[Senate Hearing 113-881]
[From the U.S. Government Publishing Office]







                                                        S. Hrg. 113-881

                            OVERSIGHT OF THE
                       U.S. DEPARTMENT OF JUSTICE

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                            JANUARY 29, 2014

                               __________

                          Serial No. J-113-47

                               __________

         Printed for the use of the Committee on the Judiciary






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                     U.S. GOVERNMENT PUBLISHING OFFICE 
		 
28-393 PDF                WASHINGTON : 2018                 

















                       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
           Kristine Lucius, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director
























                            C O N T E N T S

                              ----------                              

                      JANUARY 29, 2014, 10:09 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

                                WITNESS

Witness List.....................................................    55
Holder, Hon. Eric H., Jr., Attorney General, U.S. Department of 
  Justice, Washington, DC........................................     6
    prepared statement...........................................    56

                               QUESTIONS

Questions submitted to Hon. Eric H. Holder, Jr., by:
    Senator Coons................................................    69
    Senator Feinstein............................................    62
    Senator Flake................................................    83
    Senator Grassley.............................................    70
    Senator Hatch................................................    81
    Senator Leahy................................................    60
    Senator Lee..................................................    82
    Senator Whitehouse...........................................    68

                                ANSWERS

[Note: At the time of printing, the Committee had not received 
  responses from Hon. Eric H. Holder, Jr.]

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

American Legion, The, Washington, DC, January 8, 2013, letter....    85
American Veterans (AMVETS), Lanham, Maryland, April 2, 2013, 
  letter.........................................................    87
Articles on Veterans Treatment Court: Jessica Mador, ``Expansion 
  of Treatment Court Sought for Outstate Minnesota Vets,'' 
  Minnesota Public Radio, August 13, 2012; and Mark Brunswick, 
  ``Vets Court Focuses on Those Struggling After Their Service,'' 
  Star Tribune, November 20, 2011................................    88
Wounded Warrior Project, Washington, DC, February 25, 2013, 
  letter.........................................................    92

 
                            OVERSIGHT OF THE
                       U.S. DEPARTMENT OF JUSTICE

                              ----------                              


                      WEDNESDAY, JANUARY 29, 2014

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:09 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Schumer, Durbin, Whitehouse, 
Klobuchar, Franken, Coons, Blumenthal, 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. Before we start, today's hearing, like most 
hearings in here, deals with a serious issue, and I know the 
public will act accordingly. I appreciate so many members of 
the public coming in here. We try to have these hearings as 
open as possible, Senator Grassley and I, make sure they are 
streamed live so anybody can watch. But I would also note at 
the outset that the rules of the Senate prohibit any outbursts 
or clapping or demonstrations of any kind, which, of course, 
includes blocking the view of people around you. And please be 
mindful of those rules, and, of course, the Capitol Police will 
enforce them.
    But I welcome the Attorney General back to the Senate 
Judiciary Committee. I thank him for his service and restoring 
Americans' faith in a Department that has in the past at times 
lost sight of its core mission.
    It is interesting that the Judiciary Act of 1789--and 
neither Senator Grassley nor I were here at that time, but the 
Office of the Attorney General has carried since its inception 
the responsibility to protect Americans and safeguard the 
rights and liberties that make our country great. That is why 
it is the Attorney General of the United States--not the 
Secretary of Justice or anything else, but the Attorney General 
of the United States--representing all of us. For much of the 
past two centuries, the Department has faced many challenges: 
combating violent crime, fraud, and corruption and enforcing 
our Nation's laws.
    Over the last several decades, the mission of the 
Department expanded to include protecting the civil rights of 
all Americans. We have to continue this even today, years after 
the end of Jim Crow laws and poll taxes. That is why I recently 
joined with Representative Sensenbrenner to introduce the 
bipartisan Voting Rights Amendment Act.
    We also face ever more complex threats to our national 
security and more sophisticated methods of criminal activity. 
The Department has adapted quickly to develop new tools and 
resources to respond to these threats. But along with these 
rapid changes is the challenge of remaining true to our core 
values of liberty, privacy, and a Government responsive to the 
people.
    We live in a digital age. We all know that. The challenges 
are even more acute. Every day, Americans generate an enormous 
amount of information about their lives through simple, routine 
tasks like using a credit card, sending a text message, calling 
a friend, or searching for directions on the Web. This 
technology improves our lives, but the vast amount of data it 
creates is also remarkably revealing and vulnerable to 
exploitation. And I will ask at some point, is there anything 
in the U.S. Constitution that gives authority to the Congress 
to pass a law that enables and empowers an executive agency 
such as the NSA or the Bureau of Land Management, for that 
matter, to open, to listen, or to seize either the mail, the 
phone conversations, or electronic communications of U.S. 
citizens simply by a blanket law? In Vermont, we treasure our 
privacy, and this makes me wary of Government overreach or lax 
protections for consumers in these laws. I think the changes 
show a need for Congress and the Department to act.
    We need to set appropriate limits on when and how the 
Government can collect vast amounts of data on Americans, 
assuming we even have the power to allow and to pass a law to 
allow any agency--any agency--to do this. I will continue to 
push for passage of my USA FREEDOM Act, as well as legislation 
to reform the Electronic Communications Privacy Act. And I 
thank those Senators in both parties that have joined on 
similar legislation. We have to ensure that the huge amounts of 
data that are collected, assuming that they have the right to 
collect them, which is a big assumption, that they are--that 
those that are collected and shared and stored by businesses 
are kept safe from the growing threats of data breaches and 
identity theft. We are going to examine this issue in detail at 
a hearing next week.
    But it is also important that the Department continue to 
fulfill its core criminal justice mission. I know the Attorney 
General and I share an unshakable commitment to keeping 
Americans safe, to supporting the men and women on the front 
lines of law enforcement, but also to help victims rebuild 
their lives. We worked closely last year--and I appreciated the 
help--to reauthorize the Violence Against Women Act and the 
Trafficking Victims Protection Act with critical improvements 
to protect all victims. And after a 3-year effort, last year 
the President signed into law my Dale Long Public Safety 
Officers' Benefits Improvements Act, which will make 
significant improvements to the Public Safety Officer Benefits 
program that is so important to our first responders.
    I appreciate the Attorney General's strong support for the 
goals of the Justice for All Reauthorization Act, the Second 
Chance Reauthorization Act, and forensics reform legislation, 
each of which are going to improve the effectiveness of our 
criminal justice system, and I would like to see them enacted 
this year. I know a lot of people in law enforcement would like 
to see them enacted.
    I appreciate the Attorney General's recognition of the 
bipartisan efforts currently underway in this Committee to 
address the unsustainable growth of our prison population. At 
the rate we are going, there will be no money for law 
enforcement. It will be just in prisons, even to the extent of 
having geriatric units in these prisons. In a time of shrinking 
budgets at all levels of Government, I think the problem that 
we have in an expanding prison population presents devastating 
consequences for our other critical public safety priorities. 
If you do nothing and we just allow the Federal prison 
population to consume more than a quarter of the Department's 
budget with eventually even more in that, that makes us less 
safe. Incremental changes to mandatory minimums for nonviolent 
drug offenders is a good place to start, and I am optimistic 
that we are going to be able to pass a bipartisan bill out of 
this Committee to do that.
    So thank you, Attorney General, for returning to the 
Committee to discuss these important issues. But I also want to 
thank the men and women of the Department of Justice who work 
hard every day to keep us safe. I met with a lot of them. You 
are the face of the Department of Justice. As you know, there 
are thousands of people whose faces will never be in the news 
but who are out there every single day throughout the country 
and abroad keeping us safe. We pray for their safety, and we 
appreciate what they do. They deserve our gratitude and 
respect.
    Senator Grassley.

