[Senate Hearing 113-871]
[From the U.S. Government Publishing Office]





                                                        S. Hrg. 113-871

                            OVERSIGHT OF THE
                       U.S. DEPARTMENT OF JUSTICE

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 6, 2013

                               __________

                           Serial No. J-113-6

                               __________

         Printed for the use of the Committee on the Judiciary




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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California         CHUCK GRASSLEY, Iowa, Ranking 
CHUCK SCHUMER, New York                  Member
DICK DURBIN, Illinois                ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
MAZIE HIRONO, Hawaii                 JEFF FLAKE, Arizona
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director
        
        
        
        
        
        
        
        
        
        
        
        
        
        
        
        
        
        
        
        
        
        
                            C O N T E N T S

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                   WEDNESDAY, MARCH 6, 2013 9:40 A.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................    52

                                WITNESS

Witness List.....................................................    45
Holder, Hon. Eric H., Jr., Attorney General, U.S. Department of 
  Justice........................................................     7
    prepared statement...........................................    46

                               QUESTIONS

Questions submitted to Hon. Eric H. Holder, Jr., by Senator 
  Franken........................................................    54
Questions submitted to Hon. Eric H. Holder, Jr., by Senator 
  Grassley.......................................................    56

                                ANSWERS

Responses of Hon. Eric H. Holder, Jr., to questions submitted by 
  Senator Franken................................................   157
Responses of Hon. Eric H. Holder, Jr., to questions submitted by 
  Senator Grassley...............................................    90

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

Reporters Committee for Freedom of the Press (RCFP), March 1, 
  2013, letter .................................................    159



 
                           OVERSIGHT OF THE 
                       U.S. DEPARTMENT OF JUSTICE

                              ----------                              


                        WEDNESDAY, MARCH 6, 2013

                      United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 9:40 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Feinstein, Schumer, Durbin, 
Whitehouse, Klobuchar, Franken, Coons, Blumenthal, Hirono, 
Grassley, Hatch, Sessions, Graham, Cornyn, Lee, Cruz, and 
Flake.

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

    Chairman Leahy. The Attorney General is here, and the 
session will be in order. Mr. Attorney General, if you would 
join us, please.
    Because the session has begun, nobody will stand and block 
people behind them, with placards or otherwise. This is a 
meeting of the United States Senate Judiciary Committee. 
Everybody here is a guest of the Senate, and we expect you to 
be aware of all your fellow guests. And I realize some have 
differing views, but everybody has an opportunity to be here. 
And I would hope that nobody would be so arrogant that they 
would feel that they should have an ability to view and block 
the view of others.
    This week is the anniversary of ``Bloody Sunday,'' when 
voting rights marchers, including now-Congressman John Lewis, 
were beaten by State troopers as they attempted to cross the 
Edmund Pettus Bridge in Selma. Attorney General Holder spoke 
this weekend about living up to our founding ideals and the 
power of our legal system. The law, as we know, protects the 
rights of all Americans. That is what this Attorney General and 
the Justice Department he leads are dedicated to doing.
    In 2009, the Attorney General worked with us in Congress to 
pass landmark hate crimes legislation to address crimes 
committed against Americans because of race, ethnicity, 
religion, sexual orientation, or gender identity. And, Mr. 
Attorney General, I am glad to see that the Justice Department 
is enforcing that law. This week, the President will sign 
historic legislation building upon the Violence Against Women 
Act and the Trafficking Victims Protection Act to protect all 
victims of abuse. And I know the Justice Department will 
implement those laws.
    And the Justice Department is defending the protections 
provided by Section 5 of the Voting Rights Act to ensure that 
all Americans have the right to vote and to have their votes 
matter. And this Committee played a key role in reauthorizing 
the Voting Rights Act 6 years ago. After nearly 20 hearings, 
thousands of pages of testimony, before the House and Senate 
Judiciary Committees, we found that modern-day barriers to 
voting persist in our country. We passed the bill, and 
President Bush signed the current extension of the Voting 
Rights Act in order to safeguard the fundamental rights of all 
Americans. I remember talking to President Bush the day of the 
signing and how proud he was to be signing it and that 
Republicans and Democrats had come together to craft that 
legislation because of this need.
    Now, I commend the Attorney General, FBI Director Mueller, 
and all those who work every day to keep Americans safe. The 
followup attack to 9/11 that so many predicted has not 
occurred--not on this President's watch. Constant vigilance is 
part of the reason. And I think Senator Grassley will 
understand why I will not go into this in specific, but I also 
thank the Attorney General for reaching out not only to me but 
to Senator Grassley on issues of national security.
    While the Department's success in disrupting threats to 
national security has been remarkable and its efforts to hold 
terrorists accountable commendable, I remain deeply troubled 
that the Committee has not yet received the materials I have 
requested regarding the legal rationale for the targeted 
killing of United States citizens overseas. I am not alone in 
my frustration or in my waning patience. The relevant Office of 
Legal Counsel memoranda should have been provided to members of 
this Committee, and I am glad at least to see it was provided 
to Senator Feinstein's Intelligence Committee. But I think that 
some of the votes that will perhaps be cast against a nominee 
that has just come out of her Committee will be because of the 
inability to get that memo here. It is our responsibility to 
make sure that the tools used by our Government are consistent 
with our Constitution.
    We have worked together effectively to help keep Americans 
safe from crime and to help crime victims rebuild their lives. 
We have worked to strengthen Federal law enforcement and to 
support State and local law enforcement, and crime rates have 
experienced a historic decline despite the struggling economy.
    I remember the hearing that Senator Coons had in Delaware 
where we saw police, parole officers, members of the community, 
and everybody else coming together and bringing out the fact 
that we have to all work together to lower crime.
    We have worked hard to fight fraud and corporate 
wrongdoing. Congress passed the Fraud Enforcement and Recovery 
Act, which Senator Grassley and I drafted together, and 
important new anti-fraud provisions as part of the Affordable 
Care Act and the Dodd-Frank Wall Street Reform Act. Armed with 
these new tools, the Justice Department has broken records over 
the last several years for civil and criminal fraud recoveries 
and has increased the number of fraud prosecutions.
    This Committee has also worked with the Department to try 
to ensure that the criminal justice system works as it should. 
This month marks the 50th anniversary of the Supreme Court 
decision in Gideon v. Wainwright, which affirmed that no person 
should face prosecution without the assistance of a lawyer. And 
I remember as a young lawyer reading the book on that--I 
believe it was ``Gideon's Trumpet''--and how much that 
impressed me. I am encouraged by the Justice Department's 
Access to Justice Office, but we need to do more to ensure 
justice for all. I was glad to see the announcement of a joint 
initiative to help standardize and improve forensic science 
across the country, incorporating many of the ideas from my 
Criminal Justice and Forensic Science Reform Act.
    I appreciate the Attorney General joining me in recognizing 
the mounting problem of our growing prison population. This is 
having devastating consequences at a time of shrinking budgets 
at all levels of Government. But also there is a human cost, 
and we have to find constructive ways to solve it. Turning away 
from excessive sentences and mandatory minimums for nonviolent 
offenders would be a good start.
    When the Senate confirmed Attorney General Holder 4 years 
ago, the Department of Justice was still reeling from scandal, 
mismanagement, and findings of impermissible politicization. 
Since that time, the credibility of the Justice Department 
among the American people but also very importantly in 
courtrooms throughout the country has increased dramatically, 
and I am glad to see that the morale of its hard-working 
agents, prosecutors, and professionals, many of whom have been 
there from both Republican and Democratic administrations, has 
improved considerably.
    Again, I apologize for the allergies and the voice, but----
    Senator Grassley. Before I speak, could you inform us how 
you will handle it when we vote?
    Chairman Leahy. Oh, Senator Grassley raises a very good 
point. Apparently we have a vote scheduled for, what, 10:30?
    Senator Grassley. 10:30.
    Chairman Leahy. I would encourage us, obviously, if someone 
is asking questions, to continue it. I think for the sake of 
time we will keep the Committee meeting going and try to get 
out and vote as quickly as possible and come back as quickly as 
possible.
    Senator Grassley. And I will have to go over at some time 
for short remarks on that issue before we vote on it.
    Chairman Leahy. You and me both.
    Senator Grassley. Okay.
    Chairman Leahy. So go ahead.

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

    Senator Grassley. Welcome, General Holder. This hearing 
affords us the opportunity to clear the deck on many 
outstanding letters and questions that we have yet to receive 
from the Department.
    Example: We have not received questions for the record from 
the last oversight hearing held 9 months ago. We also have 
questions for the record from Department officials that 
testified at various hearings that remain outstanding.
    In addition, there are a number of inquiries that have not 
received a response on important issues. I cannot go through 
all of them, but an example, I have not received a response to 
a letter I sent last week on the impact of the budget 
sequester. Another letter is outstanding on the failure to 
prosecute individuals at HSBC for money laundering. That one 
was sent in December. Finally, I have an outstanding request 
related to the investigation Fast and Furious, including one 
that will be outstanding for a year March 9th.
    It is unfortunate that we always have to start hearings 
with the same request of the Attorney General to respond to 
unanswered questions. That said, I have a number of topics that 
I want to discuss with the Attorney General, including the 
latest letter to Senator Paul arguing in favor of the 
President's ability to use military force to kill American 
citizens on U.S. soil without due process of law. This letter 
is extremely concerning, not just in its content but coupled 
with the classified memoranda that have been shared with just a 
few Members of Congress. It leaves many questions for Americans 
about we the Government can kill them.
    This oversight hearing also comes on the heels of an 
extremely important hearing before the House Judiciary on the 
topic of targeted killing of Americans using unmanned drones. 
This is an issue which Chairman Leahy already referred to and I 
have asked repeatedly the Attorney General about. 
Unfortunately, our letters on this matter have also gone 
unanswered, including our most recent letter to President Obama 
seeking access to classified memoranda authorizing the targeted 
killings of Americans abroad that were produced to members of 
the Select Committee on Intelligence but not members of the 
Judiciary Committee. And the Chairman also just made reference 
to that.
    A couple of weeks ago, at the Committee Executive Business 
session held in the U.S. Capitol Building, I joined Chairman 
Leahy, Senator Feinstein, and Senator Durbin in discussing the 
importance of the Judiciary Committee obtaining these documents 
as part of our legitimate oversight function. Despite opinions 
of this administration and the previous one to the contrary, 
Congress has a significant role to play in conducting oversight 
of national security matters. We have the right to ask for and 
receive classified information through appropriate channels and 
subject to protections to determine if the activities of the 
executive branch are appropriate.
    This Committee has precedent of obtaining the most highly 
classified information within the Government. Example: In 
reauthorizing and overseeing the FISA Amendments Act, we 
obtained and continue to obtain highly classified information 
regarding the operation of this important function. Similarly, 
we obtained classified information during the reauthorization 
of the USA PATRIOT Act and as part of the oversight conducted 
by the Committee reviewing the enhanced interrogation 
techniques and the role OLC played in issuing those memoranda.
    In light of the March 4, 2013, letter to Senator Rand Paul 
where the Attorney General argued that the President could 
authorize the military to use lethal force on a U.S. citizen on 
U.S. soil in an effort to protect the U.S. from a catastrophic 
attack, it is imperative that we understand the operational 
boundaries for use of such force. While the letter deals with 
what is labeled ``extraordinary circumstances,'' American 
citizens have a right to understand when their life can be 
taken by their Government absent due process. Providing these 
memoranda for review would go a long way toward complying with 
the President's original election promise to have the most 
transparent administration ever.
    I will move on to another issue: gun violence. Tomorrow, 
the Committee begins a markup. We have held three hearings on 
the topic over the past 2 months and twice heard from the 
Justice Department witnesses. Both times the Department 
testified, we heard a reiteration of the Department's support 
of a ban on semiautomatic rifles with certain cosmetic features 
deemed ``assault rifles.''
    However, both times, when I asked whether the Department 
had issued an official opinion determining whether such a ban 
is constitutional under the Second Amendment in light of the 
Heller case, I heard that no opinion has been issued. Given 
that we are marking up the bills tomorrow, it would be good to 
hear from the Attorney General that he will be releasing such 
an opinion today so members would have time to read it in 
advance of tomorrow's markup.
    On another subject, to discuss the Department's continued 
failure to criminally prosecute those who commit fraud and 
wrongdoing at large financial firms. As a result, these 
companies settle for pennies on the dollar, and the costs of 
these fines simply become the cost of doing business for these 
institutions. It has led many to believe that financial 
institutions too big to fail by the Treasury Department are 
also too big to jail. What is even more disturbing is that 
while this distinction was mostly reserved for financial 
crimes, a position I find flawed in its own regard, this policy 
appears to have seeped into other misconduct enforced by the 
Department.
    Example: December 2012, the Department entered into a 
Deferred Protection Agreement, a DPA, with the bank HSBC, and 
that is a global bank, as you know, violating Federal laws 
designed to prevent drug lords and terrorists from laundering 
money in the United States.
    Let me repeat: a Deferred Prosecution Agreement for a 
company involved in money laundering for drug lords and 
terrorists.
    I sent a letter to the Attorney General expressing my 
outrage at the DPA on December 13th. I asked why no employees, 
not even the ones who turned off the anti-money-laundering 
filters, were prosecuted. Further, Senator Brown of Ohio and I 
sent a letter in January seeking the rationale for why no 
individuals at these large financial institutions were 
prosecuted. The response was woeful and failed to actually 
answer our questions, leading us to question whether the 
Department has something to hide.
    Simply put, this is a leadership problem and one that needs 
to be fixed, and fixed quickly. This will be a big part of any 
effort to confirm a new Assistant Attorney General for the 
Criminal Division.
    I also want to hear from the Attorney General about a 
concerning new study issued by the Government Accountability 
Office. I requested GAO conduct this report to detail the use 
of Department-owned luxury jets by Department executives for 
non-mission travel, some of which included personal travel. The 
Department executives reimbursed the Government for part of the 
trip, but only the costs at regular coach fare. This is 
significantly less than the tens of thousands of dollars an 
hour that these planes cost. That report found that between 
Fiscal Year 2007, which was obviously in the Bush years, to 
Fiscal Year 2011, the Department's executive non-mission travel 
for these luxury jets totaled 60 percent of the flight time. 
These flights accounted for $11.4 million of taxpayers' 
expenditures for non-mission travel.
    Now, nobody has any argument with the use of these planes 
or the necessity of these planes for mission travel. In light 
of sequester and the general dire fiscal situation the Federal 
Government faces, this travel was concerning. Yet it was 
especially concerning given that the justification provided to 
Congress in 2010 was for counterterrorism missions. While the 
Attorney General and the FBI Director are now both required-use 
travelers, meaning they are required by executive branch policy 
to take Government aircraft for even personal travel, GAO found 
that until recently the FBI Director has the discretion to use 
commercial air service for personal travel, which he elected to 
do most of the time to save the use of Government funds.
    This GAO report raises a number of troubling questions, 
especially in light of the proposed spending reductions because 
of the sequester. Most pressing is should the executives at the 
Department be using these planes for non-mission travel on a 
jet purchased for counterterrorism missions.
    I yield the floor. I have more to say, but I have said 
enough.
    Chairman Leahy. Thank you.
    What we will do is we will--and again I would add that I 
realize some in the audience feel very committed to their 
positions and apparently feel that whatever their position is 
is far more important than anybody else who might be sitting 
here. But I would ask them not to block other people. This is 
an important open hearing. We welcome everybody whether you 
agree with us or not, but I think you have a responsibility to 
the people who are also trying to do it and that they also may 
feel that they have an important reason for being here.
    Mr. Attorney General, earlier this week I worked with 
Senator Collins in a bipartisan group of Senators to introduce 
a bill to address the problems of firearms trafficking and 
straw purchasing. I think we all agree the current law needs to 
be strengthened and fixed to close the gaps that make it too 
easy for violent criminals, gangs, and drug-trafficking 
organizations to obtain guns.
    Do you agree that there is a need for specific statutes 
criminalizing gun trafficking and straw purchasing?
    Attorney General Holder. Yes, Mr. Chairman. There is no 
question that there is the need for a stand-alone trafficking 
bill. What we now have is a hodgepodge where people, straw 
purchasers, buy guys for other people, and we only are able to 
prosecute them for what we call ``paper violations'' that are 
both inadequate and not likely to induce cooperation from 
people who we are charging. So the stand-alone trafficking bill 
is something that we really support.
    Chairman Leahy. And, Mr. Attorney General, I realize--and I 
cannot claim it is because I am new to the Committee--I forgot 
to give you a chance to give your opening statement. Please 
give your opening statement.
    [Laughter.]

