[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
----------
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.]
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