[Senate Hearing 112-795]
[From the U.S. Government Publishing Office]
S. Hrg. 112-795
OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
----------
JUNE 12, 2012
----------
Serial No. J-112-79
----------
Printed for the use of the Committee on the Judiciary
OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE
U.S. GOVERNMENT PRINTING OFFICE
81-674 WASHINGTON : 2009
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
S. Hrg. 112-795
OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
JUNE 12, 2012
__________
Serial No. J-112-79
__________
Printed for the use of the Committee on the Judiciary
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...... 3
Leahy, Hon. Patrick, a U.S. Senator from the State of Vermont.... 1
prepared statement........................................... 348
WITNESSES
Holder, Eric H., Jr., Attorney General, U.S. Department of
Justice, Washington, DC........................................ 5
QUESTIONS AND ANSWERS
Responses of Eric H. Holder to questions submitted by Senators
Leahy, Kohl, Feinstein, Whitehouse, Klobuchar, Grassley,
Sessions, Coburn............................................... 51
SUBMISSIONS FOR THE RECORD
Holder, Eric H., Jr., Attorney General, U.S. Department of
Justice, Washington, DC, statement............................. 339
U.S. Department of Justice, Office of Legislative Affairs, Judith
C. Appelbaum, Acting Assistant Attorney General, Washington,
DC:
June 8, 2012, letter......................................... 344
June 18, 2012, letter........................................ 346
Michael Chertoff, Paul Wolfowitz, James Cartwright, J. Mike
McConnell, Michael Hayden and William Lynn, III, June 6, 2012
joint letter................................................... 350
U.S. Senate, Committee on the Judiciary, Hon. Charles E.
Grassley, Iowa, June 14, 2012, letter.......................... 352
OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE
----------
TUESDAY, JUNE 12, 2012
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:04 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,
Sessions, Kyl, Graham, Cornyn, and Lee.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. I am glad to see everybody here. We will
let Senator Grassley get in, and I think everybody is going to
give us a little room here in the front so we can see the
Attorney General. And I welcome our Attorney General, Eric
Holder, back to the Senate Judiciary Committee.
The mission of the Department of Justice has always been to
protect and safeguard all Americans--to keep Americans safe
from terrorism and other national security threats, to keep our
communities safe from crime, and to safeguard the rights and
liberties that make us American. When Attorney General Holder
took over more than 3 years ago, he inherited a Department that
many felt had lost its way and its focus on its core missions.
His leadership has helped to restore the Department, and it has
made great strides in each of these areas, and I see it when I
walk through the halls of the Department of Justice and the
reaction of those who work there, many from both Republican or
Democratic administrations.
The Department's success in holding terrorists accountable
and helping to disrupt threats to national security has been
remarkable. The results can be seen in the growing number of
convictions and the lengthy sentences handed down by our
Federal courts.
At the same time, however, we must ensure that our national
security tools are used in a way that is consistent with our
Constitution, our laws, and our values. I remain concerned that
Congress has not yet received all of the information it has
requested regarding the legal rationale for the targeted
killing of U.S. citizens overseas, and I renew my request that
the relevant Office of Legal Counsel memoranda be provided. I
do appreciate the memorandum provided by the White House, but I
want the final memorandum. Moreover, as Congress considers
reauthorizing the surveillance provisions enacted by the FISA
Amendments Act, I will work to ensure that the constitutional
rights and privacy interests of all Americans are protected.
While remaining focused on safeguarding our national
security, the Department has also had historic success in
keeping our communities safe from crime. At a time of economic
crisis and shrinking State and local law enforcement budgets,
many expected violent crime to explode. Normally, it would
have. But, instead, crime rates across the country have
continued to decline. One bright light throughout our country.
The commitment of the Department, along with the President and
the Congress, to continue Federal assistance to State and local
law enforcement has been critical to these successes. The
Department's tough and effective stewardship of Federal law
enforcement has helped to keep crime rates low.
The hard work and good advice of those in the Department
who work every day to help women victimized by domestic and
sexual assault was also crucial in helping those of us in the
Senate craft a bipartisan Violence Against Women Act
reauthorization bill, one that protects all victims. The
professionals at the Department who do so much to help victims
of trafficking have also helped us to craft strong bipartisan
legislation to reauthorize the Trafficking Victims Protection
Act and legislation to reauthorize the Second Chance Act to
help prisoners become productive citizens.
The Justice Department has worked hand in hand with us on
fraud prevention and enforcement. As a result, we have seen
record fraud recoveries and increased fraud arrests and
convictions over the last few years.
I also appreciate how under the AG's leadership the Civil
Rights Division has been restored and transformed. Beyond
combating discrimination in mortgage lending but also
protecting the rights of our men and women in uniform against
employment abuses and wrongful foreclosures, we have seen the
Department fiercely safeguard the civil rights of all
Americans. I know that the restoration of the Civil Rights
Division has been a tall order, but the Department's crown
jewel--and it has been the crown jewel in the past in
administrations of both parties--is, again, enforcing
Americans' civil rights law in a fair and evenhanded manner.
I applaud the Department's continued efforts to ensure that
Americans do not have their constitutional right to vote taken
away by efforts at voter suppression and disenfranchisement.
Such barriers recall a dark time in our American history and
one that we do not want to return to. We will never forget when
Americans were attacked by dogs, blasted with water hoses, or
beaten by mobs simply for attempting to register to vote. We
remember a time when recalcitrant State officials used
discriminatory devices such as poll taxes, grandfather clauses,
and literacy tests to exclude American citizens from our
democracy. We cannot backslide on what we have done to protect
every American's right to vote.
Now, in this Presidential election year, when there may be
a temptation to try to score political points, I urge the
members of this Committee to help the Department better fulfill
its duties to protect Americans and safeguard their rights.
And, last, 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, and I thank Attorney General Holder for his
extraordinary service under trying circumstances.
I yield to Senator Grassley.
STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE
OF IOWA
Senator Grassley. Thank you, Mr. Chairman, and thank you,
General Holder, for coming, and I trust that you will be able
to provide us with candid responses to our questions.
Nearly a year ago, three whistleblowers testified before
the House Government Oversight Committee about the use of a
practice called ``gun walking,'' Operation Fast and Furious.
Guns from that operation ended up at the scene of the murder of
Border Patrol agent Brian Terry. Here we are, 1 year later, and
the Terry family still is waiting for answers. They are still
waiting for justice. The FBI does not have the shooter in
custody, and the Justice Department is still defying a
congressional subpoena for information about how all this
happened.
Since last year at this time, a lot has happened. The
United States Attorney for Arizona resigned and admitted
leaking sensitive information about one of the whistleblowers
to the press. The chief of the Criminal Division of the Arizona
U.S. Attorney's Office in Arizona refused to testify, citing
the Fifth Amendment right not to self-incriminate. Then he
resigned.
The head of the Criminal Division in Washington, Lanny
Breuer, admitted he knew about gun walking in an earlier case
called Wide Receiver. He stayed silent for 8 months while the
public controversy over gun walking grew.
Even more evidence arose recently that senior people at
Justice were familiar with the details of the case. The House
Committee obtained affidavits in support of wiretap
applications in Fast and Furious. We cannot discuss them in
open session because the Justice Department has indicated that
they are under court seal. But there is now a public dispute as
to what the contents of the application show that senior DOJ
officials knew or did not know. One side says the applications
show immense detail. Anyone reviewing them would have to have
known that guns were being allowed to be transferred and
trafficked across the border. On the other hand, the Attorney
General says he recently reviewed them, and he does not believe
that they show evidence of gun walking.
However, when we interviewed the Acting ATF Director on
July 4th last year, he told us something very, very different.
According to former Director Melson, he read affidavits for the
first time on a plane on March 30th last year after this
controversy had arisen. Director Melson said that when he read
the affidavits, he was alarmed. He said, ``I was surprised at
the number of guns being purchased with our knowledge and not
being interdicted, primarily because of the number of guns that
could, as a result, land in Mexico'' He said he immediately
drafted an e-mail warning, ``You better back off . . . the
statement in . . . this February 4th letter to Senator
Grassley, because I don't believe that we can say that in light
of the information that our agent was swearing to before a
Federal district court judge to get a wiretap.''
We have been seeking that e-mail since last summer to
corroborate Director Melson's testimony, but the Justice
Department has not produced that e-mail. That e-mail should
have led the Justice Department to withdraw its initial letter
to me of April 2011 instead of December 2011. We still do not
have a decent explanation why it took so long to acknowledge
the truth.
I also wrote to the Attorney General 4 months ago asking
him to seek the court's permission to share the affidavits with
Congress. I received no substantive reply to my request.
However, now I have had a chance to review some of the details
of those affidavits. All I can say is that Mr. Melson was right
and the Attorney General was wrong. Anyone reading those
affidavits should have been alarmed.
We learned just last Thursday from the Attorney General's
testimony in the House that the Department has gathered 140,000
pages of documents for its own internal review. Yet the
Department has only produced to Congress a mere 7,000 or so
pages of documents. And, of course, compared to the 140,000,
that is just a spit in the ocean.
This constant stonewalling is why the House Committee is
forced to move forward with contempt proceedings. I think the
American people deserve a better explanation than they have
received so far and especially the Terry family does.
Now, on another matter, in the past month there have been a
number of damaging classified national security leaks to the
media. Every leak is damaging to national security, but the
most dangerous ones threaten ongoing operations and risk the
lives of men and women who are working abroad. Unfortunately,
as I pointed out in May of last year, Attorney General Holder's
statements say one thing and the Department's actions in
prosecuting those who leak classified information say another.
For example, it was reported in the press last year that
the Department had dropped the prosecution of former Department
of Justice attorney Thomas Tamm who admitted that he leaked
classified national security information to the New York Times.
Another example of DOJ's failure to prosecute their own is
related to the anthrax attacks. As part of that investigation,
leaks were made to the press regarding the involvement of Dr.
Steven Hatfill. Those leaks ultimately led to taxpayers'
funding a settlement of nearly $6 million.
Based upon conflicts between the Attorney General's past
statements and actual Department practice, I am concerned about
the decision to appoint two political appointees to investigate
the recent matter. Further, despite attempts to package these
as special prosecutors, the Attorney General's decision treats
the grave national security matter like a regular criminal
investigation.
It has also been reported that the National Security
Division at the Department has been recused from involvement in
leak investigations, a signal they could possibly be involved
as a source of the leak.
Given the potential conflicts of interest with the
Department investigating itself, the past failures of the
Justice Department to prosecute their own admitted classified
leaks and the Attorney General's own tepid response to my past
questions about leak prosecutions, I believe the only way to
truly get to the bottom of these dangerous leaks is to appoint
an independent special prosecutor.
Further, given the Department's past failures and the
double standard of internal discipline that we have seen as a
part of the investigation of discovery failures in the
prosecution of Senator Stevens, I want to hear from the
Attorney General why he assigned this matter to two U.S.
Attorneys as a regular investigation and how we can have
confidence the Department is to prosecute their own.
Thank you.
Chairman Leahy. OK, Mr. Attorney General. We are glad to
have you start. As one who is most familiar with the anthrax
matter Senator Grassley speaks about, insofar as I received one
of the very deadly anthrax letters, so deadly that the envelope
I was supposed to open killed people who touched it, I am well
aware of the investigation of that during the last
administration and what happened during the last
administration, so I will not ask you to defend the actions of
the last administration that Senator Grassley has criticized.
Please go ahead, sir.
STATEMENT OF THE HON. ERIC H. HOLDER, JR., ATTORNEY GENERAL,
U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC
Attorney General Holder. Well, thank you. Chairman Leahy,
Ranking Member Grassley, and distinguished members of the
Committee, I appreciate the chance to appear before you today
to highlight some of the accomplishments that have
distinguished the Department's work under this administration.
Now, I am proud of all that has been achieved by the
116,000 men and women who serve the Department in offices
around the world. Their dedicated efforts--and those of our
Government and law enforcement partners at every level--have
allowed me to fulfill the commitments that I made during my
first appearance before this Committee as Attorney General. I
pledged that my colleagues and I would work tirelessly to
protect the American people from terrorism and other threats to
our national security; to ensure that every decision would be
guided exclusively by the facts and by the law; to move
aggressively in combating violent crime and financial fraud; to
seek justice for victims, protect the environment, and
safeguard the most vulnerable among us; and to uphold the
essential civil rights of all of our citizens.
Now, I am proud to report that the Department has made
extraordinary--and, in many cases, historic--progress in each
of these areas, and nowhere is this more clear than in our
national security efforts. Over the last 3 years, the
Department has secured convictions against scores of dangerous
terrorists in our Article III courts. Our Article III courts.
We have prevented multiple plots hatched by terrorist groups
abroad, as well as extremists here at home. And we have
gathered essential surveillance and intelligence-gathering
capabilities in a manner that is not only consistent with the
rule of law, but with our most sacred values.
Last month, we secured our seventh conviction in an al
Qaeda-sponsored plot to conduct coordinated suicide bomb
attacks in the New York City subway system. Less than 3 weeks
ago, we obtained a guilty verdict in the case of a former U.S.
servicemember who planned a bomb attack against American
soldiers at a restaurant in Killeen, Texas. And on the same
day, a Federal judge sentenced another Texas man to 20 years in
prison for attempting to join al Qaeda in the Arabian
Peninsula.
I would also like to briefly discuss the steps the
Department has taken in response to recent allegations
regarding possible unauthorized disclosures of classified
information. These allegations are of great concern to me
personally, and I know they concern all of you.
On Friday, I assigned two experienced, independent United
States Attorneys to lead separate criminal investigations being
conducted by the FBI of potential unauthorized disclosures.
Now, these United States Attorneys are fully authorized to
consult with members of the intelligence community, to follow
all appropriate leads wherever they do lead, and ultimately to
prosecute any criminal violations to the fullest extent of the
law. They will do an independent and thorough job.
But let me be clear: Unauthorized disclosures of classified
information could jeopardize the security of our Nation and
risk the safety of the American people. They will not be
tolerated. The Department will continue to take any such
disclosures extremely seriously. And as our investigations
unfold, I will provide information to members of the Judiciary
and Intelligence Committees, as appropriate.
In addition to our significant national security
achievements, the Department has taken decisive action to
combat a wide range of financial and health care fraud crimes,
and I am happy to report that across the country this work is
paying dividends. Last year alone, the Department's Consumer
Protection Branch, in cooperation with our U.S. Attorneys'
Offices, secured more than $900 million in criminal and civil
fines, restitution, and penalties, and obtained sentences
totaling more than 130 years of confinement against more than
30 individuals. By working closely with the Department of
Housing and Urban Development and a bipartisan group of 49
State Attorneys General, we achieved the largest joint Federal-
State settlement in history, totaling $25 billion, with five of
the Nation's top mortgage servicers. Through the President's
Financial Fraud Enforcement Task Force, we have obtained
sentences of up to 60 years in a wide range of fraud cases. And
we have created two new working groups to enhance civil and
criminal enforcement of consumer fraud and to bring State and
Federal authorities together in investigating and prosecuting
misconduct by institutions that contributed to the financial
crisis.
Now, alongside key partners like the Department of Health
and Human Services, we have also made tremendous gains in our
efforts to fight against health care fraud. Over the last
Fiscal Year alone, utilizing authorities provided under the
False Claims Act and other statutes, we recovered nearly $4.1
billion in cases involving fraud in health care programs. That
is the highest amount ever recovered in a single year. And for
every dollar that we have spent combating health care fraud, we
have returned an average of $7 to the United States Treasury,
the Medicare Trust Fund, and others.
Put simply, our resolve to protect American consumers has
never been stronger. And the same can be said of our efforts to
safeguard our citizens and law enforcement officers from
violent crime.
Through innovative programs such as our Defending Childhood
Initiative and National Forum on Youth Violence Prevention, we
have developed comprehensive approaches for addressing the
causes and the consequences of violence among, and directed
toward, our young people. We have strengthened partnerships
between Federal, State, local, tribal, and international law
enforcement officials, and as a result, we are working more
effectively than ever before to confront gun-, gang-, and drug-
fueled violence. In cooperation with our counterparts in Mexico
and other countries, we have orchestrated coordinated strikes
against violent drug cartels, arrested thousands of cartel
members, and seized billions of dollars in assets. And we are
implementing strategic plans to address the shocking rates of
violence that plague American Indian and Alaska Native women.
We are also using every tool at our disposal to protect
America's law enforcement community. Violence against law
enforcement officers is approaching the highest level that we
have seen in nearly two decades. As the brother of a retired
police officer, I am proud that the Department has taken robust
action to address this crisis.
Throughout my tenure as Attorney General, I have met
frequently with law enforcement leaders to ensure that the
Department understands their concerns. This has led to the
development, implementation, and enhancement of a host of very
important programs, from the VALOR Initiative, which is
providing our law enforcement partners with the latest in
training and cutting-edge technologies, to the Bulletproof Vest
Partnership Program, which Chairman Leahy has long championed
and which has helped more than 13,000 jurisdictions purchase
lifesaving bullet- and stab-resistant equipment. We also have
worked closely with Members of Congress to advance important
legislation, from the historic hate crimes prevention bill to
the reduction of the unjust crack/powder cocaine sentencing
disparity--a landmark achievement that many of the members of
this Committee helped to make possible--to our ongoing efforts
to ensure the reauthorization of the Violence Against Women Act
and our strong support for the renewal of essential authorities
such as those included in the Foreign Intelligence Surveillance
Act Amendments of 2008.
The Department has also taken essential steps to uphold
civil rights protections. Over the past 3 years, our Civil
Rights Division filed more criminal civil rights cases than
ever before, including record numbers of human-trafficking
cases. And we have taken actions to make certain that in our
housing and lending markets, in our workplaces and military
bases, in our immigrant communities and our voting booths, in
our schools and in our places of worship that the rights of all
Americans are protected.