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

    Attorney General Holder. Chairman Leahy, Ranking Member 
Grassley, and distinguished members of the Committee, I really 
appreciate this opportunity to provide an overview of the 
Justice Department's recent achievements and the 
accomplishments that my colleagues--the 116,000 dedicated men 
and women who serve in offices around the world--have made 
possible. I look forward to working with you all to take our 
critical efforts to a new level.
    But before we begin this discussion, I must acknowledge the 
debt our Nation owes to three correctional workers employed by 
the Federal Bureau of Prisons who over the last week and a half 
have made the ultimate sacrifice: Officer Eric Williams, 
Officer Gregory Vineski, and Lieutenant Osvaldo Albarati. As 
Attorney General and also as the brother of a retired police 
officer, I am determined to ensure that those responsible for 
the acts that led to the deaths of these three brave 
individuals are brought to justice. And my colleagues and I are 
committed to honoring the service of these and other fallen 
officers by doing everything in our power to keep the women and 
men in law enforcement safe and to continue the work that 
became the cause of their lives.
    In this regard, I am proud to report that the Department 
has made tremendous progress in combating violent crime, 
battling financial fraud, upholding the civil rights of all, 
safeguarding the most vulnerable members of our society, and 
protecting the American people from terrorism and other 
national security threats.
    Particularly since the horrific tragedy in December in 
Newtown, Connecticut, the urgency of our public safety efforts 
has really come into sharp focus. Earlier this year, I joined 
Vice President Biden and a number of my fellow Cabinet members 
to develop common-sense recommendations to reduce gun violence, 
to keep deadly weapons out of the hands of those prohibited 
from having them, and to make our neighborhoods and our schools 
more secure. In January, President Obama announced a 
comprehensive plan that includes a series of 23 executive 
actions that the Justice Department and other agencies are 
working to implement and a range of common-sense legislative 
proposals.
    This morning, I am pleased to join the President, the Vice 
President, and countless Americans in calling on Congress to 
enact legislation addressing gun violence, including measures 
to require universal background checks, to impose tough 
penalties on gun traffickers, as I just indicated, to protect 
law enforcement officers by addressing armor-piercing 
ammunition, to ban high-capacity magazines and to ban military-
style assault weapons, and to eliminate misguided restrictions 
that require Federal agents to allow the importation of 
dangerous weapons simply because of their age.
    I am also pleased to echo the President's call for the 
Senate to confirm Todd Jones as Director of the Bureau of 
Alcohol, Tobacco, Firearms, and Explosives--a critical Justice 
Department component that has been without a Senate-confirmed 
head for 6 years.
    Now, of course, in addition to the administration's efforts 
to reduce gun violence, we remain focused on preventing gun-, 
gang-, and drug-fueled violence in all of its forms; and we are 
determined to combat domestic violence as well. Now, in 
strengthening this work, I applaud Congress for passing a 
bipartisan reauthorization of the Violence Against Women Act, a 
landmark law that has transformed the way that we respond to 
domestic violence. And I am pleased that this bill will finally 
close a loophole that left many Native American women without 
adequate protection. The Justice Department looks forward to 
implementing this historic legislation, and we are committed to 
moving in a range of ways to become both smarter and tougher on 
crime and to remain aggressive and fair in our enforcement of 
Federal laws.
    Now, thanks to countless Department employees and partners, 
we have achieved, I think, extraordinary results. And nowhere 
is this clearer than in our work to protect America's national 
security. Since 2009, the Department has brought cases--and 
secured convictions--against numerous terrorists. We have 
identified and disrupted multiple plots by foreign terrorist 
groups as well as homegrown extremists. Article III works, the 
Article III courts work. And we have worked to combat emerging 
national security threats, such as cyber intrusions and cyber 
attacks directed against our systems and infrastructure by 
nation states and non-state actors, including terrorist groups. 
Last summer, the Department created the National Security Cyber 
Specialists network to spearhead these efforts. The network is 
comprised of prosecutors and other cyber specialists across the 
country who will work closely with the FBI and other partners 
to investigate malicious cyber activity, seek any necessary 
cooperation, and then, where appropriate, to bring criminal 
prosecutions as part of our governmentwide effort to deter and 
disrupt cyber threats to our national security.
    Beyond this work, the Department has taken significant 
steps to ensure robust enforcement of antitrust laws, to 
protect the environment, to crack down on tax fraud schemes, 
and to address financial and health care fraud crimes. In 
cooperation with the Department of Health and Human Services 
and others, over the last Fiscal Year alone, we secured a 
record $4.2 billion in recoveries related to health care fraud 
and abuse. As a result of our commitment to achieve justice on 
behalf of the victims of the 2010 Deepwater Horizon oil spill, 
in January we secured a guilty plea and a record $4 billion 
fine, criminal fine, and penalties from BP; and in February, 
the court approved a settlement requiring Transocean to pay 
$1.4 billion in fines and penalties. And on February 25th, we 
commenced trial of our civil claims against BP and others. And 
through the President's Financial Fraud Enforcement Task Force, 
we are working closely with Federal, State, and local 
authorities to take our fight against fraud targeting 
consumers, investors, and homeowners to new heights.
    Over the last 3 years--thanks to Task Force leaders and our 
partners--we have filed nearly 10,000 financial fraud cases 
against nearly 15,000 defendants, including more than 2,900 
mortgage fraud defendants. Last month, the Department filed a 
civil suit against the credit rating agency Standard & Poor's, 
seeking at least $5 billion in damages for alleged conduct that 
really goes to the heart of the recent economic crisis.
    We are also striving to boost the capacity of our law 
enforcement allies and to provide access to the tools, 
training, and equipment that they need in order to do their 
jobs as safely and as effectively as possible. And we are 
working with them to promote the highest standards of integrity 
across every agency, department, and sheriff's office.
    This commitment--to integrity and to equal justice under 
law--has also driven the Department's Civil Rights Division in 
its efforts to address intimidation, bias, and discrimination 
from America's housing and lending markets, to our schools, 
workplaces, border areas, but also to our voting booths. Since 
2009, the Division has filed more criminal civil rights cases 
than ever before, including record numbers of human trafficking 
and police misconduct cases. We have also led efforts to 
implement the Matthew Shepard and James Byrd Hate Crimes 
Prevention Act, which improved our ability to achieve justice 
on behalf of Americans who are targeted because of their 
gender, sexual orientation, gender identity, or disability. And 
we are fighting to preserve the principles of equality, 
opportunity, and justice that have always shaped our Nation's 
past--and must continue to determine our future.
    Now, in the days ahead, as Congress considers ways to make 
fair and effective changes to America's immigration system, 
these same principles I believe must guide our efforts to 
strengthen our borders. These principles must continue to 
inform our actions as we fairly adjudicate immigration cases, 
enforce existing laws, and hold accountable employers who 
knowingly hire undocumented workers or engage in illegal and 
discriminatory business practices.
    So this morning, my colleagues and I stand ready to work 
with leaders from both parties to help achieve lasting reform; 
to strengthen our ability to keep everyone in this country--and 
especially our young people--safe; and to move forward in 
protecting the American people and achieving the priorities 
that we share. But I must note that our ability to complete 
this work and to continue building upon the progress that I 
have just outlined will be severely hampered unless Congress 
adopts a balanced deficit reduction plan and ends the untenable 
reductions that last week set in motion a move to cut over $1.6 
billion--that is, 9 percent--from the Department's budget in 
just 7 months' time.
    As we speak, these cuts are already having a significant 
negative impact not just on Department employees, but on 
programs that could directly impact the safety of Americans 
across the country. Our capacity to respond to crimes, 
investigate wrongdoing, and to hold criminals accountable has 
been reduced. And despite our best efforts to limit the impact 
of sequestration, unless Congress quickly passes a balanced 
deficit reduction plan, the effects of these cuts--on our 
entire justice system and on the American people--may be 
profound.
    So I urge congressional leaders to act swiftly to restore 
the funding that the Department needs to fulfill its critical 
mission and to keep our citizens safe.
    Thank you, Mr. Chairman, and I look forward to answering 
any of your questions.
    [The prepared statement of Attorney General Holder appears 
as a submission for the record.]
    Chairman Leahy. Thank you, and I apologize again for 
jumping to that first question. I have been watching the clock 
because both Senator Grassley and I have to go over to speak on 
the Halligan nomination. As I said, when I leave for that, 
Senator Feinstein will take the gavel.
    You mentioned the cuts, the $1.6 billion across the board. 
Obviously, I worry what that is going to do to critical grant 
programs that small rural States like Vermont depend upon. I do 
not mean that to be parochial, but in smaller areas, in rural 
areas in every State, all 50 of our States, it has a 
disproportionate effect. I would hope you would be able to 
continue to work on programs like the COPS program, the 
Bulletproof Vest Partnership program, the Victim Assistance 
program.
    Attorney General Holder. Yes, we will try to do the best 
that we can. This is a $1.6 billion cut. It is 9 percent out of 
our budget over the course of 7 months. It will take $100 
million out of our grantmaking capacity. We will try to 
minimize the harm and try to make sure that the mission that we 
have is not compromised. But I have to say, you cannot take 
$1.6 billion, 9 percent, out of our budget and expect us to be 
as effective as we once were.
    Chairman Leahy. I am not trying to put words in your mouth, 
but is it safe to say this is going to affect national 
security?
    Attorney General Holder. I fear that it could. We will try 
to jury-rig things so that we have agents where they ought to 
be. The reality is--and people should understand this--that if 
these budget cuts stay in effect, FBI agents, DEA agents, ATF 
agents, people at BOP, at the Bureau of Prisons, are going to 
have to undergo furloughs. They are not going to be on the job.
    Chairman Leahy. Thank you. And we have talked about the 
Office of Legal Counsel memos on targeted killings. I have been 
asking for that for some time, and you and I have had 
discussions about this. I realize the decision is not entirely 
in your hands, but it may be brought to a head with a subpoena 
from this Committee.
    In your letter to Senator Paul sent earlier this week, you 
left open the possibility of using lethal force against 
American citizens in extraordinary circumstances on U.S. soil. 
You mentioned 9/11 and Pearl Harbor, but you did not 
specifically mention armed drones.
    Can you agree there is no scenario where it would be 
appropriate to use an armed drone on U.S. soil to strike an 
American citizen?
    Attorney General Holder. Well, what I said in the letter 
was that the Government has no intention to carry out any drone 
strikes in the United States. It is hard for me to imagine a 
situation in which that would occur. We have within the United 
States the ability to use our law enforcement capacity, and as 
I laid out in a speech that I gave at Northwestern University 
with regard to the use of these kinds of lethal forces, one of 
the critical things was that the possibility, the feasibility 
of capture was difficult in foreign lands--Afghanistan, 
Pakistan, other parts of the Middle East.
    That is not the same thing here in the United States where 
the possibility of capture is obviously enhanced, and as a 
result, the use of drones is, from my perspective, something 
that is entirely hypothetical. And what I tried to say in the 
letter to Senator Paul was exactly that.
    Chairman Leahy. Once we have seen the memo, I suspect 
Senator Grassley and I may want to meet with you and discuss 
particular points. I will leave it at that for the moment 
rather than going into--otherwise, you have to go into some 
classified hearings.
    Last year, the Committee favorably reported my cyber crime 
bill. It had a provision authored by Senators Franken and 
Grassley that would amend the act to prohibit prosecutions 
based solely upon violations of the Terms of Use Agreement. We 
are concerned, some of us, that the Department may 
inappropriately apply the Computer Fraud and Abuse Act to 
criminally prosecute relatively innocuous conduct, such as 
violating a Terms of Use Agreement. And I supported the 
Franken-Grassley amendment.
    Can the Department of Justice review its prosecution 
guidelines for computer fraud and abuse cases and consider 
revising those guidelines to prohibit prosecutions based solely 
upon conduct involving a violation of a Terms of Use Agreement?
    Attorney General Holder. Well, I think we are always in the 
process of trying to look at how we are using the tools that 
Congress has given us, and to the extent that there are issues 
in enforcement, inappropriate uses of statutes, we always want 
to correct that. And so as I said, we constantly monitor that, 
and we want to make sure that we use those tools in appropriate 
ways and only ask for jail time, for instance, where that is 
absolutely needed. So that is something that we can look at.
    Chairman Leahy. Thank you.
    Now, last November, voters in Colorado and Washington chose 
to legalize personal use of up to 1 ounce of marijuana and to 
enact licensing plans for cultivation and distribution of the 
drug. Last year, I asked Director Gil Kerlikowske of the Office 
of National Drug Control Policy how the administration would 
prioritize resources to determine policy.
    In light of the choices made by the voters in Colorado and 
Washington, knowing that there are going to be other States 
that do the same thing, are you prepared to announce the 
Federal Government's policy in response to the voters in 
Colorado and Washington?
    Attorney General Holder. Well, I have had the opportunity 
to meet with the leadership from Colorado and from Washington, 
the Governors. We had a good, I think, communication. We are in 
the administration at this point considering what the Federal 
Government's response to those new statutes will be. I expect 
that we will have an ability to announce what our policy is 
going to be relatively soon.
    Chairman Leahy. I would think that--this is simply an 
editorial comment, but if you are going to be, because of 
budget cuts, prioritizing matters, I would suggest there are 
more serious things than minor possession of marijuana. But 
that is a personal view.
    Now, it has been brought up here--I know Senator Grassley 
raised the fact that you, like several other Cabinet 
Secretaries, are prohibited from flying commercially for 
security reasons. A recent GAO report confirmed that 
counterterrorism and other mission travel always takes 
precedent over other official travel by you, Director Mueller, 
and previous Attorneys General. And you and Director Mueller 
have complied with reimbursement requirements in all cases. 
Just so I understand, we are talking about--and the number of 
uses. Is it true that your predecessor used the aircraft for 
personal travel twice as often as you have?
    Attorney General Holder. Yes, that is true. As we looked at 
the numbers, I took a total of 27 trips that were categorized 
as personal. My predecessor took a total of 54. But one of the 
things that I want to emphasize is that these planes are always 
used first and foremost for mission purposes, and if you 
combine mission purposes, as the GAO has defined it, as well as 
official travel, the planes are used 93 percent of the time for 
