Chair of this Committee.
    Do you agree that reauthorizing and strengthening the 
Violence Against Women Act is a top priority, especially in 
tough economic times with State and local budgets reducing the 
resources that are available to protect victims of domestic 
violence, sexual assault, dating violence, and stalking?
    Attorney General Holder. Yes, I think that is a priority 
for this administration. I would hope that this would be a 
priority for not only this Committee but for Congress as a 
whole to reauthorize VAWA. It has transformed our Nation in a 
variety of ways, not only with regard to programs that are 
funded but the way in which we have viewed the subject matter 
of that act. That is among the top priorities for this 
administration.
    Chairman Leahy. And then in keeping with my own rule on 
time, this will be my last question before turning to Senator 
Grassley, who has already indicated he wants to ask you about 
Operation Fast and Furious. The subject has been explored 
during six previous Judiciary Committee hearings. I just want 
to raise with you your testimony at the House Judiciary 
Committee hearing on May 3rd. When Congressman Issa asked you 
then when you first knew about the Fast and Furious program, 
you responded, ``I am not sure of the exact date, but I 
probably heard about Fast and Furious for the first time over 
the last few weeks.''
    Now, as you know, there has been a lot of talk about your 
reference to a few weeks, but those critics tend to not put the 
question in there along with your answer, and the fact you said 
in your answer you were not being precise, you were basically 
giving your recollection.
    I recall that by February 28th you had asked the Inspector 
General to begin an investigation of Fast and Furious. You also 
testified about the operation on March 10th at the Senate 
Appropriations Committee.
    So let me ask you a fundamental question and give you a 
chance to be more precise. When did you first learn of the 
operational tactics being used in Operation Fast and Furious? 
And what did you do about it?
    Attorney General Holder. I first learned about the tactics 
and the phrase Operation Fast and Furious at the beginning of 
this year, I think, when it became a matter of public 
controversy. In my testimony before the House Committee, I did 
say ``a few weeks.'' I probably could have said ``a couple of 
months.'' I do not think that what I said in terms of using the 
term ``a few weeks'' was inaccurate based on what happened. I 
got, as Senator Grassley indicated, a couple of letters from 
him at the end of January. I believe it was January 31st. These 
letters talked about a connection between an operation and the 
death of Agent Terry and did not mention Fast and Furious. It 
referenced Operation Gunrunner. I asked my staff to look into 
this, and during the month of February, I became aware of Fast 
and Furious from press reports and other letters that I 
received from Senator Grassley. I asked my staff to get to the 
bottom of that matter.
    We received information from the ATF and from the United 
States Attorney's Office in Phoenix that contradicted some of 
these public reports, and it became clear to me that the matter 
needed to somehow be resolved. And so as you indicated, Mr. 
Chairman, on February 28th, I asked the Department of Justice 
Inspector General to investigate Fast and Furious. On March 
9th, I directed the Deputy Attorney General to instruct all 
prosecutors and agents throughout the Justice Department not to 
engage in these flawed tactics that we found in Operation Fast 
and Furious. On March 9th, I also confirmed the existence of 
the IG investigation. On March 10th, I testified about this 
matter before the Senate Appropriations Committee.
    So, clearly, by the time I testified in May before the 
House Committee, I had known about Fast and Furious for several 
weeks, as I indicated, a couple of months. But the focus on 
which day of which month I think in some ways is a bit of a 
distraction that does nothing to address what I think ought to 
concern us most, and that is, the flow of weapons from the 
United States across the Southwest Border.
    Chairman Leahy. Thank you.
    Senator Grassley.
    Senator Grassley. I was going to start with those letters 
that you just referred to that I gave you on January 31st. You 
have introduced my question, so I will go immediately to the 
question.
    When we met that day, did you know that the guns connected 
to an ATF operation had been found at the Terry murder scene?
    Attorney General Holder. I did not.
    Senator Grassley. Thank you. Less than 48 hours after Agent 
Terry died, your deputy was informed that guns found at the 
Terry scene traced back to Fast and Furious. We have e-mails 
and detailed briefing papers that went to Grindler on December 
17th. Did Mr. Grindler ever say anything to you in December or 
January about the connection between the ATF and the guns found 
at Terry's murder scene?
    Attorney General Holder. No, he did not, but I think it is 
understandable in the sense that the information that was 
shared with him did not indicate that any of the tactics that 
we find in the flawed Operation Fast and Furious operation were 
actually mentioned in the e-mail that you reference. So he did 
not share that information with me.
    Senator Grassley. OK. Documents produced by the Department 
suggests that your deputy chief of staff spoke with U.S. 
Attorney Dennis Burke about Fast and Furious shortly after 
Agent Terry's death. Did Mr. Wilkinson say anything to you 
about the connection between Agent Terry's death and the ATF 
operation?
    Attorney General Holder. No, he did not. The conversations 
that they had were about a variety of things. I have looked at 
the e-mails now: the possibility of me coming out at some point 
to engage in a press conference, other matters, but there was 
no discussion between them of the tactics that are of concern 
with regard to Fast and Furious, and as a result of that, Mr. 
Wilkinson did not share information with me about his contacts 
with former U.S. Attorney Burke.
    Senator Grassley. Last week, the head of the Criminal 
Division, Lanny Breuer, said that he deeply regrets his failure 
to tell you earlier about gun walking in Operation Wide 
Receiver. But what about his failure to tell Congress and 
correct false statements in the Department's letter to me on 
February 4th? Is that acceptable to you that he did not tell us 
about those false statements in the letter of February 4th?
    Attorney General Holder. Well, let me clear something up. 
The information that was shared with you on February 4th in 
that response, there was information in that letter that was 
inaccurate. The letter could have been better crafted. In the 
crafting of that letter, people were relying on information 
provided to them by people who were, we thought, in the best 
position to know what was accurate, people in the U.S. 
Attorney's Office, people at ATF, people who themselves have 
now indicated in their congressional testimony before the House 
that they were not aware of the tactics that were employed.
    As a result of that, the information that is contained in 
that February 4th letter to you was not, in fact, accurate, and 
I regret that.
    Senator Grassley. Did he offer you his resignation because 
of that?
    Attorney General Holder. No, he has not, and I do not 
expect to hear a resignation offer from Mr. Breuer.
    Senator Grassley. You are refusing to provide drafts of 
that February 4th letter and e-mails about the drafts even 
though they have been subpoenaed by the House. Without a valid 
constitutional privilege, that, of course, risks contempt of 
Congress. Why would you risk contempt of Congress to prevent us 
from finding out who reviewed the drafts of that letter and 
whether they knew that they contained false statements?
    Attorney General Holder. Well, I will certainly try to work 
with you in providing you all the relevant information that we 
can. We will, however, act in a way that is consistent with 
what other Attorneys General have made determinations as to 
what information can be shared with Congressional oversight 
committees, and these are Republican as well as Democratic 
Attorneys General, and I will act in a manner that is 
consistent with the history and the tradition of the 
Department.
    Senator Grassley. If those documents show that Mr. Breuer 
reviewed a draft of the letter before it went out and failed to 
correct the statement that he knew was false, would that be a 
reason for his resignation?
    Attorney General Holder. That would be a reason for a 
concern, but I think the facts show that the people who were 
responsible for the drafting of the letter did not know at that 
time that the information that was contained in that letter was 
inaccurate. We do now know, looking back, that the information 
provided to you was inaccurate, and as I said, that is 
something that I regret.
    Senator Grassley. Mr. Breuer's deputy, Jason Weinstein, was 
also aware that ATF walked guns. He approved the wiretap 
application for Fast and Furious, and he briefed Judiciary 
Committee staff on February 10th in response to my letters. Did 
Mr. Weinstein review a draft of the February 4th letter before 
it was sent to me?
    Attorney General Holder. I do not know.
    Senator Grassley. Who will be held accountable for allowing 
a letter to Congress with a statement that many people in the 
Justice Department knew was false?
    Attorney General Holder. Well, again, I have to dispute 
with due respect the assertion that people in the Justice 
Department knew it was false. People in the Justice Department 
who were responsible for the creation of that letter, again, 
relied on information provided to them that they thought was 
accurate. We only know that the information was inaccurate in 
hindsight. At the time the letter was prepared, our best 
thought was that the information supplied was, in fact, 
correct.
    Senator Grassley. Someone in the Justice Department leaked 
a document to the press along with talking points in an attempt 
to smear one of the ATF whistleblowers who testified before the 
House. This document was supposed to be so sensitive that you 
refused to provide it to Congress, but then someone provided it 
to the press. The name of the criminal suspect in the document 
was deleted, but the name of the ATF agent was not. This looks 
like a clear and intentional violation of the Privacy Act as 
well as an attempt at whistleblower retaliation.
    In a private phone conversation with me, you already told 
me that someone has been held accountable for this, but your 
staff refused to provide my staff with any details. Who was 
held accountable and how?
    Attorney General Holder. You know, it almost pains me--and 
please do not take this away from Senator Grassley's time. As 
you said, we had a private conversation. You sent me a 
handwritten note that I took very seriously. You and I have 
worked together on a variety of things. I think I have a good 
relationship with you. You sent me a handwritten note that I 
looked at, took seriously, referred that letter to OPR or the 
IG--I am not sure which of the two--and asked them to try to 
find out what happened.
    I called you to try to indicate to you that I had taken 
that matter seriously, that action had been taken. You know, in 
a different time in Washington, I am not sure that what you 
just said necessarily would have been shared with everyone 
here, but, you know, so be it. It is a different time, I 
suppose.
    In response to your question----
    Senator Grassley. You understand that I told you over the 
phone conversation if you wanted me not to ask this question, 
that I said, ``Have your staff inform my staff,'' because I 
work very closely with my staff, and give the details so that I 
would know that this would be an inappropriate question to ask 
at this hearing.
    Chairman Leahy. We will let the Attorney General answer, 
and then we will go to Senator Kohl, keeping the same rule that 
I applied to myself.
    Senator Grassley. You went 1 minute and 40----
    Chairman Leahy. No, I did not on my questions.
    Senator Grassley. You asked a question, but he answered 1 
minute and 40 seconds----
    Chairman Leahy. I finished my question before my time was 
up. Go ahead. You can answer his question even though he asked 
it after his time was up.
    Attorney General Holder. With regard to the question, the 
matter is under investigation. There were a couple of leaks, 
and those leaks are under investigation by the Inspector 
General, by the Office of Professional Responsibility, and I am 
not in a position to comment on ongoing investigations.
    Chairman Leahy. Senator Kohl.
    Senator Kohl. Thank you, Mr. Chairman.
    Attorney General Holder, before I turn to my questions, I 
would like to thank you for working with us on our law 
enforcement officers who exhibit exceptional courage in the 
line of duty. In 2008, Congress passed the Law Enforcement 
Congressional Badge of Bravery Act in order to honor these 
brave men and women. I am sure that it was no easy task to 
choose only 21 award recipients from so many qualified nominees 
all across the country.
    So 2 weeks ago, I was pleased to present the first of these 
awards to two deserving officers in Wisconsin: Onalaska Police 
Officer James Page and La Crosse County Deputy Sheriff Daniel 
Baudek. These officers made their community and the entire 
State of Wisconsin proud, and I look forward to continuing to 
work with you to honor these deserving public servants.
    Attorney General Holder, my office has been informed of an 
FBI proposal to close three of its six Wisconsin satellite 
offices. If these closures go through, the Western District of 
Wisconsin will lose half of its FBI offices, and they have to 
work with fewer agents. I have serious concerns about the 
ability of the remaining two offices to adequately support 
already underserved rural areas. Our chief law enforcement 
officer in the Western District, U.S. Attorney John Vaudreuil, 
strongly opposes these closures. People who live in rural 
Wisconsin have a right to expect that the FBI will be able to 
investigate crime in their communities. I am sure you would 
agree. After all, a multimillion-dollar bank fraud in Wausau is 
at least as important as a million-dollar bank fraud in 
Milwaukee or Chicago.
    According to the agency, these closures will lead to a 
``stronger and more effective FBI presence in Wisconsin.'' 
However, how can this be the case when agents will be located 4 
hours away by car from the communities that they serve. I 
understand that the final decisions will be made soon, so will 
you commit to working with me right now in order to address 
these concerns and modify the proposal if necessary in order to 
ensure that Wisconsin is not negatively impacted?
    Attorney General Holder. I will certainly work with you and 
look at the proposed closures and make sure that they do not 
have a negative impact on the ability of the FBI to perform the 
services to which the citizens of Wisconsin are entitled. We 
are dealing with tough budgetary times. We are trying to make 
sure that we are configured in a way where we can be most 
efficient and still be most effective. But I have heard the 
concerns you have raised about the closure of those three 
offices, and I will work with you in that regard.
    Senator Kohl. Thank you, Mr. Holder.
    Attorney General, the Justice Department recently announced 
plans to close four of its seven antitrust regional offices: 
the offices of Atlanta, Cleveland, Dallas, and Philadelphia. 
The Justice Department asserts that this will save $8 million 
annually mainly by saving the cost of office leases. We are 
aware of reports that some career staff in these offices are 
opposed to these closures. They argue that these offices are 
responsible for collecting hundreds of millions of dollars in 
fines for criminal antitrust violations, far outweighing the 
savings from the office closures.
    On October 19th, the Washington Post reported that the 
Dallas regional office won a $500 million fine in a case 
brought against an international vitamins cartel, and the 
Philadelphia office obtained a $134 million fine. A career 
attorney in the Atlanta office stated that his office collected 
about $20 million in fines annually on a budget of just $2 
million.
    So I am interested in your response to these reports. Are 
you sure that these office closures will really be cost-
effective? And will the Department have sufficient resources to 
prosecute antitrust cases in regions not fully served by the 
four offices that you plan to close?
    Attorney General Holder. Yes, that was a tough decision 
that we had to make, but we thought, given limited budgets that 
we have, that we could continue to do the work of the Antitrust 
Division in spite of the fact that those offices would close. 
None of the investigations that those offices were handling 
will be closed. We will work from the remaining offices in 
other parts of the country to make sure that we maintain the 
kind of vigilance and intense antitrust presence that has been 
provided in the past.