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

    Senator Grassley. Before I read my statement, I would like 
to say to General Holder, obviously you and I were bitten by 
different political bugs, but--and we have policy differences. 
Maybe we have got more agreement than what you and I might 
realize at a particular time. And I think those policy 
differences are legitimate, and we can live with them. In my 
statement I am going to make some comments about some 
administrative action where I think there is no excuse for and 
Congress is not being respected by your Department, and whether 
it is you or people within your Department, I think at the very 
least we ought to have responses to things where there should 
be no political differences, just wanting information. So I 
hope you appreciate the fact that if we disagree on policy 
issues, that it does not carry over to things that when 
Congress simply wants some administrative action on your part.
    I thank you, Chairman Leahy, for this hearing. It is a very 
important hearing. Oversight is very, very important. And I 
thank the Attorney General for coming here. You take some 
beating by coming here, but at least you are fulfilling a 
constitutional responsibility of giving us information that we 
need in public.
    I have to start by pointing out to the Chairman that we 
still have not received answers to our questions for the record 
from the last oversight hearing with the Attorney General, 
which was almost 11 months ago. As I have indicated, I think 
this is unacceptable. The Department should show sufficient 
respect for this Committee to answer its questions--at least 
prior to the next oversight hearing, now 11 months elapse. We 
also have not received replies to questions directed to other 
department officials who testified at various hearings over the 
past year.
    This hearing also affords me the opportunity to call to 
your attention, General Holder, the many letters the Department 
has not yet answered. It is unfortunate that we always have to 
start a Department oversight hearing with this same request to 
respond to unanswered questions from Congress.
    For instance, back in early November I wrote you about the 
Justice Department's counsel to Health and Human Services on 
the Affordable Care Act. HHS says that in consultation with 
your Department, it decided not to apply the anti-kickback 
statute to the Affordable Care Act. This is a clear violation 
of Congress' move to strengthen anti-fraud laws, and you have 
helped us strengthen a lot of anti-fraud laws. Since I have not 
received an answer to my letter, I am going to ask you about 
that today.
    I have also written you about the Department's handling of 
cases in which National Security Agency employees abused their 
signals intelligence authority.
    In August, after news reports about these cases, I wrote to 
the NSA Inspector General about them. In response, the 
Inspector General indicated that since 2003, there were 12 
documented instances of NSA employees abusing these 
authorities, in many cases by spying on loved ones. It is good 
that the number of cases was very small, but even one case is 
too many. According to the Inspector General, at least six of 
these cases were referred to your Department for prosecution.
    So in October, I wrote to you to request information about 
how the Department handled these cases. I asked for a response 
by December 1st. I have not received one.
    It is important for the public to know whether the 
Department is taking these cases seriously. We need to deter 
this kind of behavior in the future, given the NSA's powerful 
capabilities.
    In addition, this Committee has spent a considerable amount 
of time over the past 6 months considering various reforms to 
the NSA. In his speech on this a few weeks ago, the President 
directed you as Attorney General to work with the intelligence 
community to develop ``options for a new approach'' to the bulk 
collection of telephone metadata. I will be interested in 
hearing how that is proceeding.
    The President has also asked you to do a review of the 
FBI's whistleblower protections and recommend changes on how to 
improve them. The assignment was contained in Presidential 
Policy Directive 19, which claimed to create protections for 
whistleblowers with access to classified information. The 
President gave you 180 days to complete the review, and it is 
now 10 months overdue. There is a lot of lip service to 
whistleblower protection, but this is another example of how 
the actions do not match the rhetoric.
    I am concerned about the President's Directive. I recently 
had a whistleblower from the CIA contact my office. He was 
seeking to report alleged violations of the whistleblower 
protections in the President's Directive 19, false statements 
to Congress, and concerns related to qui tam legislation. He 
tried to get permission to share the classified details with 
me. Yet a CIA lawyer wrote a letter denying permission, 
claiming Judiciary Committee members are not authorized to 
receive classified information from the CIA--which is, of 
course, false. But it scares whistleblowers and it intimidates 
them into silence. This is one of several things that suggests 
to me that even with the President's Directive, we need 
stronger legislative protections for national security 
whistleblowers.
    Another topic I would like to discuss is the Department's 
non-enforcement of the Controlled Substances Act. In August, 
the Department announced that it would not challenge laws in 
Colorado and Washington legalizing trafficking of marijuana. 
The Department apparently believes that so long as these States 
create effective regulatory schemes, key Federal enforcement 
priorities would not be undermined. Those priorities include 
the diversion of marijuana into other States, increased use 
among minors, and more drugged-driving fatalities.
    However, I am concerned that in many ways this policy is 
based on willful ignorance of the realities in these States. 
For example, as a result of failure to adequately regulate 
medical marijuana, Colorado has seen a sharp increase in public 
health and law enforcement problems related to these Federal 
priorities in the past few years. Just a few weeks ago, a 
senior Drug Enforcement Administration official told my and 
Senator Feinstein's Caucus on International Narcotics Control 
that what was happening in these States is ``reckless and 
irresponsible.''
    At a minimum, it is important that the Department set firm 
criteria to measure whether--or when--its Federal priorities 
are harmed so much that the decision not to challenge these 
State laws is revisited.
    This is all the more important now that I understand you 
will soon announce additional guidance that will permit 
marijuana distributors in these States to use the banking 
system to engage in what is, under Federal law, money 
laundering.
    I am also concerned that this administration has not been 
faithful to the Constitution in a number of other areas by 
unilaterally changing or ignoring laws passed by Congress. In 
my view, many of these actions are inconsistent with the 
Constitution's requirement that the President ``take Care that 
the Laws be faithfully executed.''
    However, your Department's Office of Legal Counsel is 
involved with this because they provide an independent check on 
Executive action. The Office of Legal Counsel is responsible 
for advising the executive branch on constitutional questions. 
Moreover, it reviews the constitutionality of all proposed 
Executive orders.
    Last night during the State of the Union address, the 
President signaled that he will use Executive orders 
aggressively to advance his agenda this year. Transparency 
should be brought to the Office of Legal Counsel's analysis of 
proposed Executive orders so that the American people can see 
whether they are subjected to a rigorous constitutional review.
    Thank you very much, General Holder, for listening.
    Chairman Leahy. Thank you.
    Please go ahead, Attorney General.