those two purposes. And when I say ``official travel,'' that 
would include trips that I made on these planes to Afghanistan, 
to Guantanamo, to Haiti to talk to Caribbean heads of state, to 
Ottawa in order to talk about border issues with our Canadian 
counterparts.
    So this notion that these planes are somehow being misused 
is totally belied by the facts if they are fairly viewed.
    Chairman Leahy. You mentioned Haiti. I was in Haiti right 
after your trip on a Government plane with a number of both 
Republican and Democratic Members of Congress, and I understand 
the reasons why they used it there, too.
    I am giving the gavel to Senator Feinstein, and I will 
recognize Senator Grassley.
    Senator Grassley. I think we will go with one of these. I 
am going over to the floor.
    Chairman Leahy. Okay. Who is next?
    Senator Grassley. Senator Cornyn.
    Chairman Leahy. Senator Cornyn.
    Senator Cornyn. Good morning, General Holder.
    Attorney General Holder . Good morning.
    Senator Cornyn. I wrote you a letter on January 18, 2013, 
about the prosecution of Aaron Swartz, who was prosecuted by 
the U.S. Attorney's Office in Massachusetts for allegedly 
breaking into the computer networks at MIT and downloading 
without authorization thousands of academic articles from a 
subscription service. He was charged with crimes that would 
have carried a penalty of up to 35 years in prison and a $1 
million fine. A superseding indictment, which was actually 
filed, would have upped both the prison time and the fines.
    As I said, I wrote a letter asking about that prosecution 
and raising questions of prosecutorial zeal and I would say 
even misconduct. Have you looked into that particular matter 
and reached any conclusions?
    Attorney GeneralHolder . Yes, let me first say that Mr. 
Swartz's death was a tragedy. My sympathy goes out to his 
family and to his friends, those who were close to him. It is a 
terrible loss. He was obviously a very bright young man and 
had, I think, a good future in front of him.
    As I have talked to the people who have looked into this 
matter, these news reports about what he was actually facing is 
not consistent with what the interaction was between the 
Government and Mr. Swartz. An offer, a plea offer, was made to 
him of 3 months before the indictment. This case could have 
been resolved with a plea of 3 months. After the indictment, an 
offer was made that he could plead and serve 4 months. Even 
after that, a plea offer was made of a range of from 0 to 6 
months, that he would be able to argue for a probationay 
sentence, the Government would be able to argue for up to a 
period of 6 months. There was never an intention for him to go 
to jail for longer than a 3-, 4-, potentially 5-month range. 
That was what the Government said specifically to Mr. Swartz. 
Those offers were rejected.
    Senator Cornyn. And he committed suicide, correct?
    Attorney General Holder . He did.
    Senator Cornyn. The subscription service did not support 
the prosecution. Does it strike you as odd that the Government 
would indict someone for crimes that would carry penalties of 
up to 35 years in prison and $1 million fines and then offer 
him a 3- or 4-month prison sentence?
    Attorney General Holder . Well, I think that is a good use 
of prosecutorial discretion, to look at the conduct, regardless 
of what the statutory maximums were, and to fashion a sentence 
that was consistent with what the nature of the conduct was. 
And I think that what those prosecutors did in offering 3, 4, 0 
to 6, was consistent with that conduct.
    Senator Cornyn. So you do not consider this a case of 
prosecutorial overreach or misconduct?
    Attorney General Holder. No, I do not look at what 
necessarily was charged as much as what was offered in terms of 
how the case might have been resolved.
    Senator Cornyn. Well, I would suggest to you, if you are an 
individual American citizen and you are looking at criminal 
charges being brought by the U.S. Government with all of the 
vast resources available to the Government, it strikes me as 
disproportionate and one that is basically being used 
inappropriately to try to bully someone into pleading guilty to 
something that strikes me as rather minor. But I would 
appreciate it if you would respond to my letter in writing 
dated January the 18th. I know Senator Grassley listed a number 
of other letters that your Department has not responded to, but 
would you commit to responding to that letter and answering the 
questions in writing?
    Attorney General Holder. We will get responses to that 
letter. I think the letter will probably encapsulate what I 
have just said in terms of how we viewed the case and how we 
thought it could be appropriately resolved.
    Senator Cornyn. Well, I want to make sure you have done a 
thorough investigation into the matter and you are not just 
speaking off the cuff.
    Attorney General Holder. It is not off the cuff. It is not 
off the cuff.
    Senator Cornyn. So you have done a thorough investigation 
of this matter?
    Attorney General Holder. I think a good examination has 
been done. The prosecutors were talked to, the U.S. Attorney 
was talked to, and people in the Department were responsible 
for those inquiries.
    Senator Cornyn. Well, one of the reasons I am skeptical is 
because, of course, you are well aware of the prosecution of 
Senator Ted Stevens, and you yourself decided that the 
prosecutors in that case overreached, withheld information that 
would have been exculpatory that should have been divulged 
under the rules of ethics, and I am concerned that average 
citizens, if you can call them that, like Aaron Swartz, people 
who do not have status or power perhaps in dealing with the 
Federal Government, could be bullied. And obviously we have 
seen even Members of the United States Senate like Ted Stevens 
who have been on the receiving end of prosecutorial misconduct. 
And that was a conclusion you yourself reached in that case, 
correct?
    Attorney General Holder. Well, yes, I think that the 
level--what we did in that case, in the Stevens case, was not 
consistent with the high standards that I expect of people who 
work in the Justice Department. But I think that is also an 
example, as well as the numbers that I have shared with you 
with regard to Mr. Swartz's case, of how this Department 
conducts itself and, where we make mistakes, what we do to try 
to correct them. As long as I am Attorney General and as long 
as this information is brought to my attention, I will not 
hesitate to do what I did, for instance, in the Stevens matter.
    Senator Cornyn. I respect that. Unfortunately, in both 
cases both of these men are dead, and it is hard to make 
recompense to someone after they are dead.
    I know that we are going to be taking up some various gun 
legislation, and you have spoken to that some, and I just want 
to ask you, first of all, I have a copy of a speech that you 
gave to the Women's National Democratic Club January 30, 1995, 
and I want to quote it and ask you if this is a correct quote.
    You said: ``It is not enough to simply have a catchy ad on 
Monday and then only do it every Monday. We need to do this 
every day of the week and just really brainwash people into 
thinking about guns in a vastly different way.''
    Is that a correct quote?
    Attorney General Holder. That part is, but it is taken out 
of context. What I was talking about was young black men who 
have all kinds of images thrown at them--at that time, 
Washington, DC, was the murder capital of the country, and I 
was talking about young black guys who see movies, television 
stuff that glorifies the use of guns, the possession of guns. 
And what I said is that we need to counter those images, and I 
used the term ``brainwash'' to get these young black guys to 
think differently about the possession and use of guns.
    Senator Cornyn. Well, do we not think that aggressive 
prosecution of gun crimes is part of the answer as well to 
serve as a deterrence to using firearms and committing other 
crimes?
    Attorney General Holder. Sure, absolutely. But I also think 
that preventing people from acquiring guns, using them in 
inappropriate ways--I was a superior court judge here in 
Washington, DC, during that time. I saw an ocean of young black 
men who should have been the future of this community go to 
jail because they had guns, they used them inappropriately, 
they killed people. And I thought that in that speech and what 
I tried to do as U.S. Attorney and as a judge when I was here 
in the local courts was to come up with ways in which we talk 
to these young guys and try to convince them that, you know, 
acquiring guns and using them to sell drugs, rob people, was 
just wrong, inappropriate--a prevention thing, in addition to--
I think you are right, in addition to strongly prosecuting 
them. When I was a judge, I sent people away for possession and 
use of guns for extended periods of time. I did not hesitate to 
do that as a judge.
    Senator Cornyn. Let me just ask in conclusion, FBI figures 
reveal from 2010 that more than 76,000 people attempting to buy 
guns failed background checks. We do not know how many of these 
people actually have committed crimes. We do know that the 
Bureau of Alcohol, Tobacco, and Firearms referred just 62 of 
these cases to Federal prosecutors, and prosecutors declined 
nearly a third of those, reaching a plea of guilty or a guilty 
verdict in just 13 cases. So out of 76,000 failed background 
checks, your Department pursued a guilty plea or a guilty 
verdict in just 13 cases.
    How is that consistent with making violation of the crime a 
deterrence if the likelihood of prosecution is so slight?
    Attorney General Holder. Well, the primary purpose of the 
background check system is to make sure that people who should 
not have guns do not get them. Since 1998, 1.5 million people 
have been turned away in that regard.
    Of all the Federal gun prosecutions that we bring--of all 
the prosecutions we bring, one-seventh of them are, in fact, 
gun prosecutions. All of those cases where people are denied 
the opportunity to get a gun are, in fact, reviewed for 
prosecution purposes and determinations made as to whether or 
not they should, in fact, be prosecuted.
    One of the things I want to look at--and I will be talking 
to the U.S. Attorneys about--is whether or not we need to bring 
more of those cases. If we are going to be really cracking down 
on gun crime, there are reasonable explanations as to why we 
have those numbers, but I want to make absolutely certain that 
we are prosecuting all the people who should have been denied a 
gun--failing one of the instant background check system.
    Senator Cornyn. A crime not prosecuted does not produce 
deterrence. Would you agree with that?
    Attorney General Holder. Well, we have limited resources, 
and we have to try to figure out where we are going to use 
those limited resources, and one has to look at why the gun was 
denied, and then make a determination whether or not we should 
use those limited resources to bring a prosecution against that 
person.
    Senator Cornyn. You did not answer my question. A crime not 
prosecuted does not produce the kind of deterrence that we 
would want to prevent other people from committing those 
similar crimes. Do you agree with that?
    Attorney General Holder. Well----
    Senator Feinstein [presiding]. Senator, I have been very--
you are 3 minutes and 23 seconds over.
    Senator Cornyn. You have been very indulgent, Madam Chair.
    Senator Feinstein. I try.
    Senator Cornyn. But with all respect to Attorney General 
Holder, he did not answer my question, and I would just like a 
simple answer to the question.
    Attorney General Holder. Well, yes, deterrence comes in a 
number of forms. Some people are deterred by the prospect of 
jail. Other people are deterred by the prospect of having 
filled out a form and then having been turned down. It depends 
on the individual, and those are the kinds of factors that we 
take into account when making determinations as to whether or 
not a prosecution should appropriately be brought.
    Senator Feinstein. Thank you very much, Senator.
    I just want to say welcome, Attorney General Holder, and 
thank you for your service. I think it is very apparent that 
you have a very hard job in a hard time.
    I just wanted to say something to you as Chairman of the 
Intelligence Committee on the Office of Legal Counsel opinions. 
Our job is vigorous oversight of the intelligence community. We 
cannot do that unless we see the legal underpinnings for 
certain kinds of activities, particularly clandestine 
activities. I believe the Committee is fully united on that 
point on both sides. So I believe that the administration is 
really going to have to come to terms with this, and I would 
like to ask you to spend some time and take a good look at it.
    I have just been sitting here reading the white paper that 
you sent to this Committee on the subject of lawfulness of a 
lethal operation directed against a U.S. citizen who is a 
senior operational leader of al Qaeda or an associated force. 
This is Committee confidential, but it is not classified. And 
the fact of the matter is it is a 16-page, very thoughtful, 
very impressive opinion, and yet it cannot go into the public 
domain. I cannot ask you, even here, about some of the factors 
of this opinion. And I think that is a mistake. And I think 
that the world that we are now living in is so different and so 
imprecise that the legal underpinnings for action really are 
important.
    Second, it is one thing for a President to ask for a legal 
opinion prior to something that is ongoing, maybe even ongoing. 
It seems to me that afterwards we should have the opportunity 
to assess the legality of that and, if necessary, if it is not 
legal, be able to clarify law, change law, do whatever a 
constitutional legislative body does.
    So I would just ask you to take a look at this. We have 
now--well, I just got a note. It has been released now because 
it was leaked first, so----
    Attorney General Holder. That is one way of getting it out.
    Senator Feinstein. Yes. I think that gives you an idea of 
the situation that we are in. From an intelligence point of 
view, it is absolutely vital.
    And then I understand you get down to different committees. 
Let us say the Predator is taken out of the jurisdiction of 
Intelligence and put in the Military. That transfers the 
jurisdiction to Armed Forces. Let us say it is used in some way 
that brings the jurisdiction to this Committee.
    So I think we now have to look at that arena and make some 
decisions as to the administration being more forthcoming with 
the legal advice that underpins law making.
    [Applause.]
    Senator Feinstein. Please do not. Please do not.
    Would you agree?
    Attorney General Holder. Yes, and I have to say that I have 
heard you, the President has heard you, and others who have 
raised this concern on both sides of the aisle, and I think 
that what you will hear from the President in a relatively 
short period of time is--I do not want to preempt this, but, we 
have talked about a need for greater transparency in what we 
share, what we talk about, because I am really confident that 
if the American people had access to, for instance--some of 
this stuff cannot be shared. I understand that. But if at least 
the representatives of the American people have the ability as 
members of the Intelligence Committee have had to see some of 
those OLC opinions, there would be a greater degree of comfort 
that people would have to understand that this Government does 
these things reluctantly but also we do it in conformity with 
international law, with domestic law, and with our values as 
the American people.
    And so I think there is going to be a greater effort at 
transparency. A number of steps are going to be taken. I expect 
you will hear the President speaking about this.
    Senator Feinstein. Yes, I think so. I mean, right now we 
have someone exercising a hold on John Brennan, who said, you 
know, what we are talking about is you are eating dinner in 
your house, you are eating at a cafe, and you are walking down 
the road in this country, and can be targeted for elimination.
    I do not believe that is true.
    Attorney General Holder. No.
    Senator Feinstein. I do not believe it is correct. I think 
it really--you know, it is one thing after a major attack like 
9/11 where we saw brave people take down a plane because they 
had heard that these planes were being crashed into buildings 
and there was a likelihood that this one was going to crash 
into the United States Capitol. And so people on the plane took 
it down. And then there was discussion as to whether a 
President should order a plane taken down with American 
citizens if it was going to jeopardize a greater number of 
American citizens.
    I think this to some extent is something that we have to 
grapple with in a legal way as well. But in reading the 
opinions that I have just read, I believe they are very sound 