Now, in advancing this vital work, my colleagues and I are
grateful for your continued support. We are eager to move
forward together to achieve our shared priorities. And I would
be glad to answer any questions that you might have.
[The prepared statement of Mr. Holder appears as a
submission for the record.]
Chairman Leahy. Thank you very much.
Attorney General, later this year, the surveillance
provisions of the FISA Amendments Act are set to expire. This
is a concern to many of us here. We have the Chair of the
Senate Intelligence Committee also as a member of this
Committee, and these tools give the intelligence community the
ability to acquire extremely valuable foreign intelligence
information about non-U.S. person targets overseas. Although
the statute expressly forbids the targeting of U.S. persons as
well as the so-called reverse targeting, we have to remain
vigilant in oversight of these broad surveillance tools.
I am glad to see the FISA Court has been active in its
oversight. I applaud the administration's effort to police
itself, but I think we can do more. As one who helped write the
original FISA statute, I have watched it very carefully. In my
experience, independent audits by Inspectors General helped
build the confidence of the American people in the activities
of our Government.
Would you agree with me that these kinds of independent
Inspector General audits can be an important part of assuring
compliance and accountability, especially if the results of the
audits are made public?
Attorney General Holder. Well, we certainly think that the
reauthorization is extremely important. This is the highest
priority that the intelligence community has. Our hope would be
that we can do this reauthorization in a way that happens well
before the expiration of these acts. There are civil liberties
protections that I think we have to be concerned about. The use
of the FISA Court has been of great assistance in that regard.
With regard to the use of Inspectors General, I certainly
think they can play a role in helping us make sure that these
authorities are used in an appropriate way.
Chairman Leahy. One of the things we have done in the FISA
legislation in the past, of course, is to have sunset
provisions on various aspects of it, which has forced whoever
is in the administration as well as Congress to review it
again. And from what I have heard from FISA Courts and others,
the sunset provision has been a good carrot stick way of making
sure there is full compliance. Would you agree?
Attorney General Holder. Yes, I think that is right. I
think we look at this and would hope that we could have a
sufficiently long period of time so that there is some degree
of consistency as our people are trying to use the Act. But we
do think an extension of about 5 years would be appropriate.
Chairman Leahy. In 2006, Members of Congress stood together
on the Capitol steps. We wanted to reaffirm our commitment to
achieving full democratic participation by reauthorizing the
Voting Rights Act and the legislation reauthorizing Section 5.
I was proud to stand with President Bush when he signed that.
But having done that and having had this strong bipartisan
support, we now have restrictive voting laws spreading across
the country. The recent action in Florida that purged Florida's
voter rolls of legal voters is only one of many efforts under
way in States across the country that I think pose a threat to
our attempt to have national, fair, and open elections.
According to the National Conference of State Legislatures,
since 2001 nearly 1,000 voter ID bills have been introduced in
46 States--1,000 for 46. Last year, voter ID legislation was
advanced in 34 States. Only three States, including my home
State of Vermont, do not have a voter ID law and did not
consider voter ID legislation last year. Yet we have
consistently had probably the most honest elections in the
country.
According to one study, recently passed laws make it
significantly harder for more than 5 million eligible voters to
cast ballots in 2012 and found that enactment of strict voter
identification laws directly impacts the 21 million citizens
who do not have access to a Government-issued ID. The majority
of these are young voters, African Americans, those earning
$35,000 or less per year, and the elderly. I think of my own
parents when they were alive; they would not have had a
Government-issued ID.
So as we head into a critical national election, is the
Department of Justice going to vigorously enforce the Voting
Rights Act and make sure that Americans are not denied what is
probably the greatest right we have as citizens--the right to
vote?
Attorney General Holder. The right to vote is the lifeblood
of our democracy. It is what makes this Nation exceptional. In
the work that I have been doing, the Department has been doing,
the speeches that I have been giving, I am not advocating for a
party. I am advocating for a principle. The principle is the
right to vote. The arc of American history has always been
bending toward the expansion of the franchise, and the question
I think we have to ask ourselves--and this is on both sides of
the aisle--is: Do we want to be the first generation to
restrict the ability of American citizens to vote? We have a
bad history in that regard, but since the passage of the Voting
Rights Act in 1965, I think the most important civil rights
legislation that has ever been passed, we have seen an ability
on the part of people who had been too long excluded from
participating in our democracy, the opportunity to do just
that, and we are a better country for it.
We will be strong in our defense of the Voting Rights Act.
We will be strong in our defense of the rights of Americans to
vote. And we will examine on a case-by-case basis the statutes
that are passed, and those that contravene the 1965 Voting
Rights Act we will oppose, as we have.
Chairman Leahy. Some of us are old enough to remember those
dark days, and we have at least one member of the House of
Representatives who nearly died during those dark days. And I
do not think any one of us wants to go back to that time.
In April, the Senate passed legislation to reauthorize the
Violence Against Women Act with a strong bipartisan vote of 68-
31. The bill was based on years of work with professionals in
the field. We had law enforcement officers, judges, victim
service providers, those in the Department of Justice who work
every day to help the survivors of domestic and sexual assault
all over the country. We had 1,000 State, local, and national
organizations supporting it--1,000--because of the important
steps they take to protect all victims.
Unfortunately, when it went over to the other body, to the
House, they took a different approach. They stripped out
critical protections. They left many victims more vulnerable to
these devastating crimes. As I have said before, a victim is a
victim is a victim, and it is hard to say we will include some
but not others.
Will you and the administration work with me and the 67
other supporters of the Senate-passed bill to urge the House to
re-evaluate its approach and ensure that we can reach all
victims, not just some victims but all victims, of these
horrific crimes?
Attorney General Holder. Let me be very clear. We support
the Senate version of the reauthorization of VAWA. Every time
the Violence Against Women Act has been reauthorized, it has
been expanded. It has been made more effective. And the
expansion that is proposed in the Senate version is a logical
extension so that, as you say, Mr. Chairman, all victims can
come within its protections. It is better for us in terms of
law enforcement. It makes for a society that we say we want to
have, and the expansions with regard to the groups whom this
bill, the Senate version of the bill, wants to include are, in
fact, some of the most vulnerable: women who are immigrants,
Alaska and Native Americans, people from our lesbian, gay,
bisexual, and transgendered community. These are the very
people who in the 21st century, in 2012, need to have the
protections of VAWA extended to them. So we support the Senate
version of that bill.
Chairman Leahy. Thank you very much.
Senator Grassley.
Senator Grassley. I want to followup on FISA, and thank you
for requesting the reauthorization, and I agree with you. Are
there any changes in the FAA needed either to enhance
intelligence-gathering capabilities or to protect the rights of
U.S. citizens? And, second, isn't it true that the current FAA
authorizes the Inspector General to conduct oversight of the
program?
Attorney General Holder. It is true that there is that
component that the Inspector General has to do, and I think
there is an annual report--I believe it is done on an annual
basis. It may be every 6 months, but I think it is on an annual
basis that the Inspector General does report. I think that as
we have looked at the bill and the potential reauthorization,
we are essentially in a good place. We would want to work with
this Committee and Members of Congress to look at any concerns
that might be raised in terms of new tools that we need, civil
liberties protections that perhaps need to be advanced. But our
hope would be that this work would begin as soon as possible
and conclude well before the expiration of the Act in December.
Senator Grassley. On Fast and Furious, I have had a chance
to review some of the details of the wiretap. I happen to
disagree with your claim that they do not have details about
the tactics of Fast and Furious. ATF Acting Director Kenneth
Melson described reading those same wiretap affidavits in March
of last year. He said he was alarmed that the information in
the affidavit contradicted the public denials to Congress. He
immediately sent an e-mail warning others ``back off the letter
to Senator Grassley in light of the information in the
affidavit.'' Yet the Department did not withdraw the letter to
me until December 2011.
In July 2011, we asked for that e-mail from Acting Director
Melson. We need to see it to corroborate his testimony, yet the
Department is withholding that e-mail, along with every other
document after February 4, 2011.
On what legal ground are you withholding that e-mail? The
President cannot claim Executive privilege to withhold that e-
mail. Is that correct?
Attorney General Holder. Well, let me just say this: We
have reached out to Chairman Issa, members of the leadership on
the House side, to try to work our way through these issues. We
have had, I think, sporadic contacts, and I am prepared to make
compromises with regard to the documents that can be made
available.
There is a basis for the withholding of these documents if
they deal with deliberative----
Senator Grassley. But not on Executive privilege, right?
Attorney General Holder. The tradition has always been by
members of the Justice Department, whether they were led by
Republicans or Democrats, to withhold deliberative material.
But in spite of that--in spite of that--I want to make it very
clear that I am offering to sit down--I myself am offering to
sit down with the Speaker, with the Chairman, with you,
whoever, to try to work our way through this in an attempt to
avoid a constitutional crisis and come up with ways, creative
ways perhaps in which we can make this material available. But
I have got to have a willing partner. I have extended my hand,
and I am waiting to hear back.
Senator Grassley. When Acting Director Melson reviewed the
affidavits, he testified that he was alarmed at the number of
guns being purchased with ATF knowledge and without being
interdicted. When did you decide to read the affidavits for
yourself? And why did you decide to do that?
Attorney General Holder. I read the affidavits and the
summary memos I think after my last House hearing--not the one
from last week but I think the hearing before that. It had
become a topic of conversation, a topic of questioning, and I
frankly had not known what was contained in them. And so I had
my staff pull them together and spent an extended period of
time reading those affidavits and the summaries.
Senator Grassley. Well, how is it that you can look at the
details in those affidavits, as several members now have had a
chance to do, and see nothing wrong when others reviewed them
and saw very major problems?
Attorney General Holder. Well, I look at them and--I cannot
talk about the contents of them. These are matters that are
under seal. But I will align myself with what Ranking Member
Cummings said in his letter, looking at the same materials and
reaching the same conclusions I think that I do. You reach
conclusions on the basis of hindsight, and I think I try to put
myself in the place of the people who are actually looking at
that material at the time it was given to them. And on that
basis, I think that Congressman Cummings' view of that material
is correct.
Senator Grassley. Debate over the wiretap applications has
become a matter of he said/she said since they are sealed and
not publicly available. I wrote to you 4 months ago asking you
to seek permission from the court to share the affidavits with
Congress. I have received no substantive reply. You did
acknowledge my letter.
Will you seek the court's permission to release the
affidavits so people can read them and decide for themselves
what they mean? And if there are any problems with something
sensitive, couldn't the judge make an independent decision and
remove any truly sensitive information before release? And if
you have any concerns--and I hope you do not have any
concerns--wouldn't that address your concern?
Attorney General Holder. Well, that would be a truly
extraordinary act. We have done some just preliminary research,
and it has not happened very frequently. We have only found a
limited number of cases where the Justice Department has sought
to have wiretap information made available.
But I will put that on the table as something that we can
consider. We want to make sure that if we do share that
information, it does not have an impact on ongoing
investigations.
But as I said, I am willing to consider that as a
possibility to try to avoid what I think is an impending
constitutional crisis.
Senator Grassley. Have the wiretap applications already
been produced to the defendants in Fast and Furious? And if so,
why shouldn't Congress and the public get to see what the
indicted gun smugglers get to see?
Attorney General Holder. I frankly do not know where we are
in terms of what has been provided to the defense. I just do
not know the answer to that question.
Senator Grassley. On another issue, it has been reported
that the National Security Division has been recused for at
least one investigation stemming from the national security
leaks. Is this correct? And if so, how is there not a conflict
of interest on the part of the Justice Department? And, second,
why should we have confidence that these leaks investigations
will not be dismissed without prosecution just like maybe the
Tamm case?
Attorney General Holder. Well, I think that this Committee
and the American people can have great faith in the two people
who I have asked to lead this investigation. Rod Rosenstein and
Ron Machen are two great U.S. Attorneys who have shown a
willingness to take on difficult cases. They are both familiar
with these kinds of cases. Ron Machen is doing a lot of work
right now in connection with the D.C. Government. Rod
Rosenstein is a person appointed by President Bush and who was
so impressive that President Obama asked him to stay on as
United States Attorney for Maryland.
I think in those people we have people who have shown
independence, an ability to be thorough, and who have the guts
to ask tough questions, and the charge that I have given them
is to follow the leads wherever they are, whether it is in the
executive branch or some other component of Government. I have
great faith in their abilities.
Senator Grassley. My last question. In the Tamm case and
the FBI anthrax leak, you and your Department relied upon the
advice of career prosecutors to dismiss the cases. Here you
have instructed political appointees to do the work. Why did
you assign political appointees as opposed to career
prosecutors in this investigation?
Attorney General Holder. Well, the people who have to lead
these investigations have to be, I think, sufficiently high in
the Department to be able to command career people, to be able
to interact with the investigative agencies, and the logical
people are United States Attorneys. This has been done on any
number of occasions where Pat Fitzgerald on at least a couple
of occasions has been asked to do this. We have moved away from
the independent counsel model, which proved to be not
particularly successful, and what we have seen since that time
is the use of U.S. Attorneys to try to run these matters--U.S.
Attorneys who themselves were not involved in the underlying
matters.
Chairman Leahy. Thank you.
Senator Kohl.
Senator Kohl. Thank you.
Mr. Attorney General, at our last oversight hearing, we
discussed the Justice Department's plans to close four of its
seven Antitrust Division field offices. Since then, the chiefs
and assistant chiefs in six of the seven field offices wrote to
you to ask that this decision be reversed. The letter stated
that, ``If the four affected field offices are closed, it will
be difficult for the Division to continue aggressive criminal
enforcement in the 21 States and territories served by the four
field offices.''
In April, I wrote to you asking you to reconsider this
decision. These offices are essential to detecting and
prosecuting local conspiracies affecting consumers and local
governments and have brought in $97 million in fines in the
last 5 years. Closing the Atlanta and Dallas offices will
result in no Antitrust Division presence in the southern half
of our country. Moreover, we have been informed that $6 million
of the $8 million in purported savings will result from the
expected reduction of half of the attorneys and staff now
working in these offices, which would seem to show a lessening
in priority for antitrust enforcement in the Department.
So, Mr. Attorney General, what is your response to the
concerns expressed by the career leadership in six of the seven
field offices? Wouldn't closing four of these offices be
perhaps penny-wise and pound-foolish? And will you agree at
least to re-examine your decision?
Attorney General Holder. Well, the Antitrust Division and
the work that it does has been a priority for this Justice
Department. I think we can look at all the things we have done
and see that that, in fact, is true. We are looking in this
time of budgetary constraints to come up with ways in which we
can be efficient and be effective, and that is the reason why
we decided to implement this plan.
We have seen that these cases become more complex,
antitrust cases become more complex, more complicated, and it
is our view that they can best be handled by the reduced number
of offices that we have with larger teams.
I also want to stress that the people who are members of
these offices are going to be offered jobs within the Justice
Department. No one will be losing their jobs. People can move
to other places. All of the people who are in support
capacities in these offices will be given jobs in the U.S.
Attorney's Office that is closest to them.
So I think there is a programmatic reason for this, a
budgetary reason for this, and there will be no loss in our
desire to be as aggressive as we have been with regard to the
enforcement of the antitrust laws.
Senator Kohl. Well, almost all of the money to be saved
would be in the reduction in staff, and yet you are saying
those people will be given opportunities to relocate. So it
does not look as though we are talking about any appreciable
reduction in cost and fewer offices. And that is why I am
asking you at least to reconsider this decision so that we can
be clearer about the efficacy of doing it.
Attorney General Holder. Well, we do save money in terms of
efficiencies. There are rents, obviously, that we do not have
to pay. There are ways in which we can use people in places
where we now have vacancies, have the people in the antitrust
office fill those vacancies so it has a budgetary impact that
is at the end of the day positive for us.
Senator Kohl. Mr. Attorney General, for nearly 2 years, we
have been working with DEA and industry stakeholders on
legislation to allow nursing home residents access to medically
necessary drugs they need to manage crippling pain. We have
reached agreement on most of the bill, but there are still a
few outstanding differences between industry and DEA that we
continue to work through, specifically related to the penalties
nursing homes would face for minor technical errors. I am very
much aware you appreciate the gravity of the problem we are
seeking to address, and I appreciate your personal attention to
it over the past year. But the longer this remains unresolved,
of course, the more nursing home residents will continue to
suffer. So I would like to know that we have your continued
commitment to work with us to reach a mutually agreeable
solution.
Attorney General Holder. Yes, you do. Senator, I thought
you and I worked pretty effectively on dealing with some of the
concerns that you very legitimately raised earlier. I want to
make sure that we follow through in that same spirit and
ultimately get a handle around any issues that remain. I know
that you will be leaving the Senate, and I would hope that you
and I will have an opportunity to conclude this and be in a
good place before that happens.
Senator Kohl. Thank you. Well, in connection with that, let
me ask you about your future plans. By the end of the year, you
will have served as Attorney General for nearly 4 years. We
know your position is very demanding and that you are
responsible for some of the most serious issues and challenges
facing our country, and we particularly do commend you for your
outstanding service.
Can you tell us, should President Obama be re-elected, will
you want to and will you continue to serve as Attorney General
in a second term?
Attorney General Holder. Well, I think you have got to ask
President Obama that question.
Senator Kohl. In the event that he asks you to.
Attorney General Holder. Well, I have enjoyed my time as
Attorney General. It has been a tough job. It is one that takes
a lot out of you. Some raise concerns about whether I was tough
enough for this job. I think that people hopefully will see
that I have done this job in a way that is consistent with our
values. I have stuck by my guns. I have been criticized a lot
for the positions that I have taken. I have lost some. I have
won more than I have lost. And I am proud of the work that I
have done, but more than that, I am proud of the 116,000 people
in this United States Department of Justice. This has been the
highlight of my career to have been Attorney General of the
United States, to work with you all, and to serve this
President. What my future holds, frankly I am just not sure.