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

    Attorney General Holder. Chairman Leahy, Ranking Member 
Grassley, members of the Committee, I want to thank you for the 
opportunity to appear before you today to discuss the recent 
achievements and the ongoing priorities of the United States 
Department of Justice.
    I would like to thank the Members of Congress for coming 
together earlier this month to pass a bipartisan budget 
agreement that restores the Department's funding to pre-
sequestration levels. Now, we are reviewing this legislation to 
determine its impact on specific programs and components, but 
we anticipate that it will provide for the hiring of additional 
Federal agents, prosecutors, and other essential staff. This 
will allow us to invest in innovative programs, to keep 
supporting State and local law enforcement agencies, and to 
continue building upon the outstanding work that my colleagues 
have made possible over the past year.
    Now, as I have often said, the Department's top priority 
must always be the protection of the American people from 
terrorism and other national security threats. Since I last 
appeared before this Committee, we have continued to strengthen 
key intelligence-gathering capabilities, to refine our ability 
to identify and to disrupt potential terrorist plots, and to 
ensure that those charged with terrorism-related offenses can 
be held accountable to the fullest extent of the law.
    As President Obama noted in his speech at the Justice 
Department roughly 2 weeks ago, in carrying out this work it is 
imperative that we continue striving to protect our national 
security while upholding the civil liberties that all of us 
hold dear. On Monday, we took a significant step forward in 
this regard when the Department acted to allow more detailed 
disclosures about the number of national security orders and 
requests that are issued to communications providers, the 
number of customer accounts targeted under those orders and 
requests, and the underlying legal authorities. Through these 
new reporting methods, communications providers will be 
permitted to disclose more information than ever before to 
their customers. Allowing disclosure of this aggregate data 
will resolve an important area of concern to communications 
providers as well as to the public. And in the weeks ahead, as 
we move forward with the timely implementation of this and 
other reforms directed by the President, my colleagues and I 
will work closely with members of this Committee and other 
congressional leaders to determine the best path forward.
    We also will continue enforcing essential privacy 
protections and other safeguards concerning data possessed by 
the Government as well as by the private sector. The Department 
of Justice takes very seriously reports of any data breach, 
particularly those involving personally identifiable or 
financial information, and looks into allegations that are 
brought to its attention.
    Now, while we generally do not discuss specific matters 
under investigation, I can confirm that the Department is 
investigating the breach involving the United States retailer 
Target, and we are committed to working to find not only the 
perpetrators of these sorts of data breaches but also any 
individuals and groups who exploit that data via credit card 
fraud.
    Now, beyond this important work, the Department will 
continue to build on the progress we have seen in confronting 
really a wide variety of other threats and challenges--from 
combating drug and human trafficking, to addressing cyber 
attacks, protecting Americans from violent crime, and taking 
really commonsense steps to reduce gun violence. Earlier this 
month, the Department strengthened the Federal background check 
system by clarifying Federal rules concerning mental health-
based prohibitions on firearm purchases. Under the leadership 
of our Civil Rights Division, we are working diligently with 
our Federal agency partners to implement the Supreme Court's 
ruling, in United States v. Windsor, to make real the promise 
of equal protection under the law for all American families and 
to extend applicable Federal benefits to married same-sex 
couples. And we are vigorously enforcing Federal voting 
protections--and working with congressional leaders from both 
parties to refine and to strengthen the proposals that Congress 
is currently considering--to help ensure that every eligible 
American has access to the franchise.
    In addition, last year, as part of our on going efforts to 
hold accountable those whose conduct sowed the seeds of the 
mortgage crisis, the Department filed suits against Bank of 
America and the ratings firm S&P. In November, the Department 
reached a $13 billion settlement with JP Morgan Chase and Co.--
this is the largest settlement with any single entity in 
American history--to resolve Federal and State civil claims 
related to the company's mortgage securitization process. Now, 
I think that these results demonstrate that no firm, no matter 
how profitable, is above the law, and they reinforce our 
commitment to integrity and equal justice in every case, in 
every circumstance, and in every community.
    This commitment is also reflected in the new ``Smart on 
Crime'' initiative that I announced this past August to 
strengthen our Federal criminal justice system; to increase our 
emphasis on proven diversion, rehabilitation, and reentry 
programs; and to reduce unnecessary collateral consequences for 
those who are seeking to rejoin their communities.
    As part of the Smart on Crime approach, I mandated a 
significant change to the Justice Department's charging 
policies to ensure that people accused of certain low-level 
Federal drug crimes will face sentences that are appropriate to 
their individual conduct and that stringent mandatory minimum 
sentences will be reserved for the most serious criminals. 
Alongside other important reforms, this change will make our 
criminal justice system not only fairer, but also more 
efficient. And it will complement proposals like the bipartisan 
Smarter Sentencing Act--introduced by Senators Dick Durbin and 
Mike Lee--which would give judges more discretion in 
determining appropriate sentences for people convicted of 
certain Federal drug crimes. I look forward to working with 
Chairman Leahy, distinguished members of this Committee, and 
other leaders who have shown a commitment to commonsense 
sentencing reform--like Senator Rand Paul--to help advance this 
and other legislation.
    I want to thank you all once again for your continued 
support of the United States Department of Justice, and I would 
be happy to answer any questions that you might have.
    Thank you, Mr. Chairman.
    [The prepared statement of Attorney General Holder appears 
as a submission for the record.]
    Chairman Leahy. Thank you, and thank you for mentioning the 
Smarter Sentencing Act, part of what Senator Durbin and Senator 
Lee have done, Senator Paul and I and others. We are all 
working together to try to get something that not only makes 
sense but can pass. The all one-size-fits-all we have realized, 
one, it does not make us safer; two, it does not deter crime; 
but, three, it means we are spending a huge amount of money on 
things that do not make us better and has to take money away 
from good law enforcement that we need.
    Last week, the Privacy and Civil Liberties Oversight Board 
issued a report that concluded the NSA's phone records program 
should end, and I agree with that. I look forward to the 
recommendations you and the Director of National Intelligence 
will develop in the coming months, but Executive action is not 
enough. I think Congress has to act to ensure that this legal 
theory--and that is what I consider it, legal theory--is not 
used by any administration to spy indiscriminately on its 
citizens.
    Now, DOJ's current interpretation of relevance in Section 
215 could allow the Government to acquire virtually any data 
base that it might someday down the road for some reason 
somehow find useful. First, is there anything in the 
Constitution that allows us to pass such an overbroad law to 
allow us to search anywhere we want? And is there any 
meaningful limiting principle for the Government's 
interpretation of Section 215?
    Attorney General Holder. Well, I think that you can look at 
what the Government has been able to do in terms of 
surveillance, whether it is wiretaps, mail covers. There are a 
number of statutes that Congress has passed that allows the 
Government to engage in that kind of surveillance activity. I 
think the difference between those kinds of, I think, 
universally recognized programs and what we have seen under 
Section 215, the metadata program, is that these other 
materials, the other programs, are really kind of predicate 
based. The metadata program is really an accumulation of 
material without necessarily a predicate, though I will say 