    So I do not think that the reconfiguring of the Antitrust 
Division and these field offices will have a negative impact on 
our ability to handle the very things that you have mentioned. 
These offices have been effective in the past, but I think that 
we can continue to be effective even under the reconfigured 
structure that we have proposed.
    Senator Kohl. I have my doubts. I thought I would voice 
them to you.
    Attorney General Holder. Sure.
    Senator Kohl. Mr. Attorney General, we were pleased when 
the Justice Department filed an antitrust lawsuit in August to 
block the proposed AT&T/T-Mobile merger. As I stated to you in 
my letter of July 20th recommending this merger be blocked, I 
believe this would be a dangerous merger for competition and 
for consumers. If allowed to proceed, this merger would combine 
two direct competitors and reduce the number of national cell 
phone companies in an already highly concentrated industry from 
four to three. Millions of consumers across the country would 
likely face higher cell phone bills and fewer choices.
    Some commentators have expressed concern that the Justice 
Department might not be in this case for the long haul and 
agree to a settlement that will allow the merger to proceed. I 
do not believe that to be true, but can you reassure us on this 
point? I understand that you have recused yourself in this 
case, but, nevertheless, can you confirm that DOJ is committed 
to pursuing its lawsuit, if necessary through trial?
    Attorney General Holder. Yes, I am recused from this 
matter. James Cole, who is the Deputy Attorney General, is the 
person who is ultimately in charge of this, and I am sure that 
Jim and the people in the Antitrust Division are committed to 
seeing this through.
    The Justice Department does not file matters in court, does 
not file suits challenging proposed mergers unless we are 
prepared to follow them all the way through, and that is the 
structure that has been put in place. There is a trial team--I 
know about this just from what I have heard. There is a trial 
team that is in place, and they are ready and eager to go to 
court.
    Senator Kohl. Good. Finally, as Chair of the Special 
Committee on Aging, I held a hearing earlier this year on elder 
abuse and neglect and financial exploitation. In that hearing 
we heard heart-wrenching stories of physical, emotional, 
sexual, and financial abuse of elders.
    According to GAO, over 14 percent of our senior citizens 
living outside of nursing homes or assisted living facilities 
have been injured, exploited, or otherwise mistreated by 
someone on whom they depend for care and protection. Sadly, 
elder abuse often goes unreported, indicating the true number 
of victims is much higher. In addition to causing the victims 
of elder abuse and their families great personal harm, the 
financial exploitation of seniors costs the Nation an estimated 
$2.5 billion a year.
    Despite the terrible harm it causes, there is a lack of 
leadership at the Federal level when it comes to stopping elder 
abuse. That is why I introduced the Elder Abuse Victims Act 
with Senators Leahy, Blumenthal, and Whitehouse. Our bill would 
create the Office of Elder Justice within the Justice 
Department. The office would centralize the response to elder 
abuse by coordinating Federal, State, and local agencies. Can 
we count on your support for this legislation?
    Attorney General Holder. I certainly want to work with you 
with regard to that legislation. The Justice Department has 
tried to focus on the abuse that those people who are most 
vulnerable are forced to endure: those at the beginning of 
their lives, children, and those toward the end of their lives, 
our seniors. And the bill that you have introduced I think 
probably goes a long way to helping us in that regard, so I 
would be glad to work with you in looking at that legislation 
because this is a concern that I have and those of us in the 
Justice Department do have.
    Senator Kohl. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Hatch.
    Senator Hatch. Well, thank you, Mr. Chairman. Welcome, Mr. 
Attorney General. We appreciate you testifying here today.
    Two years ago, you made a very controversial decision to 
reopen criminal investigations of CIA interrogations that took 
place following the September 11th attacks. Now, you made this 
decision even while admitting that you had not read the 
declination report from career prosecutors in the Eastern 
District of Virginia. This decision prompted seven former 
Directors of the CIA to write a letter to the President 
opposing this action. Now, there are reports that almost all of 
the reinvestigations that have now been closed.
    Now, do you agree that you should have read those 
declination reports before deciding to reopen the 
investigations, especially now that you are reaching the same 
decision as the career prosecutors did? And just one last 
question. What message do you have for those CIA employees 
whose lives have been in limbo for the past 2 years because of 
that failure to look at the declination report?
    Attorney General Holder. I think the decision that I made 
to order that investigation was an appropriate one. I reviewed 
a series of reports, among them an Inspector General report and 
other matters that are classified, and came to the conclusion 
that there was a basis for a re-examination of the incidents. I 
was concerned about the way in which people, American people 
working either at our behest or people working for our 
Government, had engaged in these interrogation techniques. I 
appointed--or I expanded the jurisdiction of John Durham, a 
very experienced prosecutor who had been appointed to look at 
the tapes matter by Attorney General Mukasey. His work is 
continuing. I think we are pretty close to the end of the work 
that he has been asked to do.
    But I stand by my decision. I think the decision that I 
made was a correct one. The results are what they are, but I 
think going through the process that I asked him to do was, in 
fact, the right thing to do.
    Senator Hatch. My point is that you had the advice of 
people who really knew what was going on saying you should not 
do this, and then you have seven former Directors of the CIA 
who really were offended by this. Plus the problem with this is 
that I think it hampers the work that they do in many areas if 
they are going to be brought into court years later.
    So, you know, it is a decision you made. I just disagree 
with it. And I think it was something that should not have been 
done, and to have these people in limbo for 2 years is a wrong 
thing, too.
    Attorney General Holder. Well, we did----
    Senator Hatch. It kind of takes me back to the Ted Stevens 
litigation. I have not seen much in the way of correction for 
those who did what were really offensive prosecutorial 
approaches--not only offensive, but I think there should have 
been some real serious corrections done because of what they 
did to a great U.S. Senator. Frankly, the way I understand it, 
to use as an excuse that they had just plain overlooked some of 
the most exculpatory evidence that has to be given to 
defendants that would have acquitted him, that should have been 
used to stop any prosecution to begin with, is something that 
really--I have to say it. It really bothers me, and I think it 
has bothered an awful lot of people on both sides of the aisle. 
I am not necessarily blaming you on that, but I am saying----
    Attorney General Holder. Well, it clearly bothered----
    Senator Hatch. I do not see anything being done about it, 
to be honest with you, and, frankly, if we have that kind of 
prosecution going on in this country--and I know you share my 
view on this to a large degree. If we have prosecutors running 
wild like that and ignoring the law itself, something as 
important as exculpatory evidence that has to be given to the 
defendant in a criminal case, you can see why some people are 
losing confidence in what goes on.
    Let me change the subject.
    Attorney General Holder. Well, if I could just say one 
thing.
    Senator Hatch. Sure, go ahead.
    Attorney General Holder. I was bothered by what happened 
there, and I made the decision----
    Senator Hatch. You had to be.
    Attorney General Holder. I made the decision to drop the 
case. The matter has not, however, been dropped. OPR, the 
Office of Professional Responsibility, is looking into this 
matter. They are at the last stages of their examination of 
what happened in connection with the Stevens case. There is a 
multi-hundred-page report that is just about finalized, and I 
think we will see what their conclusions are----
    Senator Hatch. Will you share that with us?
    Attorney General Holder. That is up to the people at OPR. 
What I have indicated was that I want to share as much of that 
as we possibly can given the very public nature of that matter 
and the very public decision that I made to dismiss the case. 
So my hope is that we will be able to share as much of that 
report as we possibly can.
    Senator Hatch. I hope so. I hope you are able to share 
every aspect of it.
    Six months ago, I, along with several members of this 
Committee, wrote to you expressing a recommendation that Ali 
Musa Daqduq, who is a senior Hezbollah field commander 
currently in our custody, be tried in the U.S. military 
tribunal. Now, remember, this terrorist was captured on the 
battlefield and was responsible for the kidnapping and 
execution of five American soldiers.
    Now, has the decision been made to put him before a 
military commission or a civilian trial in the U.S.--the 
decision is going to be made--or even a release to the Iraqis? 
Is that even possible? And my only question is this: Have you 
prepared for the fallout in the event you bring him to the U.S. 
for a civilian trial and if somehow or other he is found not 
guilty? Five Americans were killed by this guy.
    Attorney General Holder. That is a matter that is still 
under discussion, and a decision will be made as to where the 
trial can occur or where he can most effectively be tried. But 
it is something that is still being discussed.
    Senator Hatch. Well, thank you, sir. As you know, the issue 
of enforcing the laws against obscenity and laws protecting 
children is very important to me. In April, you received a 
letter signed by me and House Judiciary Committee Chairman 
Lamar Smith. It asked specific questions about the Department's 
efforts to enforce both the obscenity laws and the law 
requiring producers of sexually explicit material to keep 
records about the age and identity of performers. It has been 
more than 6 months without an answer. Are you going to get us 
an answer on that? I hope we receive it soon.
    Attorney General Holder. After this hearing, I will speak 
to the people at the Department, and we will try to get you a 
response to that letter.
    Senator Hatch. I would appreciate it, General. Your job is 
a tough job, and I am the first to admit it. I appreciate your 
testimony.
    Thank you, Mr. Chairman.
    Chairman Leahy. Well, thank you. And I just should note, in 
connection with what Senator Hatch said, I, too, feel that 
there is some serious misconduct on the part of the prosecutors 
in the Stevens matter, and I----
    Senator Hatch. You are right, Mr. Chairman. I have to say I 
have looked at that pretty carefully, and I have never seen a 
greater injustice to a Member of Congress.
    Chairman Leahy. I would note to the senior Senator from 
Utah that while I understand OPR normally does not make public 
their findings, I would hope that as much of that could be made 
public as possible. It does not right whatever wrongs were done 
then, but let us hope that it might preclude future wrongs.
    Now, I mention this just so nobody would think this is a 
partisan thing.
    Senator Hatch. It is not partisan.
    Chairman Leahy. Senator Stevens was a Republican. I have 
stated publicly a number of times I felt that was badly 
handled, and I want you to know that both of us agree on this.
    Senator Hatch. Well, thank you, Mr. Chairman. I appreciate 
your comments.
    Chairman Leahy. Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman. And I 
might add the tragedy of the Stevens situation is that Senator 
Stevens is no longer here to be able to see the result of your 
examination. So I would just like to agree, Mr. Attorney 
General, with what my colleagues have said. I think this is 
very important that whatever happened be made fully public and 
never, ever happen again.
    Mr. Chairman, if I may, I would like to put in the record 
the 
official firearms trace data from the Department of Justice 
from 12/1/2006 to 9/30/2011. This is on guns to Mexico.
    Chairman Leahy. Without objection.
    Senator Feinstein. Thank you very much.
    [The information referred to appears as a submission for 
the record.]
    Senator Feinstein. Mr. Attorney General, welcome. You 
mentioned that you became aware of Fast and Furious in 2011. 
You spoke to us about the Grassley letters in the end of 
January and February. You asked the IG to investigate in April. 
My----
    Attorney General Holder. In February.
    Senator Feinstein. Oh, February. Thank you. My 
understanding is that the practice of letting guns walk first 
occurred in 2006 as part of Operation Wide Receiver and again 
the next year as part of the Hernandez investigation.
    As you reviewed the records of this, as I am sure you 
would, did the Attorneys General at that time--I believe there 
were two of them--in 2007 know about this practice? And what 
was done about it then?
    Attorney General Holder. I do not know about the knowledge 
that the Attorneys General had at that point. I have read 
reports that a memo was sent to Attorney General Mukasey. I do 
not know what action they took, but I do know that when I saw 
the indications that guns had walked, I was bothered by it, 
offended by it, concerned about it, and ordered the Inspector 
General to investigate it, and also issued a directive to the 
field to make clear that gun walking was not appropriate, was 
inconsistent with Justice Department policy, and should not 
occur.
    Senator Feinstein. Do your records indicate that this 
operation began in 2006 and continued virtually unabated since 
that time?
    Attorney General Holder. Operation Fast and Furious began 
in 2009, I believe. Wide Receiver began in 2006 or 2007. I am 
not sure. That matter was investigated and lay fallow for some 
time until the Criminal Division and the Obama Justice 
Department looked at it and decided to try to bring the cases 
that had been just lying there.
    Senator Feinstein. Thank you very much.
    Since July of this year, the ATF has instituted a 
requirement that Federal firearms licensees in the four States 
that border Mexico--California, Arizona, New Mexico, and 
Texas--report whenever a single purchaser buys multiple, 
meaning two or more, assault rifles within a 5-day period. I 
pulled the Federal Register and looked at that, and it says 
that Federal firearms licensees must report multiple sales or 
other dispositions whenever the licensee sells or otherwise 
disposes of two or more rifles with the following 
characteristics: A, semi-automatic; B, a caliber greater than 
22; C, the ability to accept a detachable magazine to the same 
person at one time; or during any five consecutive business 
days. This requirement will apply only to Federal firearm 
licensees who are dealers and/or pawnbrokers in Arizona, 
California, New Mexico, and Texas.
    Can you tell us a little bit about how that section has 
functioned, whether it is being carried out, if there are 
lapses, or if you believe it can be strengthened in any way?
    Attorney General Holder. I think that that regulation or 
requirement is an extremely reasonable one. It has all of the 
features that you have described, and I think significantly 
exactly what we have been doing for years with regard to the 
sale of handguns. And the notion that somehow or other we are 
in litigation now, being sued trying to do the very same thing 
that we have done with handguns for years with regard to 
weapons that are far more dangerous is really beyond me. I do 
not understand how that can be opposed given the fact that this 
would provide ATF and other Federal agencies with useful 
information in trying to stop the problem that has been the 
subject of so much discussion.
    Some of the harshest critics of ATF have voted against this 
very, very sensible regulation. The House has voted to block 
it. I guess over 270 Members of the House voted against what I 
think, as I said, is a very reasonable regulation and one that 
is totally consistent, exactly consistent with what we have 
been doing with handguns for years, I think since the mid-
1980s.
    Senator Feinstein. Well, I feel, as you probably know, very 
strongly about this, and the tens of thousands, I guess, at 
least 30,000 people that have been killed by guns in Mexico, we 
know these guns go into the hands of the cartels, and we know 
how they are used.