Senator Kohl. Thank you. Mr. Attorney General, many of us
were troubled, as I am sure you also were, when the Second
Circuit Court of Appeals overturned the conviction of a former
Goldman Sachs programmer who stole valuable computer code worth
many millions of dollars from that company. The court ruled
that he did not violate the Economic Espionage Act because the
stolen computer code was not a product intended for sale, as
required by the statute.
Is this ruling a major setback for prosecutors' ability to
go after the theft of trade secrets under the Economic
Espionage Act? Does it give a free pass to anyone out there who
wants to steal a company's proprietary and highly valuable
computer codes? And do you believe that this decision requires
some statutory fix?
Attorney General Holder. Well, there is no question that
that decision, which we have to respect, was a setback. I think
that we need to assess that case, as we are in the process of
doing, and then maybe get back to this Committee and other
Members of Congress to see if there is a fix that we might put
in place to deal with that issue. But there is no question
that--again, I have to respect the decision of the court, but
there is no question that it has a potential for a negative
impact on our enforcement efforts.
So I think you are right to raise that concern, and I would
hope to be able to work with this Committee in dealing with
concerns that we might be able to identify. But the analysis of
that has been ongoing.
Senator Kohl. Thank you, Mr. Attorney General.
Attorney General Holder. Thank you.
Senator Kohl. Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Kohl.
I am going by the list given to me by the Ranking Member's
staff for order. Senator Kyl will be next and then Senator
Feinstein.
Senator Kyl. Thank you, Mr. Chairman.
Mr. Attorney General, I would like to ask you questions in
four areas relating to what you delicately described as the
``potential unauthorized disclosures,'' the so-called leaks.
Attorney General Holder. Sure.
Senator Kyl. First, what exactly are you investigating;
second, the potential for needing to get evidence from
reporters; third, some questions regarding the conflict of
interest; and, fourth, why two prosecutors. Let me go back and
just go through each of those, if I could.
When I say what exactly is the Department investigating, we
have all read about four specific areas of leaks. I wonder if
all four of those are part of this; if there are others: one
related to the bomb making in Yemen, the alleged double agent
being involved there; the killing of bin Laden is second;
third, the President's personal direction of drone
assassinations; and, finally, the computer worm activity. Those
are the four that I am aware of.
On the matter of journalists, you said that you would
commit to follow the evidence where it leads. I presume that
means leaving no stone unturned. And the question is: Does that
include requiring journalists to reveal their sources if the
information cannot be obtained otherwise? And here it would be
very helpful if you could tell us do you think the Department
of Justice guidelines in dealing with members of the media are
adequate. These are what you follow. I am well aware of that.
Are they adequate for your purposes here? What are the
circumstances that warrant requiring testimony from the media?
You said these leaks will not be tolerated, and I want to know,
is there an exception if journalists will not voluntarily give
you information?
Third, on the conflict of interest, could you describe for
us the circumstances that would cause recusal, specifically, as
Senator Grassley noted, the recusal of the Department of
Justice's entire National Security Division? I know the
references back here to Title 28, Section 600 of the C.F.R. But
since the reporting--and I have got several of the articles
here--is that the leaks came from, and I am quoting now,
``participants in Situation Room meetings,'' that boils it down
to a very small and very specific group of people, all of whom
by definition work directly with the President. We have all
seen photographs of the day on which bin Laden was killed, and
the people in that room are all people that we recognize.
So the question really here is: How could there not be a
conflict of interest if the evidence points to one or more of
those people who, according to the reporting, were the sources?
For example, would it be a potential conflict of interest if
the evidence pointed to Tom Donilon or John Brennan? And I
presume, finally here, that the President and Jay Carney and
David Axelrod are not part of your investigating team. So how
could they say with great assurance ``this case does not
present a conflict of interest'' ? How do they know that? How
could they prejudge that at this point?
And, finally, I am curious about why two prosecutors. Is
there a division of responsibility there? Do the two of them
have to agree on everything? Could you just expand a little bit
on that for us, please? Thank you very much.
Attorney General Holder. Senator, you have packed a lot
into that question. Let me see if I can take these.
With regard to NSD, the National Security Division, the
recusal is not of the entire Division. It is only that portion
of the Division that might have had exposure to the subject
matter of the investigation, and that is something that happens
as a matter of routine. It does not mean that these people did
anything wrong. It is just that their section might have had
access to the material that was inappropriately disclosed. So
these career people who are not in that category can be a part
of the ongoing investigation.
With regard to the question of the press, we have in place,
as you indicated and as you know, regulations that have to be
followed within the Department, and I think those are adequate.
We have to come up with ways in which we exhaust all the
alternative means before we actually seek testimony from
members of the press, and that ultimately has to be signed off
on by the Attorney General himself or herself. And I think that
is appropriate.
We have tried more leak cases, brought more leak cases
during the course of this administration than any other
administration. I was getting hammered by the left for that
only 2 weeks ago. Now I am getting hammered by the right for
potentially not going after leaks. It makes for an interesting
dynamic. So I think the mechanisms that we have in place are
indeed good ones, and we have shown in the past no hesitancy to
employ them.
Senator Kyl. On exactly what you are investigating, can you
expand on that any or be a little bit more precise on that?
Attorney General Holder. Well, I do not want to necessarily
go into that which we are looking at. Some of the programs are
extremely sensitive, and I think as the Deputy Attorney General
testified when he was before, I guess, a Subcommittee of this
Committee last week, to acknowledge an investigation of a
particular item could necessarily be seen as an acknowledgment
of the existence of that program or that effort, and I do not
think that in this forum that is an appropriate thing to do.
But that is one of the reasons why I have pledged to make sure
that I keep the Intelligence Committee as well as the Judiciary
Committee abreast of what it is that we are doing.
Senator Kyl. How about on the conflict of interest matter?
We are boiling it down to ``participants in the Situation Room
meetings,'' a pretty small, very readily identifiable group of
people. Doesn't that inherently present a conflict of interest
given the high level and those people's direct involvement with
the President?
Attorney General Holder. I read that article by--I believe
it is Mr. Sanger.
Senator Kyl. That is what I am referring to here, yes.
Attorney General Holder. Sanger, who I believe it was on an
interview or maybe it is in the article, I do not remember, and
he talked about information coming from sources other than the
White House. But let me be very clear. Our investigation will
follow the leads wherever they take us. Mr. Machen and Mr.
Rosenstein have the ability, the independence, they have the
moxie----
Senator Kyl. But my question, with all due respect, is:
Doesn't that present an inherent conflict of interest? I mean,
if you have got people in that room--and I mentioned two to be
very specific just so you could have an anchor there with
regard to the answer, the National Security Adviser, for
example. I mean, doesn't that inherently present a conflict of
interest if part of the National Security Division is recused
because they might have had access to--I mean, here clearly you
are talking about specific individuals, and I am saying if the
evidence led there, wouldn't that be an inherent conflict?
Attorney General Holder. Well again, I do not want to
necessarily get into hypotheticals. We want to look at the
evidence as it develops. But I think you have to also look at
the alternative. The alternative would be to appoint an
independent prosecutor or special counsel under regulations
that I actually wrote after the expiration of the Independent
Counsel Act. That would necessarily mean having to find
somebody, having to staff them up, having to find office
space--all the things that we did during the independent
counsel days. And the need is for us to operate with some
degree of haste, some degree of speed, and that is why I picked
these two really good U.S. Attorneys to handle this issue.
Senator Kyl. My time is up. The other two things I had
asked are: I presume that Jay Carney and David Axelrod are not
involved here, and so do they really have a basis for knowing
``the case does not present a conflict of interest'' ? And
could you describe the reason for the two individuals?
Attorney General Holder. The two?
Senator Kyl. You have appointed two, not one but two
individuals to do the investigation. I am just curious as to
what the rules are with respect to division of responsibility
or are they both looking at the very same things. What are the
rules of engagement there? And could you specifically tell us
whether either David Axelrod or the President or Jay Carney
have a valid basis for reaching the conclusion that the case
does not present a conflict of interest? Can they really say
that at this point, knowingly?
Attorney General Holder. Well, I would say on the basis of
what I know at this early stage of the investigation, there is
not a basis for a conflict determination, but it is something
that we are monitoring on an ongoing basis. Director Mueller
and I have both set up in place at the Justice Department and
the FBI a mechanism so that we can be advised on the
possibility of a conflict, and if at some point the people who
have been given that responsibility indicate to Bob, to
Director Mueller, or to me that we are in a conflict situation,
we will act appropriately.
Senator Kyl. Anything on the last point? I am just curious.
Attorney General Holder. I am sorry. The last?
Senator Kyl. About two prosecutors rather than one.
Attorney General Holder. Oh. I do not want to go into the
division of their responsibilities only because--and I am not
being cagey here or cute--only because it means that I would
necessarily have to talk about things that frankly I do not
think should have ever been leaked and I do not think should be
confirmed in this setting. But I will be very honest--I will be
certainly more fulsome in my interactions with the Intelligence
Committee and the Judiciary Committee in a different forum.
Chairman Leahy. Thank you, and I do appreciate you giving
me a heads up before you appointed both these prosecutors. I
think they are tough, honest prosecutors--one a Bush
administration appointee, one an Obama administration
appointee. More importantly, both are the epitome of
professional prosecutors, and I think it was a good choice.
Senator Feinstein.
Senator Feinstein. Thank you very much.
Chairman Leahy. Speaking of somebody who has a direct
interest in all this.
Senator Feinstein. Thank you very much, Mr. Chairman.
Welcome, General. It is good to see you. I am aware that
around noon, a sense of the Senate resolution will be
introduced to set up a special counsel, and I just want to say
that at this time I would oppose that legislation.
The Attorney General called me on Friday and indicated that
he was assigning two United States Attorneys to investigate
these leaks, so I looked up the credentials of these two United
States Attorneys, and I would like for the purposes of the
record just to review some of the credentials.
One of them is Rod Rosenstein. He is the United States
Attorney for Maryland. He is a Republican, but he served in
both Republican and Democratic administrations. He served in
the Ashcroft Justice Department as Principal Deputy Assistant
AG for the Tax Division from 2001 to 2005. From 1995 to 1997,
he worked for Kenneth Starr as an associate independent
counsel. He supervised the investigation that found no basis
for criminal prosecution of the Clinton White House officials
who had obtained FBI background reports.
In 2005, he was nominated by President Bush and unanimously
confirmed to serve as United States Attorney for the District
of Maryland. On his nomination, President Bush said this: ``Rod
Rosenstein is a highly accomplished and well-respected attorney
who is widely praised by lawyers and judges alike for his
intellect, ethical standards, and fairness.''
Ronald Machen is United States Attorney for the District of
Columbia. He has served as United States Attorney for the
District since February 2010. His nomination was favorably
reported by this Committee by voice vote, and he was confirmed
by the full Senate by unanimous consent. He served as an
Assistant United States Attorney from 1997 to 2001. He was then
a partner at Wilmer, Cutler & Pickering before becoming U.S.
Attorney. He is a graduate of Stanford University and Harvard
Law School.
Now, the reason why I oppose the special counsel is that a
special counsel takes a long time. If you look at the special
counsel in the Scooter Libby case, it took 4 years to complete.
Now, by comparison, we have been told from the Washington field
office that they are already conducting interviews to find out
who leaked the AQAP bomb plot, and, of course, now the two
United States Attorneys have been announced to lead the leak
cases.
I really think this is the appropriate way to go. I am
going to support it. I am hopeful that members of the
Intelligence Committee and this Committee will support these
leaks being investigated in this way. I think to have a fight
over how we do this now will set back any leak investigation.
These are two scrupulous men. They are both independent, and I
have no reason to believe why they cannot work with the FBI and
assemble a very strong prosecution team where warranted. So I
am very pleased to support that.
On the subject as to why FBI agents were recused--and you
pointed this out, Mr. Attorney General--this was really in an
abundance of caution, so that no one that had anything to do
with the investigation particularly of the bomb as it left
Yemen will be involved in the investigation. Is that a correct
analysis?
Attorney General Holder. Yes, I do not believe anybody from
the FBI has been recused. Some attorneys or some of the
personnel in NSD have been recused in that way.
I will also say that, in an abundance of caution, both the
Director and I have been already interviewed in connection with
the knowledge that we had of those matters--at least of that
matter.
Senator Feinstein. All right. I mentioned to the Ranking
Member as he left, on the subject of IG reports, I very much
agree with what he said. And the Committee has extensive
language in the report on the bill that we are now about to put
together on the subject, and there is an abundance of IG
requirements, and requirements, Mr. Attorney General, on your
Department to produce various reports. It is twice yearly. Let
me just read a couple of things.
Section 702 require semiannual assessments by the Attorney
General and the DNI provided to Congress and the Foreign
Intelligence Surveillance Court. In addition, the Inspectors
General of the Department of Justice and certain elements of
the intelligence community are authorized to review the
implementation of Section 702 and must provide copies of any
such reviews to the Attorney General, DNI, and congressional
committees of jurisdiction. And it goes on with more.
I can tell you this: At our last meeting of the
Intelligence Committee, we had a binder this full of their
reviews. We have also just recently had the Inspectors General
before us, and I can tell you I found them very forward
leaning, straightforward, and really felt that they are capable
of exercising strong investigations and making conclusions
regardless of where those conclusions may fall. So I think that
is good.
Let me talk to you about something--Senator Grassley and I
head something called the Senate Caucus for International Drug
Control, and it has been very interesting because in the course
of so doing, we have had the opportunity to look at Mexico, the
Caribbean islands, Afghanistan, Guatemala, a number of
different places with respect to drugs. And the Senate passed a
bill that Senator Grassley and I did called the Targeting
Transnational Drug Trafficking Act of 2011, and the bill lowers
the threshold from current law, which says that drug
traffickers must know that illegal drugs will be trafficked
into the United States to instead require reasonable cause to
believe that illegal drugs will be trafficked into the United
States.
Under current law, our ability to prosecute source nation
traffickers from South America is limited since there is often
no direct evidence of their knowledge that drugs were intended
for the United States. Our legislation changes this, and I hope
the House passes it and sends it to the President for his
signature.
Could you please tell us how this bill could enhance your
ability to extradite drug kingpins to the United States?
Attorney General Holder. Well, Senator, I am not totally
familiar with the bill, but I really do like the portion that
you have just described because you do point out a problem that
we have in getting at these drug kingpins and the degree of
knowledge that we have to prove in order to be able to get them
back into this country where we have shown over the years,
through Republican and Democratic Justice Departments, where
the greatest capacity to incapacitate these people, put them in
jail for extended periods of time. And I think that your
emphasis on nations other than Mexico is really, really
important and something that we have not necessarily done as
good a job as I think we could have.
I have been in the Caribbean. I have talked to my
counterparts in Central America. As the Mexican Government
becomes more successful, these cartels are looking for other
ways to get their drugs into the United States, and I think
that your focus on these other places and the mechanism that
you have talked about I think can both be extremely useful, and
I look forward to working with you with regard to that bill.
Senator Feinstein. Thank you. It has passed the Senate. We
need to get it past the House.
Thank you, Mr. Chairman.
Chairman Leahy. I agree.
I am advised that Senator Graham is next. Senator Graham.
Senator Graham. Thank you, Attorney General Holder, for
coming. Is the National Security Adviser part of the White
House, in your view?
Attorney General Holder. Every time I see him, that is
where he is.
Senator Graham. OK. Have you read Tom Ricks' review of Mr.
Sanger's book----
Attorney General Holder. No, I have not.
Senator Graham [continuing]. About the Iranian program and
about the Kill List and the other things that we are talking
about? He says, ``And throughout, Mr. Sanger clearly has
enjoyed great access to senior White House officials, most
notably to Thomas Donilon, the national security adviser.''
``Mr. Donilon, in effect, is the hero of the book as well
as the commenter of record on events.''
I do not know what Mr. Donilon did, but according to this
review and from my reading of excerpts of the book, somebody at
the highest level of the Government has been talking about
programs that I think are incredibly sensitive.
On a scale of 1 to 10, how serious do you consider these
leaks?
Attorney General Holder. I think they are extremely
serious.
Senator Graham. Would it be 10, 9, 8, 7?
Attorney General Holder. You know, I am not sure what a 10
would be, but I would put them up there on a scale.
Senator Graham. I cannot imagine--well, if there is
something worse, I would hate to see it. So my point is that I
think our concern on this side of the aisle is that there are
clearly people around the President leaking stories that
involve highly classified information, and here is the concern
we have. You have got one program called Fast and Furious that
has been an embarrassment to the administration, and it has
been like pulling teeth to get information about Fast and
Furious, who knew what and when. And when you have programs on
the national security front that seem to show the President is
a strong leader, you can read about it in the paper.
So my concern, I think, is a lot of us believe if there was
ever a need for an outside special counsel, it is now. What do
you say?
Attorney General Holder. Well, as I said, the two people
who I have appointed to look into these matters are first-rate
prosecutors who will do, I think, a great job. And as we look
at the history of what U.S. Attorneys who have been appointed
in these kinds of cases, I think we can feel a great deal of
comfort.
Senator Graham. Let us look at the history of--do you
believe it was a good thing to have a special counsel in the
Valerie Plame case?
Attorney General Holder. Sure.
Senator Graham. And one of the reasons it was a good thing
is that the chief of staff of the Vice President wound up being
prosecuted, and I cannot think of someone closer to the White
House than that person.