that to query the data base, there has to be a predicate, and 
that makes it, I think, consistent with what has been passed by 
Congress before and constitutionally upheld by the courts.
    Chairman Leahy. Well, apparently we can pass something, and 
you mentioned some have been constitutionally upheld. But we 
could also pass--Congress could pass a law, for example, that 
would allow any police officer to seize anybody and lock them 
up incommunicado for 5 years. We could pass such a law. You are 
a former judge, and you are Attorney General of the United 
States. I think you would agree with me and everybody else that 
would not pass a constitutional test at all.
    So I ask again the question: Does the Constitution give us 
the right to pass a law to allow NSA or the Bureau of Land 
Management or anybody else to collect such untrammeled metadata 
on American citizens?
    Attorney General Holder. Well, I would say that 15 judges 
in the FISA Court, 2 judges--one in California, one in New 
York--have looked at this question and made the determination 
that the 215 program is, in fact, constitutional. One judge in 
Washington, D.C., has decided it is not. But I think that 
really only deals with one-half of the question. I believe that 
they are correct that it is constitutional. It is an 
appropriate use in a constitutional sense of the Government's 
power. But the question is, and what the President has proposed 
to us: Just because we can do something, should we do it? And 
that is what Director Clapper and I are going to be wrestling 
with over the next 60 to 90 days to modify the program in the 
way the President has indicated.
    Chairman Leahy. You anticipated another question I was 
going to ask. As you do that, are you going to be consulting 
with the Privacy and Civil Liberties Oversight Board?
    Attorney General Holder. Yes, we will be touching base with 
them. Obviously there is a report that we can look at. But I 
think we want to make this a pretty wide-ranging interaction 
with those people who have been critical of Section 215 and the 
other surveillance program so that we have as much information, 
both pro and con, before we make recommendations back to the 
President.
    Chairman Leahy. There were news reports this past week that 
the NSA and a British intelligence agency are working together 
to collect detailed personal information from smartphone apps. 
I have some questions I will ask you in a classified forum, but 
what protections are in place to ensure the NSA does not do an 
end run around U.S. surveillance rules, including the First 
Amendment, obviously, by just going to another foreign agency 
and saying, ``Hey, we are prohibited from collecting this 
information on Americans. Would you do it for us?''
    Attorney General Holder. Well, under Executive Order 12333 
the intelligence community is not permitted to ask a foreign 
government to collect information that we ourselves would not 
be allowed to collect. And so any attempt to have a foreign 
government acquire information that we are not permitted to 
gather ourselves would be inappropriate and a violation of that 
Executive order.
    Chairman Leahy. The FAA recently approved six test sites 
for the use of unmanned aerial systems, drones. The FAA is 
developing plans to allow drones to be operating in commercial 
airspace by next year. We have also heard, though, in this 
Committee that drones are already being used for a number of 
areas--homeland security, law enforcement purposes. That raises 
significant privacy concerns. I can almost feel what my 
reaction would be if I saw a drone flying around over my 
farmhouse in Vermont and what I would be inclined to do, not 
knowing where it was coming from or what it was.
    What plans does the Justice Department have to use drones 
within the U.S. for law enforcement purposes? And what kind of 
safeguards are being developed? The Orwellian aspect of it I 
find very chilling.
    Attorney General Holder. Well, with regard to the use of 
these unmanned aerial systems, at this point the only component 
within the Department that is using them in an operational way 
is the FBI. And I think we have to understand that, if used 
appropriately, they can serve a useful purpose. I do not--I 
think you remember the young child who was held hostage in a 
tunnel, I think it was in Georgia or Alabama someplace. Use was 
made of a drone in that case and proved decisive in resolving 
that situation in a good way.
    The Inspector General in the Justice Department has 
recommended that we come up with a uniform system of rules and 
regulations within the Department to control how these devices 
are used, and that is something that I support, and it is 
something that we will be developing.
    Chairman Leahy. And that I would like to work with you on 
the development, and I think other members of the
    Committee on both sides of the aisle, because simply the 
fact that we have the technology, I can see in the hands of 
some, boy, this is the latest and greatest whiz bang, let us 
just go spy on everybody's back yard and everything else. And I 
think the reaction of the American public would be pretty 
significant as compared to the very specific targeted law 
enforcement, the missing child thing that you mentioned.
    Last, and I apologize to Senator Grassley, but we talked 
about the Federal prison population--this is something of 
concern to many of us here--has grown by more than 500 percent 
in the last 30 years. That is eating up money that cannot be 
used to hire more prosecutors or agents or providing assistance 
to State and local law enforcement. In fact, the Inspector 
General said the Bureau of Prisons' budget is at the top of its 
list of management challenges--the top of the list.
    What is this increasing prison population doing to your 
other priorities?
    Attorney General Holder. Well, the Bureau of Prisons' 
budget takes up roughly a third of the Justice Department's 
entire budget, and it precludes us from doing a variety of 
other things that I know members of this Committee are 
interested in, and those are interests that I share. Our 
ability to help our State and local partners with regard to 
grants is impacted. Our ability to hire more prosecutors, more 
agents, more support personnel is impacted.
    We have to fund the prison system to make sure that the 
people who are in those systems are safe, that we provide 
constitutional care to people who are incarcerated. But unless 
we take, I think, the fundamental look that has been suggested 
by you, Senator Durbin, Senator Lee, Senator Paul, unless we 
take that fundamental look, we are going to have a prison 
system that impedes our ability to do the kinds of things the 
American people expect the Justice Department to do. And I am 
very concerned about that, and that is why I announced that 
Smart on Crime initiative back in August. And I think what I 
announced is consistent with what members of this Committee 
have suggested as well, and that is why I want to work with you 
to try to get a handle on what is, I think, a growing and 
potentially very dangerous problem.
    Chairman Leahy. Please do, because you have broad 
bipartisan support across the political spectrum to find our 
way out of this, and we need the advice.
    Senator Grassley.
    Senator Grassley. Yes, before my time starts, could I 
follow up on--I have the same concern you do about privacy 
being violated by drones, but I want to point out that with 
airplanes in Iowa and Nebraska, EPA has some authority to spy 
on certain animal feeding operations, but they were spying on 
people they did not have the right to regulate with airplanes. 
We are going to have a bigger problem with the Government abuse 
of privacy with drones now. So I just raise that as an issue, 
not for you to comment on or not for you to comment on.
    General, in my opening statement, a couple questions on 
something I have already discussed with you. I mentioned that I 
wrote you back in October concerning the Department's handling 
of cases referred to in which the National Security Agency 
employees intentionally or willfully abused surveillance 
authority, but I never received a response. We need to know 
whether the Justice Department is taking any action or even 
whether you consider the cases serious. Can you tell me whether 
anyone at the NSA has been prosecuted for this conduct, and if 
they have not, why maybe they have not been prosecuted?
    Attorney General Holder. Well, I think the concern that you 
raise is a very legitimate one, and we will get a response to 
you in greater detail. But the fact that--and there were those 
referrals. But the fact that members of the NSA who have access 
to this information, access to these techniques, these 
capabilities would misuse them for--and I think you are right, 
as you said in your statement, using them for essentially 
personal use, look to spy on people with whom they had 