opinions. I have also read the opinions from the Bush 
administration, one of which was withdrawn by the Bush 
administration, and two of which were withdrawn by the Obama 
administration. They are not, in my view, good opinions. They 
were opinions designed to provide whatever the President or the 
administration was asking for.
    I think this is where transparency is important, that years 
after, we have an opportunity to look and make judgments as to 
whether our democracy and our values are being operated by the 
executive in a proper manner.
    Attorney General Holder. As I said, I think there is a 
greater need for transparency, a greater need for appropriately 
sharing information, and we are struggling with how to do that. 
But it is something that the President feels strongly about, 
and as I said, over the next few months, I think you will see 
an effort on the part of the administration to be more 
transparent.
    Senator Feinstein. Thank you.
    Senator Cruz is next on my list and then Senator 
Whitehouse.
    Senator Cruz. Thank you, Senator Feinstein.
    General Holder, thank you for being here this morning.
    Attorney General Holder. Good morning.
    Senator Cruz. I would like to address three areas, and I 
would like to start with the topic you were just discussing, 
the topic of drones. In your response to Senator Paul 
yesterday, you suggested there may well be circumstances in 
which it is permissible to use drones to target a U.S. citizen 
on U.S. soil. I would like to explore those circumstances, and 
in particular, you point at two. You pointed to Pearl Harbor 
and 9/11, both of which were extreme military attacks on the 
homeland.
    I want to ask a more specific question. If an individual is 
sitting quietly at a cafe in the United States, in your legal 
judgment does the Constitution allow a U.S. citizen on U.S. 
soil to be killed by a drone?
    Attorney General Holder. For sitting in a cafe and having a 
couple of coffee?
    Senator Cruz. If that individual is not posing an imminent 
and immediate threat of death or bodily harm, does the 
Constitution allow a drone to kill that individual?
    Attorney General Holder. On the basis of what you said, I 
do not think you can arrest that person.
    Senator Cruz. The person is suspected to be a terrorist, 
you have abundant evidence he is a terrorist, he is involved in 
terrorist plots, but at the moment----
    Attorney General Holder. Okay, I see----
    Senator Cruz [continuing]. he is not pointing a bazooka at 
the Pentagon. He is sitting in a cafe. Overseas, the U.S. 
Government uses drones to take out individuals when they are 
walking down a path or when they are sitting at a cafe. If a 
U.S. citizen on U.S. soil is not posing an immediate threat to 
life or bodily harm, does the Constitution allow a drone to 
kill that citizen?
    Attorney General Holder. I would not think that that would 
be an appropriate use of any kind of lethal force. We would 
deal with that in the way that we typically deal with a 
situation like that. We would expect----
    Senator Cruz. With respect, General Holder, my question was 
not about appropriateness or prosecutorial discretion. It was a 
simple legal question. Does the Constitution allow a U.S. 
citizen on U.S. soil who does not pose an imminent threat to be 
killed by the U.S. Government?
    Attorney General Holder. I do not believe that--again, you 
have to look at all of the facts. But on the facts that you 
have given me--and this is a hypothetical--I would not think 
that in that situation the use of a drone or lethal force would 
be appropriate because the possibility----
    Senator Cruz. General Holder, I have to tell you, I find it 
remarkable that in that hypothetical, which is deliberately 
very simple, you are unable to give a simple one-word, one-
syllable answer--``No.'' I think it is unequivocal that if the 
U.S. Government were to use a drone to take the life of a U.S. 
citizen on U.S. soil and that individual did not pose an 
imminent threat, that that would be a deprivation of life 
without due process----
    Attorney General Holder. Well, let me--maybe I have not 
been clear. I said that the use of lethal force--and I am 
saying drones, guns, or whatever else--would not be appropriate 
in that circumstance.
    Senator Cruz. You keep saying ``appropriate.'' My question 
is not about propriety. My question is about whether something 
is constitutional or not. As Attorney General, you are the 
chief legal officer of the United States. Do you have a legal 
judgment on whether it would be constitutional to kill a U.S. 
citizen on U.S. soil in those circumstances?
    Attorney General Holder. A person who was not engaged, as 
you have described--this is the problem with hypotheticals. But 
the way in which you have described it, this person sitting at 
the cafe, not doing anything imminently, the use of lethal 
force would not be appropriate, would not be something----
    Senator Cruz. I find it remarkable that you still will not 
give an opinion on the constitutionality. Let me move on to the 
next topic because we have gone around and around.
    Attorney General Holder. Let me be clear. Translate my 
``appropriate'' to ``no.'' I thought I was saying no. All 
right. No.
    Senator Cruz. Well, then, I am glad. After much gymnastic, 
I am very glad to hear that it is the opinion of the Department 
of Justice that it would be unconstitutional to kill a U.S. 
citizen on U.S. soil if that individual did not pose an 
imminent threat. That statement has not been easily 
forthcoming. I wish you had given that statement in response to 
Senator Paul's letter asking you it. And I will point out that 
this week I will be introducing legislation in the Senate to 
make clear that the U.S. Government cannot kill a U.S. citizen 
on U.S. soil absent an imminent threat. And I hope based on 
that representation that the Department will support that 
legislation.
    Attorney General Holder. Well, that is totally consistent 
with the letter that I sent to Senator Paul. I talked about 9/
11 and Pearl Harbor. Those are the instances where I said it 
might possibly be considered, but that other than that we would 
use our normal law enforcement authorities in order to resolve 
situations along those lines and then use the normal things 
that you do when you try to decide if cops can shoot somebody.
    Senator Cruz. General Holder, I would like to move on to a 
second topic, which is what many perceive is the politicized 
enforcement of the law at the Department of Justice.
    In 2010, Congress heard evidence that the Department of 
Justice declined to enforce voter intimidation laws against 
members of the New Black Panther Party.
    In 2011, the Department of Justice released a statement 
announcing that the Department would no longer defend the 
constitutionality of the Defense of Marriage Act, which passed 
with overwhelming bipartisan majorities both Houses of Congress 
and was signed into law by President Bill Clinton.
    Last year, in 2012, the Department of Homeland Security 
announced that it would no longer enforce our Nation's 
immigration laws against individuals designated by the 
President.
    My question to you is: Are there any other laws passed by 
this Congress that the Department of Justice does not intend to 
enforce?
    Attorney General Holder. It is the tradition of the 
Department to always enforce laws where there is a reasonable 
basis to argue for the enforcement of those laws. I have sent 
memos or letters to the Speaker of the House--I think that is 
where the letters go to--where we have declined to support 
laws, enforce laws that Congress has passed for a variety of 
reasons.
    I will note, however, with regard to DOMA, for instance, 
where we declined to defend that statute, courts subsequently 
have agreed with us applying that standard of heightened 
scrutiny that, in fact, DOMA was unconstitutional. So it is not 
something that the Justice Department----
    Senator Cruz. Well, wait. There was a bit of a sleight of 
hand there. You said courts have agreed on the merits on the 
issue. That is very different from saying there is no 
reasonable basis to defend the statute, which is what you 
suggested was the standard. Surely it is not the Department's 
position that every case in which the Department might lose a 
case it will not defend the statute.
    Attorney General Holder. No, no. I am saying----
    Senator Cruz. What process does the Department engage in to 
determine which Federal laws it will follow and which it will 
not?
    Attorney General Holder. Well, there is a presumption that 
we will apply and support any law that Congress passes. It is 
the rare instance where we make the determination that we will 
not. DOMA was one of those. We thought there was not a 
reasonable basis to defend the statute applying that heightened 
scrutiny standard. And as I said, courts have, in fact, agreed 
with that determination.
    Senator Cruz. Let me very, very briefly address one other 
area. Much attention has focused on the Fast and Furious 
program and the tragic consequences of that. Was the White 
House involved in any way whatsoever in decisionmaking 
concerning Fast and Furious?
    Attorney General Holder. No.
    Senator Cruz. Given that, last year my understanding is you 
asserted Executive privilege against handing over documents 
concerning Fast and Furious. Now, Executive privilege, the 
Supreme Court has made clear, protects communications and 
advice with the President. If the White House was not involved, 
Executive privilege does not apply to those documents. If 
Executive privilege applies to those documents, it necessarily 
implies that the White House and the President personally was 
involved. So which of the two is it, General Holder?
    Attorney General Holder. No, you are cutting too fine a 
line. The President, the White House, was not involved in the 
operational component of Fast and Furious. There were certainly 
interactions, conversations between the Justice Department and 
the White House about the operation after all of the operative 
facts had occurred, after all of the controversial actions had 
been taken. Then we got into the situation where we were 
talking about the congressional investigation of Fast and 
Furious. There were communications between the White House and 
the Justice Department. But nothing----
    Senator Cruz. Do I understand you correctly--my time has 
expired, so I want to just understand your response correctly. 
Is it your position that Executive privilege only applies after 
the details of Fast and Furious became public and it was with 
subsequent communications, but there is no Executive privilege 
that is applicable before it becoming public because, as you 
just said a minute ago, the White House was not involved in any 
way, shape, or form with Fast and Furious?
    Attorney General Holder. Executive privilege protects 
communications between the White House and the executive branch 
agency, and to my knowledge, there are no communications that 
deal with the operational components of Fast and Furious 
between the White House and the Justice Department.
    Senator Cruz. So Executive privilege does not apply to 
them?
    Attorney General Holder. There is nothing there for 
Executive privilege to apply to, as best I know.
    Senator Cruz. Thank you, General Holder.
    Senator Feinstein. Thank you very much, Senator.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman.
    Welcome, General Holder. First off, thank you for the 
initial statements that the administration has made about 
putting the drone program under a more regular and ongoing 
separation of powers framework. I know that there is going to 
be a lot of work ahead of us to work out the details of that, 
but I think it is an important step for the administration. And 
thank you also for your work on the cyber Executive order, 
which I think was a vital step. I remain disappointed that we 
did not pass legislation to address this pressing issue before. 
I see Senator Graham here. He and I are continuing to work on 
supplementing the Executive order with bipartisan legislation 
that I think is vital for our country.
    Let me chime in on one other very brief thing. On the 
question of letters, we would love to get the response to the 
request for the record that was made last June, when you were 
last here, and which we still have no response to. I understand 
that it is tied up at OMB, but presumably your people could 
build the delay that OMB puts into these things into their 
calculation of when they need to have letters prepared for you. 
I know it is not a problem----
    Attorney General Holder. Just to be fair, it is not only 
OMB. I mean, there is certainly probably something within the 
Department where we need to activate or be more responsive, but 
it is also other executive branch agencies that have equity 
sometimes in these responses. So it is not strictly OMB. Just 
to be fair.
    Senator Whitehouse. But June of 1 year to March of another 
is a pretty long run for getting an answer.
    Attorney General Holder. I would agree with that.
    Senator Whitehouse. We are looking forward to having a 
hearing on the resources of the Department and the strategy of 
the Department on cyber prosecutions and on the actions against 
botnets. I think the Coreflood case was particularly good. I 
understand that there have been awards given to the 
participants, which I commend you for. But I would have thought 
that Coreflood would have been a model for a great number of 
other similar sort of hygienic type legal efforts to clean up 
the botnets out of the Web, and it does not seem to have been 
pursued as a model, as a strategy. And to my knowledge, there 
has not yet been a single cyber prosecution brought against a 
hacker, like we know China is doing, that comes in purely 
through the Web, raids an American company for its intellectual 
property, expropriates the intellectual property out, and uses 
it essentially as industrial espionage.
    I know there have been cases made for espionage, and they 
have sometimes involved cyber, but there has always been a 
tangible link of some kind, somebody with a CD in their pocket 
leaving the factory.
    So I think anybody who has been in the trenches understands 
how immensely complicated and resource intensive these cases 
are, and I think at a time of diminishing budgets and budget 
pressures, it is important that we focus a real light on what 
the resources are that are required to make these cases and how 
important they are. And I would like to ask you now if you 
would be willing to work with us and send appropriate DOJ 
officials to such a hearing.
    Attorney General Holder. Yes, we certainly will. I actually 
think that that interaction could be particularly useful as we 
try to explain the issues that we confront in bringing these 
cases, the resource issues that we have; but, frankly, also to 
hear suggestions that experienced prosecutors like yourself 
might have with regard to how we might better do these cases. 
So I think a hearing with that kind of interaction would be 
something that we will certainly send witnesses to.
    Senator Whitehouse. I appreciate it. Similarly, we are 
looking at the enforcement of campaign finance laws. There 
appears to be a considerable discrepancy between many of the 
applications that are made to the IRS for status and then the 
behavior of the entity once it is out acting in the political 
world. And we would like to look a little bit further into 
that, and, again, we would like to ask the cooperation of the 
Department with a witness at a hearing to look into that 
question.
    Attorney General Holder. Yes, and we again would be glad to 
participate in that. We have as one of our enforcement 
responsibilities the campaign finance laws. There is an 
election crime division within the Public Integrity Section. 
This is something that we do. And we would be more than glad to 
interact with you and have a hearing in that regard.
    Senator Whitehouse. Good. And the last thing that I will 
raise is my perennial concern that the Margolis memorandum 
needs to be retracted by the Department. It is a continuing 
burr under my saddle that we could expect of the members of the 
Department of Justice, particularly those at the Office of 
Legal Counsel--who are often the best and the brightest that 
the legal profession has, they are off a Supreme Court 
clerkship or they are on to a Supreme Court seat, and they are 
immensely talented people. And the notion that they do not have 
to meet the same standards of diligence and candor that a 
workaday lawyer does hustling into the Garrahy courthouse in 
Providence with five files under his arm is to me something 
that I am just going to continue to press on until that gets 
resolved. So I will mention that to you once again now, and we 
can continue to followup. I think I bring it up every time a 
person from the Department of Justice comes to see me and 
whenever candidates for confirmation come to see me, and so I 
wanted to bring it up again now. I know that it brought a 
resolution to a very unhappy period in the Department's past, 