Do you think it was a good thing to have a special counsel
in the Jack Abramoff case?
Attorney General Holder. Well, again, we are talking about
special counsel here, and we can get hung up on terms, but----
Senator Graham. I mean, do you think it was a good thing
for the country to have a special counsel appointed in the Jack
Abramoff case?
Attorney General Holder. Well, let me go back to the Plame
case first so my words are not misunderstood. The Plame case
involved a person who was a United States Attorney, the same
thing that I have done here. That was the person who got that
designation, and these people are now appointed as regular U.S.
Attorneys because it is possible that some of these acts
occurred in their districts. If, however, we have proof that
things happened outside their districts, I can appoint them
under Section 515 as special counsels.
Senator Graham. You are fighting the very concept that
Senator Obama wrote a letter to the Bush administration. Vice
President Biden was on TV morning, noon, and night urging the
Bush administration to appoint a special counsel in the Valerie
Plame case, the CIA torture tapes case. Senator Obama wrote a
letter to the White House signed with a bunch of his Democratic
colleagues urging Attorney General Gonzales to appoint a
special counsel in the Jack Abramoff case because of
extraordinary circumstances, the access this man enjoyed, and
as a result of this investigation, some high-ranking
Republicans wound up being compromised or, in fact, going to
jail.
So my point is that the political intrigue around Valerie
Plame and Jack Abramoff is no greater than it is here. We are
talking about people surrounding the President and the national
security apparatus at the highest levels, and you are resisting
doing what Senator Obama and Senator Biden suggested was in the
public interest. Why?
Attorney General Holder. Well, I as Attorney General am
seized with the responsibility of looking at allegations,
controversies, and making the decision on the basis of what I
think is best for a successful investigation and potential
prosecution.
Senator Graham. Mr. Attorney General--and I hate to
interrupt--you know I like you. We have, I hope, a good
relationship. But you are being subpoenaed--I mean, you are
being--you may be held in contempt by the House. Thirty-nine
Democrats have asked for more information. I am just
suggesting, given your problems in the House and the political
intrigue that is around this case, and given past behavior of
Senator Obama and Senator Biden, who are now President and Vice
President, you would be doing the country a great service to
appoint someone new that we all could buy into. I am sure these
people are fine folks, but, quite frankly, I am very disturbed
about the inability to get information regarding programs that
are embarrassing and the tendency of this administration to
tell the whole world about things that are good.
So I just think you would be doing the country a great
service if you followed the advice and counsel of Senator Biden
and Senator Obama.
Attorney General Holder. I think what is most instructive
is to follow that which we have done in the past and that which
has worked. And if you look at----
Senator Graham. Did the Valerie Plame and Abramoff
investigations work?
Attorney General Holder. Well, certainly the Plame
investigation was--but, again, we are talking about----
Senator Graham. What is the downside of a special counsel,
somebody new other than these two people that all of us could
buy into?
Attorney General Holder. But, Senator I think you are
missing something here. The special----
Senator Graham. I think you are missing something here. I
think you are missing the fact that this is a very big deal,
and you are handling it in a way that creates suspicions where
they should not be. And all I am asking for is for you to find
a lawyer in this country that all of us could say, virtually
all of us could say that is the right person to do this job,
rather than you picking two people and telling us about how
great they are. I do not know these people from Adam's house
cat. There are a lot of lawyers in this country I do know that
would follow the evidence wherever it leads and wherever it
takes the country. I am asking you for your legacy and for the
good of the country to reconsider your decision and appoint
somebody that all of us have confidence in. And I am asking no
more of you than Senator Obama and Senator Biden asked in
investigations that I think are no worse than this.
Attorney General Holder. I do know these people, and they
are good lawyers, they are tough prosecutors, and they are cut
out of the mold of Pat Fitz----
Senator Graham. So the answer is you are not going to
change your mind?
Attorney General Holder. And they are cut out of the mold
of Pat Fitzgerald, who--again, what you are missing here in
terms of that special counsel or whatever title you want to
give--was a sitting U.S. Attorney. Nothing was done differently
than what I have done with regard to these people. It is the
same thing.
Senator Graham. Mr. Attorney General, what you are missing
is the biggest double standard in recent times, that the very
people who are in charge of a White House that I believe has
compromised national security unlike any time in recent memory,
when they were in this body with investigations no worse, I
think could not be considered any worse than this, were
advocating to the Bush administration to appoint somebody new,
appoint a special prosecutor that we could all have confidence
in, and suggested that the Bush administration was trying to
conceal and protect themselves by not doing what they were
urging. And here the shoe is on the other foot, and you are not
willing to embrace the idea that----
Chairman Leahy. The Senator's time----
Senator Graham [continuing]. It would be better off for the
country if you would pick somebody that we all could buy into
from the get-go rather than picking somebody--two people that
you say are great that I do not know anything about.
So at the end of the day, I cannot believe that this is
even a debate given the national security implications of these
leaks.
Attorney General Holder. Well, I----
Chairman Leahy. I would say to my friend--and I did let him
go way over his time so he could get his----
Senator Graham. Not nearly as much as my other colleagues.
Chairman Leahy [continuing]. Speech in, but I would note
that with the time of that request for a special counsel, that
was after, as I recall, Attorney General Gonzales had testified
that he really considered himself part of the President's staff
and not an independent Attorney General, unlike Attorney
General Mukasey who appointed a Federal prosecutor to
investigate the firing of U.S. Attorneys, another to
investigate the destruction of CIA tapes.
Senator Graham. If I may respond, Mr. Chairman, there is no
doubt in my mind that if the shoe were on the other foot, you
and everybody on that side would be screaming that I have to
appoint a special prosecutor that all of us could buy into.
Chairman Leahy. Well, I----
Senator Graham. Now, given the record of the way you have
behaved----
Chairman Leahy. My problem--my problem with buying into----
Senator Graham [continuing]. Your colleagues Obama and
Biden when they were Senators, this cries out for corrective
action.
Chairman Leahy. Well, and I have seen the talking points
that the Republican candidates have, and you have probably used
them better than anybody else.
I will yield to----
Senator Graham. Well, how about----
Chairman Leahy. I will yield to Senator Durbin.
Attorney General Holder. Mr. Chairman, if I could just
correct the record here, the Abramoff case was handled by the
Public Integrity Section of the United States Department of
Justice. The Plame case was handled by a sitting U.S. Attorney.
Senator Graham. Specially appointed with powers and
protections outside the system that we are all concerned about.
You have a chance here to lead the country in a new direction,
follow past precedent, and the fact that you are not going to
do this disturbs all of us up here on our side of the aisle.
Chairman Leahy. I think before we prejudge what these U.S.
Attorneys are going to do, let us see what they do. I have been
willing to criticize both Democratic and Republican
administrations if they are not going forward with adequate
prosecution. Let us see how they do. If they are not doing
their job, then I will be among the first to say so.
Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman.
Let me say at the outset that the Senator from South
Carolina is my friend and we agree on so many things, but I do
take exception to your statement about this administration
compromising national security more than any administration. I
really think that was over the line. And I would like to remind
those who are following this that we have listened to speech
after speech after speech by the Minority Leader and other
members of this panel about how impossible it is to prosecute
would-be terrorists in Article III courts and they should be
referred to military tribunals. And you can correct me, but I
believe the track record at this moment under this
administration is that over 400 would-be terrorists have been
stopped in Article III courts and 6 in military tribunals, that
our country is safe today because of the decision of the
administration, when appropriate, to send cases to Article III
courts and others to military tribunals. And to suggest that
this particular investigation somehow compromises national
security is not borne by the evidence.
I would ask the Attorney General to respond.
Attorney General Holder. Well, I think that is right. In
terms of the Article III system, it has proven to be effective
both in this administration and in the prior administration. We
have proven the ability to get intelligence out of people. We
had successful prosecutions. We have been able to conduct these
cases safely without putting anybody at risk in the immediate
area.
You know, we need to have faith in what we call the
greatest judicial system in this world. And it is. And those
who have lost faith in that system or its ability to handle
these kinds of cases run headlong into the facts as you have
just outlined them.
Senator Durbin. And if I could just return to the specific
instance here, I recall very well when Patrick Fitzgerald was
chosen, a sitting U.S. Attorney for the Northern District
Illinois, who conducted a lengthy investigation of the Valerie
Plame-Scooter Libby situation. And if I recall correctly, it
started with the premise someone had outed Valerie Plame, who
was serving the United States trying to gather information to
keep us safe. And that was the premise. Talk about a breach of
national security. That clearly was. And the decision was made
to stay within the Department of Justice, to turn to Patrick
Fitzgerald of the Northern District to conduct this
investigation. And I think he did an excellent job, a worthy
job for a man of his character. I am sorry he is retiring. We
talked about this on the phone.
But when I hear the suggestion that you cannot find two
U.S. Attorneys, sitting U.S. Attorneys, who can do as good a
job on this critically important issue, I am troubled by it,
because these U.S. Attorneys have all been approved by this
panel. This Senate Judiciary Committee reviewed their
qualifications before giving them this authority. And I would
like to ask you, do you believe it is necessary, as Senator
McCain is going to request in just a few moments on the floor,
that we delegate an outside special counsel--in other words,
outside the Department of Justice--to serve the cause of
justice in this important investigation?
Attorney General Holder. No, I do not. I think that we have
the capacity, we have the people, we have the mechanisms within
the Department of Justice to really look at these kinds of
cases. We have handled leak cases within the Department. As I
said, I have been criticized for being as aggressive as we have
been, and I have great faith in the abilities and the integrity
of these two gentlemen.
Senator Durbin. Thank you. I had not planned on getting
into this, but I wanted to respond to some of the things that
had been said and asked.
Let me go to a parochial issue first relating to my home
State of Illinois. We have a prison in Thompson, Illinois,
owned by the State of Illinois, that has, in fact, been vacant
for 10 years. Our State has tried to negotiate an agreement
with the Bureau of Prisons, which faces its own overcrowding
challenges, to come up with an appropriate purchase price, and
they have agreed on one that has been approved through the
State government as well as through the Bureau of Prisons.
One of the contentious issues related to whether or not
Guantanamo detainees would be transferred to the Thompson
prison. You sent a letter that suggested--it did not suggest.
It stated, ``Consistent with current law, we will not transfer
detainees from Guantanamo to Thompson or otherwise house
Guantanamo detainees at Thompson.'' That letter was sent
several years ago.
I want to ask--this question continues to re-emerge as to
whether or not there is some equivocation in that statement. So
I would like to ask you, and I am sorry to say this, under
oath, which you are in testimony before this Committee--I would
like to ask you as Attorney General, will you pledge that under
no circumstances will the Obama administration seek to transfer
detainees from Guantanamo to Thompson regardless of what the
law permits?
Attorney General Holder. That is an accurate statement of
our position. We want to acquire the Thompson facility. It
would really be a welcome addition to our Bureau of Prisons and
increase the capacity that we need for those kinds of
prisoners, and we will not move people from Guantanamo,
regardless of the state of the law, to Thompson. That is my
pledge as Attorney General.
Senator Durbin. And for the record, this matter has been
discussed and debated for over a year, with reprogramming
requests through the Department of Justice. It has received the
approval on the Senate side, but it has been held up by one
Republican Congressman who has raised this issue over and over
again. I hope that you testimony under oath will finally
satisfy whatever questions remain in his mind.
Let me ask you about another issue, which, frankly, came
home to me as I traveled recently to former Soviet republics,
new nascent democracies in Ukraine, Georgia, and other places.
And I would ask our U.S. Ambassador at each stop, ``What is the
first thing I should raise here on behalf of the United States
when meeting with the President of this country? '' And he
would say, without fail, ``Elections. Make sure you make it
clear to them that if they are going to be a true democracy,
they literally have to have clean and fair elections, giving
the opposition an opportunity, making certain that people who
are eligible can vote.''
Mr. Attorney General, I have held hearings now in two
States as part of the Constitution Subcommittee, in Florida and
in Ohio, over recent State laws that limit the opportunity of
the residents of those States to vote in the November election.
In both instances, I have called election officials of both
political parties and asked them point-blank: What was the
evidence of voter fraud in Florida and Ohio that led the State
legislature to limit the early voting period, to restrict voter
registration, to put other requirements in the law to restrict
the opportunity to vote? And without fail, in both States they
said there was no evidence that led to that State decision.
Now, this group, ALEC, American Legislative Exchange
Council, has been campaigning across the United States to
change State laws. This comes into a voting rights question
which you are well aware of that is under the jurisdiction of
the Department of Justice. And I might add that some of the
evidence that is coming out now makes it clear, for example, in
the State of Florida, they launched a controversial project
that may disenfranchise voters. They are purging voter
registration lists of ``non-citizens.'' We can all agree that
only eligible American citizens should vote in elections, but
Florida's process for deleting people from its registration
list has been so careless, it is replete with errors.
The State created an initial list of suspected non-citizens
in Florida who would be ineligible to vote. Of the 2,700 names
on this list, 87 percent were minorities. The overwhelming
majority of people on the list were registered Independents and
Democrats. Perhaps more to the point, almost all the people on
the State's list of suspected non-citizens are actually
American citizens.
I raise this point because, as we preach to the world the
requirements of democracy when it comes to elections, the
question is whether we are practicing them in the States of
Florida and Ohio and so many other places.
In light of the Department of Justice's conclusion that
Florida's voter purge is unlawful, what steps is your
Department taking or prepared to take if Florida's Governor and
Secretary of State continue to ignore the Department of Justice
order to stop purging its registration list?
Attorney General Holder. We have sent two letters to the
State of Florida. The most recent one was last night. I have
given the authorization to our Civil Rights Division to go into
court to sue the State of Florida to stop these purges, which
are clearly in violation of the National Voter Registration
Act, which requires that there be what is called ``a quiet
period,'' 90 days between any action that you might want to
take and the holding of an election or a primary. My
expectation is that suit will be filed within the next 24 to 48
hours.
We have done all that we can in trying to reason with
people in Florida through the provision of these letters. We
are now prepared to go to court.
Senator Durbin. I hope that is not necessary, but what is
at stake is critical. If we are going to preach to the world
the requirements of democracy and then not practice them at
home, we are going to flunk our own human rights scorecard at
the Department of State. And I think we have got to stand up
for those elements in our society who have political power who
are trying to restrict the right of American citizens to
exercise their right to vote.
Thank you, Mr. Attorney General.
Chairman Leahy. Senator Cornyn.
Senator Cornyn. Thank you.
Mr. Attorney General, would you agree with me that, given
the gravity of these national security leaks, it is important
that the investigation be nonpartisan and independent?
Attorney General Holder. Nonpartisan, independent, sure,
and we can do that with the people who I have appointed.
Senator Cornyn. Well, these people report to you, correct?
Attorney General Holder. They report to me as the past
people who were in the similar situations reported to whoever
the sitting Attorney General was.
Senator Cornyn. If this were a special counsel, in the
past, for example, specifically the Valerie Plame case, Acting
Attorney General Comey delegated all investigative authority of
the Attorney General to the special counsel, and it operated
independent of the supervision or control of any officer at the
Department of Justice. Isn't that correct?
Attorney General Holder. That is correct. Jim is a good
friend, James, Mr. Comey, was a good Deputy Attorney General. I
do not know why he did that, but the regulations that are in
place make very clear that somebody appointed pursuant to those
regulations is supposed to act within the chain and follow
Justice Department rules. It is in contrast to the Independent
Counsel Act that was let to expire, I guess toward the end of
the Clinton administration.
Senator Cornyn. You hired Mr. Manchen first as Assistant
U.S. Attorney in 1997, correct?
Attorney General Holder. I am not sure of the date, but I
did hire him as an Assistant U.S. Attorney here in Washington,
D.C.
Senator Cornyn. And would it surprise you to know that he
is a political contributor to President Obama's campaign and,
indeed, served as a volunteer in Obama For America and assisted
in the vetting of potential Vice Presidential candidates?
Attorney General Holder. I am confident that he has the
ability, the capacity to investigate this case in a
nonpartisan, independent, thorough, and aggressive way.
Senator Cornyn. Well, I would suggest the question that
that raises by your answer is whether you have the independence
and ability to conduct the investigation if, in fact, all of
this comes back through you and given your track record. I just
want to go over----
Attorney General Holder. Well, my track record I think is
consistent----
Senator Cornyn. I did not ask you a question.
Attorney General Holder. Well, no, you made----
Senator Cornyn. I will give you a chance to respond in a
moment.
Attorney General Holder. Well, my record I think I will
stand on, and I have shown a capacity to investigate people
within this administration. We have brought leak cases. Let us
focus on those. We have brought----
Senator Cornyn. No, let us not--let us not filibuster the
time. Let me talk about your record.
You misled Congress in February 2011 and claimed that there
never had been a gun-walking program and then had to retract
that in November 2011.
You misled Representative Issa in May 2011 saying you did
not learn about the Fast and Furious program until the spring
of 2011. And then you had to admit to Senator Grassley that you
learned about those tactics in January 2011.
You claimed in a press conference in September 2011 you had
no knowledge of the Fast and Furious gun-walking program while
it is clear that your inner circle, your high-level Department
of Justice employees received briefings and memos on Fast and
Furious gun walking, including Lanny Breuer, Deputy AG
Grindler, and others in early 2010.
You claimed that the Fast and Furious wiretap applications
did not detail gun-walking tactics. I have read them. Senator
Sessions has read them, and Senator Grassley obviously has read
them. Yet they do raise plenty of details, raise a red flag
about this tactic.
You have defied the lawful and legitimate oversight
responsibilities of the House of Representatives and of the
Senate. You have resisted producing documents. You produced
about 7,600 documents out of a pool of at least 80,000
documents that would be responsive.