relationships, is totally inappropriate. We will get you a 
fulsome response to indicate how those cases were dealt with by 
the Justice Department. But I share the concern that you 
express.
    Senator Grassley. Is it possible that you could do that 
soon?
    Attorney General Holder. Yes, we will do that soon. I will 
write that one down and make sure we get back to you on that.
    Senator Grassley. Now, I have referred to Presidential 
Policy Directive 19 released 15 months ago. This follows up on 
my interest of making sure whistleblowers have protection. It 
mandated that you deliver a report to the President within 180 
days--that would be April last year--to assess the 
effectiveness of the FBI's procedure of handling 
whistleblowers.
    Now, why I raise this issue is because we have had 
whistleblowers' rights violated, like Robert Kobus and Jane 
Turner, getting a runaround for years, even after the Inspector 
General has found in their favor. However, to date there has 
been no public announcement that your review has been 
completed. Why have you not issued the report nearly 10 months 
after deadline? What have you learned from your review? Will 
you provide a copy to the Committee of the review?
    Attorney General Holder. Well, I will have to check on the 
status of that review. I am not sure what shape it is in and 
whether it is ready for dissemination, but I will look at that.
    Again, I share the concerns that you have about 
whistleblowers. I think that people who have concerns about the 
way in which the Government is conducting itself have to have 
the feeling that they have places that they can go and report 
these things in a way that does not do damage to the Government 
itself. And so if there is not that feeling that they have 
mechanisms, established means to share those concerns, we then 
end up with people sharing things, and I think in an 
inappropriate ways, perhaps with newspapers, other media. And 
so the concern you have is a very legitimate one, and this is 
another one where I will have to get back to you and let you 
know where we stand.
    Senator Grassley. When you mentioned concerns of the 
Government, I appreciate that because Government has got 
certain responsibilities. But when you have got one individual 
against the Government, it would seem to me it is pretty easy 
to see how that one individual is going to be run over if we do 
not see that they get their constitutional rights protected.
    I had a question on drones, but I think you have answered 
that. I will go to the Office of Legal Counsel's review of 
Executive orders that I spoke about. I mentioned my concern 
that the President has been using Executive orders to 
circumvent the will of Congress and the American people. I am 
sure he does not feel that way. You probably feel he has not 
either. But I will tell you, it is a big concern for people 
that come to my town meetings. It appears that he may continue 
to do this. He said so last night.
    In the interest of transparency--and with transparency 
comes accountability--would you disclose to the public the 
Office of Legal Counsel's analysis of all proposed Executive 
orders so that the American people can see whether they are 
subjected to rigorous constitutional review? It would seem to 
me that would be one of your responsibilities. It would seem to 
me you would want the President to only do those things that 
are legal and constitutional. And if you would not make these 
public, would you tell me why?
    Attorney General Holder. Well, first, let me say that with 
regard to the use of Executive authorities, what the President 
has talked about was a desire in the first instance to work 
with Congress to try to pass legislation, but in the absence of 
that to use the power that he has as President in the way that 
he described. And what he has described is consistent with what 
other Presidents have done over the years.
    I think if one looks at a various number of studies that I 
have seen, this President has used far fewer Executive orders 
than his predecessors.
    Senator Grassley. But I am not questioning whether or not 
he can do it. I might have some question about the legality and 
constitutionality of it, and if he has got the constitutional 
authority, if he has got the legal authority, we cannot do it. 
We are just trying to determine whether or not he has exceeded 
that authority, and your people making that determination, is 
there anything wrong with the public saying what the basis of 
it is, you know?
    Attorney General Holder. Well, I mean, I think we can 
certainly look at the requests that are made. We will have to 
see exactly how the President proposes to use these Executive 
authorities. And to the extent that we can share the OLC 
determinations, or whoever in the Justice Department is looking 
at it and making these determinations, I would be inclined to 
try to share that with Congress in an appropriate way.
    Senator Grassley. Okay. Well, will you at least--if you 
cannot share it with me, will you tell me why you cannot share 
it with me? Because I just do not want a big black hole here.
    Attorney General Holder. Sure. I mean, the concern we 
generally have with regard to the dissemination of OLC opinions 
is that we want to have full conversations, fulsome discussions 
about these matters where OLC lawyers write both pros and cons 
about a particular issue that they are addressing.
    Senator Grassley. We are probably only interested in the 
outcome, not the debate within you our agency, just what is the 
outcome.
    Attorney General Holder. Yes, well, the memos--but the 
memos will contain all of the arguments with a conclusory 
couple of pages, or whatever. We will try to find ways in which 
we can share this information with you so that you and other 
members and the American people feel that the President is 
acting in an appropriate way--to the extent that he makes use 
of this authority at all, because as I said, his primary 
inclination and desire is to work with Congress to pass 
necessary legislation that I think all the American people want 
to see happen.
    Senator Grassley. I think the Chairman would give me a 
couple minutes because he took 2\1/2\ minutes.
    Attorney General Holder. I am not sure about that.
    [Laughter.]
    Senator Grassley. The last question or maybe half a 
question after this one would be this simple: This is a 
discussion I had with the Secretary of Health and Human 
Services in another Committee. They announced that it does not 
consider the Affordable Care Act plans to be ``Federal health 
care programs.'' That exempts them from the anti-kickback laws 
and undermines the clear intent of Congress in the health 
reform law to make kickbacks a violation of the False Claims 
Act. So you have got my interest in the False Claims Act as 
well.
    Secretary Sebelius said that she made this decision after 
consulting with your Department. I asked Secretary Sebelius why 
these plans are any different than Medicare Advantage. She 
claimed Advantage plans are different because payments are made 
directly from the Medicare trust fund.
    So I wrote to you about this last November. I would like to 
know when I might be able to expect a response but, more 
importantly, whether you agree with Secretary Sebelius that the 
Affordable Care Act plans should be exempt from the anti-
kickback laws. It does not seem to me like you would want to 
exempt anything from anti-kickback laws. And was the 
Department's advice to HHS documented in writing? And if it 
was, I would like to have a copy of it.
    Attorney General Holder. I do not want to sound like a 
broken record, but that is something I will have to examine and 
see----
    Senator Grassley. Okay.
    Attorney General Holder. What we have there. But I will say 
that we have been very aggressive in enforcing the anti-
kickback laws and recovered, you know, record amounts of money 
over the last few years. And I would have to look at the 
particulars with regard to the Affordable Care Act and see----
    Senator Grassley. Well, I can understand that.
    Attorney General Holder. The applicability of those 
provisions.
    Senator Grassley. But presumably this is action, according 
to the Secretary, that your Department has already taken, so 
there ought to be some sheet of paper around there that you can 
give to us.
    The half a question I was going to ask, you have got 1 more 
day to decide whether or not the Boston bomber is going to be 
subject to the death penalty. What is your decision?
    Attorney General Holder. We will be announcing that by the 
deadline.
    Chairman Leahy. Thank you.
    Incidentally, I would note on the amount of money the 
Department of Justice has collected in fines in anti-kickbacks, 
I believe you set an all-time record in the amount that you 
have, and I compliment you on that.
    Senator Durbin.
    Senator Durbin. Thanks a lot, Mr. Chairman. I just want to 
say for the record it was the Grassley amendment that brought 