but I think it did so by cutting a corner that should not have 
been cut. And I think that the standards of the Department 
should be higher than those for workaday lawyers, not lower.
    Attorney General Holder. Okay.
    Senator Whitehouse. So thank you very much. I appreciate 
very much your service to our country. As a former member of 
the Department of Justice, I looked with real dismay at what 
was happening to it prior to your tenure, and my sources within 
the Department continue to express pride and enthusiasm and 
increasing morale as a result of the leadership that you have 
provided. So we are grateful to you, sir.
    Attorney General Holder. Well, thank you. You are very 
kind. And perhaps you and I in a different setting can have a 
conversation about the Margolis theory, memo, whatever, and you 
and I can have a more detailed conversation about that. To the 
extent that you have those issues, I would like to hear what 
they are.
    Senator Whitehouse. Absolutely.
    Senator Feinstein. Thank you. Thank you very much, Senator 
Whitehouse.
    Senator Flake is not here. Senator Klobuchar is not here. 
Senator Graham is here.
    Senator Graham. Thank you, Mr. Attorney General. We have 
been talking about the war on terror ever since you have had 
this job, right?
    Attorney General Holder. During confirmation, yes.
    Senator Graham. Absolutely. And I want to congratulate you 
and the President. I think you have thought long and hard about 
how to defend the homeland in very difficult circumstances. I 
want to applaud your efforts with the drone program. I think it 
has really helped us in Afghanistan and Pakistan. And I just 
believe it is a tactical tool that this President should be 
using, and I think he is using it responsibly.
    Now, as to the homeland, is al Qaeda actively involved in 
recruiting American citizens to their cause?
    Attorney General Holder. American citizens? I certainly 
know of efforts that al Qaeda has made to recruit American 
citizens.
    Senator Graham. I can assure the public--and we will not 
disclose--that the al Qaeda organization is actively involved 
in seeking American citizens' support. In every war we have 
had, unfortunately, American citizens have sided with the 
enemy. They have been few in number, but that does happen. Is 
that correct?
    Attorney General Holder. It does happen occasionally.
    Senator Graham. As a matter of fact, we had American 
citizens helping German saboteurs who tried to blow up 
infrastructure in the United States in World War II. You are 
familiar with that?
    Attorney General Holder. Those cases were tried right down 
the hall from my office.
    Senator Graham. They were tried right down the hall. So it 
is a longstanding proposition in American law that an American 
citizen who joins the forces of our enemies can be considered 
an enemy combatant. Do you agree with that?
    Attorney General Holder. Yes.
    Senator Graham. So the point I am trying to make is that, 
hypothetically, if there are patriot missile batteries around 
this Capitol and other key Government infrastructures to 
protect the Capitol from an attack, it would be lawful for 
those batteries to launch. Is that correct?
    Attorney General Holder. To launch----
    Senator Graham. Against the threat. If there was 
intelligence that an airplane was coming toward the Capitol or 
the White House, it had been hijacked----
    Attorney General Holder. I see. Okay. Yes.
    Senator Graham. It would be okay for our military to act, 
would it not?
    Attorney General Holder. Yes.
    Senator Graham. That would be an imminent threat. The 
military has legal authority under the Constitution and the 
Authorization to Use Military Force to strike back against al 
Qaeda. Is that correct?
    Attorney General Holder. Yes.
    Senator Graham. Now, when we say Congress gave every 
administration the Authorization to Use Military Force against 
al Qaeda, we did not exempt the homeland, did we?
    Attorney General Holder. No, I do not think we did.
    Senator Graham. Would that not be kind of crazy to exempt 
the homeland, the biggest prize for the terrorist to say for 
some reason the military cannot defend America here in an 
appropriate circumstance?
    Attorney General Holder. No, I think that is right. The 
question obviously is what forces do we use, but I think we 
have that authority.
    Senator Graham. And I totally agree with you that the 
likelihood of capture is very high in America and that we have 
a lot of law enforcement agencies available and that we would 
put them out front. But certainly most law enforcement agencies 
I know of do not have patriot missile batteries, so that is a 
good example of where the military can provide capacity to 
protect the homeland against a terrorist act that law 
enforcement cannot.
    Attorney General Holder. Yes, and that would be the rare 
case, but in the letter that I sent to Senator Paul, that is 
one of the reasons why I referenced September the 11th.
    Senator Graham. Let us go back in time. What would we all 
give to have those patriot missile batteries available on 
September 10, 2001, in New York and Washington? It would have 
meant that we would have lost a planeload of American citizens, 
but we would have saved thousands more. That is the world in 
which we live. And I want to stand by you and the President to 
make sure that we do not criminalize the war and that the 
commander-in-chief continues to have the authority to protect 
us all. And I have got a lot of my colleagues who are well 
meaning, but there is only one commander-in-chief in our 
Constitution. Do you agree with that?
    Attorney General Holder Well, that is true, and the 
situation that you describe on September the 11th would have 
been--was among the most difficult decisions that President 
Bush and Vice President Cheney had to make to give that order. 
But I think it was appropriate.
    Senator Graham. And I hope you are never put in that 
position, but I want you to know from Senator Graham's point of 
view that you have the authority and my view from the 
Constitution, the Authorization to Use Military Force to take 
such actions. And I know you will if put in that position.
    Now, about where this war is going, we are winding down 
Afghanistan. Do you think the al Qaeda threat is over?
    Attorney General Holder. No. The al Qaeda threat, as we 
knew it, I would say, traditionally, focused in Pakistan, core 
al Qaeda, has been greatly weakened, but there are nodes now of 
al Qaeda in different places--on the Arabian Peninsula, in 
North Africa--that we have to be concerned with.
    Senator Graham. What would your message be to any American 
citizen thinking about collaborating with al Qaeda to attack 
the United States at home or abroad? What would you want to say 
to them?
    Attorney General Holder. That you do so at your risk. If 
you align yourself with al Qaeda, you are, in fact, taking arms 
against your Nation, and you then will be subject to the full 
weight of the American military.
    Senator Graham. And law enforcement community as well.
    Attorney General Holder. And law enforcement. Whatever 
tools we have.
    Senator Graham. And I want to say that I believe Article 
III courts have a robust role in the war on terror, and I also 
want to say that military commissions have their place also. Do 
you agree with that statement?
    Attorney General Holder. True.
    Senator Graham. All right. Now, let us turn to another 
topic where we probably will not agree. This Committee will be 
taking up legislation about banning assault weapons. Are you 
familiar with the AR-15?
    Attorney General Holder. I am familiar with it, yes.
    Senator Graham. Just generally speaking.
    Attorney General Holder. Yes, I think I might have shot one 
at the FBI Academy.
    Senator Graham. Right. Are you aware that over 4 million 
have been purchased by American citizens?
    Attorney General Holder. I know it is a very popular 
weapon.
    Senator Graham. Okay. Any weapon can be dangerous. I will 
be the first to admit that. Can you imagine a circumstance 
where an AR-15 would be a better defense tool than, say, a 
double-barreled shotgun?
    Attorney General Holder. You mean in defense of the home?
    Senator Graham. Let me give you an example. You have a 
lawless environment where you have a natural disaster or some 
catastrophic event, and those things, unfortunately, do happen, 
and law and order breaks down because the police cannot travel, 
there is no communication, and there are armed gangs roaming 
around neighborhoods. Can you envision a situation where, if 
your home happens to be in the crosshairs of this group, a 
better self-defense weapon may be a semiautomatic AR-15 versus 
a double-barreled shotgun?
    Attorney General Holder. Well, I think we are dealing there 
with a hypothetical in a world----
    Senator Graham. You do not have to agree with me. Am I 
unreasonable to say that I would prefer an AR-15?
    Attorney General Holder. Well, as I said, you are dealing 
with a hypothetical in a world that I think does not exist. 
That is----
    Senator Graham. Well, I am afraid that world does exist. I 
think it existed in New Orleans, to some extent up in Long 
Island. It could exist tomorrow if there is a cyber attack 
against the country and the power grid goes down and the dams 
are released and chemical plants are discharges----
    Attorney General Holder. Well, I do not think New Orleans 
would have been better served by having people with AR-15s in 
the post-Katrina environment.
    Senator Graham. Well, what I am saying, if my family was in 
the crosshairs of gangs that were roaming around neighborhoods 
in New Orleans or any other location, the deterrent effect of 
an AR-15 to protect my family I think is greater than a double-
barreled shotgun. But the Vice President and I have a 
disagreement on that.
    Now, let us talk about, very quickly----
    Chairman Leahy [presiding]. Senator?
    Senator Graham. Yes, sir?
    Chairman Leahy. Your time----
    Senator Graham. Can I ask just one more question, sir?
    Chairman Leahy. If we can keep it brief.
    Senator Graham. I promise.
    Chairman Leahy. We have people leaving for the vote.
    Senator Graham. I know other people have got to go. There 
were 76,142 people who failed a background check in 2010; 19.1 
percent, 13,862, were denied--failed the background check 
because they were a fugitive from justice. I mean literally on 
the run from the law. What happened to those cases? How many of 
those fugitives were apprehended as a result of failing a 
background check to buy a gun?
    Attorney General Holder. I do not know what the numbers 
are, but I can tell you that each of the cases are individually 
examined and determinations made as to whether or not 
prosecutions should be brought or whether prosecutions are 
possible. If you are talking about somebody who was a fugitive, 
I would agree with you, that is something that should perhaps 
be a priority prosecution. But that person may not be there to 
prosecute.
    Senator Graham. I would suggest that the 76,000 people who 
failed a background check, 13,862 were fugitives from justice, 
only 62 were prosecuted, and less than that number were 
convicted. So obviously we have got some work to do when it 
comes to the current background system.
    Thank you for your service.
    Attorney General Holder. Thank you.
    Chairman Leahy. Thank you, and we will--interestingly 
enough, there have been a lot of questions about drones in the 
U.S. This Committee will be holding a hearing on domestic 
drones on March 20th.
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman. And I want to 
thank you, General Holder, for the Department of Justice's 
action in the Proposition 8 case in the Supreme Court. I think 
it was a brave decision on your part and a powerful statement 
of the Department's commitment to seek equality under the law 
for all people.
    In your testimony you talk about the Department's civil 
suit against S&P, and you say--the quote is you are ``seeking 
at least $5 billion in damages for alleged conduct that goes to 
the heart of the recent economic crisis.'' And I totally agree 
with that. I think the credit rating agencies, because of the 
basic conflict of interest that is inherent in the issuer pays 
model, where the issuer of the security chooses and pays one of 
the Big Three, it was--Moody's, S&P, and to some degree Fitch--
and that the rating agencies basically gave out AAA ratings to 
junk because they wanted to keep the business. And in the DOJ 
case, are there not as part of the evidence emails between 
people at S&P saying, look, we know this is not deserving of 
AAA but we have got to give it that, stuff to that effect, 
right?
    Attorney General Holder. Yes, I do not want to go beyond--
it is a pending case. I do not want to go beyond the 
indictment. But that information or those kinds of emails are 
contained in the indictment.
    Senator Franken. Well, this is what DOJ, what the statement 
is from DOJ about the lawsuit. It says, ``S&P falsely 
represented that its ratings were objective, independent, and 
uninfluenced by S&P's relationship with investment banks, when 
in actuality S&P's desire for increased revenue and market 
share led it to favor the interests of these banks over 
investors.''
    Attorney General Holder. We believe our evidence will show 
that.
    Senator Franken. Okay. Now, you say that this ``goes to the 
heart of the recent economic crisis.'' Is that not because once 
they ran out of mortgages to securitize and subprime mortgages, 
packages of subprime mortgages to securitize, they started 
doing bets on the bets, and they gave those AAA ratings, right?
    Attorney General Holder. Yes, now you are getting into an 
area where I am not an expert, but when you start talking about 
bets on bets, as I understand it, that is, in fact, correct. 
But I am not an economist or a financial guy.
    Senator Franken. Right, I understand that, but when you say 
it ``goes to the heart of the recent economic crisis,'' what I 
am saying is that this house of cards that collapsed would have 
been one card high if they had not started giving AAA's to 
derivatives.
    Attorney General Holder. Right.
    Senator Franken. And derivatives on derivatives.
    Attorney General Holder. Getting away from the S&P case, 
because it is a pending matter, I think the assertions that you 
are making are, in fact, correct that the financial system made 
bets on bets, giving ratings to derivatives that were not 
necessarily deserved. And I am not talking about S&P now.
    Senator Franken. Yes, I am not asking you to testify as an 
expert on finance. But this prosecution, it goes to the heart 
of why our economy collapsed, and what it was, was that the 
credit rating agencies had--there was a conflict of interest 
they had because they knew if they gave a AAA rating they would 
get more business. That is essentially what the case is about.
    Attorney General Holder. That is in essence the 
Government's theory.
    Senator Franken. And Senator Wicker and I, Senator Wicker 
of Mississippi and I wrote an amendment to Dodd-Frank which 
basically said we have to--gave the SEC the ability to address 
that, to eliminate the conflict of interest. And that passed in 
the Senate in a bipartisan way with 64 votes. It got to 
conference and became a study that said that if the SEC finds 
that this conflict of interest still exists, they will address 
that conflict of interest and get rid of it. That has happened, 
and I think that is absolutely crucial that the SEC act on 
that. So I wanted to just use your testimony to get on my 
little soapbox--my big soapbox there, but I think it is 
absolutely crucial.
    I want to ask you about an entirely different matter. Last 
fiscal year, almost 14,000 children arrived at our borders 
alone and subsequently entered our immigration court system. 
Since 2008, the Department of Health and Human Services has 
been in charge of making sure that these children have access 
to legal representation. Unfortunately, experts report that 
only half of these children are actually getting lawyers.
    My office has started to hear harrowing stories of 8-year-
old kids, 7-year-old kids, 6-year-old children going before 
immigration judges by themselves, without representation.
    Attorney General Holder, experts have suggested that the 
job of getting these kids lawyers should be transferred out of 
HHS and into the Department of Justice. I am considering this 
proposal closely. Do you support doing this?
    Attorney General Holder. I certainly think that we want to 
work with you in coming up with ways in which we can ensure 
that children do, in fact, have legal representation. If this 
is something that is better housed in the Justice Department, 
that is certainly something we are willing to consider.
    But I would also say that this is going to be a resource 
issue. We should not simply give this responsibility to the 
Justice Department without giving us additional resources. As 
part of the immigration reform package that we are considering, 