And you failed to respond to my letter of August 2011 where
I asked you about gun-walking tactics that occurred in my
State.
So 16 months after Fast and Furious was uncovered and Brian
Terry lost his life in the service to his country at the hands
of a drug cartel member who shot him using a weapon that was
allowed to walk under this program, there has been zero
accountability at the Department of Justice.
You will not appoint a special prosecutor in the face of a
potential conflict of interest. You will not tell the truth
about what you know and when you knew it on Fast and Furious.
You will not cooperate with a legitimate congressional
investigation. You will not answer my questions about gun
walking in Texas. You will not take any responsibility for the
failures of your inner circle. And you will not acknowledge
that your top aides knowingly misled Congress about over 8
months. And you will not hold anyone accountable.
So, Mr. Attorney General, I am afraid we have come to an
impasse. The leaking of classified information represents a
major threat to our national security, and your office faces a
clear conflict of interest, yet you will not appoint a special
counsel.
You will not support a truly independent investigation, and
you will not take the threat seriously. Meanwhile, you still
resist coming clean about what you knew and when you knew it
with regard to Operation Fast and Furious. You will not
cooperate with a legitimate congressional investigation, and
you will not hold anyone, including yourself, accountable.
Your Department blocks States from implementing attempts to
combat voter fraud. In short, you have violated the public
trust, in my view, by failing and refusing to perform the
duties of your office.
So, Mr. Attorney General, it is more with sorrow than
regret--than anger that I would say that you leave me no
alternative but to join those that call upon you to resign your
office. Americans deserve an Attorney General who will be
honest with them. They deserve an Attorney General who will
uphold the basic standards of political independence and
accountability. You have proven time and time again, sadly,
that you are unwilling to do so.
The American people deserve better. They deserve an
Attorney General who is accountable and independent. They
deserve an Attorney General who puts justice before politics.
And it is my sincere hope that President Obama will replace you
with someone who is up to that challenge.
Chairman Leahy. Mr. Attorney General, you certainly have
the right to respond to that. The Senator from Texas has
accused you of perjury, which is a criminal offense. I realize
that his--I remember his strong support of one of your
predecessors, Attorney General Gonzales. I had a different view
of that. I felt that you were a more appropriate person to be
Attorney General. So feel free to respond.
Attorney General Holder. Yes, with all due respect,
Senator, there is so much that is factually wrong with the
premises that you started your statement with, it is almost
breathtaking in its inaccuracy, but I will simply leave it at
that.
You know, we want to talk about Fast and Furious. This is,
I guess--what, the ninth time? This is now the ninth time that
I have answered questions before a congressional committee
about Fast and Furious. If you want to talk about Fast and
Furious, I am the Attorney General that put an end to the
misguided tactics that were used in Fast and Furious. An
Attorney General who I suppose you would hold in higher regard
was briefed on these kinds of tactics in an operation called
Wide Receiver and did nothing to stop them. Nothing. Three
hundred guns, at least, walked in that instance.
I am also the Attorney General who called on an Inspector
General to look into this matter, to investigate this matter. I
am also the Attorney General who made personnel changes at ATF
and in the U.S. Attorney's Office that was involved. I have
overseen the changes of processes and procedures within ATF to
make sure that this does not happen ever again.
So I do not have any intention of resigning. I heard the
White House press officer say yesterday that the President has
absolute confidence in me. I do not have any reason to believe
that that, in fact, is not the case.
And in terms of what it is that we have turned over to
Congress in this regard, let us put something on the record
here. We have collected data from two hundred and--this is with
regard to Fast and Furious. You guys want to keep talking about
it. We have collected data from 240 custodians. We have
processed millions of electronic records, looked at over
140,000 documents, turned over 7,600 pages over the course of
46 separate productions. We have made available people from the
Department at the highest levels to be interviewed. And I have
also indicated, I guess earlier in my testimony, to the extent
that all of that is not enough to satisfy the concerns that
have been raised in the House committee, I am willing to sit
down and talk about the provision of more materials.
I have sent letters in that regard, the Deputy Attorney
General has sent letters in that regard, and have not had
responses, which leads me to believe that the desire here is
not for an accommodation but for political point making. And
that is the kind of thing that you and your side I guess have
the ability to do, if that is what you want to do. It is the
thing that I think turns people off about Washington. While we
have very serious problems, we are still involved in this
political gamesmanship.
Senator Cornyn. Well, Mr. Attorney General, the problem we
have is that you will not allow Congress to do its job when it
comes to oversight, and you thwart a legitimate investigation
into programs like Fast and Furious. For example, you sent a
fallacious letter, a false letter, in February 2011 to this
Committee in response to Senator Grassley's inquiry, claiming
that nothing like Fast and Furious existed and that it took
until November 2011 for you to send Lanny Breuer over here and
apologize for misleading Congress during that interim. And,
finally, you refuse to produce any documents that post-date
that false letter of February 2011 to either the House or the
Senate.
So I am happy to have a conversation with you about what
the facts show at another time and another place, but I would
stand on the record.
Attorney General Holder. Well, with regard to that letter,
let us talk about that. I was not involved in the creation of
the February 4th, but what I as Attorney General made the
decision to do was to make available, and we did make
available, all the deliberative material that went into the
creation of that letter, which is unheard of--deliberative
material, which was something that the Justice Department has
always tried to protect. We made that available. And as I said
and I will say yet again, to the extent that there are issues
that remain unresolved, materials that people want to get, I am
willing to inject myself into the process, to listen to those
requests, and to make available things that to date we have not
decided would be appropriate.
As I said, I want to avoid this constitutional crisis. I
will not, however, compromise the integrity of ongoing
prosecutions or put at risk witnesses or people who we are
working with. But aside from those two concerns, I am willing
to work with Congress in this regard.
Senator Cornyn. I would just say----
Chairman Leahy. The time--I think we----
Senator Cornyn [continuing]. Stonewalling Congress is not a
constitutional crisis.
Chairman Leahy. In fairness to the others, we should go
forward. I would note that I appreciate the fact that while the
gun walking began in the Bush administration with Attorney
General Gonzales, you stopped it.
Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman.
Welcome, Attorney General. I wanted to make one point and
then ask a couple of questions. The point that I would like to
make is that it is my belief as a former United States
Attorney, as somebody who has been involved with the Department
of Justice, that it should be our baseline expectation that
every Attorney General and every United States Attorney should
be willing and able to follow evidence in a criminal
prosecution wherever it leads. And in that regard, the
Department of Justice is a somewhat different entity than other
elements of an administration in which political control of the
Department of Agriculture or something might be more
appropriate, but that within the Department of Justice we
behave differently. And I worry that where this discussion is
going is setting the bar too low with a presumption that then
will become the standard that United States Attorneys are not
capable of investigating the executive branch of Government,
which I think is factually wrong, runs against the history of
the Department, and the Department has put a lot of effort into
building in safeguards and checks and balances to make sure
that those pressures stay out of the Department.
I can remember that for a long time there was actually a
rule, I think based on a letter from Senator Hatch, that only
very few members of the White House were allowed on a criminal
matter to contact anybody in the Department of Justice, and it
was a very small number on either side. Now, during the Bush
administration, they opened that up so that hundreds of people,
including Karl Rove, could have direct access to Department of
Justice folks on criminal investigations. And after I pointed
that out to Attorney General Gonzales, I think they retreated
on that. But there have been all these fences built over time
to protect the unique role of the Department of Justice. There
have been high points and there have been low points.
I think a high point was when Acting Attorney General Comey
went all the way to the Oval Office to stand up for the
Department of Justice's independent view that the warrantless
wiretapping program was being conducted illegally and that if
the White House did not back down, he and a considerable number
of senior members of that Department were all going to resign.
And faced with that pressure from the Department of Justice,
the White House blinked and they reconstituted the program.
That is all a matter of public record.
A less happy event was when the Inspector General's
investigation into the politicization of the U.S. Attorneys
under the Bush administration actually led into the White House
and Attorney General Mukasey refused to conduct an
investigation once it touched the White House. Even though
there is no Executive privilege as between the White House and
the United States Department of Justice, I think that may have
been the first time that I am aware of that the Department of
Justice has backed down on pursuing evidence relevant to an
investigation because it touched on the White House. And I
think that was an unhappy and not representative of the best
traditions of the Department of Justice.
So I think I stand with you in arguing that not only should
the Department of Justice be able to do these kinds of
investigations, if they are not, we have a real problem on our
hands. But it should be the default proposition that our
Attorney General and our United States Attorneys have the
ability to do that. And if we do not think they do, we should
not confirm them. So that is a point that I wanted to make.
Cyber--let us change to that topic for a minute. Two points
on this. One, we are looking at trying to do something serious
in terms of legislation to help protect our Nation from the
cyber attacks that are increasingly prevalent and increasingly
sophisticated and increasingly dangerous. The core target for
foreign and terrorist elements is our critical infrastructure,
our electric grid, the servers, the process, the financial
transactions for our financial sector, the communications
networks and so forth, which are privately owned but provide
essential, as I said, critical infrastructure.
On June 6th, we have a letter that was written to both
Majority Leader Reid and Minority Leader McConnell that
describes the cyber threat as ``imminent'' and that it
represents ``one of the most serious challenges to our national
security since the onset of the Nuclear Age 60 years ago.'' The
letter continues that ``protection of our critical
infrastructure is essential in order to effectively protect our
national and economic security from the growing cyber threat.''
It continues further, this is not only in italics but in
bold italics, ``We do feel strongly that critical
infrastructure protection needs to be addressed in any
cybersecurity legislation.''
It concludes, again in bold italicized text, ``Any
legislation passed by Congress should allow the public and
private sectors to harness the capabilities of the NSA to
protect our critical infrastructure from malicious actors.''
They say at the end, ``We carry the burden of knowing that
9/11 might have been averted with the intelligence that existed
at the time. We do not want to be in the same position again
when cyber 9/11 hits. It is not a question of whether this will
happen. It is a question of when.'' And it is signed by Michael
Chertoff, who was George Bush's Director of Homeland Security;
Mike McConnell, who was both the head of NSA and the Director
of National Intelligence; General Michael Hayden, who was in
charge of the Central Intelligence Agency; and Paul Wolfowitz,
who was the Deputy Secretary of Defense.
What is your position on whether or not the legislation
that we are working on should address or should not address the
problem of America's critical infrastructure?
Attorney General Holder. I think it absolutely must address
that. There is a bill that has been working through the Senate.
There are four Senators who are behind it. I do not remember
which four exactly, but I think that that is a good bill
because it looks at this problem comprehensively.
If one looks at the threats that we monitor and the use by
state actors as well as groups to try to get at our Nation's
infrastructure, I do not want to alarm the American people, but
I think the passage that you read from that letter accurately
states the concerns that we have within the administration.
Senator Whitehouse. Mr. Chairman, may I ask unanimous
consent that the full letter be made a part of the record of
this proceeding.
Chairman Leahy. Without objection.
[The letter appears as a submission for the record.]
Attorney General Holder. This is a problem that we must
address. Our Nation is otherwise at risk. And to ignore this
problem, to think that it is going to go away, runs headlong
into all the intelligence that we have gathered, the facts that
we have been able to accrue which show that the problem is
getting worse instead of getting better. There are more
countries that are becoming more adept at the use of these
tools. There are groups that are becoming more adept at the use
of these tools, and the harm that they want to do to the United
States and to our infrastructure through these means is
extremely real.
Senator Whitehouse. Mr. Chairman, everybody else has gone
several minutes over their time. I will not. But I do wish to--
I will do it in a question for the record. I just want you,
Attorney General, to know that I am not satisfied with the
answer I got from the Department with respect to the Margolis
memo that holds the Office of Legal Counsel to a lower standard
in terms of its duty of candor than a regular trial lawyer or a
regular, you know, guy with three files under his arm going
into the Garrahy Judicial Complex in Providence, Rhode Island,
is held to. I just think that is absolutely wrong, and I will
pursue the question again in questions for the record. I think
that the answer that was prepared for the Department in
response to my question sidesteps the issue in a way that does
not address it, and I really am determined to get this
addressed.
Thank you very much.
Attorney General Holder. I will look at that response.
[The information referred to appears as a submission for
the record.]
Chairman Leahy. Thank you very much.
We will go next to Senator Sessions, then to Senator
Schumer.
Senator Sessions. Thank you.
Mr. Attorney General, I do believe that we have voter fraud
in America. I do believe that States and cities and counties
have a duty to maintain rolls, voting rolls, of integrity, and
purging the rolls is just a way of saying you are going through
the rolls to make sure dead people are not on it; people who
have moved to other States and are voting in other States do
not remain on it; people that are not citizens are not on it.
And if you do not have voter ID, I would just observe that
somebody can walk in to a voting place where they know there is
a registered person on the rolls who is not a citizen, not
alive, or is in another State and just say they are John Jones
and vote for that person. And that is a danger to the integrity
of the ballot, and civil rights requires that people be able to
vote, but only vote once if they are lawfully entitled to vote.
So I am just disturbed really about the approach that you have
taken on that. I think Florida has every right, in fact a duty,
to try to maintain clear rolls that have integrity to them.
Mr. Attorney General, in the Patrick Fitzgerald appointment
as an independent counsel, he was United States Attorney, but
the letter from the Acting Attorney General told him that,
``You will investigate this, and I direct that you exercise
that authority as special independent counsel without the
supervision or control of any officer of the Department.'' In
other words, every United States Attorney serves at the
President's pleasure. They are under your supervision. And if
they are going to investigate cases that reach certain levels,
any person in that position needs the protection, I think, of
independence.
Now, I think you can abuse the independent counsel statute.
I do not think it should be used every time some matter comes
up. But let me just point out a few things about this case.
First of all, these leaks could very well be criminal. They
were leaks dealing with the fact that we had informants inside
terrorist organizations. There were a lot of things that I
think go beyond any reasonable standard, far more serious, in
my view, than the Valerie Plame case because she was sitting in
an office in the CIA and not out in the field somewhere at
risk, presumably.
Look at this. The New York Times articles quote Mr.
Donilon, his National Security Adviser, quotes Mr. Daley, his
Chief of Staff, former Chief of Staff; Ambassador Munter, the
Ambassador to Pakistan; Dennis Blair, the former Director. It
on more than one occasion makes reference to ``Mr. Obama's
aides say.'' Greg Craig, the White House counsel, is referred
to; Jay Johnson, the Defense Department counsel; Rahm Emanuel;
John Brennan; Harold Koh, State Department Chief Counsel. These
were all talking to the New York Times. Somebody provided
information that should not have been provided. These are some
of the closest people you have in Government to the President
of the United States, and so it is a dangerous thing.
Also, I would note that in the article, the New York Times
writes this: ``Still, senior officials at the Department of
Justice and the Pentagon acknowledge they worry about public
perception.'' That is a troubling statement to begin with
because you should do the right thing, but the point I would
make is the New York Times is talking to people, senior
officials at the Department of Justice. So can you see how in a
matter of this seriousness that it might be--that it would be
that people could feel that an independent counsel should be
appointed?
Attorney General Holder. Well, the extraordinary grant of
power that Jim Comey gave to Pat Fitzgerald is really
extraordinary. I am not aware of any kind of grant like that
with regard to any other U.S. Attorney who was put in this
position, and I do not know exactly what Mr. Comey's rationale
was for that.
As I have indicated previously, I think that we have an
ability with these two people whom I have named to follow the
evidence wherever it leads us.
Senator Sessions. Well, they are appointed by the
President. They serve at the pleasure of the President. They
serve under your supervision, and the President's top aides,
former top aides, some of your senior officials at the
Department are people that were talking to the New York Times
and need to be interviewed in an aggressive, independent way,
not as a friendly fellow Department of Justice employee but as
someone that could be subject to a criminal charge. And I think
that is why people believe an independent counsel could be
appropriate in this matter.
You note there are two United States Attorneys. As I
understand you, each would have separate responsibilities to
investigate separate parts of the matters that may come up?
Attorney General Holder. Yes, I do not want to go into the
details of what it is they will be investigating, but they have
separate matters that they will be looking at.
Senator Sessions. Well, my time is about up, and I will not
belabor it. But I take this as a very serious matter, the
question of the leaks, how important they are. I believe lives
have been placed at risk. I have raised it in the Armed
Services private or closed hearings dealing with these matters
in months past. It has been a pattern. I do not believe we have
seen a greater series of leaks, and I believe it is time to
bring it to a conclusion. I believe an aggressive investigation
is required, and I believe from now on members of this
administration, previous administrations, and subsequent
administrations should fully understand they will be held
accountable if they violate their oath to protect the
legitimate secrets of the United States.
Attorney General Holder. Well, Senator, I do not disagree
with you except maybe with regard to who actually should do
this. I think what you have said about the seriousness of these
leaks, the potential harm to our country, the need to hold
people accountable, I agree with all of that.
Senator Sessions. Based on the article, couldn't it be that
you provided the leaks? It just says ``senior Department of
Justice officials.'' It could be your Deputy.
Attorney General Holder. Well, I can tell you that I did
not, and I can also tell you that I have been interviewed
already, and I can tell you that that interview was not some
kind of pro forma, take-it-easy interview. It was a serious
interview that was done by some serious FBI agents. The same
thing happened to the Director of the FBI as well because we
were people who had knowledge of these matters, and we wanted
to make sure with regard to the investigation that it began
with us. And so that has happened, in addition to, I guess, the
couple hundred other interviews that--well, maybe not a couple
hundred, maybe a hundred or so interviews they have already
conducted.
Senator Sessions. Thank you.
Senator Schumer [presiding]. Thank you, Senator Sessions,
and now I will recognize myself.