    So the question that I have is: Do you believe this is 
being carried out today in an acceptable manner--let me change 
that--in an effective manner to stop the flow of guns to 
Mexico?
    Attorney General Holder. Yes, I think it is. We are only at 
the beginning stages of it. It has not been in effect for an 
extremely long period of time, but I think it is the tool that 
over time will prove to be extremely useful and help us in our 
efforts to stop the flow of weapons from the United States to 
Mexico.
    Senator Feinstein. Well, this Senator is certainly going to 
watch it. I would like to extend through you a real compliment 
to the FBI, particularly in the Saudi case, in the 
Abdulmutallab case, in the Najibullah Zazi case. I was one who 
was not quite sure that the FBI had the culture to really 
develop the intelligence portion to the extent that they have, 
and I follow this in Intelligence and believe they have really 
done an excellent job and that we all should be very proud of 
those plots that have been stopped, the successful prosecutions 
that have been brought in Federal cases. And I just want to say 
thank you for that. I think the FBI really has achieved--my 
time has run out--major, major prosecutions for us, and so 
thank you very much.
    Thanks, Mr. Chairman.
    Chairman Leahy. Thank you.
    I will also put into the record a letter I sent to the 
Acting Inspector General about Operation Fast and Furious, the 
fact that I understand she is investigating allegations on 
that, and asked whether she also has with that in connection 
with that an investigation of Operation Wide Receiver, a 
similar thing involving Mexico and Arizona, now that we have 
heard that former Attorney General Mukasey may have been 
briefed on this similar operation back in 2007. I will put that 
in the record.
    [The letter appears as a submission for the record.]
    Chairman Leahy. Senator Graham, you have been waiting 
patiently. You are next. And just so people will know the 
order, after Senator Graham would be Senator Schumer, then 
Senator Cornyn.
    Senator Graham. Thank you, Mr. Chairman.
    Mr. Attorney General, I want to congratulate you and all 
those who are risking their lives in the war on terror and 
fighting crime for very serious and substantial tactical 
successes against a very vicious enemy, and I think it is 
appropriate that we all acknowledge the hard work that has gone 
into keeping the country safe.
    Now, from a strategic point of view, I think we are coming 
to some crossroads here as a Nation about what we need to be 
doing in the future. Now, I embrace trying to find a new 
confinement facility other than Guantanamo Bay. Senator McCain 
did when he ran for President, and Senator Obama and President 
Bush. But I have come to conclude--and I may not be the best 
vote counter in the world--that we are not going to close Gitmo 
anytime soon.
    In September of this year, you were in Brussels, and I 
think you stated to the European Parliament, ``We have an 
election that is coming up in 2012, in November 2012. We will 
be pressing for the closure of the facility between now and 
then,'' being Gitmo. ``Then after the election we will try to 
close it as well.''
    Am I wrong in assuming that there is not the votes here to 
close Gitmo before November of 2012?
    Attorney General Holder. Well, you can certainly count 
votes better than I can in this body and probably in the House 
as well, you having served there. But it is the administration 
policy to try to close Guantanamo. We think it would be an 
appropriate thing to do for a whole variety of reasons. We have 
certainly run into opposition, but----
    Senator Graham. Let me, if I may, just interrupt. I 
understand where you are coming from, and I have embraced the 
idea of trying to find a new confinement facility. But certain 
legal changes had to occur for that to be viable that have not 
occurred. We do not need to blame each other, but from now 
going forward, we do live in a real practical world. Do you 
agree with that?
    Attorney General Holder. A real practical world.
    Senator Graham. Yes, we have got to make practical 
decisions here.
    Attorney General Holder. It is not as practical as I would 
like it to be all the time, but it is somewhat practical.
    Senator Graham. But I buy into the idea of all-of-the-above 
approach that sometimes Article III courts may be the best 
venue in trying terrorists. I have never said that Article III 
courts do not have a place in this war. And I have been very 
passionate about military commissions, and I think we see that 
the same, that we should have an all-of-the-above approach and 
be as flexible as possible.
    But I guess my point, Mr. Attorney General, is that we do 
not have a jail in the war on terror for future captures, and I 
think that makes us less safe. Where would we put someone if we 
caught them tomorrow, a high-value target? Where do we confine 
them?
    Attorney General Holder. It is something that we are 
discussing.
    Senator Graham. Would you put them in Afghanistan?
    Attorney General Holder. Well, there are a number of 
options that we are discussing and we are trying to work our 
way through to come up with a proposal that would be both 
effective and that would generate the necessary----
    Senator Graham. I just honestly cannot see an option that 
makes sense. The idea of putting them on ships for a limited 
period of time is not a viable substitute because ships were 
never meant to be permanent confinement facilities. I do not 
see Afghanistan accepting new war on terror captures that would 
bring the Afghan Government down. Certainly the Iraqis are not 
going to do it. So if we do not use Gitmo, what are we going to 
do?
    Attorney General Holder. Well, as I said, those are the 
options that we are trying to discover. The President has made 
clear, the administration has made clear that we are not going 
to be using the Guantanamo facility, so we have to come up with 
options that can be funded and support the----
    Senator Graham. OK. Mr. Attorney General, I have tried to 
be as supportive as I know how to be in creating flexibility 
for the executive branch and not micromanage the war. But I 
have come to conclude Gitmo is not going to close, and there is 
no viable option other than Guantanamo being used, that the 
Iraqi legal system is not going to allow us--they are not going 
to become the jailer for the United States. Afghanistan is not 
going to become the jailer for the United States. Naval ships 
are not a good option. So I just really believe that we need to 
embrace reality, and the reality is we need a jail, we do not 
have one, and Gitmo is the only jail available.
    Now, this Daqduq guy who is being held by the Iraqis, he is 
a Hezbollah capture in Iraq, an Iranian basically inspired 
person who was training Shiite militias and is charged with 
killing five Americans. If we do not put him in Gitmo, where 
are we going to put him?
    Attorney General Holder. Well, those are options we have 
been discussing. How he will be dealt with are topics of 
conversation that I have engaged in with my counterparts on the 
National Security----
    Senator Graham. We had a conversation about Khalid Sheikh 
Mohammed and how I thought it would be ill advised to put him 
in New York City civilian court, Federal court, because he was 
an enemy combatant who would be--and I think that did not go 
over well simply because it was an ill-suited case choice, not 
the fact that we cannot use Article III courts, just not for 
somebody like him.
    Mr. Attorney General, if you try to bring this guy back to 
the United States and put him in civilian court or use a 
military commission inside the United States, holy hell is 
going to break out. And if we let him go and turn him over to 
the Iraqis, that is just like letting him go. I think this 
would be a huge mistake. He is charged with killing five 
Americans, and at the end of the day--I try to be as practical 
as I know how to be--it would be a national disgrace to allow 
this guy to escape justice. And the only option available to 
this Nation is Gitmo because there is bipartisan opposition to 
creating a confinement facility in the United States, and I 
just beg and plead with this administration to create an option 
that is viable, and the only viable option is to use Guantanamo 
Bay.
    Now, let us talk about Guantanamo Bay. Do you believe it is 
a humanely run prison?
    Attorney General Holder. I have been to Guantanamo, and as 
the facility is now run, I believe that the men and women down 
there conduct themselves in an appropriate way and that 
prisoners are treated in a humane fashion.
    Senator Graham. Isn't it true that every detainee at 
Guantanamo Bay will have access to our Federal courts to make a 
habeas petition for their release?
    Attorney General Holder. Right, there are a number of cases 
that we, in fact, are handling here in the D.C. courts.
    Senator Graham. Isn't it true that any conviction that 
comes from a military commission will be automatically appealed 
to our civilian court system?
    Attorney General Holder. I think that that is true. I am 
not sure, but I think that is true.
    Senator Graham. I think that is true. So the bottom line is 
that we all agree that Guantanamo Bay is a humane detention 
facility being well run and that we have civilian oversight of 
what happens at Guantanamo Bay. So my view is that we are less 
safe if we do not have a prison, and please tell me in the next 
30 days, submit to this Committee or me individually a plan, 
because we are running out of time, that would be reasonable, 
sound, and has political support to confine future captures and 
to move people out of Iraq and Afghanistan who are too 
dangerous to let go. Could you do that in 30 days?
    Attorney General Holder. I do not know. This is a decision 
that will be made by--I will be a part of the decisionmaking 
process, but the decision itself will be made by, I think, 
people higher up the ladder.
    Senator Graham. Well, could you tell those people higher up 
that we are about to withdraw from Iraq--and these people in 
Iraq are going to be let go, and we are running out of the 
ability to hold people in Afghanistan--that time is not on our 
side, the war is an ongoing enterprise, and we need a jail. So 
I urge and will have other Senators urge you to find a solution 
to this problem within 30 days.
    Thank you very much for your service.
    Attorney General Holder. Sure. The one thing I would say 
is--and I go back to what you started with. Whatever the 
proposal is, whatever the administration works its way through, 
I hope that it will be viewed in a practical manner by Members 
of Congress and take into account the history that we have with 
regard to our ability to safely detain people, to try people, 
and understand that whatever is the proposal that we make----
    Senator Graham. I try to be practical, sometimes to my own 
detriment, but I promise you I will be practical.
    Attorney General Holder. Thank you.
    Chairman Leahy. Senator Schumer.
    Senator Schumer. Thank you, Mr. Chairman.
    I am going to go back to the Fast and Furious issue, and 
there has been, of course, a lot of focus on the present 
administration's dealings with Fast and Furious, but what has 
been sort of missing certainly in the House investigation is 
that it did not start with the Obama administration. It started 
with Alberto Gonzales and then continued with General Mukasey. 
And if we want to get to the bottom of it and find out what 
went wrong, I think we have to look at the whole things. So my 
questions are somewhat related to that.
    Mr. Attorney General--and thank you for being here--as we 
learned last week, some briefing material on Operation Wide 
Receiver, the Bush era version of Fast and Furious, was 
prepared for Attorney General Mukasey shortly after he took 
office in preparation for a November 16th meeting with Attorney 
General Eduardo Medina Mora of Mexico. That was not the 
beginning. It is clear now that ATF agents and line prosecutors 
in Tucson as early as 2006 discussed an ATF proposal to provide 
guns to criminals ``without any further ability by the U.S. 
Government to control their movement or future use.'' We know 
this operation was likely part of Operation Wide Receiver in 
which 350 guns were purchased by straw purchasers, and as your 
production of material continues, it is plausible we will find 
out that this strategy was discussed maybe even before 2006.
    The briefing material from 2007 which was prepared for 
General Mukasey stated that, ``ATF has recently worked jointly 
with Mexico on the first-ever attempt to have a controlled 
delivery of weapons being smuggled into Mexico by a major arms 
trafficker. While the first attempts at this controlled 
delivery have not been successful, the investigation is 
ongoing. The ATF would like to expand the possibility of such 
joint investigations and controlled deliveries since only then 
it will be possible to investigate an entire smuggling network 
rather than arresting a single smuggler.'' That is in the memo 
from General Mukasey, which I think was made public Friday.
    Then e-mails indicate that ATF's Assistant Director for 
Enforcement reviewed this briefing language. So I want to try 
and figure out who saw the briefing material, so I am going to 
ask you about some of the names there that are listed. These 
are listed at the top of the briefing memo prepared for General 
Mukasey for the November 16th meeting with Mora.
    My first question is a simple one. What position did 
Matthew Friedrich hold on the date that is on the meeting memo? 
Do you recall that? You may not.
    Attorney General Holder. I do not know, Senator.
    Senator Schumer. He was deputy chief of staff to Attorney 
General Mukasey. And Kevin O'Connor, I will not ask you that 
one, he was Associate Attorney General. You may have recalled 
that.
    So I think we can infer that both Mr. Friedrich and Mr. 
O'Connor were likely to have received the material either 
before or at the meeting with Attorney General Mora, and given 
that, as well as the fact that the meeting was with General 
Mukasey's counterpart in Mexico, I think we can infer that 
General Mukasey is highly likely to have attended the November 
meeting and seen this material.
    Are you aware of whether General Mukasey reviewed the memo?
    Attorney General Holder. I do not know if he did or not.
    Senator Schumer. OK. And I do not want to vouch for 
anyone's attendance at the meeting. Obviously, you were not 
there. I want to be clear about that premise. But with that 
caveat, are you currently able to say whether there were any 
other high-ranking DOJ officials who attended the November 7, 
2007, meeting?
    Attorney General Holder. I just do not know, Senator, who 
attended the meeting.
    Senator Schumer. OK. But it would not have been beyond the 
pale for other top officials to have been briefed on this, 
either in preparation for the meeting or otherwise. Is that 
correct?
    Attorney General Holder. It is certainly possible. I just 
do not know.
    Senator Schumer. Right. OK. Another one: Do you have any 
knowledge whether Deputy Attorney General Craig Morford was 
briefed on the program or tactics?
    Attorney General Holder. I do not know that either.
    Senator Schumer. Knowledge of any other members of other 
departments with border responsibility, DHS or State, briefed 
on the program or these tactics?
    Attorney General Holder. I do not know how extensively it 
was briefed.
    Senator Schumer. OK. Lanny Davis, the current Criminal 
Division head, testified he was briefed after it was closed, 
after Wide Receiver was closed in 2010. Do you think if his 
predecessor, Alice Fisher, was similarly briefed or took part 
in meetings?
    Attorney General Holder. I do not know.
    Senator Schumer. OK. Here is what--yes, Lanny Breuer, 
right. What did I say? I get those two mixed up, the two Lannys 
I read about.
    OK. Here is what I would ask: Could you go back and look at 
the files or have someone do that and get us information on 
whether these people were part of briefings, part of meetings 
that might have related to that program, Wide Receiver?
    Attorney General Holder. As part of the process in 
responding to requests for information from the Hill, we are 
trying to gather information, and we may be able to gather from 
the e-mails and other materials that we are gathering some 
better sense of who was actually briefed with regard to Wide 
Receiver.