us into this world in terms of bringing Members of Congress and 
their staff into the Affordable Care Act, which we are now 
under; and if it was not complete when it came to anti-kickback 
and such, then we certainly want to make sure that it is.
    I would like to----
    Senator Grassley. My colleagues did not know that. Why did 
you have to tell them?
    [Laughter.]
    Chairman Leahy. Well, I think every staff member in the 
Congress who are now paying considerably more for their health 
care know that it is the Grassley amendment that did it.
    Senator Durbin. Mr. Chairman, if I could address two 
questions related to the wheels of justice. Each year when you 
appear, Mr. Attorney General, I ask you the same question and 
you give me the same answer about racial profiling guidelines, 
and you say, ``Really soon we are going to work on this.'' This 
year I would like to ask you: How quickly can we expect new 
racial profiling guidelines when it relates to the issues of 
religion, national origin, and whether it applies to national 
security and border security cases?
    Attorney General Holder. Well, I do not want to repeat the 
words ``really soon'' given what you said, so I will say that 
they are forthcoming and that--in the Holder lexicon, 
``forthcoming'' is shorter than ``really soon.'' We are working 
with those--there has been a review that is underway. We are 
really--and I mean this very sincerely. We are truly in the 
final stages of this. The proposal is now just being circulated 
for comment within the Department, and my hope would be that it 
would be out of the Department very soon. Then obviously there 
will be some White House involvement because we are talking 
about a 2003 Executive order. But I would hope that we would 
have an ability to talk about the modifications that I think 
are appropriate in a forthcoming way.
    Senator Durbin. Thank you. Wheels of Justice question 
number 2: 155 detainees remain at Guantanamo. I want to say for 
the record this has been the subject of a lengthy debate here 
in Congress. The President made his intentions clear when 
elected to close Guantanamo. And yet resistance in Congress has 
thwarted him from accomplishing that.
    For those who want an establishment of the record, over 500 
people have been convicted of terrorism and terrorism-related 
crimes through our judicial process since 9/11 in Federal 
courts. In contrast, there have been six convictions and one 
plea agreement from Guantanamo's military commissions; two of 
those convictions have been overturned.
    The most dangerous terrorists who have been convicted 
through our judicial system reside in our prison system and the 
worst of the worst in maximum security. We spend on average 
$78,000 a year in facilities like Florence, Colorado, maximum 
security, to hold the most dangerous criminals in America, 
including the most dangerous terrorists, and there has never, 
ever, ever been an escape or a question that they would escape.
    We are spending for the 155 detainees in Guantanamo on 
average--not $78,000 a year--$2.7 million a year per detainee. 
It is an outrageous waste of taxpayers' dollars.
    Now, we were going to start a process to start reviewing 
the 155 detainees in the hopes that we could dispose of some, 
dismiss some, transfer some. It took a long time to get 
started. The wheels of justice unfortunately went very slowly.
    The President issued an Executive order in March 2011. The 
first Periodic Review Board hearing at Guantanamo took place in 
November of last year, and earlier this month the Board 
recommended the transfer of the first detainee in question.
    The second Periodic Review Board hearing occurred 
yesterday. I am glad to hear this progress has been made, but 
with 155 detainees, 71 of whom are eligible for evaluation, Mr. 
Attorney General, we cannot live long enough to go through this 
process. At $2.7 million per Guantanamo detainee, can we get 
this process moving in an orderly, faster way?
    Attorney General Holder. I think we can. The President has 
indicated from the day that he took office that he wanted to 
close the Guantanamo facility. He put me in charge of an 
initial review that was done within a year that categorized all 
of the people in Guantanamo, those who could be tried in 
military commissions or Article III courts, those who could be 
released, and those who had to be detained.
    We did that. We did that. And I will say with all due 
respect, congressional restrictions that were placed on us 
thwarted our attempts to close Guantanamo in a more timely 
fashion.
    You are right, we are now in the process of going through 
this Review Board process that is largely based on the work 
that we did in that earlier task force that I was the head of. 
We are trying to do all that we can to close Guantanamo, and I 
am actually grateful for the loosening of the restrictions in 
the latest Budget Act that makes it easier for us to effectuate 
that closure.
    But this is something that, for the fiscal reasons that you 
talk about but also for the national security reasons that the 
continued presence of Guantanamo poses, that facility simply 
has to be closed.
    Senator Durbin. The sooner the better, from my point of 
view, and I wish more Members of Congress felt the same way.
    You were in Chicago in November of last year at the 
installation of the U.S. Attorney for the Northern District, 
Zach Fardon, who was a unanimous choice of Senator Kirk, 
myself, and our bipartisan review panel, and you made some 
encouraging statements about commitments that were going to be 
made to Chicago to deal with the violent crime problem and 
murder issue. Giving credit where it is due, Mayor Emanuel and 
his Superintendent of Police Mr. McCarthy have made 
extraordinary progress in this regard, but we need this help.
    Can you be more specific in terms of the resources and 
personnel that you will make available to help us fight these 
problems with violent crime?
    Attorney General Holder. Well, we are looking to come up 
with ways in which we can increase the number of Federal agents 
who are in Chicago on either a temporary basis or a permanent 
basis, also looking for grants that we can make available to 
the city. I am going to be speaking to Mayor Emanuel tomorrow. 
The purpose of the conversation, at least one of the things we 
are going to be talking about are the specific needs that he 
can identify that we might be able to help with. I will also be 
talking to Zach Fardon, U.S. Attorney Fardon, to get his 
perspective on this as well.
    I think that we want to do as much as we can, but I do not 
think that that should obscure the fact that the city 
administration, working with the new U.S. Attorney, I think has 
made pretty significant progress and I do not think necessarily 
get all the credit that they deserve for a pretty dramatic 
decrease in crime in Chicago. But there is Federal assistance 
that we want to try to make available.
    Senator Durbin. My time is up, but I hope with the new 
appropriation bill you will be able to also find some Assistant 
U.S. Attorneys to help Mr. Fardon in his effort in the Northern 
District.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    Senator Hatch.
    Senator Hatch. Thank you, Mr. Chairman.
    Welcome, Mr. Attorney General. I appreciate your service. I 
am going to try and ask a series of questions that I have tried 
to couch them so you can answer yes or no so I can get through 
a lot of stuff. To the extent that you can, I would appreciate 
it.
    But before asking some questions about the NSA surveillance 
matter, I would like to express my concern about the 
Department's refusal to fully enforce the Controlled Substances 
Act. Marijuana is now widely available across the Utah border 
in Colorado. Federal, State, and local law enforcement have 
finally seen success in going after marijuana growers on public 
lands in Utah. There is a direct link between the U.S. 
marijuana trade and large-scale drug-trafficking organizations 
that threaten the safety and well-being of our country.
    Now, legalization in Colorado threatens the success that we 
have been seeing in tackling the problem. Controls on legal 
marijuana are unlikely to deter drug cartels from ramping up 
their operations on public lands in Utah and elsewhere, 
especially since demand in Colorado is wildly exceeding supply. 
I really think this policy shift sends a mixed and dangerous 
message to both the law enforcement community and fellow 
citizens.
    Now, do you share my concern that legalization in one State 
can encourage more illegal marijuana production on public lands 
by drug cartels and others in bordering States?
    Attorney General Holder. Well, I will do it very quick if I 
cannot give you a yes or no.
    Senator Hatch. Sure.
    Attorney General Holder. I share those concerns, and those 
concerns are expressed in the eight priorities that we set out, 