First, I want to say this. It is not the focus of my
questions, but, Attorney General Holder, I want to tell you
that I agree with Senator Feinstein that appointing these two
U.S. Attorneys to investigate leaks is the proper way to
address our current and immediate concerns.
Now, some of my colleagues have brought up the case of
Valerie Plame. As you know, I was very much involved in that.
And the initial leak in Mr. Novak's column talked about senior
administration officials, and what was begun then was just what
you have begun--a DOJ investigation. It was not until several
months later when it became clear that the White House was
actually stonewalling, not giving the information that was
asked for, that an independent counsel was called for, a
special counsel was called for. So the analogy to the Plame
investigation does not hold because we do not know who leaked
it. We do not know if it is senior administration officials.
You can name a lot of people in the book, as my good friend
from Alabama does. Who knows who it is? And to have Justice
investigate is the right way to go.
If we find that some high administration officials are not
giving proper information or whatever to your investigators,
that kind of lack of cooperation might then merit a special
counsel, but we are not at that point yet. And so this analogy
to Plame, when even at the beginning senior administration
officials--the actual source said it was senior administration
officials, and still a special counsel was not called for and
was not appointed, makes eminent sense. So you are handling it
correctly, and I hope you will not feel politically pressured
into doing something that would go beyond that because you are
doing the right thing.
Now let me move over to three other quick issues, if we can
try to get through them. The first involves the Lockerbie
bomber. As you know, holding all the terrorists who planned and
executed the Lockerbie bombing accountable is of utmost
importance, particularly in New York where we had so many
people die in that, including a whole bunch of students from
Syracuse University. I knew of a family who lost someone. They
were from Our Lady Help of Christians parish right near where I
was raised in Brooklyn.
It was reported a few weeks ago that Director Mueller was
in Libya to discuss further investigating the bombing. As you
know, al-Megrahi, the only person held accountable, has finally
passed away, but it is very likely he did not act alone. And
these people lost loved ones--husbands, wives, sons, and
daughters. And to know that other people are living freely,
particularly when there is a different Libyan Government now,
is unfair.
So does the DOJ--I hope the DOJ will renew the
investigation into Lockerbie, and I would like to know if you
think they should do that and if you believe individual, other
individuals, can be brought to justice.
Attorney General Holder. Well, this is something that we
still see as an open investigation. You are right that Director
Mueller did go to Libya. I met with the Prime Minister from
Libya here in the United States and pressed the point with them
that we wanted a full accounting with regard to Pan Am 103.
This is a matter that certainly Megrahi was involved in. I
think there is still a basis to believe that more investigation
is warranted, and we are pressing the Libyan Government in that
regard.
Senator Schumer. Right. And Justice would keep an
investigation open as well if the evidence turned out----
Attorney General Holder. We consider this an open matter.
Senator Schumer. Great. Glad to hear it. Next----
Attorney General Holder. It is open in the U.S. Attorney's
Office in Washington, D.C.
Senator Schumer. That is the right place for it. We do not
need a special counsel or anything else. OK.
Sex offenders: The Adam Walsh Act mandates that the U.S.
Marshals Service provide assistance to State and local
enforcement in locating and apprehending sex offenders who do
not comply with registration requirements, and one of the
primary vehicles the Marshals Service has for providing this
assistance is the National Sex Offender Targeting Center, which
is comprised of subject matter experts versed in a variety of
aspects regarding sex offender investigation and management.
As the Targeting Center has become more successful in
tracking down sex offenders who fail to register, they have
received a growing number of requests for assistance from State
and local police to investigate other sex crimes. But here is
the problem: In many instances, the Targeting Center is being
asked for help in cases that are arguably outside its current
authority, which is currently limited to investigating sex
offenders who fail to register. State and local officers often
want Federal help to identify and apprehend suspected sex
offenders in cases where the issue is not a failure to register
and it is currently not clear whether Federal help can be made
available. Let me point out quickly three cases in my State
where the help could have been used very well by local law
enforcement.
In Utica, there is the case of Robert Blainey. He is a
serial rapist of children. He failed to show up for a parole
hearing, and he likely could have been apprehended much more
quickly had the Targeting Center been involved in assisting
local police. He was not, and he went on to do further horrible
crimes.
On Long Island, during the investigation of the Gilgo
killer, who is believed to have murdered ten people associated
with the sex trade over the last 15 years and dumped their
bodies along Ocean Parkway out there by Gilgo Beach, the
Targeting Center could provide more comprehensive assistance
that the Suffolk County Police Department needs and wants.
And in New York City, a sex offender named Jose Perez, who
committed sexual assault on over 12 victims before he was
caught by police, would have likely been captured earlier had
the Targeting Center's resources been available.
In each of these cases, local officials would have
requested assistance from NSOTC if it were available to them
and the center would have been able to help with behavioral
assessment of the perpetrator, linkage analysis between
particular crimes, and risk assessments to determine where
future crimes would occur.
So I find it wrong that assistance is not available, and I
want it to change, and I intend to introduce legislation
allowing the National Sex Offender Targeting Center to provide
investigative and analytic support to State and local
enforcement in cases where these agencies ask for Federal help
to track down sex offenders.
Would you support such legislation?
Attorney General Holder. Well, let me just say that I want
to thank you for raising this issue and also appreciate the
support that you have given the Department's efforts in this
regard over the years. We have always been able to count on
you, and I think Congress has also given us a lot of tools to
help in this regard. I have not seen the bill that you are
referring to, but I would be glad to examine it and work with
you on this very real problem. It is an issue that we as a
society have focused on I think far too late and far too
little. And so I would be glad to work with you on the bill.
Senator Schumer. Right, and the basic idea is something you
are sympathetic to letting them share. I am not asking you to
support a specific piece of legislation that you have not seen
yet, but the basic idea you would be supportive of.
Attorney General Holder. Yes, that is correct.
Senator Schumer. Great. Thank you, Mr. Chairman.
Chairman Leahy. We will turn to Senator Lee, who has been
waiting patiently. Go ahead.
Senator Lee. Thank you, Mr. Chairman. Thank you, Attorney
General Holder, for joining us today.
Attorney General Holder. Good morning.
Senator Lee. In our meeting today, you have used the term
``constitutional crisis'' several times, and----
Attorney General Holder. You know, when I think about that,
maybe ``constitutional conflict'' would be a little better.
Senator Lee. ``Conflict'' ? OK.
Attorney General Holder. That is making it a little more--
--
Senator Lee. One way or another your use of that term
reflects a concern that I share, to make sure that Government
is operated within the confines of what the Constitution
allows.
I, like many of my constituents, have some concerns with
regard to how this President and his administration have viewed
certain constitutional restrictions. Some expressed concerns
early on in this administration with the President's expanded
use of so-called czars, individuals accountable only to the
White House while performing functions that one could argue
could and should and in the past have been performed by Senate-
confirmed, Cabinet-level personnel.
In the area of religious liberty, you had an unprecedented
and fairly radical position taken by the administration in the
Hosanna-Tabor case that was rejected unanimously, 9-0, by the
Supreme Court.
Also under the category of religious liberty, you have got
a contraception and abortifacient mandate that failed to take
into account the conscientious objections of religious
institutions, reflecting, I think, a somewhat callous disregard
for religious liberty.
Then you had the President taking military action in Libya
without a declaration of war, without any kind of congressional
authorization. Many found that constitutionally problematic.
The President's signature legislative achievement, the
Affordable Care Act, contains an individual mandate that many
consider constitutionally problematic, and that, of course, is
before the Supreme Court right now.
Then there is one issue that I find extraordinarily
troubling but that has not gotten as much attention, which is
the President's use of the recess appointment power.
Now, every President has made recess appointments, to my
knowledge, but this President did something different. He did
something that no other President has ever done, to my
knowledge, which is that on January 4th of this year, he made
recess appointments at a time when the Senate did not consider
itself to be in recess, at a time that the Senate, according to
its own rules and operating procedures, had been adjourned for
a period of time less than 72 hours. This is a concern to me,
and, you know, the concern is compounded by the fact that in
the 23-page, single-spaced memorandum authored by your Office
of Legal Counsel, your Department seemed to be adopting a
rationale that would, in effect, say that the President may
decide when the President deems the Senate to be in recess,
regardless of what the Senate's own rules say.
So I want to ask you, in light of this position, are you
concerned that in the future, appointments historically
requiring the advice and consent of the Senate may be made
simply unilaterally by Presidents of either party without the
advice and consent of the Senate?
Attorney General Holder. No, I do not think so. If you look
at that OLC opinion, I think that the rationale, the analysis
that they did, I think is constitutionally sound. These pro
forma sessions that were put in place where somebody would
gavel the Senate for a couple minutes, whatever it was, were
seen by the OLC opinion as not keeping the Senate in session,
and it----
Senator Lee. Even though we enacted substantive legislation
on December 23, 2011, just a couple weeks before these recess
appointments were made. That was a pro forma session, was it
not?
Attorney General Holder. Well, they look at the period from
January 3rd to January 23rd and made the determination that
there was a 20-day gap there, and within that 20 days, there
was an ability for the President to make those recess
appointments.
Senator Lee. No, wait a minute. But the recess appointments
were made on January 4th, only 24 hours or so after the Senate
had been in recess. So was this an act of clairvoyance that
just predicted how long the President thought the Senate would
be in what he considered to be a recess?
Attorney General Holder. I may have my dates wrong, but
what I think the OLC opinion says--and it can speak for
itself--is that the necessary time period did exist for a
recess to be said to have occurred and the President could have
acted constitutionally.
Senator Lee. OK. The President commented not too long ago
that he believed that it would be an unprecedented,
extraordinary step of overturning a law that was passed by a
strong majority of a democratically elected Congress if, in
fact, the Supreme Court invalidates the Affordable Care Act's
individual mandate or perhaps the law as a whole. In that same
statement, he also bemoaned the concept that an unelected group
of people would somehow overturn a duly constituted and passed
law.
Does this reflect a change in this administration's
position with regard to Marbury v. Madison that other
administrations have not taken?
Attorney General Holder. You might remember that I was
given a homework assignment by a Federal judge. I had to write
a three-page paper single-spaced, answering----
Senator Lee. Did you get a good grade on that?
Attorney General Holder. I have not gotten the grade yet,
but I did answer the question. It was the one that you put,
which essentially said that this administration understands the
Presidents as a constitutional lawyer understands that Marbury
v. Madison is still good law, and I explained in that three-
page, single-spaced letter that this administration still
believes that Marbury is good law.
Senator Lee. Now, Professor Laurence Tribe, who I believe
has been a friend of this administration and a close ally of
this President, commented that Presidents should generally
refrain from commenting on pending cases during the process of
judicial deliberation, adding that even if such comments will
not affect the Justices a bit, they can contribute to an
atmosphere of public cynicism that I know this President
laments.
Do you agree with that statement?
Attorney General Holder. Well, I think that the Supreme
Court and the Justices are strong-willed people, and they do
not live in a hothouse environment. Even while these matters
are being considered by the Court, the fact that we have robust
conversation amongst ourselves, even those of us who are in
official positions, I think is fine.
There is some deference. You should only go so far with
regard to your comments. I frequently will myself comment about
something and say, ``Well, this is a matter before the courts
and I really should not go any further than that.'' So having
some idea of where you draw the line I think is appropriate.
But to say we should not discuss anything that is before the
Supreme Court or the courts generally I think maybe goes a
little far.
Senator Lee. Absolutely. I would agree wholeheartedly with
that. I am certainly not suggesting in any way, shape, or form
that the President ought to say nothing, but I think there is a
difference between saying nothing and suggesting that it would
somehow be appropriate simply because a law was passed by a
democratically elected Congress, and a duly constituted quorum
at that, that the Court is somehow powerless to invalidate
that, even if it transgresses certain constitutional
boundaries. But, alas, I see my time has expired, and I thank
you for joining us.
Attorney General Holder. Thank you.
Senator Lee. Thank you, Chairman.
Chairman Leahy. You know, hearing a couple of these
questions, I just might say parenthetically I remember Strom
Thurmond in the years he was Chairman of this Committee would
always say to judges up for confirmation remember basically to
avoid arrogance and to show the kind of temperament one should.
And when I saw what I thought I had rarely ever seen such
judicial arrogance as a judge saying, ``You shall respond to
this with a three-page, single-spaced letter.'' I am surprised
he did not say what color ink. It is something out of Monty
Python. It was just--you wonder, Good Lord, what Promethean
height does this person live on. Aside from the issue, it just
came across--I have heard from judges, lawyers, Republicans,
and Democrats, what a childish thing. But that is just my view.
And on recess appointments, as I have said before, I would be
happy--I always have concerns about recess appointments. The
easy way out of this is if Republicans would agree to hold an
up-or-down vote on each one of these people. Let us debate
them, renominate them with an up-or-down vote.
I would say to my friend from Utah, if your side is willing
to agree to an up-or-down vote, I would be happy to pick up the
phone and urge the President to renominate them.
Senator Lee. If the Chairman is talking about filibuster
reform through a permanent rules change, then perhaps that is
something we ought to discuss with regard to judicial nominees.
Chairman Leahy. Well, I am willing to discuss that, too.
But on this one, on the particular one that is concerned--and I
must say, again parenthetically, I appreciate and admire the
Senator's concern. He has expressed it. He has stated it very
clearly. He has expressed his concern on nominations coming up,
but has not hindered the work of the Senate Judiciary
Committee. I think he has been very responsible. I may disagree
with him, but he has been extremely responsible in his
opposition.
I would just remind everybody again, we avoid all this if
we could have, as we had in my experience with every President
that I have been here with from President Ford straight
through, just have up-or-down votes.
But having said that, Senator Klobuchar has been waiting
here very patiently. We will go to Senator Klobuchar, then
Senator Franken, then Senator Blumenthal, then Senator Coons.
Obviously, if there is another member of the Republican side
who has not been heard who comes back, they can go. Senator
Klobuchar.
Senator Klobuchar. Well, thank you very much, Mr. Chairman.
Thank you, Attorney General, for being here. And thank you for
thoroughly answering the questions about the security leaks. If
you have noticed, there is some disagreement here about who
should be investigating them, but there is clear agreement that
these leaks were wrong and should not have happened. So I do
appreciate the fact that you are investigating them, and we
look forward to hearing those results, and thank you for moving
forward on that.
But I also do not want to lose focus on some of the
important issues you raised in your earlier testimony, so we
are going to go a little bit from the international front to
the domestic front, from the leaks to the streets here, with
some of the work that you do in the Justice Department.
One of the things that I know has been a positive for this
country is the work that we are doing with drug courts. We have
one in our county where I was a prosecutor, and what we saw is
that as long as it is done right and there is accountability
with the offenders and there are check-ins and things are
monitored, you actually can save money. You save money from
potential drug violence, but you mostly save money because you
do not have the incarceration costs if people can actually kick
the habit of drugs.
Right now we have 2,500 drug courts across the country. The
House has actually approved $45 million in funding for Fiscal
Year 2013, and the Senate, unfortunately, has approved only $35
million. And when the bill gets to the floor, I think we should
get a match between the House and the Senate on that
appropriation and use that House number.
Could you talk about why this is cost-effective or why you
actually get your bang for your buck with drug court money and
why it is important to continue them?
Attorney General Holder. Yes, I think that the points you
make are all good ones. I went to a drug court graduation here
in Washington, D.C., about 2 or 3 weeks ago, and it is a
process that people go through. It is not a straight process.
People, you know, have setbacks along the way. But once they
graduate, the recidivism rate that we have seen here in
Washington, D.C., reflects what you see in other parts of the
country. People are much less likely to reoffend, to use drugs,
or to commit other crimes in order to support a habit. It is
something that is a great public safety measure, and as you
also point out, it is something that helps save us money.
And so I think the support of drug courts and other
measures have been proven. We have the proof now. It is
something that we think is going to work. We can statistically
show that they work. These are the kinds of things that we need
to support.
Senator Klobuchar. And I think the number is 1.2 million
people in the criminal justice system the DOJ identified back
in 2008 could be best served by drug courts. So you are talking
here about a lot of people.
You mentioned VAWA in your testimony. I have been very
involved in that and worked with that when I was also a
prosecutor. And one of the things that the bipartisan Senate
bill contains is the tribal court, allowance for tribal court
prosecution in a narrow set of circumstances for non-natives
who are in relationships with people on the reservation. Could
you talk about why you think it is important to keep that in
the bill, if you do think it is important to keep that in the
bill?
Attorney General Holder. I do. I think that the bill that
the Senate has passed as a whole is the best way in which VAWA
can be reauthorized, and I think that that particular provision
is an important one given the rates of violence that we see
that women, girls, are subjected to in terms of domestic
violence on tribal lands. The ability to have those cases tried
in tribal courts I think will go a long way to serving as a
deterrent and preventing reoffending and changing the culture
of what we have seen on tribal lands. It was something that for
me was extremely shocking when I heard what a female baby born
on tribal lands can expect to have to deal with through the
course of her life, and it is one of the reasons why we have
focused so much attention. Our former Associate Attorney
General Tom Perrelli spent a great deal of time focusing on
this issue, and so I think that, as I said, the bill as a whole
is a good one, is one I hope the House will pass, and I think
that particular provision is particularly important.
Senator Klobuchar. And I know that DOJ has been working a
lot on the issue of rising violence against officers in general
with the death rate we saw last year, but according to the
National Law Enforcement Officers Memorial Fund report, in
2011, of the officers killed, nine that were killed by firearms
were killed while responding to domestic disturbances,
including Officer Shawn Schneider in Lake City, Minnesota,
someone who literally put his life on the line for the victim.
A 17-year-old girl was saved. He was killed, shot in the head.
So your testimony points out a number of programs that you
have initiated to lower the incidence of violence against law
enforcement. Have you seen this link with domestic violence,
anything you would want to add?