    Senator Schumer. OK. And one other thing. In the prepared 
remarks made by Attorney General Mukasey regarding the trip to 
Mexico which he made on January 16th, he said, ``I reiterated 
for the Attorney General, as I do now, the United States is 
committed to addressing the flow of illegal guns into Mexico. . 
. . I indicated we would also be deploying additional resources 
to arrest and prosecute violent criminals, to trace the 
firearms--the `tools of the trade'--used by criminal gangs.'' 
This indicates that gun walking might have been discussed at 
this meeting as well.
    So once again, is there anything you are able to say 
without vouching for anybody's attendance about that 2008 trip 
to Mexico, what was discussed, who might have attended? And if 
not, can you get us that information?
    Attorney General Holder. We will attempt to obtain that 
information. I simply do not have that information right now.
    Senator Schumer. OK. What I am getting at here and why I 
think it is important to have answers to this question is 
because there has been a selective way in which this 
investigation has been pursued so far. It is sort of one-sided 
outrage about the whole issue when we know now that it began--
or its progenitor began before you took office, before 
President Obama took office. And the House Committee Chair has 
said he would look at both sides, wrongdoing on both sides. 
That has not happened.
    It appears--it is a pretty good bet that top officials at 
the Bush Justice Department, perhaps the Attorney General 
himself, learned of this operation in its early stages. We know 
a memo was prepared for him. We do not know what he knew. At 
the very least, they let it continue. For all we know, they 
have endorsed it. And so I think it is important that we look 
at both sides, and my suggestion, Mr. Chairman, is if the House 
will not do that, we should.
    Chairman Leahy. I agree, and I thank you for the questions.
    Senator Cornyn, and then we will go to Senator Whitehouse.
    Senator Cornyn. Mr. Chairman, for what it is worth, I agree 
with Senator Schumer that we need all the information about 
these programs and the distinctions, if any, between Wide 
Receiver and Fast and Furious.
    General Holder, I note that Fast and Furious has had a 
significant spillover effect in my State of Texas where 119 of 
these weapons of the 2,000 weapons that were walked into the 
hands of the cartels, 119 of them have shown up at crime scenes 
in my State. Investigations by Senator Grassley have also 
revealed that the ATF agents have ordered clerks at a Houston-
based business called Carter's Country to go through with sales 
of weapons to suspicious purchasers, some of which may have 
been working as agents of the cartels.
    On August 7th, I sent you a letter asking you about the 
Texas connections, and I got a letter back last Friday from 
your subordinates saying that you were unable to provide more 
information at this time.
    I am hopeful you will be able to provide more information 
because we know that the weapons from Fast and Furious have 
shown up at 11 different crime scenes in the United States, and 
this is far from, as you stated earlier, local law enforcement 
operation in terms of its impact. Many of these weapons, of 
course, ended up in Mexico, one we know at the crime scene 
where Brian Terry was murdered by the cartels. So let me ask 
you a little bit about some of this timeline.
    First of all, on February 4th, Assistant Attorney General 
Weich wrote a letter denying gun walking, and it was not until 
November 1st of 2011 when Lanny Breuer testified that that 
letter was false, that throughout that whole period, from 
February 4, 2011, and November 1, 2011, your Department left 
the impression on Congress that the allegation that the 
Department had engaged in gun-walking operations was false, 
when, in fact, Mr. Breuer came in on November 1, 2011, and said 
that that letter sent to Senator Grassley in response to his 
inquiry was false.
    How do you account for the fact that the Department had for 
the period of time from February 2011 until November 2011 had 
misled Congress about the accuracy of that allegation?
    Attorney General Holder. I think there is some validity in 
the concern that you raise. As I indicated before, with 
regard----
    Senator Cornyn. I do, too.
    Attorney General Holder. Well, I hope so. It is your 
question, so I assume you did. February 4th, the information 
that was contained in that letter was thought to be accurate. 
It was not until some time after that that we had a sense that 
the information was not, in fact, accurate. So it was not as if 
the data upon which we knew the information was inaccurate was 
on February 4th. It comes some time after that.
    I received things as late as March of 2011 from people at 
ATF who assured me that gun walking did not occur.
    Senator Cornyn. But your Department--you said you learned 
about Fast and Furious--on May 3rd, you said you learned 
probably over the last few weeks, today you say it was over the 
last couple of months.
    Attorney General Holder. Well, I said over the last few 
weeks or it could be expressed as over the last couple of 
months. I think the last few weeks I said is consistent with 
the timeline that you have out there.
    Senator Cornyn. But the fact is the Department's official 
response to Senator Grassley as part of his investigation was 
that it did not happen until you came before the House and said 
that you had learned about it over the last few weeks. That was 
May 3, 2011. Is that correct?
    Attorney General Holder. I am not sure I understand that 
question.
    Senator Cornyn. OK. Well, let me go on to something else.
    Do you still contend this was a local law enforcement 
operation?
    Attorney General Holder. It is a Federal--no, do not 
misinterpret that. It is a Federal law----
    Senator Cornyn. Those are your words. You said it was a 
local law enforcement operation----
    Attorney General Holder. Well, then, that is my fault.
    Senator Cornyn [continuing]. In your opening testimony.
    Attorney General Holder. No, that is my fault. It is a 
Federal law enforcement operation that was concerned--that was 
of local concern. It was not a national operation.
    Senator Cornyn. Well, it metastasized, didn't it, to 
Mexico, it metastasized to Texas, and obviously in Arizona, so 
it was not certainly local in effect. You would agree with 
that.
    Attorney General Holder. Well, as I indicated in my opening 
statement, the impact of the mistakes made in Fast and Furious 
are going to be felt in Mexico, in the United States, and 
probably for years to come.
    Senator Cornyn. A lot of those guns have still not been 
accounted for, correct?
    Attorney General Holder. A number of those guns have not 
been accounted for, and that is why it is incumbent upon us and 
why I have taken the steps that I have taken to try to ensure 
that the mistakes that happened there are not repeated.
    Senator Cornyn. This is the organization chart for the 
Department of Justice. You would agree with me that the Bureau 
of Alcohol, Tobacco, Firearms, and Explosives is an agency in 
the Department of Justice of which you are head. Correct?
    Attorney General Holder. Yes, that is correct.
    Senator Cornyn. And that is your signature right here 
attesting to this organization chart, April 30, 2010. So you 
are not suggesting, are you, General Holder, that it is not 
your responsibility to have known about this operation, is it?
    Attorney General Holder. Well, there are 115,000 employees 
in the United States Department of Justice. There are----
    Senator Cornyn. And the buck stops with you.
    Attorney General Holder. I have ultimate responsibility for 
that which happens in the Department. But I cannot be expected 
to know the details of every operation that is ongoing in the 
Justice Department on a day-to-day basis. I did not know about 
Fast and Furious, as is indicated in the chart that you now 
have up there, until it became public.
    Senator Cornyn. You cannot be expected to have known about 
the operation known as Fast and Furious, despite the fact that 
we know that you received an NDIC memo on July 5, 2010? You 
received another memo on Fast and Furious November 1, 2010, and 
you say you cannot be expected to have known about it because 
of the size of your agency?
    Attorney General Holder. No, there are a couple problems 
with that chart, colorful though it is. The ``AG Holder 
receives NDIC memo,'' incorrect. ``AG Holder receives 
significant recent events memo,'' that is incorrect.
    Senator Cornyn. Those are memos with your name on it 
addressed to you, referring to the Fast and Furious operation. 
Are you just saying you did not read them?
    Attorney General Holder. I did not receive them.
    Senator Cornyn. You did not receive them.
    Attorney General Holder. What happens is that these reports 
are prepared, these weekly reports or whatever, they are 
prepared with my name on them, with the Deputy Attorney 
General's name on them. They are reviewed by my staff and a 
determination made as to what ought to be brought to my 
attention. If you look at those memos, there is nothing in any 
of those memos that indicates any of those inappropriate 
tactics that was of concern to us were actually used, and my 
staff made the determination that there was no reason to share 
the content of those memos with me. So ``AG Holder receives 
memo,'' incorrect. ``AG Holder receives significant recent 
events memo on Fast and Furious,'' also incorrect.
    Senator Cornyn. Have you apologized to the family of Brian 
Terry?
    Attorney General Holder. I have not apologized to them, but 
I certainly regret what happened.
    Senator Cornyn. Have you even talked to them?
    Attorney General Holder. I have not.
    Senator Cornyn. Would you like to apologize today for this 
program that went so wrong that took the life of a United 
States law enforcement agent?
    Chairman Leahy. Just before you answer, that will have to 
be your last question, keeping to the time.
    Attorney General Holder. I certainly regret what happened 
to Agent Brian Terry. I can only imagine the pain that his 
family has had to deal with, in particular his mother. I am the 
father of three children myself. We are not programmed to bury 
our kids. It pains me whenever there is the death of a law 
enforcement official, especially under the circumstances that 
this occurred.
    It is not fair, however, to assume that the mistakes that 
happened in Fast and Furious directly led to the death of Agent 
Terry. Again, my feelings of sympathy and regret go out to the 
Terry family, and I hope that the steps that we have put in 
place, the measures that I have called for, will prevent other 
Federal agents, local and State agents from being the subject 
of this kind of violence, as well as civilians, both in the 
United States and in Mexico.
    Chairman Leahy. And I would put into the record a letter 
from the Fraternal Order of Police praising Attorney General 
Holder for his commitment to law enforcement rank-and-file 
officers, especially on the question of the safety of officers, 
and the work he has done following the spike in attacks on 
police officers around our country.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman. Welcome, Attorney 
General Holder.
    I spent 4 years as the United States Attorney for the 
District of Rhode Island, and while some time has gone by since 
then, my recollection is that there was, I guess you would call 
it, kind of a convention in the Department of Justice that a 
lot of people got to write memos that were nominally designated 
to the Attorney General. And there was some value in that 
because it kind of made you feel good to be writing a memo to 
the Attorney General of the United States, and it was fairly 
widely accepted that that was a common practice--that was my 
recollection, anyway--and that the filtration of that flood of 
e-mails and memoranda nominally designated for the Attorney 
General was filtered by the Deputy Attorney General and that 
office, and that then what went actually through to the 
Attorney General was kind of on what the deputy perceived to be 
a need-to-know basis for then-Attorney General Reno. And I am 
wondering, is my recollection correct? And does that remain the 
convention within the Department that there is a large number 
of e-mails that are nominally directed toward the Attorney 
General that, as a matter of standard Department practice, the 
Attorney General never actually sees?
    Attorney General Holder. That is correct. There are a 
number of what I will call filters that exist so that we can 
respond in a timely fashion to things that are raised to the 
attention, nominally to the attention of the Attorney General. 
You have Assistant Attorneys General who have subject matter 
responsibility in a variety of areas. You have the Deputy 
Attorney General. We have an Assistant Attorney General for 
Legislative Affairs who responds to memos and things that come 
from members of the Hill. So there are a whole variety of 
things that will say, ``To the Deputy Attorney General,'' ``To 
the Attorney General,'' that neither of us would ultimately 
see.
    Senator Whitehouse. Well, I guess I would only -even though 
it appears to have created some misunderstanding in this 
particular matter, I would urge you not to depart from that, 
because my recollection is that the senior staff that U.S. 
Attorneys and others work very, very hard and that the feeling 
when you are preparing a document that it is going to the 
Attorney General of the United States is an important one. And 
if that got shut off so that, you know, mail had to be sent to 
more junior officials in the Department, I think it--other than 
the confusion that this has created, I think that it is a good 
thing for the 93 U.S. Attorneys and others to be able to write 
memoranda with the feeling that this is going to the Attorney 
General, and I think it calls up a higher level of performance 
and public spiritedness. So I would urge you to leave that in 
place even though there has been this misunderstanding.
    Attorney General Holder. Sure, and I think one thing let me 
make clear. My staff as well as the staff in the Deputy 
Attorney General's office reviews a large volume of this 
material, and some of the things that do say ``To the Attorney 
General'' actually do get brought to my attention if they make 
the determination that it is something that needs to be brought 
to my attention as opposed to something that is more routine or 
something that can be handled at a lower level.
    I get a fair amount of information that I have to look at. 
I have to stay up at night to try to keep up with it. It is 
just not the things that were in the chart, I guess, that 
Senator Cornyn had. Those things were not brought to my 
attention, and my staff I think made the correct decision in 
that regard.
    Senator Whitehouse. And that is consistent with 
longstanding Department practice.
    Let me switch topics to the vulnerability that our country 
faces to a cyber attack. A lot of the committees of Congress 
have done a lot of work on this subject. Bills I think are out 
of Committee and ready to go. There was a long pause while the 
administration did its work of its interagency process, which 
has now concluded, and many of us believe that it is time for 
Congress to move forward in a bipartisan fashion with 
meaningful cybersecurity legislation. And in that vein, I would 
like to ask you to make your recommendation to us today as to 
how quickly and with what urgency you believe we should be 
going forward to pass cybersecurity legislation. That is going 
to be part one of the question.
    Part two of the question is that sometimes we pass 
legislation around here, and it is not clear whether or when it 
will have an effect. The prime area of real national security 
risk is to privately owned national critical infrastructure. Do 
you have any information that you can give us on how quickly, 
once we pass meaningful cybersecurity legislation, the critical 
infrastructure that is in private hands in this country can 
have its cybersecurity level dramatically increased so that the 
risk to our country to that critical infrastructure is 
commensurately reduced?
    Attorney General Holder. I think that you are right to 
focus on this whole question of cybersecurity. It is something 
that I think, frankly, we have waited too long to act upon. It 
has military implications. It has civilian infrastructure 
implications. It has intelligence-gathering capability 
implications. It has obviously just criminal fraud problems 
that can result from our lack of focus on this issue.
    With regard to that first question, I think this has to be 
a priority, that there are a variety of things that this 
Committee has to consider. But as we in the executive branch 
focus on those things that are of most concern to us, we spend 
a huge amount of time focusing on this cyber issue, and I would 
hope that we can work with this Committee and Members of 
Congress to come up with the necessary legislation to deal with 
what is a real and present danger to this Nation.