I would hope that this would be something that would be 
considered. It is inexcusable that young kids--and you are 
right, 6-, 7-year-olds, 14-year-olds--have immigration 
decisions made on their behalf, against them, whatever, and 
they are not represented by counsel. That is simply not who we 
are as a Nation. It is not the way in which we do things.
    Senator Franken. Well, I hope our offices can work together 
on this, because you are absolutely right, it is 
unconscionable. Thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much, Senator Franken.
    Senator Grassley.
    Senator Grassley. Once again, thank you for coming up here. 
I want to follow up on your response to Senator Cruz, and I 
think he talked about introducing a bill.
    Do you believe that Congress has the constitutional 
authority to pass a law prohibiting the President's ability to 
use drone aircraft to use lethal force against American 
citizens on U.S. soil? And if not, why not?
    Attorney General Holder. Do I think that Congress has the 
ability to pass such a bill?
    Senator Grassley. No. Whether the legislation--well, yes, 
Congress has the constitutional authority to pass a law 
prohibiting the President's ability to use drone aircraft to 
use lethal force against American citizens on U.S. soil?
    Attorney General Holder. I am not sure that such a bill 
would be constitutional. I think that might run contrary to the 
Article II powers that the President has. I would have to look, 
obviously, at the legislation, but I would have that concern.
    Senator Grassley. Okay. But your basis is the why not would 
be because of Article II?
    Attorney General Holder. I believe so, yes.
    Senator Grassley. Okay. One last question in that area. 
Given the belief that it would be constitutional to use lethal 
force against American citizens on U.S. soil in some instances, 
as you said, would that theory extend to permitting the 
executive branch to use enhanced interrogation techniques 
against American citizens on U.S. soil to avoid a catastrophic 
event?
    Attorney GeneralHolder. I do not think enhanced 
interrogation techniques, as those have been defined, should 
ever be used against anybody for any purpose. They are 
ineffective. They are inconsistent with how we think of 
ourselves as a Nation, and some of them are outright torture. 
And they do not work.
    Senator Grassley. On another issue, in regard to a letter 
you wrote to Chairwoman Mikulski on the Budget Control Act and 
``cutting $1.6 billion from the Department's current funding 
level, which would have serious consequences for the 
communities across the Nation,'' specifically the letter 
detailed cuts to the FBI suggesting furlough of 775 special 
agents, the most important asset to the agency's national 
security and law enforcement mission. But the reality is, as of 
yesterday, the Department of Justice was advertising for over 
100 job openings on USAJobs website. These jobs include 
positions such as cook supervisor, dental hygienist, law 
librarian. Further, the Department's own website has over 50 
attorney positions listed since January 14th. A memorandum was 
being issued by OMB instructing agencies. So I am skeptical 
about your description of ``severe negative impacts on the 
Department, including the estimated loss of Federal agents 
fighting national security.''
    Further, your letter to the Chairwoman failed to discuss 
cuts to conference expenditures, which more than doubled 
between 2008 and 2010. It also failed to discuss reductions in 
travel or other non-mission expenditures.
    I am leading up to what has a high priority when it comes 
to sequester. How do you reconcile for the American people then 
the fact that the Department is actively recruiting for 
hundreds of positions, including cooks and dental hygienists, 
but yet you threaten to furlough 775 FBI agents working on 
violent crime and national security?
    Attorney General Holder. That is a good question. We are 
going to certainly have to, if the sequestration stays in 
effect, we are going to have to furlough FBI agents. What I 
have told the people in the Department is that hiring has to 
stop. It does not mean, however, that we should stop the 
process of going through the interviews and all of that so that 
when the sequestration is over, when funds are returned to us, 
we have an ability to fill gaps that we will necessarily have 
just through attrition. So we want to be in a position on the 
other end of sequestration to have people in line to take 
positions that might be available, but there will not be 
anybody brought into the Department of Justice while 
sequestration is in effect. I made that clear to all the heads 
of the components. So you can do the interviews and all of that 
stuff and maybe have a person that you want to put in place 
once we are on the other side of sequestration.
    Senator Grassley. Well, how does your direction to the 
Chairwoman comply with OMB's memo tasking agencies to minimize 
cuts to agency mission, life, safety, and health concerns?
    Attorney General Holder. All we are talking about is just 
interviewing people and making sure that these are potentially 
people who we might want to hire. The costs for that are 
minimal.
    Senator Grassley. Well, how about cutting the 700 or so FBI 
agents? How does that comport with the memo of OMB on 
minimizing cuts to agency mission, life, safety, and health 
concerns?
    Attorney General Holder. Well, we have only a certain 
amount of flexibility in the way in which the sequester is 
structured. You look at the various components within the 
Department, and there is little or nothing that I can do with 
regard to, for instance, what the FBI has got to take in terms 
of a cut, what the DEA has to take in terms of a cut. And the 
resources that we have, the money in the Department of Justice 
is in our people. We do not have airplanes. We do not fly--or 
huge amounts of planes. We do not have planes like the Defense 
Department. So when it comes to reducing costs, all I can do is 
basically furlough people and then do things on the other side 
with regard to, as you mentioned, conferences and things of 
that nature. But the main way that we have to reduce cost is 
with regard to furloughing our people, which will have a 
negative impact on our ability to do the job the American 
people expect us to do.
    Senator Grassley. In my letter last week, I noted that the 
January OMB memo requested sequester proposals from the 
Department, and I asked you for a copy of these passbacks. 
Would you provide these draft proposals to the Committee so 
that we can review what cuts the Department requested and what 
OMB recognized? And if you cannot give it to us, why would you 
not give it to us?
    Attorney General Holder. I am not sure I understand what 
your question is. The----
    Senator Grassley. Well, you know, OMB sends you 
recommendations and then you send back what you are going to 
do. I want those documents so I can compare what you 
recommended to what OMB said should have a higher priority.
    Attorney General Holder. I am not sure what position the--
--
    Senator Grassley. They are called ``passbacks.''
    Attorney General Holder. Yes, I am not sure what the 
administration position has been on that, but I would think 
that draft OMB correspondence between an agency and OMB about 
decisional matters would be the kinds of material that we would 
seek to protect.
    Senator Grassley. Let me end, because my time is up, with 
just a statement, that I heard in an interview that you said 
for the people that voted for the contempt effort against you 
that you did not have respect for people like that. I want you 
to know that I am extremely disappointed. I voted for you based 
on the fact that--giving you the benefit of the doubt and 
disregarding previous controversies. It seems to me that your 
recent comments suggest a level of partisanship and disregard 
for those with whom you disagree that is quick shocking. And I 
do not think you should have said it, and I think you owe the 
people an apology.
    Thank you.
    Attorney General Holder. Well, let me just say that what I 
do not respect was the process. It was an effort that had a 
predetermined result. Whatever we did in good faith was met by, 
I think, political determinations, and that is a process that I 
do not respect, to be honest with you. And the people who 
pushed it are people who, as I said before--I will stand by 
that. The people who pushed that I do not respect because I do 
not think it was consistent with the way in which other Cabinet 
members who had similar kinds of issues with Congress were 
treated. When the gun lobby decided to score that vote, then it 
was clear how the vote was going to turn out. And it became 
something other than what it was portrayed to be, and that is a 
process that I simply do not respect.
    Senator Grassley. The House probably would not have even 
taken it up if you had answered the questions and given me the 
documents I wanted.
    Attorney General Holder. Well, history has shown us that in 
the past there had been a much greater period of time for those 
kinds of negotiations to occur. If you look at what happened 
with Harriet Miers and other people, Josh Bolten, as opposed to 
what happened to Eric Holder, you will see the period with 
which we were given to try to respond to and negotiate was 
much, much shorter. There was a desire to get to a certain 
point, and they got there.
    Chairman Leahy. Well, as Chairman, I might say I agree with 
your answer.
    Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman.
    Thank you, Attorney General Holder, for being here once 
again. I think I told you the other day that Senator Lee and I 
are heading up the Antitrust Subcommittee, and we are holding a 
hearing on the American Airlines-USAir merger. I know you 
cannot talk about the details of that as it is in the Justice 
Department right now. But I am just wondering your views on--we 
have talked about some of the areas where we will see more 
potential action in antitrust, whether it is transportation, 
whether it is in the health care industry, whether it is with 
communications, where there has always been a lot of action in 
that area, and just what direction do you see the Department 
taking with antitrust.
    Attorney General Holder. Well, I think you have actually 
hit many of the areas that I think are going to be a focus for 
us: communications, without talking about anything specific, we 
have certainly spent time and I think we will have to continue 
spending time with regard to airline mergers; health care--all 
things that impact the American consumers.
    What we have tried to do in the Antitrust Division is to 
focus our efforts in such a way that we benefit the American 
people with regard to lower prices, more competition, and 
wherever we find--in the agricultural field, for instance, 
wherever we find instances that there is collusion or 
inappropriate activity being taken that will have a negative 
impact on the American consumer, we will be there.
    Senator Klobuchar. Very good. Well, I look forward to that 
hearing.
    The second thing I was going to talk to you about, which we 
also discussed, was the issue of metal theft, and this is 
something that not everyone--it is not on the tip of their 
tongue, but I have seen increases in this all over my State. 
Senator Hoeven and I just met at an electric company in 
Moorhead, Minnesota, about this. Senator Graham and I have a 
bill, along with Senators Schumer and Hoeven, to up some of the 
penalties when copper and other metals are stolen from critical 
infrastructure. We are seeing nearly $1 billion in damage a 
year in costs for our country.
    The most striking example was just this past year, 200 
Bronze Stars were stolen from a grave in Isanti County, 
Minnesota, from the graves of veterans. And people are getting 
very desperate to steal this metal. Electric companies have 
been broken into ten times in Icerick and St. Paul that 
experienced hundreds of thousands of dollars of damage simply 
by having one pipe stolen, and one of the fears is that it is 
actually dangerous because homes have blown up, people have 
died, because taking one pipe that may be only worth a couple 
thousand dollars can do millions of dollars in damage. And I 
just wanted you to comment on that.
    Attorney General Holder. Yes, as I said to you in the call 
that we had, this is something that had not really entered my 
consciousness. I have actually had a chance to talk to at least 
a couple of people in the Department who indicated that what 
you said was, in fact, true, that this is a growing problem, 
and it is one that I think we need to devote resources to, 
attention to.
    Again, this was not something that I was, frankly, aware 
of, but given the nature of what people have told me within the 
Department, which is the potential harm not only in the theft 
of material but, as you were saying, the problems that the 
theft actually precipitates--houses blowing up, gas lines being 
ruptured. It is a new problem that we are going to have to 
focus on.
    Senator Klobuchar. Just briefly on this, I just wanted you 
to know that I am continuing to work on drug courts. Fellow 
Minnesotan, former Congressman Jim Ramstad talked about this in 
the last Congress, about how drug courts have transformed the 
way we handle criminal cases. They are incredibly important. As 
a prosecutor, I know you cared about this. We had a really 
ground-breaking court and have one in Hennepin. And I was 
pleased to see that Federal courts are beginning to embrace 
drug courts for low-level, nonviolent offenders. The New York 
Times had a story last weekend about Federal judges instituting 
drug court programs in California, Connecticut, Illinois, New 
Hampshire, Virginia, and Washington. If you want to just 
comment briefly on that.
    Attorney General Holder. I think that we have to try to use 
drug courts to a greater extent than we do. I think that they 
have generally proven to be successful. What we want to try to 
do is to use the criminal justice system in an appropriate way. 
Sometimes people have to go to jail. A great number of people, 
though, simply need to kick their habit. And if we can use the 
criminal justice--the penalties of the criminal justice system 
as a hammer to keep that over people's heads to force them into 
and keep them in treatment, we have seen really amazing success 
rates and a much lower recidivism rate, and that I think is the 
key. So it ultimately saves us money over the long haul, 
reduces the crime rate, and is something that I think is worthy 
of greater support.
    Senator Klobuchar. In our State, we have one of the lower 
incarceration rates in the country, and we use a lot of drug 
courts, and we also have for our metro area one of the lower 
crime rates. And so I think it is really important, and I hope 
that you will support and the administration will support 
continued funding. We are always having the issues in Congress, 
but we do have bipartisan for it.
    The last thing----
    Attorney General Holder. That is really one of those areas 
where we have to understand that whatever we invest up front we 
are going to reap more money in savings down the road. It is 
clear, the scientific evidence is clear.
    Senator Klobuchar. Exactly. And the last thing I wanted to 
mention is you and I were both in Selma, Alabama, last weekend 
for that incredible weekend, and part of the weekend, of 
course, was the white police chief in Montgomery handing over 
his badge to Congressman Lewis, saying that he apologized for 
what had happened 48 years ago, that the police department had 
not adequately protected Congressman Lewis or those marchers. 
You gave a beautiful speech on Sunday, and I wanted to just 
follow up with some questions about that.
    We know the Supreme Court recently heard the Voting Rights 
Act case. Can you talk about the implication of a Court 
decision for voting rights?
    Attorney General Holder. Yes, I mean, I cannot comment too 
much. It is a pending case. But I will say that, you know, the 
United States is--we are in a different place. The South is a 
different place. And yet the need for Section 5 is still 
evident.
    If you look at the cases that we brought in the last 18 
months or 2 years or so, in Texas, South Carolina, Florida, the 
ability to preclear things that those States wanted to do, the 
findings made by the three-judge panels that supported the 
Justice Department's position is all an indication that, given 
all the progress that we have made, problems persist and that 
Section 5, which is a critical, critical part of the Voting 
Rights Act, should remain a tool that we have the ability to 
use.
    Senator Klobuchar. Also, just to note, I am reintroducing 
the same-day registration bill. You know, we have that in 
Minnesota, and we have been able to have elections with the 
highest, if not one of the highest voter turnouts in the 
country repeatedly. And I do not know if you have looked at 
that as a long-term solution to some of these issues with 
voting rights.