let me just--three of them: preventing the diversion of 
marijuana from States where it is legal under State law in some 
form to another State, preventing the growing of marijuana on 
public lands, and preventing marijuana possession or use on 
Federal property. These are three of the eight things that 
would precipitate Federal Government action and enforcement of 
the CSA.
    Senator Hatch. Okay. Now, General Holder, the debate about 
NSA surveillance is in full swing. The illegal and selective 
leaks last summer were hardly the best way to start this 
debate, and I think they undermine rather than enhance it, but 
here we are.
    A lot of attention is being focused on the NSA's collection 
and analysis of so-called telephone metadata, as you mentioned. 
It is worth reminding ourselves what that information is and 
what it is not. It includes the telephone number calling, the 
number being called, and the date, time, and length of the 
call. Is that correct?
    Attorney General Holder. That is correct.
    Senator Hatch. Okay. It does not include any information 
about the identity of the caller or the content of the call. Is 
that correct?
    Attorney General Holder. That is correct.
    Senator Hatch. Okay. The Privacy and Civil Liberties 
Oversight Board issued its report last week concluding that the 
PATRIOT Act does not provide legal authority for the NSA's 
metadata program. In an interview last week, you noted that at 
least 15 judges on dozens of occasions have said that the 
program itself is legal. That is correct?
    Attorney General Holder. That is correct.
    Senator Hatch. Okay. To be clear, is it your position that 
the collection of metadata under Section 215 of the PATRIOT Act 
is legal and that the Oversight Board's conclusion on this 
point is wrong?
    Attorney General Holder. That is my view.
    Senator Hatch. That is mine, too, as someone who was on the 
Intelligence Committee and who helped put this through.
    In your judgment, has the NSA abused or misused its 
capability to collect and analyze telephone metadata?
    Attorney General Holder. I think the NSA has acted in a way 
that is consistent with the law, but as I indicated, I think 
that is the part--that is part one of the analysis. Part two is 
whether or not we are getting from the acquisition and 
retention of that data material that is sufficient to deal with 
the civil liberties, privacy concerns that others have 
expressed.
    Senator Hatch. But they have not misused or abused that.
    Attorney General Holder. Yes, and that is what the 
President has asked us to look at.
    Senator Hatch. Okay. One more question about the Oversight 
Board's conclusion on the legality of the metadata program. In 
creating the Board, Congress authorized it to do two things: 
first, to ensure that the need for executive branch actions in 
protecting us from terrorism is balanced with the need to 
protect privacy. That is true?
    Attorney General Holder. Yes.
    Senator Hatch. Second, to ensure that liberty concerns are 
considered in the development of laws and policies in this 
area. That is true?
    Attorney General Holder. I believe that is true, also, yes.
    Senator Hatch. Now, these responsibilities certainly call 
for recommendations on conclusions about policy, but I do not 
see how they include opining on legal issues such as the 
legality of the metadata program. Did the Oversight Board 
exceed its statutory mission in addressing this issue?
    Attorney General Holder. I will be honest with you. I am 
not as familiar as perhaps you are as to what their statutory 
mission is. I will accept as legitimate the concerns that they 
expressed, though I do not agree with their legal 
determinations, their legal analysis.
    Senator Hatch. Well, I think they exceeded its statutory 
mission. So be it.
    So we are clear, in my opinion, on the very limited 
information that the NSA collects and analyzes. And we are 
clear that the metadata program is legal and that the NSA has 
not abused or misused its authority to collect and analyze this 
information, as far as you know.
    Attorney General Holder. That is correct. I mean, there 
have been some compliance issues that have been identified by 
the courts or by the Justice Department, sometimes by the NSA, 
but those have all been corrected once brought to the attention 
of the NSA.
    Senator Hatch. Okay. So my next question is how to know 
whether the program is valuable. The President's Review Group 
said in its report that the metadata program was not itself 
essential to preventing a specific terrorist attack. Now, is 
that the right standard? Must there be proof that this program 
alone prevented an actual attack in order to for it to be 
valuable for national security and for it to continue?
    Attorney General Holder. See, I am not sure that--I think 
we have fallen into a false analysis there. I am not sure that 
is the only way by which you can judge the validity or the 
value of the program. There is a mosaic of things that we take 
into consideration in determining what--if we are acting in an 
optimal way.
    There are questions, I think, that can legitimately be 
brought and that we are going to consider about the continued 
need for Section 215, but I do not think that the only way you 
can test the validity or the need for 215 is whether or not it 
has prevented X number of attacks.
    Senator Hatch. On March 5, 2012, in a speech--the 
distinguished Chairman is granting me a little more time here 
so I can finish this line of questioning.
    Senator Schumer [presiding]. Without objection, Senator 
Hatch will be given 2 more minutes.
    Senator Hatch. I am very grateful to him.
    In a speech at Northwestern University School of Law, you 
discussed oversight of surveillance programs under Section 702 
of the Foreign Intelligence Surveillance Act. The Justice 
Department and Director of National Intelligence conduct 
oversight reviews at least once every 60 days and report to 
Congress at least twice a year.
    Now, I understand that surveillance programs under Section 
215 of the PATRIOT Act and Section 702 of FISA are different, 
but would you say that the metadata program authorized under 
Section 215 enjoys similarly rigorous oversight to that which 
you described for collection under Section 702?
    Attorney General Holder. I think there is sufficient 
oversight of Section 215 between what the Justice Department 
lawyers are looking at, as we are looking at materials that are 
presented to us by the FISA Court, and then with what NSA is 
doing internally. I think that there is a great deal of 
oversight, and that oversight has yielded issues that have been 
identified as problematic----
    Senator Hatch. And then resolved.
    Attorney General Holder. And then resolved.
    Senator Hatch. That is right. One of the President's 
proposals is for telephone companies rather than the NSA to 
store the metadata. It has been represented that telephone 
companies do not support this idea, but supposed they do. Today 
only 22 individuals at the NSA have access to this metadata--22 
people--but there are dozens of phone companies, each of which 
would have to maintain these records. Thus, you have some 
number of employees at each telephone company with some kind of 
access to these data bases in addition to the 22 analysts at 
NSA who have still have access to query these data bases. How 
can you possibly provide a comparable level of supervision and 
accountability when this data is stored in numerous different 
locations and is accessible by far more individuals than it is 
today?
    Attorney General Holder. Yes, I mean, one of the things 
that the President has asked Director Clapper and I to do is to 
come up with an alternative way in which this information can 
be stored, and the issue that you have raised is one that has 
to be resolved. I think that the NSA has done a good job in the 
way in which it has stored this information. If we are to move 
to a different scheme, I think we have to answer the question 
of how can we put it in a different place and maintain the 
integrity of the process that I think the NSA has done a pretty 
good job at.
    Senator Hatch. I agree with that, and I have additional 
concerns about the security of that metadata at the phone 
companies. Verizon's own data breach investigation report found 
that privileged misuse and abuse by insiders played a role in 
13 percent of data breaches over the past year. A company can 
only do so much to protect against outside threats to its 
networks. Just look at Target and Neiman Marcus.
    Do you believe that the metadata would be more secure in 
the hands of the private sector than the NSA?
    Attorney General Holder. I think that we have to try to 
find out if we can do that, if we can maintain that whole 
question of maintenance of security, if we can do it in a 
different setting than we presently do at the NSA, and that is 