    Senator Whitehouse. And the effect of getting it done?
    Attorney General Holder. The effect, I think, will be 
seen--it is interesting because I think when you pass bills, 
frequently you do not see the results of those bills for years 
sometimes, a huge number of months. But with regard to civilian 
infrastructure and other things that I talked about in the 
first part of my answer, I think that you would see the ability 
to protect that infrastructure in a relatively short period of 
time.
    One of the values that we have, one of the kind of unique 
things about the cyber area is that the protections that can be 
raised can be done relatively quickly because you are dealing 
with switches and electronic stuff that I do not totally 
understand, but that can be changed relatively quickly. So the 
impact, the positive impact of this legislation would be 
something that we would feel relatively soon.
    Senator Whitehouse. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    The list from Senator Grassley has Senator Coburn next, but 
he is not here. Senator Lee. And then after Senator Lee, we 
will go to Senator Franken or, if he is not here, Senator 
Coons.
    Senator Lee. Thank you, Mr. Chairman. Thank you, Mr. 
Holder, for joining us today.
    I understand that the House Judiciary Committee has issued 
a request--I believe it was this past Friday--for documents and 
with interviews related to Justice Kagan's involvement in the 
health care legislation and related litigation during her 
service as Solicitor General. Will the Department of Justice 
comply with that request?
    Attorney General Holder. I am not familiar with that 
request. I would have to look at it. I am just not familiar 
with the request that has been made or what materials have been 
sought in that regard.
    Senator Lee. OK. I believe the intent of the request is to 
get any documents or any other indication that Justice Kagan 
while serving as Solicitor General may have participated in 
discussions related to actual or contemplated anticipated 
litigation involving the constitutionality of the Affordable 
Care Act.
    Attorney General Holder. I can tell you that certainly one 
of the things that we did while she was Solicitor General was 
to physically, literally, move her out of the room whenever a 
conversation came up about the health care reform legislation. 
I can remember specific instances in my conference room where, 
when we were going to discuss that topic, we asked Justice 
Kagan to leave, and she did.
    Senator Lee. So that being the case, there should not be a 
problem responding, complying with this request?
    Attorney General Holder. Again, I do not know what the 
nature of the request is. I will certainly look at it.
    Senator Lee. OK. There were letters. One was sent on Friday 
from the Chairman of the House Judiciary Committee.
    Attorney General Holder. OK.
    Senator Lee. You have acknowledged today that mistakes were 
made, obviously, within the Department of Justice related to 
the Fast and Furious program but without specifying who made 
those mistakes. I would be curious. What mistakes have you made 
that you can identify, things that you wish you had done 
differently, any mistake that you personally have made.
    Attorney General Holder. Well, I think that as I look at 
the information as it was brought to me, I think that I acted 
in a responsible way by ordering the Inspector General 
investigation, by issuing the directive to the field. We have 
an Inspector General report that will look at this matter, and 
I think that we will glean from that report a better sense of 
what people did, who should be held accountable. And I want to 
make clear that on the basis of that report and any other 
information that is brought to my attention, those people who 
did make mistakes will be held accountable.
    Senator Lee. And you have reiterated several times that 
people within the Department of Justice believed that the 
initial statements denying knowledge of Fast and Furious were 
accurate. They believed they were accurate. Obviously, these 
were some people and not all people.
    Attorney General Holder. Right.
    Senator Lee. Because clearly some people knew.
    Attorney General Holder. Exactly.
    Senator Lee. What can be done, then, to bridge this gap in 
the future to make sure that the some communicate with the 
others, particularly those at the top?
    Attorney General Holder. Well, one of the things I hope 
will be as a result of the directive that I issued with regard 
to this whole question of gun walking, that people understand 
that is simply not acceptable. But the Inspector General 
report--I think you make a good point. The Inspector General 
report I think will ultimately answer a question that I do not 
know the answer to right now: Who actually thought this was a 
good thing to do? And why didn't people discover sooner than 
they did that, in fact, what we thought was occurring, in fact, 
was not? I think that will be the result of the Inspector 
General report.
    Senator Lee. You know, I have been curious about some 
statements made recently by Lanny Breuer, the head of the 
Criminal Division, that are at once indicative of a broader 
concern and also I think in some ways likely to implicate some 
questions related to Fast and Furious.
    Mr. Breuer has stated that although he and/or his top 
deputies approved several ATF wiretap applications for 
Operation Fast and Furious, as is required under Federal law 
consistent with Title 18 U.S. Code, Section 2518, et seq., Main 
Justice has only one role in reviewing the sufficiency of 
wiretap applications: to ensure that there is legal sufficiency 
to make an application to interrupt communications, that is, to 
ensure that the Government's petition to the Federal judge is, 
in his words, a credible request.
    He went on to explain that it is the responsibility of the 
district offices carrying out the investigation ``to determine 
that the tactics that are used are appropriate and that Main 
Justice has to rely on those prosecutors in the field and not 
to second-guess them.''
    I find this interesting in the sense that here the 
requirement outlined in Section 2518 of Title 18 requires an 
analysis at the Department of Justice level. It requires an 
analysis of you or of your deputy or of the Assistant Attorney 
General in charge of the Criminal Division, one of those 
officials essentially. And one of the things that they have to 
do there is rather than simply regurgitate, back out the same 
facts and say, well, yes, it looks like they cite the right 
statute, they have to undertaken an assessment as to such 
issues as: Have other investigative tactics proven inadequate? 
And if so, why is a wiretap--which is a pretty extraordinary 
remedy, it is a pretty invasive investigative tool, and that is 
why Congress has, understandably, required that the Department 
of Justice at the top levels approve these.
    So if he, in fact, approved multiple wiretap applications, 
then one of two things I think is happening: he is either not 
complying with that duty to assess each one independently to 
make sure that there was this representation made that the 
Department established the case for a wiretap application; or, 
on the other hand, he was doing his job and was, therefore, 
made aware of what was going on with Operation Fast and 
Furious, but did not disclose that. Or when he saw initial 
denials by the DOJ about Fast and Furious, failed to raise the 
flag that said, hey, this is a concern. So which is it?
    Attorney General Holder. Well, first off, Lanny Breuer 
would not have approved, he would not personally approve these 
requests, these wiretap requests.
    Senator Lee. Would it have been one of his deputies?
    Attorney General Holder. One of the Deputy Assistant 
Attorneys General.
    Senator Lee. Who report directly to him.
    Attorney General Holder. Who report directly to him, but my 
guess would be that given the volume of these things, the 
conversations about those kinds of things, it probably does not 
exist. The only one that the Assistant Attorney General is 
required to approve personally is if it is for a roving 
wiretap. There were no roving wiretaps in connection with Fast 
and Furious.
    Senator Lee. But given that they report directly to him, 
wouldn't they be in a position, once they saw that the 
Department of Justice and its good name were on the line, to 
have said, hey, you know, the Department of Justice did, in 
fact, know about this program; in fact, we have approved a 
significant series of wiretap applications on this point?
    Attorney General Holder. Yes, I do not think the wiretap 
applications--I have not seen them. I have not seen them. But I 
do not have any information that indicates that those wiretap 
applications had anything in them that talked about the tactics 
that have made this such a bone of contention and have 
legitimately raised the concern of Members of Congress as well 
as those of us in the Justice Department. I would be surprised 
if the tactics themselves about gun walking were actually 
contained in those applications. I have not seen them, but I 
would be surprised if that were the case.
    Chairman Leahy. Senator, your time is up, and I will note 
that Mark Shurtleff, who is Utah's Attorney General and a 
Republican, and Terry Goddard, former Arizona Attorney General, 
a Democrat, in an op-ed published in Sunday's Salt Lake 
Tribune--and I would ask that be put in the record. They 
conclude that, ``It would be tragic if the furor over Fast and 
Furious causes our country to abandon Mexico to the cartels. 
The cartels are our enemy, not the ATF or Department of 
Justice. We need to provide the men and women fighting 
this...battle with the tools they need.''
    [The op-ed appears as a submission for the record.]
    Chairman Leahy. Senator Coons.
    Senator Coons. Thank you, Chairman Leahy, and I would like 
to thank you, Attorney General Holder, for being here today. 
The oversight function of this Committee is one of the most 
important roles we have, and I thank you for your service but 
also for your detailed and thorough testimony here today. And 
before I begin my questioning, I just wanted to highlight that, 
like Chairman Leahy and Senator Whitehouse who have asked about 
this previously, I am keenly concerned about the very real and 
emerging threat of cyber criminals. And to meet this threat, I 
think we need to use all of our resources at our disposal. My 
home State of Delaware happens to have a unique or, I believe, 
a promising National Guard unit in network warfare, a squadron, 
and last Friday, the Chairman and I sent you a letter asking 
for your position on whether the National Guard might in the 
future provide a pathway for the DOJ to make some use of their 
sophisticated cyber defense resources as the DOJ expands its 
law enforcement resources. And I just want to thank you in 
advance for your consideration of that, and I look forward to 
the Department's response.
    On the topic of industrial espionage, which was also 
previously addressed, last week the Office of the National 
Counterintelligence Executive released a fairly alarming report 
accusing China and Russia of aggressive and capable collections 
of sensitive U.S. economic information and technologies through 
cyberspace. Frequently, IT software developers know about 
exploitable bugs in their software months before a security 
patch is issued, and corporations running software often do not 
apply patches that are necessary to protect against 
vulnerabilities.
    Do we have the right incentives in place to encourage the 
private sector to respond quickly and appropriately to emerging 
security threats to defend themselves from fraud and to promote 
our Nation's security for our IP infrastructure?
    Attorney General Holder. I think the issue that you 
highlighted is one that, again, should be of great concern to 
us. I took a trip to China, last year I believe it was, to have 
a very frank conversation with them about the concerns we had 
about intellectual property, the theft of intellectual 
property, the stealing of industrial secrets. We are going to 
have to compete with them in the 21st century, and we should be 
doing so on a level playing field. And so that is a big concern 
that we have. It is one that we have expressed to the Chinese.
    Senator Coons. One follow-on question I have got is about 
resources for the Department. The Economic Espionage Act was 
passed 15 years ago, and as of October, there have only been 
eight cases tried under this. And so the last time that you 
testified before us, I asked whether you thought the DOJ needed 
additional resources, either financially or statutorily, to 
more successfully criminally prosecute those who steal 
sensitive IP.
    Given this report, and given the very real prospect that we 
are losing vast amounts of national treasure, is the DOJ 
ramping up its efforts to enforce the Economic Espionage Act? 
Do you see a need for more statutory or financial resources for 
the Department in light of this report?
    Attorney General Holder. I think it is a priority for the 
Department, but I do think that even in these tough economic 
times, and given the nature of the threat and what is at stake, 
both for the safety of this Nation and for its economic well-
being, this is an area that we have to focus on. This is an 
area that will require--as I deal with limited numbers of 
people, some decisions have to be made by me and by others in 
the Department, hopefully with the support of Members of 
Congress, to ramp up our abilities to deal with these issues.
    It is not too much to say, it is not an overstatement, it 
is not hyperbolic to say that the future of this Nation is 
really dependent on, in part, how we resolve the issues that 
you are raising.
    Senator Coons. On a related point, the Customs and Border 
Patrol, at least in my view, has interpreted the Trade Secrets 
Act to bar it from sharing with trademark rights holders either 
photos or documents or samples related to seized goods that 
could be counterfeit. There is a Senate Armed Services 
Committee hearing, I believe today, on the grave threat posed 
to our servicemen and -women by counterfeit Chinese microchips 
that have made their way into United States weapons systems in 
apparently significant quantity, and many of the counterfeits 
may be examined by CBP, but they are not consulting with 
sources that I think could make it possible for them to more 
rapidly determine whether what is being intercepted in 
counterfeit or not.
    Has the DOJ ever or do you believe it would ever prosecute 
a Customs and Border Patrol agent for sharing information where 
the intention is to simply certify whether something that has 
been seized is or is not counterfeit?
    Attorney General Holder. We have something that is called, 
as you know, prosecutorial discretion. It would be hard for me 
to imagine that we would bring such a case. But I also think 
that, to the extent that that impediment exists between the 
sharing of that kind of information and given the need for a 
public-private partnership to deal with these issues, that that 
might be a legislative fix that perhaps we could discuss and 
somehow deal with.
    We are only going to be successful in this if we have the 
public sector working with the private sector to deal with 
these issues. We cannot do it alone. We cannot do it alone in 
Government. The private sector cannot do it alone as well. And 
to the extent there are barriers to information sharing, I 
think we have to try to knock those down.
    Senator Coons. Thank you, and I would be happy to work with 
you and your office on finding a legislative fix. I do think 
that we are hamstrung in border enforcement around these vital 
issues.
    Last, as part of the CR to fund the Government for the 
remainder fiscal year 2011, many programs at DOJ took fairly 
deep cuts. Especially hard hit in my view were those designed 
to support State and local law enforcement. It was cut I think 
by more than $430 million. The COPS technology program in 
particular I was concerned was zeroed out, where many other 
programs took double-digit cuts. For my home State, where I 
previously supervised a county police department, it means less 
money for regional information sharing, less money for youth 
and criminal diversion programs, less money for officer 
protection and protective equipment.
    In your view, how are the cuts to OJP affecting your 
ability to provide cost-effective support that has a multiplier 
effect for State and local law enforcement? And what will the 
impact be if the House 2012 appropriations bill, which zeroes 
out the entire COPS hiring program, were to actually be 
enacted?
    Attorney General Holder. Let me be very, very clear. Those 
proposed cuts are simply unacceptable and place this Nation at 
risk. Though we are enjoying historically low crime rates, we 
have 30,000 vacant law enforcement positions in this country. 
We have lost 12,000 officers over the course of the last year, 
and we put at risk the possibility that these historically low 
rates will not remain there forever.
    There have been high rates of shootings of police officers. 
Although the rates have been coming down generally in terms of 
crime, the amount of violence directed at police officers is up 
over 20 percent over the last 2 years. The number of deaths 
this year is outpacing that which we saw last year. And the 
notion that somehow, some way we would, at a time when we are 
trying to create jobs, take people who are sworn to protect the 
lives of the American people off the line is to me illogical 
and unacceptable and dangerous.