Attorney General Holder. Yes. One of the things that really
is disturbing is that though we have seen this historic drop in
the crime rate, we have seen an increase in the number of
officers, law enforcement officers, who have been killed in the
line of duty, and we have seen, unfortunately, I think, in the
last year an increase where we have a greater number of
officers who were shot as opposed to who died in traffic
accidents. And very frequently you see this is when people, law
enforcement officers, are going into a residence, whether to
serve a warrant, to deal with a domestic violence complaint.
The VAWA program tries to share techniques that these officers
can use. We tried to come up with bulletproof vests, stab-proof
vests to try to protect them. This is an ongoing concern of
mine. We had a law enforcement summit I think last year. We
have another one coming up in the next, I think, 2 months or so
at the Justice Department. I will be bringing in people from
State and local counterparts to talk about this ongoing
problem.
Senator Klobuchar. Thank you. And as you know, the
Committee just reauthorzied the Bulletproof Vest Partnership
Program.
Attorney General Holder. Right.
Senator Klobuchar. The last thing I wanted to ask about is
just the economic espionage issue. I think normally we think of
foreign espionage as being directed against the Government or
the military, and obviously that happens. However, there seems
to be increasing attempts by foreign actors to target
technology and trade secrets of our businesses, which is really
the key to our economic future here, the idea that we are a
country that invents things and we have to protect those
inventions to protect jobs in America.
We have seen cases involving people selling secrets to
China. There is a recent case involving Cargill, a Minnesota
company, with trade secrets being stolen.
Can you tell us why corporate espionage can be so harmful?
And is the DOJ working with private industry to try to address
this?
Attorney General Holder. Yes, this is really a 21st century
problem, one that we are working with our counterparts in the
private sector. I went to China to raise these concerns with my
counterparts there, with that government, and gave a speech in
Hong Kong where we brought together prosecutors from around the
world who deal with this issue.
We are dealing with an issue that is theft in its most
basic sense, but also has public safety implications. If we
have intellectual property that is stolen or trade secrets that
are stolen and then we have knock-offs that are made on the
basis of those secrets that are stolen that are not done in an
appropriate way, public safety can be affected. Drugs that are
made in that regard can have a negative impact on our
citizenry. And it is also a jobs question. As we talk so much
about the need to create jobs, these kinds of activities, this
theft, takes from the United States the ability to produce the
kinds of things that our entrepreneurs have invented in this
country and they are made in other countries. So it has a
negative economic consequence as well.
Senator Klobuchar. Very good. And I will put in the record
questions about metal theft. I am reintroducing that bill this
week, as well as the synthetic drug bill, which is making some
progress now, as you know, got through the Senate as part of
the medical development pharmaceutical approval bill and then
the FDA bill. Hopefully we can get it on through the conference
committee with the House since they have already passed that
version. I know we have talked about that before.
Attorney General Holder. Right.
Senator Klobuchar. But I will ask those questions for the
record.
Senator Klobuchar. Thank you very much, Attorney General.
Attorney General Holder. If I could just say one thing, the
synthetic drug bill that you point out is of real concern. What
we have seen in the last few weeks with regard to people who
potentially are on bath salts, those are issues that we need to
deal with as quickly as we can. So I applaud the effort that
has been made, and I would hope that there can be some kind of
coming together and passing that legislation as quickly as
possible.
Senator Klobuchar. Well, thank you, and I offered the one
on the synthetic hallucinogens, and Senator Grassley and
Senator Schumer each had different bills that we have combined.
And it is just--until you get out there and talk to people who
think that they were ordering something that was not that bad
or was the actual drug and then it was worse, you really get a
sense this is a very dangerous thing, especially in small towns
across our State.
Thank you.
Senator Franken [presiding]. Well, I am now Chairman, so I
will recognize myself. Thank you, Mr. Chairman.
Before I begin, I just want to take a moment to thank you,
Attorney General Holder, for this administration's public
support for the Student Non-Discrimination Act, a bill that
will protect LGBT students from discrimination and bullying in
the same way that students are currently protected against
discrimination on the basis of race and gender and country of
national origin and disability. The last time you were here, I
asked you why the administration was not publicly supporting
the bill, and you said you would look into it, and you did.
Thank you.
Mr. Attorney General, National Police Week was last month.
I visited with some officers who came to Washington from
Minnesota with a Thin Blue Line vehicle, a squad car that has
been transformed into a traveling memorial for Minnesota's
fallen officers. It was a touching reminder of the tremendous
sacrifice that our law enforcement officers, like Officer
Schneider from Lake City that Senator Klobuchar referred, make
every day, placing themselves in harm's way. And I know that
you share my concern about officer safety, as you replied in
response to Senator Klobuchar.
I would like to hear from you a little bit about the VALOR
Initiative, which you started in 2010. My Local Courthouse
Safety Act, which was reported out of this Committee by a voice
vote just a few weeks ago, would make that program permanent.
Could you please talk a little bit about why you started
the VALOR Initiative, what it does, and whether you think it
has been successful thus far? And I would also like to hear
your views as to whether the VALOR Initiative is duplicative of
existing Federal programs.
Attorney General Holder. Well, we saw in this increase of
officer deaths patterns that were starting to emerge. Senator
Klobuchar was talking about incidents where officers responding
to domestic violence complaints, officers who were serving
warrants, officers who were going after fugitives were
frequently the targets that resulted in fatalities. And we
tried to glean from the incidents that we saw if there were any
patterns and then tried to come up with ways in which we could
equip officers with defensive capabilities so that they would
be familiar with situations as they encountered them and
maximize their chances for survival.
We listened to people in the field. This was not a top-down
effort. It was something that was generated from the bottom up.
And I think we have been very successful. I think people who
have gone through the VALOR program have said that it is
extremely useful to them and has, we think, helped save lives.
I do not think it duplicates anything that we are presently
doing, and it is worthy of our continued support. We would like
to have more officers exposed to VALOR. We try to do train-the-
trainer efforts so that we can extend to greater numbers of
officers the awareness that I think VALOR creates.
Senator Franken. Thank you.
Mr. Attorney General, as you know, in January the Supreme
Court ruled unanimously that when police use a GPS device to
track a suspect's car for several weeks, they consider that a
search covered by the Fourth Amendment. While the Court did not
explicitly say so, experts think that this will mean that law
enforcement will need a warrant to track suspects in this way.
Indeed, in a letter I received last week, the Department
indicated that it recommends using a warrant to do this
tracking.
Without objection, I would like to add that letter to the
record.
[The letter appears as a submission for the record.]
Senator Franken. But in a brief filed before the Ninth
Circuit in April, the Department argued that, ``Installation
and use of a slap-on GPS tracking device is such a limited
intrusion that it should be justified based on reasonable
suspicion.''
Mr. Attorney General, is this the position of the
Department of Justice after the Jones case, that it does not
need a warrant to use a GPS device to track a person for weeks
or even months at a time?
Attorney General Holder. I am not sure about that Ninth
Circuit case, but I think the reading in Jones pretty clearly
indicates that we are dealing with a search under the Fourth
Amendment and that there is going to probably be the need for
warrants in connection with the use of those kinds of devices
under the facts of Jones.
I know that one of the things that we have argued is that
with regard to devices that were used prior to Jones, there is
a constitutional basis for those cases not to have issues, not
to have problems, or the cases need not be thrown out. And so I
do not know if that is one of those cases or not, but going
forward, from Jones going forward, I think we are likely to be
dealing in a situation where warrants will be needed.
Senator Franken. Thank you. I appreciate that.
Mr. Attorney General, last month I sent a letter to the
Department highlighting you concerns that Comcast's decision to
exempt its own content from its data cap for broadband service
is anticompetitive and will significantly harm the future of
online video options for consumers. I am worried that Verizon's
wireless agreements with major cable companies will make it
even harder from consumers to cut the cable cord and shift to
watching more video online. This is particularly true if
companies stop offering affordable stand-alone broadband
service, as Verizon just announced, and if companies like
Comcast impose discriminatory data caps.
Is the Department taking a close look at these issues in
the context of Verizon's agreements with the largest cable
companies?
Attorney General Holder. Well, Senator, what I will have to
do is get someone else to answer that question. I have been
recused in the Verizon matter. But I can say looking at the
Comcast matter that what we have tried to do as a result of the
interaction that we had with the parties is to set in place a
monitoring mechanism that I hope is working, something that to
the extent you have concerns about, we certainly want to hear
those so that we are making sure that we are doing all that we
thought the agreement would do. But with regard to the Verizon
matter itself, we have heard your question, and I will make
sure that we get an answer to you from somebody who is involved
in the case.
Senator Franken. Well, thank you. And I understand if you
are recused, you are recused. I just wanted you to know that
this is a very important issue to me. As you know, cable bills
in this country are out of control. Consumers want to be able
to cut the cord and watch television shows and movies online
rather than paying over $100 a month to their cable company to
get channels that they never watch and that they do not want to
watch and do not need.
Attorney General Holder. Mr. Chairman, I would be one of
those consumers.
Senator Franken. Yes, and we do not need to name those
channels.
[Laughter.]
Senator Franken. It is up to the Department to make sure
that these deals do not amount to a collusive bargain that will
ultimately harm consumers. That is my belief, and I hope if you
are considering approving these deals you will only do with
very strong conditions to protect the future of online video.
With that, I finish my questions and pass the gavel to the
Senator from Connecticut, Mr. Blumenthal.
Senator Blumenthal [presiding]. Thank you, Mr. Chairman.
Senator Franken. Thank you.
Senator Blumenthal. I note with regret--I am sure you will
regret--that I am the last person to be asking you questions
today. I am sure it has been a great experience and you wish it
would go on forever, but I think I am the last.
First of all, I want to say on a serious note that I join a
number of my colleagues--Senators Feinstein and Schumer--in
agreeing with you that the appropriate way, probably the most
timely and prompt way to investigate these very, very
unfortunate leaks is through the two United States Attorneys
whom you have appointed, and my view is that it represents the
quickest and most comprehensive way to begin an investigation
that could well lead to other means, but I think it is
perfectly appropriate. And I respect views on the other side
that there are other ways to do this job. But I disagree
strongly with the suggestion that that fact is a reason for you
even to consider resignation or any of the other reasons that
have been suggested here. And I would respectfully also suggest
that if we were here 6 months from now, the tone and tenor and
even the substance of this inquiry would be somewhat different,
a fact that is no doubt not unfamiliar to you.
But what I regret most is that there is an implicit attack
on the Department of Justice and on the United States
Attorneys, having served as one, in fact, having conducted an
investigation into a leak that occurred some decades ago, and I
just want to say for the record that I have strong confidence
in the Department of Justice as an institution and in your
service. I was not here when you were confirmed, but if I were
here again for your confirmation, I would vote for you. So for
what that is worth--being at this end of the table on seniority
probably not worth a whole lot, but I wanted to say it for the
record.
Attorney General Holder. No, that means a great deal,
Senator. You and I have known each other for a good number of
years. I have known you before you became a Senator. You were a
great prosecutor. And to have you say that means something to
me. It means a lot.
Senator Blumenthal. Thank you.
I want to ask--and I am sure that view is joined by others.
I know it is. And I hope that you will take some heart from the
confidence in your service.
I want to go to the subject of bath salts, synthetic drugs
that was raised by Senator Klobuchar. Do you see that problem
as a spreading phenomenon? Is it troubling to you as the head
of the Department of Justice?
Attorney General Holder. Yes, I see that as a very
significant problem and one that is expanding. The use of these
synthetic drugs, bath salts, by not only young people but older
people as well is something that I think we need to get on top
of before it spreads like other drugs have and where we are
trying to catch up. I think we have an opportunity here, if we
act smartly and in a fast fashion, to get a hold of this
problem before it spreads even more. But I think we have to
act. We really have to act.
Senator Blumenthal. On another item, which is also part of
the FDA reauthorization bill dealing with drug shortages,
again, Senator Klobuchar and I have worked on this issue,
shortages of drugs that are really the work horse medicines of
many emergency rooms--Doxil, which is used for cancer
treatment; propofol on anesthesiology. The President issued an
Executive order that required the FDA to refer to the
Department of Justice any instances of price gouging, price
fixing, similarly illegal activities that support a gray market
that raises the price of these drugs and thereby denies access
to them. And I wonder if you could either comment now or
perhaps submit later in writing information about whether the
FDA has, in fact, referred to you cases of drug shortages.
Attorney General Holder. Well, let us see. I would say that
maybe the best thing to do would be to respond in writing, but
I share the concerns that you have evidenced through your
question and the action that the President took. We have to try
to maximize the availability of these, as you call them, and I
think correctly so, ``work horse drugs'' to guard the safety,
the well-being, and the health of the American people. And to
the extent that the Justice Department can play a role in that,
I want to make sure that we are doing that. So I will take your
question, and we will answer that.
Senator Blumenthal. Great. Thank you.
[The information referred to appears as a submission for
the record.]
Senator Blumenthal. Another area that is somewhat related
having to do with investigations of unfortunate activities that
take advantage of the public trust, the Veterans Service
Organization is an issue that I have written to you about,
which seems to me to raise questions about the potential
exploiting of the best motives. We want to support veterans.
The Veterans Service Organization is a subject of a letter that
I have written to you. Again, you may want to come back to me
in writing about it. But it seems to me that the questions are
emblematic of others that have been asked about similar kinds
of charitable and perhaps well-motivated organizations that are
less effective than they should be and raise questions about
the integrity of those organizations.
Attorney General Holder. Yes, I think that we must make
sure that when people choose to make a donation to a charity,
that they are making that donation to a reputable charity, that
the money is going toward the purpose for which it is sought.
We work closely with the Federal Trade Commission and with the
IRS to investigate and, when necessary, initiate either civil
or criminal actions in that regard.
We also have to have, I think, an educational component to
this effort to make people aware of some of the deceptive
practices that are used, some of the ways in which people,
really unscrupulous people will wrap themselves around people
like veterans and other groups that we want to support and do
so for illicit purposes.
Senator Blumenthal. I was very glad to hear earlier your
testimony about VAWA and the administration's support for it,
and I hope that it will extend as well to the provisions of
VAWA that I advocated adding that relate to cyber stalking and
cyber harassment, which is a new area. I have heard you talk
about it very persuasively, and I hope that the administration
will help persuade the House to retain those measures in
whatever emerges from the House, which I hope will be soon.
Attorney General Holder. The thing that I like most about
the Senate bill--and that is one of the provisions, and it is
consistent with the history of VAWA, that every time it has
been reauthorized, it has been expanded to deal with the
problems as we confront them. The notion of putting into VAWA a
concern with and enforcement capability to deal with cyber
issues is totally consistent with what we are dealing with now
in 2012 that probably did not exist in the 1990's, maybe even
the early part of this decade to the extent that we now have
to. And so I think that provision and the other provisions that
the Senate has added make this a good bill for 2012, and my
hope would be that the House will find a way to support that
bill.
Senator Blumenthal. Thank you.
And, finally, on a matter that is closer to home, perhaps
not on your immediate radar, the East Haven investigation,
which involves, as you know, an inquiry into the performance of
local policing functions in East Haven and the allegations that
there have been discriminatory and unfair practices. There have
been criminal charges. I know there is an ongoing
investigation. The last time we discussed it in this forum--and
we have not discussed it privately--you noted that it is an
ongoing investigation. I do not know whether you can give us
some update at this point, but I would appreciate any that you
can.
Attorney General Holder. I am not sure that there is much
more that I can say given the nature of what it is we are still
in the process of doing. It is something that we have devoted a
significant amount of attention to, but I am not sure that I
can share much more than that. But let me do this: Let me take
back what you have--your question and let me see if there is a
way in which I can share any more information. I am not sure
that there is, but if there is an ability to do that, I will
get something back to you in writing.
Senator Blumenthal. I know that you have devoted a
significant amount of attention and time and resources to this
investigation, and thank you for the Department's excellent
performance there and in so many other areas.
And I think with that, I am going to adjourn the hearing
and hold the record open for 1 week. Thank you very much, Mr.
Attorney General.
Attorney General Holder. Thank you, Senator.