    Attorney General Holder. I do think that is right. We need 
to try to expand the number of people who participate in 
voting, make it as easy as we can, being mindful of the 
potential for fraud, but to come up with ways in which--is it 
same-day, registration, portable registration, expanding the 
number of days on which people can cast ballots? That is the 
thing that defines this Nation, our ability to vote, our 
ability to shape the Congress that represents us, on the State 
level as well. That is how people decide the future of our 
Nation and efforts to restrict the vote have to be fought, 
efforts to expand the vote, the ability of people to vote have 
to be supported.
    Senator Klobuchar. Thank you very much, Attorney General. 
Thank you for your good work.
    Attorney General Holder. Thank you.
    Chairman Leahy. Thank you.
    Senator Lee.
    Senator Lee. Thank you, Mr. Chairman, and thanks, General 
Holder, for joining us.
    Last month, I joined a bipartisan group of Senators in 
sending a letter to your Department asking for any and all 
memoranda that you might have that seek to provide legal 
justification or a legal framework for making decisions 
regarding the targeted killing of American citizens using 
drones.
    The letter noted that senior intelligence officials have 
indicated that your Department's Office of Legal Counsel had 
prepared some written but non-public legal opinions that 
articulate the basis for that authority. And notwithstanding 
that request, neither I nor other members of this Committee 
have received the OLC memoranda.
    Now, somebody indicated earlier during this meeting that 
they thought that that memo, that the OLC memo, might have been 
leaked. It is not my understanding that that has been. What has 
been leaked is something that has been released by NBC News--I 
know that only because it carries a heavy NBC News watermark on 
it--as a Department of Justice white paper on the issue, which 
appears to provide a narrower, perhaps more condensed legal 
analysis than what is available in the DOJ Office of Legal 
Counsel memoranda.
    So I want to turn back to the white paper in a minute, but 
first on the OLC memoranda, do we not you think that this 
Committee has an important oversight role over the Department 
of Justice's role in this analysis?
    Attorney General Holder. Yes, I do, and I heard the 
Committee express the desire to see these memoranda, and I want 
to be careful here, but I will be bringing that to the 
attention of the appropriate people within the administration. 
I am not unsympathetic to what you are saying.
    Senator Lee. Okay. You are the Attorney General, and I 
assume that they will respect what their boss has to say. Are 
you saying that you will make that available to us as Members 
of the Judiciary Committee?
    Attorney General Holder. What I am saying is I will bring 
that desire and my view to those who are in a position to make 
those kinds of determinations. I am only one of those people.
    Senator Lee. Right. I understand. I understand you do have 
clients within the Government and you have to consult with 
them.
    Attorney General Holder. Right.
    Senator Lee. I would strongly urge you to make that pitch 
quickly and as forcefully as you can. I think that is important 
for us to review that as Members of the Judiciary Committee, 
which has oversight over your Department.
    One of the reasons why I think that is so important is 
that, as I have reviewed this Department of Justice Office of 
Legal Counsel--actually, we are not sure where exactly within 
the Department this memorandum came from, but the white paper, 
as I review that, it actually raises more questions in my mind 
than it answers.
    The gist of this white paper, as I see it, says that the 
U.S. Government may, in fact, target and kill American citizens 
using drones where there is an imminent threat, an imminent 
threat of a national security sort to the United States, its 
citizens, its installations and so forth.
    Now, that is a fairly familiar standard. It is a somewhat 
familiar standard in the law, and yet as you read on in this 
white paper, it becomes apparent to me that the definition of 
``imminence'' used in this paper is different than almost any 
other definition I have seen.
    In fact, on page 7 of the white paper, the white paper goes 
so far as to suggest that imminence does not really need to 
involve anything imminent. Specifically, it says that this 
condition, that of imminence, that an operational leader 
present an imminent threat of violent attack against the United 
States does not require the United States to have clear 
evidence that a specific attack on U.S. persons and interests 
will take place in the immediate future.
    So I have to ask, Mr. Attorney General, what does 
``imminence'' mean if it does not have to involve something 
immediate?
    Attorney General Holder. Yes, I think part of the problem 
is what you talked about in the previous question. I think that 
white paper becomes more clear if it can be read in conjunction 
with the underlying OLC advice. In the speech that I gave at 
Northwestern, I talked about imminent threat, and I said that 
it incorporated three factors: a relative window of opportunity 
to attack, the possible harm that missing the window would 
cause to civilians, and, third, the likelihood of heading off 
all future disastrous attacks against the United States. So 
that is a part of it.
    But I do think, and without taking a position one way or 
the other, it is one of the strongest reasons why the sharing 
of the opinions, the advice, the OLC advice with this Committee 
makes sense.
    Senator Lee. Because you can understand my concern here. As 
a lawyer who really knows a lot about these things, you 
understand how that standard, if that were the standard, could 
be manipulated, would give Americans a lot of pause. So another 
reason for me to strongly encourage you to make that available 
to us.
    There are other aspects of the white paper that also 
trigger this concern, and I would like to ask you about those 
as well to find out whether your response to that is the same. 
The white paper notes that the President must find--in order 
for a drone attack on a U.S. citizen to occur, that the 
President must make a finding that capture of the individual is 
not feasible. But then the white paper goes on to state that 
capture is by operation of the memo's analysis not feasible if 
it could not be physical effectuated during the relevant window 
of opportunity.
    Now, the paper makes no definition, makes no attempt to 
define what the ``relevant window of opportunity'' is, meaning, 
I suppose, that it is whatever the President decides that it 
is. And you understand how that could be cause for concern? And 
is that not fraught with opportunities for manipulation?
    Attorney General Holder. Well, I think there is a certain 
degree of objectivity there in the sense that people become 
potentially capturable in overseas venues at certain times, and 
they become--that window of opportunity ceases to exist when 
perhaps they move or we lose track of them. So that I tend to 
understand.
    Senator Lee. Okay. So do I understand you saying that the 
Office of Legal Counsel memorandum, which we have not had the 
opportunity to review, would also provide further clarification 
on this point and would answer some of the questions we have 
about the vagueness or the overbreadth of that standard?
    Attorney General Holder. That one I am not sure. I am just 
not sure.
    Senator Lee. Okay. Let me just ask one other question, 
another unrelated point. In the last few months, Members of 
your Department, including Assistant Attorney General Perez and 
yourself, have stated that the Department of Justice is 
considering certain reforms to the voter registration system. 
For example, Assistant Attorney General Perez stated that it 
should be the Government's responsibility to automatically 
register citizens to vote by compiling from data bases that 
already exist a list of all eligible residents in each 
jurisdiction.
    These statements and others like them can be read to 
suggest that there might be an increased role for the Federal 
Government to play in voter registration. Now, voter 
registration, as you know, is something that has historically 
been carried out exclusively by the States, and so that raises 
some federalism-related concerns with regard to the States' 
traditional role in running elections and in managing voter 
registration.
    So is it the Department's view that it has current 
statutory authority to promulgate regulations that would 
centralize voter registration in the Federal Government or 
otherwise increase the Federal Government's role in voter 
registration?
    Attorney General Holder. I would not say centralize. You 
might think of the Department of Justice or the Federal 
Government trying to incentivize States to come up with 
mechanisms so that they would themselves come up with the thing 
that Tom had described. This is something that is a primary 
responsibility of the States, but I think the Federal 
Government can help the States in the carrying out of that 
responsibility.
    Senator Lee. And you would agree that the Federal 
Government lacks existing statutory authority to centralize 
voter registration?
    Attorney General Holder. To centralize it, yes. On the 
other hand, there are statutes that allow the Federal 
Government to become involved in the election processes that 
are normally carried out by the States.
    Senator Lee. Thank you, Attorney General, and thank you, 
Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Coons.
    Senator Coons. Thank you, Chairman Leahy, and thank you, 
Mr. Attorney General. Great to be with you again.
    Let me just start with one question that has been fairly 
uniform across this entire Committee today, from Chairman Leahy 
to Senator Lee, who was just asking about it, just about the 
targeted killing question. I share the frustration and concern 
expressed by many other Senators about transparency on targeted 
killings, and I have just one specific question on that, if I 
might, before we turn to other topics.
    Would you, as we go forward, support any form of judicial 
review in this context, including the limited sort that we have 
in FISA? Do you think that would move this forward?
    Attorney General Holder. I think that is something that is 
worthy of conversation, consideration. I would want to make 
sure that the inclusion of a court did not, for instance, have 
some kind of an inhibiting impact in the operations. But I 
think as John Brennan testified during his confirmation hearing 
that that is something worthy of consideration, something that 
we ought to think about potentially making a part of the 
decisionmaking process.
    Senator Coons. Thank you. I look forward to working with 
you on that. You can hear almost unanimous concern about 
transparency and wrestling with how to move forward here in a 
way that protects both our constitutional liberties and our 
security as a Nation.
    We just spent a great weekend together, in part in Selma. 
It was wonderful to meet your wife, Dr. Sharon Malone, and to 
hear in Tuscaloosa her family's role in an important piece of 
American history. And as we sit wondering what will happen to 
Section 5 of the Voting Rights Act, I am also concerned about 
Section 5 of the National Voter Registration Act, the so-called 
motor-voter act, something that is not currently under review.
    I am hoping that the Department is going to take up its 
enforcement obligation here more actively. My sense is that 
there has been very few enforcement actions on motor-voter, and 
it is something that could, I think, make a positive 
contribution to registration and to voter participation.
    Is the reason that there really has not been an active DOJ 
enforcement trajectory on motor-voter a resource issue? We have 
heard from you about sequester and other constraints. Or are 
there things that we need to be doing to ensure that this 
critical piece of the architecture of voting rights in this 
country is used more actively?
    Attorney General Holder. Well, we have taken certain 
actions. We have filed statewide lawsuits against Rhode Island, 
as well as Louisiana. There is something going on in Florida. 
These are matters that I am not sure that we are underenforcing 
it. I am sure you hear this from all of the agencies that 
appear before you--we could use more when it comes to 
resources. It is a vital tool to increase the number of 
eligible citizens who can vote, to make sure that registration 
rolls are accurate in Federal elections. This is something that 
we want to be more involved in, and I think one of the things, 
if I talk to Tom Perez in the Civil Rights Division, my guess 
would be he is going to tell me, ``We would like to do more, 
Eric, but I need more people.'' I think that is probably what 
he would say.
    Senator Coons. Well, we would certainly be happy to have 
that conversation given the critical importance of voting. And 
as you have discussed with other Members of this panel today, 
should there be a change in the status of the Voting Rights 
Act, Section 5 in particular, I would love to work with you on 
whether there is room going forward for expedited proceedings 
or for special ways to make sure that voting cases still get 
heard and some either reauthorization or strengthening or 
replacement for the Voting Rights Act.
    Let us talk, if we can, about another area where I think 
resources is a critical issue, and there may be a solution. In 
intellectual property--I come out of manufacturing--
manufacturing relies on trade secret protection as much as on 
patenting for critical steps in manufacturing, and there has 
been just a barrage of assaults and theft of American 
intellectual property. A firm called Mandiant recently released 
a report documenting just widespread--and you have spoken to 
this--theft of American intellectual property. But the number 
of prosecutions by DOJ around trade secrets has been very 
light, and I understand the limitations of resources.
    Would a private right of action, a Federal private right of 
action help accelerate perhaps some of the assertion of rights 
and the ability to pursue justice on behalf of American 
manufacturers and inventors?
    Attorney General Holder. I think that is certainly 
something we should talk about, we should discuss. My instincts 
take me in a direction I think where you are, that perhaps that 
is something that we should do. What I would like to do is 
maybe work with you, have the appropriate people from the 
Department sit down and meet, perhaps with your staff, and talk 
about that possibility. But I do think that the theft of 
intellectual property, trade secrets has a devastating impact 
on our economy, threatens our national security, and is worthy 
of our attention.
    This is a problem that is large but is getting larger and 
is something--as you look over the horizon, this is an area 
where we are going to have to devote more attention as a 
Nation.
    Senator Coons. I am glad to hear you say that because I 
think all of us are on notice that there is probably the single 
greatest widespread theft in human history going on at the 
moment, and it really does have a negative and cumulative 
impact.
    Let me point to a few programs that I think have 
significant positive impact and with a modest investment of 
Federal resources have a very positive impact on public safety. 
We were supposed to be having a session of the Senate Law 
Enforcement Caucus today to hear testimony from Kentucky and 
Delaware about the Justice Reinvestment Initiative. We flew 
some people in. Unfortunately, the inclement weather has led to 
its cancellation. I look forward to another session. But it is 
a place where bipartisan bills at the State level have led with 
Federal partnership to sort of critical catalytic investments 
in improving criminal justice systems.
    The Bulletproof Vest Partnership is something I value 
highly. I had a police officer from Dover, Delaware, here a 
number of months ago who was shot twice at close range in the 
chest and survived. Two officers in the New Castle County 
courthouse in the county where I used to serve, their lives 
were saved very recently by bulletproof vests. We should be 
reauthorizing this program, and I look forward to working with 
you on that.
    The last question, if I could, in the same vein. The 
Victims of Child Abuse Act and the Child Advocacy Centers that 
it funds that you are familiar with I think are an enormous 
resource for law enforcement and to prevent the revictimization 
by children who have been traumatized by allowing them to be 
interviewed once in a way that is admissible as evidence, in a 
way that is appropriate, and that has all the relevant folks 
there and present. And the one I visited at A.I. Children's 
Hospital in New Castle County, while the circumstances that 
lead to these interviews are tragic, the resource for our 
community and our law enforcement community is terrific.
    I was surprised that it was zeroed out last year, and I am 