    Senator Coons. Thank you, Mr. Attorney General. I look 
forward to working with you to sustain the COPS program and 
other vital partnerships with State and local law enforcement.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    Senator Blumenthal.
    Senator Blumenthal. Thank you, Mr. Chairman, and thank you, 
Mr. Attorney General, for being here today. I have listened to 
all the questions and all of your answers, and I want to thank 
you for effectively addressing many of the questions 
surrounding Fast and Furious and dispelling any doubt that you 
are determined to uncover all the facts surrounding some of the 
very regrettable circumstances here. And just so we understand, 
a lot of names have been mentioned here: Attorney General 
Mukasey; Kevin O'Connor, who happens to be a former United 
States Attorney in Connecticut; and others in the Department 
now. There is no evidence before us here that they knew or 
participated in any wrongdoing, is there?
    Attorney General Holder. Yes, I hope my testimony was 
clear. I do not know.
    Senator Blumenthal. And it has been. Thank you. And also 
that there is an ongoing investigation which eventually will 
disclose whether or not and who knew about what was going on. 
And I want to thank you for being so candid and straightforward 
on that point.
    I want to join my colleague Senator Coons in expressing my 
determination that there should be more assistance and 
sufficient support for our police on the streets of 
Connecticut, in our neighborhoods, as well as the firefighters 
and other personnel that I would regard as law enforcement, 
which are really in more than one sense the cops on the beat 
who protect us day in and day out. Despite the very excellent 
performance of the FBI, they are the ones who do the bulk of 
law enforcement for our Nation, and I appreciate and thank you 
for your support.
    I think perhaps for me one of the most important aspects of 
your testimony today is really the vigor and intensity that the 
Department of Justice is devoting now to stopping gun 
trafficking and drug dealing and gang violence on our borders 
and throughout the country, but most particularly in connection 
with the Mexican gangs that pose such a threat to Americans as 
well as Mexicans. And as I understand your testimony, there 
have been record numbers of seizures, arrests, prosecutions, 
convictions, and extraditions. Is that correct?
    Attorney General Holder. That is correct. We have moved 
substantial numbers of resources to the border in an attempt to 
stop the flow of guns into Mexico, to stop the violence along 
the border. We have worked in the interior of Mexico with our 
Mexican counterparts in training and trying to come up with 
ways in which we could fight the cartels. Our Mexican 
counterparts have sacrificed a great deal, and even with their 
lives, in this fight, and we have tried to be good partners in 
that struggle.
    Senator Blumenthal. And would it be fair to say that the 
Mexicans are increasingly becoming good partners in this 
effort?
    Attorney General Holder. Yes, I think so. I think through 
the use of vetted units, through the use of other techniques 
that we have shared with them, through their growing 
sophistication with the use of electronic devices, I think they 
are becoming more proficient in this battle.
    Senator Blumenthal. And there is no question that the 
Department of Justice under your leadership will continue to 
work on disrupting and dismantling these gang-led efforts or 
other efforts on drug trafficking and gun dealing and so forth?
    Attorney General Holder. Yes, this will continue to be a 
priority. Too often we describe this as a Southwest Border 
problem, when the reality is it is a national problem. What 
happens along the Southwest Border can have an impact in 
Connecticut, can have an impact in Chicago. And the person 
whose name has been mentioned a lot--and I think he deserves a 
little bit of credit here. The person who has been leading the 
effort for the Department of Justice is Lanny Breuer, the head 
of our Criminal Division, who has devoted an inordinate, a huge 
amount of time to this fight, has established good 
relationships with his counterparts in Mexico, and has been a 
person who has really stood for this country in developing good 
techniques to reduce that level of violence and the danger that 
the cartels pose to this country.
    Senator Blumenthal. I would like to turn to another subject 
that I think is equally important, not necessarily at this 
point a topic of criminal investigation, but the mortgage 
foreclosure crisis I know has been very much on your mind and 
the Department's focus. I wonder whether we can expect criminal 
investigations or other investigations that will be aimed at 
going after fraudulent documents that have been submitted in 
court, inconsistent and contradictory information of homeowners 
that have sought and sometimes received loan modifications, a 
series of practices and abuses that I know have been under 
investigation by my former colleagues, the State Attorneys 
General, with the cooperation of the Department of Justice and 
the Department of Treasury.
    Attorney General Holder. Yes, there are a number of 
investigations that are underway. We are working with our 
counterparts, with State AGS, who have been extremely helpful 
and who have been, I think, extremely effective. And so we will 
be looking at these matters to see if criminal cases can be 
made, if there are other ways in which we can hold accountable 
organizations or people, perhaps using civil remedies as well. 
But it is our intention to make sure that those who are 
responsible for this mortgage crisis are, in fact, held 
accountable.
    Senator Blumenthal. And I would like to pursue this area in 
greater detail. My time is close to expired, but I hope that 
perhaps with your staff or yourself I can do so in that regard.
    Attorney General Holder. I would be glad to.
    Senator Blumenthal. And I want to ask on a related topic, I 
know that so far the Department of Justice has declined to 
intervene in a lawsuit that has been brought by two mortgage 
brokers in Georgia alleging that a number of the largest 
lending institutions in the country have been in effect 
cheating veterans and taxpayers out of hundreds of millions of 
dollars by charging them illegal fees in home refinancing 
loans. I am particularly concerned about the effect on veterans 
and the possibility that they may have been treated illegally. 
And I wonder whether the Department may be reconsidering, which 
I would urge, along with two of my colleagues, Senators Brown 
and Tester, that it become involved in what I view as a 
whistleblower action and intervene to protect the interests of 
these veterans and other taxpayers.
    Attorney General Holder. That is something that I will have 
to review. I am not as familiar with that as, obviously, you 
are, but I will check with the appropriate people within the 
Department and see whether our decision to decide to not become 
involved is, in fact, an appropriate one. But I will take that 
pledge to you, and we will get something back to you.
    Senator Blumenthal. I appreciate it. I am not going to give 
you a 30-day deadline to come back to us, and I join, by the 
way, with Senator Graham more seriously in the concern about 
the detainee issues. I know you take it seriously as well, but 
I very much appreciate your getting back to me on that issue, 
and thank you for your service.
    Attorney General Holder. We will. Thank you.
    Chairman Leahy. Thank you very much.
    Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman, and 
thank you, Mr. Attorney General. Again, many of my colleagues 
have mentioned the work that the Justice Department and FBI 
have done to avert terrorist attacks on our own soil, including 
the recent assassination attempt with the Saudi Ambassador. I 
want to thank you for that and urge you also to continue to 
support our local law enforcement. I cannot tell you the 
difference the COPS program has made in our State. Minneapolis 
was once known as ``Murder-apolis'' in the New York Times. That 
all changed around in part because of some tougher law 
enforcement, but also because of the help from the COPS 
program, so thank you.
    I was going to first ask you here about some intellectual 
property issues. Recently, Senator Cornyn and I introduced a 
bill that passed through the Senate Judiciary Committee on a 
bipartisan basis. The bill is designed to go after people who 
steal other people's works, whether it is books or commercial 
music or movies, including foreign piracy. It only covers 
intentional commercial theft, not people posting their own 
personal work on the Web. It is about protecting everyone's 
rights, from a children's writer in Minneapolis to a first-time 
guitarist with their first CD in Nashville. And as far as I can 
see, America is not a country where people can write a song or 
a book only to have someone copy it and sell it and make money 
off it without permission.
    And so that is what this is about. I know that members of 
your Department have expressed their support for this 
legislation, and, in fact, the idea for it came from the 
administration when they suggested the U.S. law enforcement 
agencies to combat infringement have to be able to be as 
sophisticated as the crooks that are breaking the laws.
    I appreciate the recent letter we got from your Department 
in which you talked about how the provision of the bill 
regarding streaming does not criminalize conduct that is not 
already criminal, because right now it is a misdemeanor. And my 
only question is if you would commit to work with us to take 
any necessary steps to make crystal clear that the bill does 
not criminalize any new conduct with the streaming issue, that 
we are not seeking to criminalize YouTube or harmless posting 
of personal videos.
    Attorney General Holder. Sure, we will work with you on 
that legislation. The issue that you raise is an important one, 
and we will do what we can in conjunction with you to make sure 
that people understand what the aim of the bill is and to put 
people's minds at ease with regard to what actually is covered 
and, I guess most importantly, what is not covered.
    Senator Klobuchar. That would be very helpful, some kind of 
guidelines. I appreciate that.
    Another important topic that we have been working on in 
this Committee is the growing problem of synthetic drugs. I 
have been shocked at the doubling and tripling of calls to the 
poison control centers in just the last 6 months compared to 
the same time a year ago with these drugs. We had a young man 
die in Blaine, Minnesota, from 2C-E, which is a synthetic 
hallucinogen, and we have also had bills passed through this 
Committee not just for that drug but also for bath salts, 
Senator Schumer's bill, and synthetic marijuana, Senator 
Grassley's bill. These bills are unfortunately stalled. I think 
there was unanimous support in this Committee, but they are 
stalled, Senator Durbin, because one Senator--not Senator 
Durbin--has put a hold on these bills. And so I just ask for 
your help in getting them through, and maybe you could talk a 
little bit about what we are seeing in terms of a whole new 
phenomenon with these designer drugs.
    Attorney General Holder. Yes, I think that is something 
that is of great concern. The DEA has taken emergency action 
with regard to the regulation of bath salts, and we have seen, 
tragically and unfortunately, instances around the country 
where people, young people in particular, using these 
substances have had negative health consequences, sometimes 
even died.
    I am not familiar with the hold, but I think that the 
legislation is clearly needed, and we will work with you on 
that to try to get it passed. I was not aware of the hold.
    Senator Klobuchar. Yes, it is a new phenomenon. Not a new 
phenomenon to hold things in the Senate, but on this bill we 
were surprised, and so we are trying to work with the Senator 
who has put on the hold. And then we also have an issue with 
some of the House bills that we need to work out. I just think 
it is incredibly important talking to law enforcement in our 
State, particularly in smaller communities where they are 
having to bring in chemists and people to try to prove that it 
is an analog substance.
    That actually gets me to the second point. One of the 
things I have realized is they keep changing the compounds, and 
while we will put these on the list and it will be helpful, it 
is not the end-all, be-all. And one of the things I am going to 
start doing, just so you know, is looking at that analog 
statute to see if there are some changes that we can make to it 
to make it simpler to explain that a drug, when you have a 
simple change in a compound, there are three factors or four 
factors that maybe we need to look at the standard differently. 
And so I will be working with your attorneys and law 
enforcement on that issue as well.
    Do you have any views on the analog statute?
    Attorney General Holder. I think that is actually very 
important because as these things are made synthetically, I do 
not know all the terms, but you can change the elements in 
these things, and it should not be the case that we have to 
come back to Congress to get a new statute in order to deal 
with this new compound. There ought to be some discretion, I 
would hope, perhaps within the executive branch, to recognize 
that something is maybe a derivative of something that has been 
previously banned, dealt with, and that we can take emergency 
action, appropriate action, so that we can deal with these 
things as they come up, because we know that the reality is 
that these chemical compounds, substances, can be changed 
relatively quickly, and we have to have the flexibility and the 
ability to respond as rapidly as we can.
    Senator Klobuchar. Well, thank you, and I still think there 
are a lot of people in America--I know when I was a prosecutor, 
I did not even know about this issue. It was not a big deal. 
And suddenly this switch where, because of people buying it 
easily, they think maybe it is legal because it is on the 
computer, it is getting to be a huge problem. So I appreciate 
that, and I think we need to look at that statute. Obviously, 
it is a harder haul than just adding the drugs to the list, but 
I think it will make it simpler so we can literally fit the 
crime here, because right now it is just too tough and has been 
too hard of a haul simply to even get these drugs on the list. 
It is something that I had hoped would happen automatically.
    The last thing, last month I introduced a bill with Senator 
Bill Nelson of Florida on guardianship. So many good guardians 
in our country are doing their jobs, but, unfortunately, 
including several reports by the GAO have shown that some of 
them are using their positions of power for their own gain. And 
I heard dozens of heart-breaking stories at a hearing that I 
held on the Judiciary Committee as well as meetings I had at 
home. Are you familiar with this issue? We are trying to make 
some changes to the statute.
    Attorney General Holder. I am not familiar with the bill. I 
have heard about this issue, this problem, and we would be more 
than glad to work with you both on the exploration of the 
problem and what the solutions to it might be.
    Senator Klobuchar. Yes, we are looking at, first of all, 
just some guidelines, which is always helpful, background check 
systems using examples of States where it is actually working 
to do background checks. It is unbelievable, but there are a 
number of States that do not even require criminal background 
checks. And so while we are not swooping in with Federal law 
enforcement on this, we are looking at how can we show best 
practices in some of the States so that we can do a better job 
of oversight. We are going to see a doubling of the senior 
population by 2030, the baby-boom generation, and we need to 
get ahead of the curve here. So thank you very much.
    Chairman Leahy. Thank you very much, Senator Klobuchar.
    Did you want to say anything to that?
    Attorney General Holder. Just an observation. I will be a 
member of that baby-boom generation that is going to be 
getting--I guess I might already be there at this point.
    Senator Klobuchar. I thought of saying that, but I decided 
to hold off.
    Chairman Leahy. I am trying to show a great deal of 
sympathy for you, knowing the difference in our ages.
    [Laughter.]
    Chairman Leahy. Senator Durbin.
    Senator Durbin. Thank you, Mr. Chairman, and thank you, 
Attorney General. I noticed in your opening testimony you 
talked about the efforts to extradite those in Mexico 
responsible for the killing of Americans. I would like to take 
you to another aspect of this issue.