[Whereupon, at 12:47 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[GRAPHIC] [TIFF OMITTED] 81674.001
[GRAPHIC] [TIFF OMITTED] 81674.002
[GRAPHIC] [TIFF OMITTED] 81674.003
[GRAPHIC] [TIFF OMITTED] 81674.004
[GRAPHIC] [TIFF OMITTED] 81674.005
[GRAPHIC] [TIFF OMITTED] 81674.006
[GRAPHIC] [TIFF OMITTED] 81674.007
[GRAPHIC] [TIFF OMITTED] 81674.008
[GRAPHIC] [TIFF OMITTED] 81674.009
[GRAPHIC] [TIFF OMITTED] 81674.010
[GRAPHIC] [TIFF OMITTED] 81674.011
[GRAPHIC] [TIFF OMITTED] 81674.012
[GRAPHIC] [TIFF OMITTED] 81674.013
[GRAPHIC] [TIFF OMITTED] 81674.014
[GRAPHIC] [TIFF OMITTED] 81674.015
[GRAPHIC] [TIFF OMITTED] 81674.016
[GRAPHIC] [TIFF OMITTED] 81674.017
[GRAPHIC] [TIFF OMITTED] 81674.018
[GRAPHIC] [TIFF OMITTED] 81674.019
[GRAPHIC] [TIFF OMITTED] 81674.020
[GRAPHIC] [TIFF OMITTED] 81674.021
[GRAPHIC] [TIFF OMITTED] 81674.022
[GRAPHIC] [TIFF OMITTED] 81674.023
[GRAPHIC] [TIFF OMITTED] 81674.024
[GRAPHIC] [TIFF OMITTED] 81674.025
[GRAPHIC] [TIFF OMITTED] 81674.026
[GRAPHIC] [TIFF OMITTED] 81674.027
[GRAPHIC] [TIFF OMITTED] 81674.028
[GRAPHIC] [TIFF OMITTED] 81674.029
[GRAPHIC] [TIFF OMITTED] 81674.030
[GRAPHIC] [TIFF OMITTED] 81674.031
[GRAPHIC] [TIFF OMITTED] 81674.032
[GRAPHIC] [TIFF OMITTED] 81674.033
[GRAPHIC] [TIFF OMITTED] 81674.034
[GRAPHIC] [TIFF OMITTED] 81674.035
[GRAPHIC] [TIFF OMITTED] 81674.036
[GRAPHIC] [TIFF OMITTED] 81674.037
[GRAPHIC] [TIFF OMITTED] 81674.038
[GRAPHIC] [TIFF OMITTED] 81674.039
[GRAPHIC] [TIFF OMITTED] 81674.040
[GRAPHIC] [TIFF OMITTED] 81674.041
[GRAPHIC] [TIFF OMITTED] 81674.042
[GRAPHIC] [TIFF OMITTED] 81674.043
[GRAPHIC] [TIFF OMITTED] 81674.044
[GRAPHIC] [TIFF OMITTED] 81674.045
[GRAPHIC] [TIFF OMITTED] 81674.046
[GRAPHIC] [TIFF OMITTED] 81674.047
[GRAPHIC] [TIFF OMITTED] 81674.048
[GRAPHIC] [TIFF OMITTED] 81674.049
[GRAPHIC] [TIFF OMITTED] 81674.050
[GRAPHIC] [TIFF OMITTED] 81674.051
[GRAPHIC] [TIFF OMITTED] 81674.052
[GRAPHIC] [TIFF OMITTED] 81674.053
[GRAPHIC] [TIFF OMITTED] 81674.054
[GRAPHIC] [TIFF OMITTED] 81674.055
[GRAPHIC] [TIFF OMITTED] 81674.056
[GRAPHIC] [TIFF OMITTED] 81674.057
[GRAPHIC] [TIFF OMITTED] 81674.058
[GRAPHIC] [TIFF OMITTED] 81674.059
[GRAPHIC] [TIFF OMITTED] 81674.060
[GRAPHIC] [TIFF OMITTED] 81674.061
[GRAPHIC] [TIFF OMITTED] 81674.062
[GRAPHIC] [TIFF OMITTED] 81674.063
[GRAPHIC] [TIFF OMITTED] 81674.064
[GRAPHIC] [TIFF OMITTED] 81674.065
[GRAPHIC] [TIFF OMITTED] 81674.066
[GRAPHIC] [TIFF OMITTED] 81674.067
[GRAPHIC] [TIFF OMITTED] 81674.068
[GRAPHIC] [TIFF OMITTED] 81674.069
[GRAPHIC] [TIFF OMITTED] 81674.070
[GRAPHIC] [TIFF OMITTED] 81674.071
[GRAPHIC] [TIFF OMITTED] 81674.072
[GRAPHIC] [TIFF OMITTED] 81674.073
[GRAPHIC] [TIFF OMITTED] 81674.074
[GRAPHIC] [TIFF OMITTED] 81674.075
[GRAPHIC] [TIFF OMITTED] 81674.076
[GRAPHIC] [TIFF OMITTED] 81674.077
[GRAPHIC] [TIFF OMITTED] 81674.078
[GRAPHIC] [TIFF OMITTED] 81674.079
[GRAPHIC] [TIFF OMITTED] 81674.080
[GRAPHIC] [TIFF OMITTED] 81674.081
[GRAPHIC] [TIFF OMITTED] 81674.082
[GRAPHIC] [TIFF OMITTED] 81674.083
[GRAPHIC] [TIFF OMITTED] 81674.084
[GRAPHIC] [TIFF OMITTED] 81674.085
[GRAPHIC] [TIFF OMITTED] 81674.086
[GRAPHIC] [TIFF OMITTED] 81674.087
[GRAPHIC] [TIFF OMITTED] 81674.088
[GRAPHIC] [TIFF OMITTED] 81674.089
[GRAPHIC] [TIFF OMITTED] 81674.090
[GRAPHIC] [TIFF OMITTED] 81674.091
[GRAPHIC] [TIFF OMITTED] 81674.092
[GRAPHIC] [TIFF OMITTED] 81674.093
[GRAPHIC] [TIFF OMITTED] 81674.094
[GRAPHIC] [TIFF OMITTED] 81674.095
[GRAPHIC] [TIFF OMITTED] 81674.096
[GRAPHIC] [TIFF OMITTED] 81674.097
[GRAPHIC] [TIFF OMITTED] 81674.098
[GRAPHIC] [TIFF OMITTED] 81674.099
[GRAPHIC] [TIFF OMITTED] 81674.100
[GRAPHIC] [TIFF OMITTED] 81674.101
[GRAPHIC] [TIFF OMITTED] 81674.102
[GRAPHIC] [TIFF OMITTED] 81674.103
[GRAPHIC] [TIFF OMITTED] 81674.104
[GRAPHIC] [TIFF OMITTED] 81674.105
[GRAPHIC] [TIFF OMITTED] 81674.106
[GRAPHIC] [TIFF OMITTED] 81674.107
[GRAPHIC] [TIFF OMITTED] 81674.108
[GRAPHIC] [TIFF OMITTED] 81674.109
[GRAPHIC] [TIFF OMITTED] 81674.110
[GRAPHIC] [TIFF OMITTED] 81674.111
[GRAPHIC] [TIFF OMITTED] 81674.112
[GRAPHIC] [TIFF OMITTED] 81674.113
[GRAPHIC] [TIFF OMITTED] 81674.114
[GRAPHIC] [TIFF OMITTED] 81674.115
[GRAPHIC] [TIFF OMITTED] 81674.116
[GRAPHIC] [TIFF OMITTED] 81674.117
[GRAPHIC] [TIFF OMITTED] 81674.118
[GRAPHIC] [TIFF OMITTED] 81674.119
[GRAPHIC] [TIFF OMITTED] 81674.120
[GRAPHIC] [TIFF OMITTED] 81674.121
[GRAPHIC] [TIFF OMITTED] 81674.122
[GRAPHIC] [TIFF OMITTED] 81674.123
[GRAPHIC] [TIFF OMITTED] 81674.124
[GRAPHIC] [TIFF OMITTED] 81674.125
[GRAPHIC] [TIFF OMITTED] 81674.126
[GRAPHIC] [TIFF OMITTED] 81674.127
[GRAPHIC] [TIFF OMITTED] 81674.128
[GRAPHIC] [TIFF OMITTED] 81674.129
[GRAPHIC] [TIFF OMITTED] 81674.130
[GRAPHIC] [TIFF OMITTED] 81674.131
[GRAPHIC] [TIFF OMITTED] 81674.132
[GRAPHIC] [TIFF OMITTED] 81674.133
[GRAPHIC] [TIFF OMITTED] 81674.134
[GRAPHIC] [TIFF OMITTED] 81674.135
[GRAPHIC] [TIFF OMITTED] 81674.136
[GRAPHIC] [TIFF OMITTED] 81674.137
[GRAPHIC] [TIFF OMITTED] 81674.138
[GRAPHIC] [TIFF OMITTED] 81674.139
[GRAPHIC] [TIFF OMITTED] 81674.140
[GRAPHIC] [TIFF OMITTED] 81674.141
[GRAPHIC] [TIFF OMITTED] 81674.142
[GRAPHIC] [TIFF OMITTED] 81674.143
[GRAPHIC] [TIFF OMITTED] 81674.144
[GRAPHIC] [TIFF OMITTED] 81674.145
[GRAPHIC] [TIFF OMITTED] 81674.146
[GRAPHIC] [TIFF OMITTED] 81674.147
[GRAPHIC] [TIFF OMITTED] 81674.148
[GRAPHIC] [TIFF OMITTED] 81674.149
[GRAPHIC] [TIFF OMITTED] 81674.150
[GRAPHIC] [TIFF OMITTED] 81674.151
[GRAPHIC] [TIFF OMITTED] 81674.152
[GRAPHIC] [TIFF OMITTED] 81674.153
[GRAPHIC] [TIFF OMITTED] 81674.154
[GRAPHIC] [TIFF OMITTED] 81674.155
[GRAPHIC] [TIFF OMITTED] 81674.156
[GRAPHIC] [TIFF OMITTED] 81674.157
[GRAPHIC] [TIFF OMITTED] 81674.158
[GRAPHIC] [TIFF OMITTED] 81674.159
[GRAPHIC] [TIFF OMITTED] 81674.160
[GRAPHIC] [TIFF OMITTED] 81674.161
[GRAPHIC] [TIFF OMITTED] 81674.162
[GRAPHIC] [TIFF OMITTED] 81674.163
[GRAPHIC] [TIFF OMITTED] 81674.164
[GRAPHIC] [TIFF OMITTED] 81674.165
[GRAPHIC] [TIFF OMITTED] 81674.166
[GRAPHIC] [TIFF OMITTED] 81674.167
[GRAPHIC] [TIFF OMITTED] 81674.168
[GRAPHIC] [TIFF OMITTED] 81674.169
[GRAPHIC] [TIFF OMITTED] 81674.170
[GRAPHIC] [TIFF OMITTED] 81674.171
[GRAPHIC] [TIFF OMITTED] 81674.172
[GRAPHIC] [TIFF OMITTED] 81674.173
[GRAPHIC] [TIFF OMITTED] 81674.174
[GRAPHIC] [TIFF OMITTED] 81674.175
[GRAPHIC] [TIFF OMITTED] 81674.176
[GRAPHIC] [TIFF OMITTED] 81674.177
[GRAPHIC] [TIFF OMITTED] 81674.178
[GRAPHIC] [TIFF OMITTED] 81674.179
[GRAPHIC] [TIFF OMITTED] 81674.180
[GRAPHIC] [TIFF OMITTED] 81674.181
[GRAPHIC] [TIFF OMITTED] 81674.182
[GRAPHIC] [TIFF OMITTED] 81674.183
[GRAPHIC] [TIFF OMITTED] 81674.184
[GRAPHIC] [TIFF OMITTED] 81674.185
[GRAPHIC] [TIFF OMITTED] 81674.186
[GRAPHIC] [TIFF OMITTED] 81674.187
[GRAPHIC] [TIFF OMITTED] 81674.188
[GRAPHIC] [TIFF OMITTED] 81674.189
[GRAPHIC] [TIFF OMITTED] 81674.190
[GRAPHIC] [TIFF OMITTED] 81674.191
[GRAPHIC] [TIFF OMITTED] 81674.192
[GRAPHIC] [TIFF OMITTED] 81674.193
[GRAPHIC] [TIFF OMITTED] 81674.194
[GRAPHIC] [TIFF OMITTED] 81674.195
[GRAPHIC] [TIFF OMITTED] 81674.196
[GRAPHIC] [TIFF OMITTED] 81674.197
[GRAPHIC] [TIFF OMITTED] 81674.198
[GRAPHIC] [TIFF OMITTED] 81674.199
[GRAPHIC] [TIFF OMITTED] 81674.200
[GRAPHIC] [TIFF OMITTED] 81674.201
[GRAPHIC] [TIFF OMITTED] 81674.202
[GRAPHIC] [TIFF OMITTED] 81674.203
[GRAPHIC] [TIFF OMITTED] 81674.204
[GRAPHIC] [TIFF OMITTED] 81674.205
[GRAPHIC] [TIFF OMITTED] 81674.206
[GRAPHIC] [TIFF OMITTED] 81674.207
[GRAPHIC] [TIFF OMITTED] 81674.208
[GRAPHIC] [TIFF OMITTED] 81674.209
[GRAPHIC] [TIFF OMITTED] 81674.210
[GRAPHIC] [TIFF OMITTED] 81674.211
[GRAPHIC] [TIFF OMITTED] 81674.212
[GRAPHIC] [TIFF OMITTED] 81674.213
[GRAPHIC] [TIFF OMITTED] 81674.214
[GRAPHIC] [TIFF OMITTED] 81674.215
[GRAPHIC] [TIFF OMITTED] 81674.216
[GRAPHIC] [TIFF OMITTED] 81674.217
[GRAPHIC] [TIFF OMITTED] 81674.218
[GRAPHIC] [TIFF OMITTED] 81674.219
[GRAPHIC] [TIFF OMITTED] 81674.220
[GRAPHIC] [TIFF OMITTED] 81674.221
[GRAPHIC] [TIFF OMITTED] 81674.222
[GRAPHIC] [TIFF OMITTED] 81674.223
[GRAPHIC] [TIFF OMITTED] 81674.224
[GRAPHIC] [TIFF OMITTED] 81674.225
[GRAPHIC] [TIFF OMITTED] 81674.226
[GRAPHIC] [TIFF OMITTED] 81674.227
[GRAPHIC] [TIFF OMITTED] 81674.228
[GRAPHIC] [TIFF OMITTED] 81674.229
[GRAPHIC] [TIFF OMITTED] 81674.230
[GRAPHIC] [TIFF OMITTED] 81674.231
[GRAPHIC] [TIFF OMITTED] 81674.232
[GRAPHIC] [TIFF OMITTED] 81674.233
[GRAPHIC] [TIFF OMITTED] 81674.234
[GRAPHIC] [TIFF OMITTED] 81674.235
[GRAPHIC] [TIFF OMITTED] 81674.236
[GRAPHIC] [TIFF OMITTED] 81674.237
[GRAPHIC] [TIFF OMITTED] 81674.238
[GRAPHIC] [TIFF OMITTED] 81674.239
[GRAPHIC] [TIFF OMITTED] 81674.240
[GRAPHIC] [TIFF OMITTED] 81674.241
[GRAPHIC] [TIFF OMITTED] 81674.242
[GRAPHIC] [TIFF OMITTED] 81674.243
[GRAPHIC] [TIFF OMITTED] 81674.244
[GRAPHIC] [TIFF OMITTED] 81674.245
[GRAPHIC] [TIFF OMITTED] 81674.246
[GRAPHIC] [TIFF OMITTED] 81674.247
[GRAPHIC] [TIFF OMITTED] 81674.248
[GRAPHIC] [TIFF OMITTED] 81674.249
[GRAPHIC] [TIFF OMITTED] 81674.250
[GRAPHIC] [TIFF OMITTED] 81674.251
[GRAPHIC] [TIFF OMITTED] 81674.252
[GRAPHIC] [TIFF OMITTED] 81674.253
[GRAPHIC] [TIFF OMITTED] 81674.254
[GRAPHIC] [TIFF OMITTED] 81674.255
[GRAPHIC] [TIFF OMITTED] 81674.256
[GRAPHIC] [TIFF OMITTED] 81674.257
[GRAPHIC] [TIFF OMITTED] 81674.258
[GRAPHIC] [TIFF OMITTED] 81674.259
[GRAPHIC] [TIFF OMITTED] 81674.260
[GRAPHIC] [TIFF OMITTED] 81674.261
[GRAPHIC] [TIFF OMITTED] 81674.262
[GRAPHIC] [TIFF OMITTED] 81674.263
[GRAPHIC] [TIFF OMITTED] 81674.264
[GRAPHIC] [TIFF OMITTED] 81674.265
[GRAPHIC] [TIFF OMITTED] 81674.266
[GRAPHIC] [TIFF OMITTED] 81674.267
[GRAPHIC] [TIFF OMITTED] 81674.268
[GRAPHIC] [TIFF OMITTED] 81674.269
[GRAPHIC] [TIFF OMITTED] 81674.270
[GRAPHIC] [TIFF OMITTED] 81674.271
[GRAPHIC] [TIFF OMITTED] 81674.272
[GRAPHIC] [TIFF OMITTED] 81674.273
[GRAPHIC] [TIFF OMITTED] 81674.274
[GRAPHIC] [TIFF OMITTED] 81674.275
[GRAPHIC] [TIFF OMITTED] 81674.276
[GRAPHIC] [TIFF OMITTED] 81674.277
[GRAPHIC] [TIFF OMITTED] 81674.278
[GRAPHIC] [TIFF OMITTED] 81674.279
[GRAPHIC] [TIFF OMITTED] 81674.280
[GRAPHIC] [TIFF OMITTED] 81674.281
[GRAPHIC] [TIFF OMITTED] 81674.282
[GRAPHIC] [TIFF OMITTED] 81674.283
[GRAPHIC] [TIFF OMITTED] 81674.284
[GRAPHIC] [TIFF OMITTED] 81674.285
[GRAPHIC] [TIFF OMITTED] 81674.286
[GRAPHIC] [TIFF OMITTED] 81674.287
[GRAPHIC] [TIFF OMITTED] 81674.288
[GRAPHIC] [TIFF OMITTED] 81674.289
[GRAPHIC] [TIFF OMITTED] 81674.290
[GRAPHIC] [TIFF OMITTED] 81674.291
[GRAPHIC] [TIFF OMITTED] 81674.292
[GRAPHIC] [TIFF OMITTED] 81674.293
[GRAPHIC] [TIFF OMITTED] 81674.294
[GRAPHIC] [TIFF OMITTED] 81674.295
[GRAPHIC] [TIFF OMITTED] 81674.296
[GRAPHIC] [TIFF OMITTED] 81674.297
[GRAPHIC] [TIFF OMITTED] 81674.298
[GRAPHIC] [TIFF OMITTED] 81674.299
[GRAPHIC] [TIFF OMITTED] 81674.300
[GRAPHIC] [TIFF OMITTED] 81674.301
[GRAPHIC] [TIFF OMITTED] 81674.302
[GRAPHIC] [TIFF OMITTED] 81674.303