[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




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                                                        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.]


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