    Recently, the Chicago Tribune did a series relating to 
those fugitives, criminal fugitives, who fled the country; 129 
criminal suspects have fled Illinois, according to DOJ data, 
and many of them have been charged with crimes as serious as 
murder and rape and child molestation. And what we found in 
cases over and over again--and this Tribune series has 
reflected on one case in particular. In 1996, it is alleged 
that Pedro Aguilar gunned down a single mother and restaurant 
owner, Maria Rodriguez, in Chicago for spurning his romantic 
advances and then fled. Within 2 months, the relatives 
disclosed his whereabouts to Chicago police, his whereabouts in 
Mexico, even giving local detectives the name of the street 
where he was staying with his parents in Mexico and supplying a 
telephone number where he could be reached. No action was 
taken.
    In fact, what has happened since 1996 is the family of Ms. 
Rodriguez, her daughter, has found that there has been no help 
in trying to locate him. The Chicago Tribune reporters found 
him in 48 hours in Mexico. Unfortunately, in the ensuing 15 
years, virtually all of the witnesses to the crime are either 
unavailable or incapacitated.
    This is repeated over and over again in this series, and it 
raises serious questions about the level of communications 
between local law enforcement and the Department of Justice and 
efforts at extradition.
    First, I would like to ask you, if you would, please, to 
join me in trying to bring all agencies of law enforcement at 
every level together to resolve this breakdown in 
communication. And, second, I would like to give you a chance 
to respond to this.
    Attorney General Holder. Yes, I think the issue that you 
have raised is one of concern. The extradition relationship 
that we have with Mexico is today much better than it was. 
Quite frankly, it was not good in the past, but we are in a 
much better place. Our Marshals Service is the primary agency 
within the Justice Department that has a responsibility of 
apprehending fugitives, but I think the point you make is a 
good one, that the Federal Government can only do so much. We 
need to work with our State and local counterparts to get 
information about people like the one that you have described, 
and we probably have to do a better job in interacting with our 
Mexican counterparts about who these people are, where they 
are, and then try to get them back, because the fact situation 
you have just laid out is something that is simply 
unacceptable.
    Senator Durbin. I might add that the series also spoke of a 
fugitive in Syria, which is a different circumstance altogether 
when it comes to extradition, but I thank you for your 
willingness to join in that effort.
    Mr. Attorney General, how does the Department of Justice 
view Muslim Americans in our National effort to keep America 
safe from terrorism?
    Attorney General Holder. We view that community as 
essential partners in the fight against terrorism. They are an 
essential part of our counterterrorism fight, have proven to be 
reliable sources of information. A great many of the successes 
that we have had and that I have talked about or that attention 
has been brought to came as a result of leads that we got from 
members of the Muslim American community. We have had extensive 
outreach efforts in the Department and the investigative 
agencies within the Department, particularly the FBI, to reach 
out to the Muslim American community to put at rest the 
concerns they have, the fears they have about their interaction 
with law enforcement. And I have to say that I have been very 
encouraged by the response we have generally gotten from that 
community.
    Senator Durbin. I thank you for your answer. It is 
consistent with the statements made by the previous 
administration. After 9/11, I thought President Bush's 
statements were right on, spot on, in reminding people that our 
enemy is not those of the Muslim faith but those who would 
corrupt it into violent extremism.
    The reason I raise this issue is that guidelines were 
established on profiling in the Department of Justice, and the 
guidelines are explicit that neither race nor ethnicity shall 
be used to any degree. And, of course, that is obvious. Using 
racial profiling to arrest African-Americans or using ethnic 
profiling to arrest those who appear to be Hispanic is totally 
inconsistent with our values in this country. But, notably, 
religion was excluded from that list; only race and ethnicity 
were included. And we have found that the FBI agents who were 
given counterterrorism training were, unfortunately, subjected 
to many stereotypes of Islam and Muslims.
    For example, FBI agents in training were told that, ``Islam 
is a highly violent, radical religion.'' ``Mainstream American 
Muslims are likely to be terrorist sympathizers.'' And, ``The 
Arabic mind is swayed more by ideas than facts.''
    We also found, for example, one public FBI intelligence 
assessment claims that wearing traditional Muslim attire, 
growing facial hair, and frequent attendance at a mosque or 
prayer group are all indicators of possible extremism.
    Recently released documents show the FBI is engaged in 
widespread surveillance of mosques and innocent American 
Muslims with no suspicion of wrongdoing. Can you reconcile that 
activity and those training guides with your initial statement 
concerning your view that I share on the role of Muslim 
Americans? And can you comment on how someone who is Muslim in 
America reads of these things and believes that the actual 
training under way and the actual surveillance under way are 
inconsistent with the stated principles?
    Attorney General Holder. Well, the information that you 
have just read is flat out wrong and is inconsistent with what 
we have been trying to do here at the Department. Those views 
do not reflect the views of the Justice Department, the FBI. It 
is regrettable that that information was, in fact, a part of a 
training program. That person is not being used anymore by the 
FBI, and we are reviewing all of the materials, all of our 
training materials to ensure that that kind of misinformation 
is not being used, because that can really undermine--can 
really undermine--the very substantial outreach efforts that we 
have made and really have a negative impact on our ability to 
communicate effectively as we have in the past with this 
community.
    I almost hesitate to say ``this community'' because the 
reality is when we say Muslim Americans, we are talking about 
Americans, American citizens who have the same desires that we 
all have, who want their kids to be safe, who want the 
opportunities that this great country has to offer them. And 
that kind of information, that kind of training sets back those 
efforts, and so we have distanced ourselves from that person, 
those statements, and have a process under way to review the 
materials to make sure that that mistake does not happen in the 
future.
    Senator Durbin. Mr. Chairman, could I prevail for 30 
seconds? Thank you very much, and thanks to the other Senators 
who are here.
    The last question I would like to ask I know you cannot 
answer, but there are several States, including the State of 
Florida, which have recently changed their State voting laws to 
restrict opportunities and access to vote relative to 
presenting photo identification cards, limiting the early 
voting in the States, and making it more difficult, including 
penalizing those who are engaged in the voter registration 
process, to the point where the League of Women Voters for the 
first time has pulled out of the State of Florida and is not 
engaging in voter registration because of their new law and the 
penalties associated with it.
    I know that under the Voting Rights Act in two different 
articles the Department of Justice has the authority to review 
these State laws to determine whether they have, in fact, or 
would, in fact, disenfranchise voters. Can you tell me whether 
this is under way or whether or not it will be reviewed in a 
timely manner?
    Attorney General Holder. You are correct in two instances. 
I cannot answer that question specifically, but I can say that 
with regard to Section 5 and Section 2 of the Voting Rights 
Act, this Department of Justice will be aggressive in looking 
at those jurisdictions that have attempted for whatever reason 
to restrict the ability of people to get to the polls.
    I think a fundamental question is really raised: Who are we 
as a Nation? Shouldn't we be coming up with ways in which we 
encourage more people to get to the polls to express their 
views? And I am not talking about any one particular State 
effort, but more generally, I think for those who would 
consider trying to use methods, techniques to discourage people 
from coming to the polls, that is inconsistent with what we say 
we are as a Nation. And I would hope that those kinds of 
efforts would not be engaged in. Again, that is separate and 
apart from what we have to do as the enforcers with regard to 
Section 5 and Section 2 of the Voting Rights Act.
    Senator Durbin. Thank you, Attorney General. I yield back 
the balance of my time.
    Chairman Leahy. Thank you. I would note that Senator 
Grassley and others have asked for a second round. We have a 
second round of 5 minutes for questions. Senator Coons--there 
is a vote on right now. I will ask mine, and Senator Coons is 
coming back to chair. If Senator Grassley is here, he will be 
recognized next after me, otherwise Senator Cornyn.
    Mr. Attorney General, I remain very concerned that the 
Senate Commerce-Justice-Science appropriations bill considered 
by the Senate last week completely eliminates funding for the 
Second Chance Act programs, but the Bureau of Prisons' budget 
was increased by $300 million. Now, I know prisons are 
overpopulated. I understand funding is vital to keep prison 
guards and surrounding communities safe. But I think we have to 
focus on re-entry and rehabilitation. Unless somebody has a 
real life sentence, which are very, very rare, at some time 
they are going to come back out. And when you consider the fact 
it costs $35,000 or more a year to keep them there, the idea of 
spending a tiny fraction of that to keep them from going back 
makes a lot of sense. We want to make sure that we have a re-
entry and rehabilitation program when prisoners rejoin society 
and stay out. I think Second Chance Acts allow that. It is a 
tiny fraction of what we spend in our prisons. Sometimes it is 
a far better investment than just sending people back to 
prison.
    Will you support restoration of Second Chance Act funding 
as Congress finishes its work this year on appropriations 
bills?
    Attorney General Holder. Yes. The investment of money in 
that way is ultimately financially smart. It will save money 
down the road. But also I think there is a moral component to 
this, and that is that we have to try as best we can to 
rehabilitate people. And it is only through the techniques, the 
support that the Second Chance Act provides, that we can be 
effective, I think, in that regard. So I think that the 
decision not to fund that effort does not make a lot of sense.
    Chairman Leahy. Thank you. The Violence Against Women Act 
gave the Department of Justice some important tools to improve 
the response to the complex issue of domestic and dating 
violence, sexual assault, and stalking. One of these shows that 
the U-visa makes it easier for law enforcement to apprehend 
violent criminals.
    Now, law enforcement is requesting more of these visas than 
are allowed under the law. I am considering, as are some 
others, proposing an increase in the number of U-visas that 
might be available. Would that help law enforcement?
    Attorney General Holder. I think it could. We certainly 
want to work with you in that regard and look at all the ways 
in which we can deal with this issue, but I think that is 
certainly one of the things we ought to be considering.
    Chairman Leahy. And, last, Senator Grassley and I worked 
together this Congress on the Fighting Fraud to Protect 
Taxpayers Act. It is an important measure to give the 
Department of Justice additional resources to fight fraud at no 
cost to taxpayers. We joined a bipartisan effort, got the bill 
out, and it is now stalled in the Senate. Of course, it asked 
for an increased number of investigators and prosecutors that 
would be paid for by fines and reimbursements, and the 
Department of Justice could hire them if we pass the Fighting 
Fraud to Protect Taxpayers Act. Would the American people 
benefit by that?
    Attorney General Holder. I think obviously, Mr. Chairman, 
and that is something that we want to work with you on and 
would support. That clearly is a benefit to the American 
people.
    Chairman Leahy. Senator Grassley and I will keep on pushing 
on that.
    Lastly, I keep reading, even after the facts came out, or 
keep seeing on some of the TV programs about $16 muffins. Now, 
the Inspector General issued a corrected version of that 
report, which apparently some of the media never saw, even 
though everybody else did. We want to make sure what money you 
have is spent correctly. I know you do. I know Deputy Attorney 
General Cole will. I will ask that a copy of the cover letter 
to the corrected report, which pointed out that the first one 
of $16 muffins was incorrect.
    [The letter appears as a submission for the record.]
    Chairman Leahy. What steps have you taken to make sure that 
in conferences money is spent appropriately?
    Attorney General Holder. Well, first I want to say that we 
have a very good Inspector General, and I think that they are 
to be lauded for the fact that they did admit that they made an 
error in that calculation, that the $16 muffin, in fact, does 
not exist. We are in the process of reviewing all requests for 
conferences to make sure that they adhere to the guidelines 
that we have set out, that they are done efficiently in a cost-
effective way.
    But I also want to point out that conferences serve a 
useful purpose. It is a way in which teaching occurs. It is a 
way in which thoughts are shared, ideas are shared, policy is 
developed, and we should not simply cast a wide net and think 
that conferences are not a good use of our resources. But we 
are committed to doing it in an appropriate way.
    Chairman Leahy. Thank you very much. I yield to Senator 
Grassley for his 5 minutes.
    Senator Grassley. Thank you, Attorney General, for your 
patience. I have a couple statements I want to make before I 
ask a question.
    Before the Justice Department produced documents on Wide 
Receiver, my staff asked for additional information on previous 
cases of gun walking. However, on September 30th the Department 
declined to provide a briefing on such cases, so I have not 
limited my questions to Obama era operations, and it is hard to 
get straight answers, though, if you do not get these 
briefings. Now that the majority is interested in gun walking 
after 9 months and they are in the majority, they will probably 
help us get our questions answered. But that is one reason that 
I do not want the inference to be left that I am only 
interested in overseeing Democrat Presidents on gun walking.
    I want to speak to something Senator Schumer brought up, 
and I think his facts are entirely accurate, but he referred to 
Wide Receiver where I think he was--well, he referred to Wide 
Receiver, but all the facts are in regard to the Hernandez 
case. I just wanted to make clear something that has been 
widely misunderstood. The memo to Attorney General Mukasey 
referred to what is known as a ``controlled delivery'' in the 
case called Hernandez, not gun walking. The U.S. coordinated 
with the Mexican law enforcement, which was supposed to be 
waiting on the other side of the border to interdict these 
weapons. And so this is distinct from Fast and Furious and 
Operation Wide Receiver in which no effort was made to work 
with Mexico and guns were clearly walked.
    The first question to you: Your Justice Department stood by 
its February 4th denial to me even after I sent the first set 
of documents that showed otherwise. So the question for you, 
General Holder: You say that you were relying on others to 
correct the misstatements in the February 4th letter, yet Mr. 
Breuer himself admitted that he first knew firsthand that those 
misstatements were false at the time that they were made. 
Shouldn't he then have notified either you and/or Congress at 
that time?
    Attorney General Holder. Well, I think that is one of the 
things that he admitted, as I remember his testimony. He said 
he made a mistake in not bringing to my attention the fact of 
his prior knowledge. And, you know, he admits that he made a 
mistake in that regard.
    Senator Grassley. OK. Your deputy received a lot of details 
about Fast and Furious in March 2010 briefing details that I 
believe should have raised red flags. For example, he was 
informed that just three straw buyers bought 670 guns. He was 
informed that the ATF followed them to stash houses, and he was 
informed that the guns ended up in Mexico. So you can look at 
the charts with Grindler's own handwriting on these things 
here. Yet you said in a recent letter that Acting Deputy 
Attorney General Grindler was not told of the unacceptable 
tactics employed in Operation Fast and Furious during that 
briefing. If by unacceptable tactics you mean watching straw 
buyers illegally buy guns without seizing them before they get 
to Mexico, isn't that exactly what he was told?