hoping that I could rely on your support for restoring funding 
to this small but cumulatively powerful program in the Fiscal 
Year 2012 budget. Any thoughts on the future of Child Advocacy 
Centers?
    Attorney General Holder. Well, I was one of the people who 
started the Children's Advocacy Center here in Washington, DC. 
I know the positive impact it has on child victims of crime. 
The decision to eliminate this funding was a difficult one. 
Deficit issues, restoring fiscal sustainability were all a 
consideration.
    The Office of Justice Programs, as I have talked to them 
after I spoke to you, has come up with ways in which they think 
they can prioritize some grantmaking and training to help in 
that regard. But I think that as we look at the budget for the 
next year, given what we get from the Advocacy Centers and the 
relatively small amount that is involved, this has to be a part 
of the next budget. I am not satisfied with where we are now 
with regard to the present budget. I think that was a mistake.
    Senator Coons. Well, thank you, Mr. Attorney General. I 
certainly look forward to working with you. As a member of the 
Budget Committee, I think all of us here recognize that we have 
forced far too many of the cuts we have made in the last 2 
years just in the narrow area of domestic discretionary, and it 
is having significant negative impact on things like criminal 
justice, strengthening our communities, investment in 
infrastructure, R&D, and education, and I look forward to 
finding a broader solution, and I am really grateful for your 
service.
    Thank you.
    Attorney General Holder. Thank you.
    Senator Coons [presiding]. Senator Grassley.
    Senator Grassley. I have had my round. I would like to ask 
one more question on a second round.
    Senator Coons. Senator Blumenthal.
    Senator Blumenthal. Thank you.
    Good morning, Attorney General Holder. Thank you for being 
here. Thank you for your leadership of the Department of 
Justice in areas that are so important--voting rights, DOMA, 
and other areas that are critical to the future of justice in 
this country. And I want to thank both you and the President 
for your leadership on gun violence prevention and particularly 
his and your personal commitment to the people of Newtown, who 
are still grieving and hurting, and your personal involvement 
in trying to ease those continuing traumas that still affect 
them as recently as yesterday in our telephone conversation. 
And I want to focus for the moment on gun violence prevention.
    As a law enforcement professional, not just as Attorney 
General but one who has been a judge and a prosecutor, this 
whole idea of better enforcement of existing laws is one that 
we both agree ought to be the goal, and it always is for any 
prosecutor. And yet enforcement of some of these laws is 
impeded by gaps in those laws, such as the absence of 
background checks on firearms, which now enable about 40 
percent of all firearms purchases to go without any check 
whatsoever. You would agree with that, wouldn't you?
    Attorney General Holder. Yes. There are loopholes, as we 
have come to describe them, that make the enforcement of 
existing laws extremely difficult and render those existing 
laws not nearly as effective as they might otherwise be.
    Senator Blumenthal. And those laws now prohibit purchases 
of firearms by categories of people--convicted felons, 
fugitives, drug addicts and abusers, and domestic violence 
abusers--purchases of firearms and ammunition. Both firearms 
and ammunition. Right now there are no background checks as to 
purchases of ammunition, none whatsoever. And as a matter of 
common sense as well as law enforcement professionalism, I 
think you would agree that those laws are better enforced with 
background checks as to ammunition purchases. Would you agree?
    Attorney General Holder. Yes, I think that I would like to 
discuss this with you some more. One of the concerns I have is 
a resource concern. I think that theoretically what you are 
talking about makes a lot of sense--not even theoretically. I 
do not mean to diminish it because it is more than theoretical. 
I think that would have a very real positive impact. My only 
concern is the NICS system, I worry about it potentially being 
overburdened and making sure that we would have the resources 
to do that.
    Senator Blumenthal. And just by way of background, you 
know, I have asked two of the U.S. Attorneys who have been 
active and aggressive enforcers of these laws--U.S. Attorney 
Heaphy, for example--whether these laws can be enforced 
effectively without background checks on ammunition, and to 
quote both of us, ``Without a background check now, do you have 
any effective way of enforcing that law, the prohibition on 
ammunition purchases? '' His answer: ``No.''
    So when you are asked by my colleagues, ``Why are you not 
you more aggressively enforcing these laws? Why do we not we 
have more prosecutions? '' the very simple answer is that there 
is no real way to enforce these bans on ammunition purchases or 
firearms purchases unless there are background checks.
    And I understand and recognize and sympathize with your 
point about resources, but if we are serious about these gun 
violence prevention laws that keep ammunition and firearms out 
of the hands of criminals, we need to strengthen and bolster 
that NICS system so that we make these laws something more than 
just a charade and a feel-good set of words on a statute.
    Attorney General Holder. You are absolutely right, Senator, 
and that is actually part of the comprehensive plan that the 
President, the administration has proposed to devote more 
resources to make greater use of the NICS system and to 
expand--to make more resources available so that it can be used 
in a way to support existing laws, because those people who 
constantly say you have got to enforce the laws do not 
necessarily always give us the tools to enforce those very 
laws.
    Senator Blumenthal. Exactly. And I want to again thank you 
and the President for that commitment on resources, and also 
say that as the major proponent of the background check 
provision for ammunition, I am looking for ways to modify this 
proposal so as to perhaps make it voluntary and give licensed 
dealers the access that they need to the system. As you know, 
right now they are barred from checking. They see somebody come 
in, a potential Adam Lanza, who is buying hundreds of rounds of 
.233-caliber ammunition, they have no way of checking whether 
he is a drug abuser, a domestic abuser, a convicted felon, a 
fugitive, anyone in those prohibited categories. They simply 
are at a loss for basic information to try to protect the 
public. The best intentions cannot help them help you enforce 
the law.
    So I am hoping that we can work together on this provision. 
I repeat, I am sympathetic to the resource issue. If it were my 
say alone, those resources would be available right now. And if 
you----
    Attorney General Holder. Let us see if we can work 
something out then, so that you have that ability.
    Senator Blumenthal. Thank you. Let me move to another 
subject, and I really appreciate your answers on that one.
    On wrongful foreclosures, among particularly military 
mortgage holders, there have been recent reports, most recently 
just a few days ago in The New York Times, 700 members of the 
military had homes seized, and other borrowers who were current 
on their mortgage payments, also homes seized--those improper 
evictions dwarfing the numbers that were previously known. A 
sign of a larger problem, a sign that the recent settlement may 
have been based on incorrect, perhaps untruthful information, 
in my view more than ample basis for an investigation by the 
Department of Justice under either the RICO statute or 
wrongful, improper statements under Federal law punishable 
criminally.
    I would like your commitment, again, to work with me and 
others here on the possibility of an investigation based on 
those disclosures that undermine the good faith and fairness of 
that settlement and the Government's involvement in it.
    Attorney General Holder. I will make that commitment. When 
we look at what I saw there with regard to servicemembers, I 
did a tape, I think last week, for something that is for 
veterans to make them aware of fraud, more basic fraud that 
they face that too often goes unreported by them for a whole 
variety of reasons, to try to encourage them to share 
information up the chain of command and also to make sure that 
there is a mechanism so that from the Defense Department to the 
Justice Department we are made aware of trends that might exist 
along the lines of the ones that you are describing, and then 
we will become involved. So I will work with you on that.
    Senator Blumenthal. Thank you.
    And one final area that I think is and should be of 
interest to you. Sexual assault in the military is prosecuted 
and punished under its own system, and yet it is a predatory, 
criminal act that, in my view, should be punished with a 
severity and aggressiveness that is lacking right now. And as a 
member of the Armed Services Committee, I am seeking to help 
increase the completeness and fairness of this system to 
protect men and women from sexual assault, sometimes the most 
severe sexual assault imaginable. And you have resources, a 
perspective personally as a prosecutor, obviously the best 
prosecutors and investigative agency in the whole country, and 
I would again respectfully ask for your commitment that you 
will help us on the Armed Services Committee with your 
expertise and your commitment to fairness and aggressive 
prosecution of these laws.
    Attorney General Holder. Yes, but those are primarily the 
responsibility of the Defense Department.
    Senator Blumenthal. Right.
    Attorney General Holder. Secretary Panetta certainly 
focused attention on that. I expect that Secretary Hagel will 
as well. But to the extent that we at the Justice Department 
can help in that effort, we want to do all that we can.
    You know, I think about the young people who put their 
lives on the line in service to our Nation, young women in 
particular, and look at the numbers that you see repeatedly 
year after year, and that is an extremely disturbing thing to 
think that you volunteer for your Nation, and as a result of 
that, you become the victim of a sexual assault, and that is 
simply not acceptable.
    Senator Blumenthal. And I want to make clear that my asking 
for your assistance is not to in any way disparage or denigrate 
the good faith and efforts of Secretary Hagel and the Joint 
Chiefs and all of the military leadership to making this system 
work better. They are, in my view, thoroughly committed to that 
goal.
    Thank you.
    Attorney General Holder. Thank you.
    Chairman Leahy [presiding]. Thank you. I would note, too, 
it has been my experience since he has been Attorney General, 
that anytime I have called Attorney General Holder on any 
issue, we have been able to contact him almost immediately, and 
I do appreciate that. I appreciate the Senators who have come 
here today. I realize we are under a horrendous snow condition. 
I think it is up to half an inch now.
    [Laughter.]
    Chairman Leahy. I commented to somebody that, of course, 
Senator Klobuchar, coming from Minnesota, and Senator 
Blumenthal and Senator Grassley know what real snow is. I heard 
a weather report at home where they said we had--and some will 
remember this--the weather report was we expected a dusting of 
snow, no more than 5 or 6 inches, and then, ``In other news 
today. . .'' Of course, 5 or 6 inches down here, they would be 
interrupting a Presidential press conference.
    Senator Grassley said he had one more question, and then we 
will wrap up.
    Senator Grassley. This will not take 7 minutes. And I did 
not run over 7 minutes like we have had several people here run 
over 3 minutes.
    On the issue of bank prosecution, I am concerned that we 
have a mentality of ``too big to jail'' in the financial sector 
of spreading from fraud case to terrorist financing and money-
laundering cases, and I cite HSBC. So I think we are on a 
slippery slope. So then that is background for this question.
    I do not have a recollection of DOJ prosecuting any high-
profile financial criminal convictions in either companies or 
individuals. Assistant Attorney General Breuer said that one 
reason why DOJ has not brought these prosecutions is that it 
reaches out to ``experts'' to see what effect the prosecutions 
would have on the financial markets.
    So then on January 29th, Senator Brown and I requested 
details on who these so-called experts are. So far we have not 
received any information. Maybe you are going to, but why have 
we not yet been provided the names of the experts that DOJ 
consults as we requested on January 29th? Because we need to 
find out why we are not having these high-profile cases. And I 
have got one follow-up. Maybe you can answer that quickly.
    Attorney General Holder. We will endeavor to answer your 
letter, Senator. We did not, as I understand it, retain experts 
outside of the Government in making determinations with regard 
to HSBC.
    If we could just put that aside for a minute, though, the 
concern that you have raised is one that I, frankly, share. And 
I am not talking about HSBC now because maybe that might not be 
appropriate. But I am concerned that the size of some of these 
institutions becomes so large that it does become difficult for 
us to prosecute them when we are hit with indications that if 
you do prosecute, if you do bring a criminal charge, it will 
have a negative impact on the national economy, perhaps even 
the world economy, and I think that is a function of the fact 
that some of these institutions have become too large. Again, I 
am not talking about HSBC. This is just a more general comment. 
I think it has an inhibiting influence, impact on our ability 
to bring resolutions that I think would be more appropriate. 
And I think that is something that we all need to consider. So 
the concern that you raised is actually one that I share.
    Senator Grassley. Well, then, do you believe that the 
investment bankers who were repackaging and selling bad 
mortgages as AAA-rated were not committing a criminal fraud? Or 
is it a case of just not being aggressive and effective enough 
to actually have the information to prove that they did 
something fraudulent and criminal?
    Attorney General Holder. We have looked at those kinds of 
cases, and I think that we have been appropriately aggressive. 
These are not easy cases necessarily to make. You sometimes 
look at these cases, and you see that things were done wrong. 
And then the question is whether or not they were illegal. And 
I think the people in our Criminal Division, the people in our 
U.S. Attorney's Office in the Southern District of New York, 
for instance, have been, as aggressive as they could be, 
brought cases where we think we could have brought them.
    I know that in some instances that has not been a 
satisfying answer to people, but we have, as I said, been as 
aggressive as I think we could have been.
    Senator Grassley. If you constitutionally can jail a CEO of 
a major corporation, you are going to send a pretty wide signal 
to stop a lot of activity that people think they can get away 
with.
    Thank you very much.
    Attorney General Holder. You are absolutely right, Senator. 
You know, the greatest deterrent effect is not by the 
prosecution of a corporation, although that is important. The 
greatest deterrent effect is to prosecute the individuals in 
the corporation who are responsible for those decisions. We 
have done that in the UBS matter that we brought, and we try to 
do that whenever we can. But the point that you make is a good 
one.
    Chairman Leahy. Thank you.
    Again, I appreciate you being here. I will probably see you 
at the signing of the Leahy-Crapo Violence Against Women Act.
    Attorney General Holder. Tomorrow.
    Chairman Leahy. And we had to leave out for procedural 
reasons the U-visas that are important to law enforcement. And 
I hope you will work with us as we do immigration reform, 
because that would complete the whole legislation. It would 
protect victims, but it also would help law enforcement have a 
better chance of prosecuting people who have shown violence 
against women.
    Attorney General Holder. Yes.
    Senator Klobuchar. Mr. Chairman, thank you for your 
leadership on that. I just want to reiterate how important that 
is.
    Chairman Leahy. You were there every step of the way, and 
the fact that we were able to get such strong bipartisan help--
and I know that the Senator from Minnesota talked to a lot of 
people on the other side of the aisle. And it was nice to 
actually have Senators do things together on both sides of the 
aisle, and the country is better off for it.
    We stand in recess.
    [Whereupon, at 12 p.m., the Committee was adjourned.]
    [Additional material submitted for the record follows.]

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