    Attorney General Holder. I do not know exactly what he was 
told, but as I understand what he was told, it is that he got 
this briefing as part of a monthly interaction that he had with 
ATF. The person who did the briefing was Ken Melson, the Acting 
Director of ATF, who at that point indicated that he did not 
know about these inappropriate tactics. Melson was also the 
person who briefed Chairman Issa and, as I understand it, gave 
him pretty much the same briefing.
    So I am not sure I would draw the conclusions that you do 
on the basis of that from what I understand about what the 
nature of the interaction was. One of the things that I have 
been told is that during the course of that briefing, the 
question of guns walking was not briefed to then-Acting Deputy 
Attorney General Grindler.
    Senator Grassley. Well, one of the ATF briefing papers 
explicitly says that the strategy was ``to allow the transfer 
of firearms to continue,'' and one of the e-mails forwarding 
that paper says that it is ``likely to go to DAG,'' which I 
assume is Deputy Attorney General. You cannot know for sure 
that no one informed of that strategy, can you?
    Attorney General Holder. Well, as I have understood it, he 
was not told of the tactics, the gun-walking tactics. As I have 
also been told, the picture that you have up there is of guns 
that were recovered in the United States. This is what, again, 
I have--that were delivered in the United States. This is, 
again, what I have been told. I am not as intimately familiar 
with that interaction as perhaps you are, but what I have been 
told is that the fact is that Acting Deputy Attorney General 
Grindler was not told about guns walking. He got the same 
briefing that Congressman Issa got from the same person--that 
is, Ken Melson--and Ken Melson has indicated that at the time 
that he did that briefing, he was not aware of the gun-walking 
techniques. In fact, he did not know about it, as best I can 
remember, I think until March of 2011, when he talks about his 
stomach turning.
    Senator Grassley. My time is up.
    Senator Coons [presiding.] Thank you, Senator Grassley.
    Chairman Leahy has gone to a vote, which many of the 
members of the Committee are currently at, so in his stead, if 
I might, I am going to begin a second round of questions from 
me, and then we have other Senators who will be returning to 
ask additional questions.
    One of the central issues you spoke about in previous 
questions was aid to State and local law enforcement, and one 
of the things that is of great concern to me is officer safety. 
You had spoken earlier about how we are seeing significant 
reductions in crime overall, yet increases in violence directed 
against officers--obviously, as has been discussed at length 
here, tragic losses in the line of duty of officers.
    I wondered if you might comment on what sorts of programs 
the Department is currently funding, what sorts of funding 
challenges these programs face. I am particularly personally 
familiar with the vest program, the officer vest program, but I 
would be interested in other comments you would care to make 
about officer safety programs and grants available through the 
Department to State and local law enforcement.
    Attorney General Holder. Well, it is something that we have 
tried to focus on. I had what we have come to call a summit 
meeting after there were a number of deaths of local law 
enforcement officers in shootings. And as a result of that, we 
developed something we called the Officer Safety Initiative 
where we are trying to channel information to our State and 
local counterparts so that they have ways in which they can 
receive training in how to handle themselves in violent 
situations. As you indicated, we have supported the bulletproof 
vest program to get these vests out there. And we also have 
something called the valor program that deals, again, with this 
whole notion of how officers can protect themselves in these 
situations. We try to educate them, try to make them familiar 
with ways in which they can protect themselves, and also try to 
isolate what are the things that tend to result in these kinds 
of officer shootings.
    One of the things we have found is that when officers are 
trying to break into houses, that is oftentimes when you see 
shootings occur. So by sharing this kind of information, 
getting information from our State and local counterparts, and 
then sharing that with them, we hope that we will have an 
impact on what I think is a very disturbing trend of officer 
shootings.
    Senator Coons. We recently had the first ever loss of life 
by the county police department I used to be intimately 
connected with through an assault on an officer by an 
individual who was reported in our local newspaper--it has not 
been finalized through toxicology reports, but was reported to 
be on these bath salts that were discussed previously. Can you 
speak to the path forward we might take federally to ensure 
that legislation that a number of us are cosponsoring actually 
proceeds that would criminalize these allegedly but I think 
realistically dangerous substances?
    Attorney General Holder. Well, we certainly want to work 
with you in that regard, and not the least reason, which is 
that, you know, it puts, as you have indicated, tragically, 
potentially, law enforcement officers at risk. The people who 
use these substances obviously are putting themselves at risk. 
And we do not want to have a situation where we are being 
effective with regard to the more traditional drugs, and then 
we have these new ones, these new synthetic drugs popping up 
that have the same impact or the same possibility of 
devastating communities in a way that the more traditional 
drugs have.
    So we want to work with you to identify what the current 
problems are. I think we always have to be mindful of new 
situations, new trends. We have to be flexible. We have to be 
responsive. And I think one of the ways in which we can do that 
is to interact with certainly members of this Committee, but 
our State and local counterparts to get a sense of what is 
going on out there and how can we in the Federal Government 
assist.
    Senator Coons. Well, our Governor in Delaware has taken 
decisive action to deal with this, and I would be happy to 
share with you and your Department what results we have seen.
    Let me last ask, in the Hernandez case that Senator 
Grassley was just asking about or referring to in regards to 
the 2007 Mukasey memo that has been discussed here, do you know 
if the ATF actually lost track of weapons that got to Mexico in 
that instance?
    Attorney General Holder. I do not know. I have focused on 
Fast and Furious and that which happened while I was Attorney 
General. I am just not as familiar with the Hernandez case. I 
am just not as familiar.
    Senator Coons. Thank you very much for your testimony.
    Senator Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman.
    Mr. Holder, let me just try to tie up some loose ends. You 
agree that on February 4th, the letter that was written to 
Senator Grassley with the allegation that ATF sanctioned or 
otherwise knowingly allowed the sale of assault weapons to a 
straw purchaser who then transported them into Mexico was 
false. That letter dated February 4, 2011, is itself false we 
now know.
    Attorney General Holder. Actually what I said is it 
contains inaccurate information.
    Senator Cornyn. Well, isn't that false?
    Attorney General Holder. Well, false, I do not want to 
quibble with you, but false I think implies people making a 
decision to deceive, and that was not what was going on there. 
People were in good faith giving what they thought was correct 
information to Senator Grassley. We now know that that 
information was not correct.
    Senator Cornyn. If you will not agree with me it was false, 
it is not true. You agree with that, right?
    Attorney General Holder. It is not accurate.
    Senator Cornyn. It is not accurate.
    Attorney General Holder. Yes.
    Senator Cornyn. Did the person who wrote this letter on 
February 4, 2011, have they ever been disciplined or otherwise 
been held accountable for providing false information to a 
United States Senator?
    Attorney General Holder. Well, as I indicated, the people 
who wrote the letter acted in good faith, thought that what 
they were sending was, in fact, accurate information. The 
people who were supplying the information thought that it was 
accurate. At some point somebody in that chain did not give 
good information, and that is one of the things that the 
Inspector General I hope will be able to determine.
    Senator Cornyn. Did Lanny Breuer know better than what was 
represented in the February 4th letter? Was he privy to either 
of these two memos, the July 5, 2010--you said he was briefed 
April 2010. By the way, what office does Lanny Breuer hold in 
the Department of Justice?
    Attorney General Holder. He is the Assistant Attorney 
General for the Criminal Division.
    Senator Cornyn. And why would Lanny Breuer, knowing as he 
did back in April 2010 about Operation Fast and Furious, allow 
a letter that went out on the Department's stationery February 
4, 2011, why would he let a letter that was false represent the 
position of the Department of Justice?
    Attorney General Holder. Well, first off, the briefing, the 
AAG Breuer brief, that was about Wide Receiver. That was not 
about Fast and Furious.
    Senator Cornyn. By the way, do you know the differences 
between Wide Receiver and Fast and Furious?
    Attorney General Holder. They are different operations.
    Senator Cornyn. Right. And so do you know the differences, 
the factual differences between Wide Receiver and Fast and 
Furious?
    Attorney General Holder. Well, there are a number of 
differences both, I think, in scope, both in terms of time. The 
Bush administration was the one that started Wide Receiver. The 
Obama administration is where Fast and Furious began.
    Senator Cornyn. Are you winging this or do you actually 
know?
    Attorney General Holder. I know this.
    Senator Cornyn. You know this? Do you know that Wide 
Receiver was done in conjunction with the Government of Mexico 
and the intention of the plan was to follow the weapons, and 
neither was there the intention to follow the weapons on Fast 
and Furious nor did Mexico know that the U.S. Government was 
allowing guns to walk into the hands of the cartels? Did you 
know that?
    Attorney General Holder. Senator, I have not tried to 
equate the two--I have not tried to equate Wide Receiver with 
Fast and Furious.
    Senator Cornyn. I am just asking you if you know the 
differences between the two.
    Attorney General Holder. Sure. What I know about Wide 
Receiver, what you have said is, in fact, correct. There are 
memos that talk about gun walking that are related to Wide 
Receiver, but, again, I am not trying to equate the two.
    Senator Cornyn. When you got Senator Grassley's letter on 
January 30, 2011, why didn't you investigate?
    Attorney General Holder. I did. I asked people on my staff 
to look into the materials or the concerns that were raised in 
the letters. There was a January 27th letter, I believe, and a 
January 30th letter. They are the two letters that he gave me 
on, I think, the 30th or 31st, something like that. I asked 
people on my staff to look into that, and they did, and they 
started asking questions within the Department about the 
matters, the material that was contained in the Senator 
Grassley letter.
    Senator Cornyn. And, of course, that was just shortly 
after--the letter that Senator Grassley gave you was shortly 
after the well-publicized murder of Brian Terry, the United 
States law enforcement agent.
    Attorney General Holder. Right. And to be clear, the 
letters were addressed to the acting head of ATF, Ken Melson, 
but he gave them to me----
    Senator Cornyn. Who works for you.
    Attorney General Holder. He gave them to me on January 
31st.
    Senator Cornyn. Right. And so I believe that you told 
Senator Whitehouse that you thought your staff made the right 
decision in not bringing Fast and Furious tactics to your 
attention. Is that correct?
    Attorney General Holder. No, that is not correct.
    Senator Cornyn. OK.
    Attorney General Holder. What I said was that there was no 
indication in the materials that they reviewed that contained 
anything about the tactics that were used in Fast and Furious, 
and as a result, there was no need for them to bring to my 
attention the reports. If, in fact, there was in those reports 
indications of gun walking or something like that, I think they 
should have brought that to my attention, but that was not 
contained in the reports. And that is what Assistant Attorney 
General Breuer said was the mistake that he made. When he heard 
about gun walking, he should have brought that to my attention 
or to the attention of the Deputy Attorney General.
    Senator Cornyn. Can you name me one person who has been 
held accountable for this Fast and Furious operation, just one 
in the Department of Justice?
    Attorney General Holder. Well, we have made a number of 
changes with regard to personnel both in the Phoenix U.S. 
Attorney's Office, also at the ATF headquarters here, and I 
will certainly await the report that comes out of the Inspector 
General, and I will assure you and the American people that 
people will be held accountable for any mistakes that were made 
in connection with Fast and Furious.
    Chairman Leahy. [presiding.] Thank you. Thank you, Senator 
Cornyn. Thank you for coming back.
    Senator Franken, do you have any questions?
    Senator Franken. Yes, I do, and I am sorry I have not been 
here. We had a HELP Committee meeting, so I missed the last 
2\1/2\ hours. I trust it has been going well.
    Before I begin, I just want to take a moment to align 
myself with what I heard Senator Kohl's comments were on the 
AT&T and T-Mobile merger. The Antitrust Division sat largely 
dormant under the previous administration, and I am very 
pleased that under your leadership the Department was willing 
to send the message that antitrust law is still relevant and 
should be applied to block large anti-competitive mergers, so 
thank you.
    I know you have had a long day, so I will just have one 
question. As you know, there is an epidemic of bullying against 
lesbian, gay, bisexual, and transgendered students in our 
Nation's schools. Nine out of ten LGBT kids are bullied in 
school. A third skipped school in the last month because they 
felt unsafe. These kids are missing school. They are going as 
far as committing suicide because of this, and they are 
literally being bullied to death. Yet our Nation does not have 
a law that explicitly prohibits discrimination on the basis of 
sexual orientation or gender identity in our public schools.
    General Holder, I have a bill, the Student Non-
Discrimination Act, that would fix this. It has been 
cosponsored by 34 Senators, including the Chairman and almost 
all of the Democratic members of this Committee and the HELP 
Committee. In its past appearances before this Committee, the 
Department of Justice has lauded the goals of this act, the 
Student Non-Discrimination Act. In fact, it even acknowledged 
that LGBT bullying was the greatest growth area in the civil 
rights docket.
    But even though this administration has publicly and 
formally supported other LGBT rights bills like the Employment 
Non-Discrimination Act and the Respect for Marriage Act, it has 
not yet publicly supported the Student Non-Discrimination Act.
    General Holder, does this administration support this bill 
or does it not?
    Attorney General Holder. I think the operative word that 
you used is ``yet.'' I will go back and try to see where we 
stand and why we are not in a place where I think we ought to 
be formally, because I think you are right. As you look at the 
steps that this administration has taken with regard to similar 
issues, we have been, I think, in an appropriate place, in the 
right place. And with regard to the bill that you are talking 
about, I hope that we can get to that appropriate place 
relatively soon.
    Senator Franken. Well, thank you very much, and I hope that 
is before we get to the floor with it on the ESEA bill. Thank 
you very much, General Holder.
    Attorney General Holder. Thank you.
    Chairman Leahy. Attorney General Holder, I want to thank 
you for being here. I know we have gone a long time, but 
everybody has had a chance to ask their questions. Everything 
has been said, sometimes more than once, or twice or three 
times, but I appreciate you being here. As I said at the 
beginning of my statement, you are part of the President's 
national security team, and I will let you go so you can get 
back to those issues that really affect us. Thank you very 
much.
    Attorney General Holder. Thank you, Mr. Chairman.
    [Whereupon, at 12:49 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]







                                 
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