one of the tasks the President has given to me and to Director 
Clapper.
    Senator Hatch. But they are doing the job at NSA.
    Attorney General Holder. I think they have done a good job.
    Senator Hatch. Thank you, Mr. Chairman. I appreciate the 
extra time.
    Senator Schumer. Thank you, Senator Hatch.
    And now I yield myself 7 minutes, plus whatever else I 
might need.
    It is very good to be here. I want to thank----
    Senator Sessions. No objection.
    [Laughter.]
    Senator Schumer. I want to thank the Attorney General for 
the good work he does. I know he is aided with great, great 
skill by two former Schumer employees who work for you: Elliot 
Williams, who has been gone for a while, and Brian Fallon, who 
we miss very much and is doing a good job for you. That is 
our----
    Attorney General Holder. Thank you, Senator Schumer.
    Senator Schumer. Okay. First, on autism spectrum disorders, 
I know you are familiar with the case of Avonte Oquendo. He is 
a child with autism spectrum disorder, ASD. He wandered away 
from his school this fall--about 50 percent of all children 
with ASD wander, causing great hardship to their parents--and 
his remains were found 3 months later about 11 miles from the 
school where he originally vanished. The heart of New York went 
out to Avonte and his mother, Vanessa Fontaine, and his 
grandmother, Doris McCoy. I have met with them, and I know 
their grief and heartache, shared by many parents with autism. 
You can imagine when a child wanders away, and many of them are 
non-verbal, very, very heart-wrenching situation and a 
dangerous situation, as, unfortunately, Avonte's death showed.
    So right after Avonte went missing, as you know, Mr. 
Attorney General, I called on the Department of Justice to 
expand a current grant program that you have in place which has 
provided support for the use of tracking devices to agencies 
who work with patients diagnosed with Alzheimer's and families 
of those patients. The program is administered by the Bureau of 
Justice Assistance.
    Now, we have been doing this for Alzheimer's patients. The 
Justice Department funds a program. So it seems almost obvious. 
You know, it is like a hand fits into a glove that we could do 
this, and people with Alzheimer's, as you know, wander as well. 
It seems like just a perfect fit to do the same thing for 
children with autism who tend to wander.
    Now, I understand that the program that is used for 
Alzheimer's is not available for families of children with 
autism. So have you been able to identify any other streams of 
assistance pursuant to my request?
    Attorney General Holder. Well, I think the concern that you 
have is a very good one, a legitimate one, and the fact that 
you brought it to our attention I think is something that is 
going to help a lot of kids who deal with this issue. And we 
have made the determination that the Byrne grant program can be 
used for the purchase of these devices, these ``transmitted 
bracelets,'' I think they are called.
    Senator Schumer. Sometimes they are bracelets, sometimes on 
the ankle. You can even sew them into the clothes, because 
occasionally the kids with autism want to take off the 
bracelets or the things on----
    Attorney General Holder. Right, but Byrne grant money can 
be made and will be made available for the purchase of these 
devices.
    Senator Schumer. Right, so localities' police departments 
can start applying.
    Attorney General Holder. Yes.
    Senator Schumer. Immediately?
    Attorney General Holder. Yes.
    Senator Schumer. That is great news, and that will really 
help in a lot of situations, so I really appreciate that. It is 
a big, huge step forward.
    Now, one other question on this. In order to ensure a 
permanent adequate stream of money for this, I have introduced 
legislation, we call it in New York ``Avonte's Law,'' named 
after this lovely boy. It will create a new specific DOJ grant 
that will be available to local law enforcement, schools, and 
nonprofits that aim to assist children with autism spectrum 
disorder. It will authorize $10 million--that is, I think, how 
much we spend on the Alzheimer's--in order to help fund the 
purchase of voluntary tracking devices for children with ASD, 
training for parents, schools, and local law enforcement, as 
well as other innovative methods for families who wander.
    What you are doing is great and will solve the problem 
immediately, but to ensure its permanence--we all know there 
will be at some point a different Attorney General, many years 
away, and so legislation would ensure this.
    Now, I know the way it all works. You cannot commit to 
specific legislation until you see the details, but do you 
agree with the general principle of trying to enact this in 
statute and assure the revenue stream for many years to come?
    Attorney General Holder. Yes. I think that given the nature 
of the unique issues that kids with autism issues face and 
given the way in which our Nation has responded to adults with 
Alzheimer's issues, they ought to be treated in much the same 
way. And so I cannot commit, but I can say that personally I 
think that a dedicated funding stream makes a great deal of 
sense.
    Senator Schumer. All right. Thanks. We will get you the 
legislation, and you can put it through the long, laborious 
executive branch traps. It probably has to go through 47 
different agencies, but get their support for this legislation, 
which we hope will be forthcoming.
    Okay. Now I would like to turn to media shield. I 
appreciate the administration's support for the Free Flow of 
Information Act, which would protect confidential sources by 
providing clear and reasonable standards. Additionally, the 
Department's revised guidelines governing the obtaining of 
evidence from members of the news media are a step in the right 
direction.
    However, they have not been finalized, and it is more than 
6 months after the Department sent its report to the President. 
When will the revised guidelines be finalized in the Code of 
Federal Regulations? When will they go into effect?
    Attorney General Holder. I would expect that we would have 
them available for comment within the next couple of weeks. I 
had actually hoped that we would have them done by this 
hearing. There was a little glitch toward the end, but I think 
we will get through that, and we will have them available for 
public review and comment within weeks.
    I will say that in spite of the fact that they are not yet 
issued, we are working under them as if they were in place, and 
we are also looking to people the board that we are putting 
together as part of the review process. Mr. Fallon has been 
working on that.
    Senator Schumer. All right. Well, then it is in good hands.
    Attorney General Holder. Right.
    Senator Schumer. Does that include--you know, you mentioned 
this media review committee. Has that been established? Has it 
been convened? Is it officially working? Unofficially working? 
Give us the status of the review committee and the media--the 
News Media Dialogue Group I think is what you called it, to 
``assess the impact of the Department's revised new media 
policies.'' Has that been established?
    Attorney General Holder. There will be two bodies: one 
within the Department to assist the Attorney General in making 
determinations about requests to access information connected 
to the news media, and another one that would involve outsiders 
who will assist us on a periodic basis just to kind of give us 
an update on how are we doing with regard to the reforms that 
we have put in place and to consider other ones.
    Brian, Mr. Fallon, has been working to come up with the 
appropriate people for that outside board, and I think we have 
made a lot of progress. I think we are on the verge of making 
an announcement there.
    Senator Schumer. How soon do you think? I do not want to 
steal Mr. Fallon's news thunder here.
    Attorney General Holder. We expect that the first meeting 
will be in February.
    Senator Schumer. Thank you.
    Attorney General Holder. Thank you, Brian.
    Senator Schumer. Thank you very much, Mr. General.
    And I will do two things now: Call on Senator Sessions and 
turn over the august process--engage in the august process of 
turning over the Chair gavel to the wonderful senior Senator 
from Minnesota, Senator Klobuchar.
    Senator Sessions. And you finished with your time. Very 
well.
    Attorney General Holder, you mentioned gun violence and 
crime. I would just note, as I watch your statistics, that your 
prosecutions, total prosecutions of gun crimes declined 5.2 
percent this year from last year. And I think prosecutions, 
vigorous prosecutions, do make a difference, and I would 
encourage you to keep those numbers up as you go forward.
    A lot of our members are discussing how to deal with the 
mandatory sentences. I would just say I was there when we had 
the revolving doors in the 1960s and 1970s, and we as a Nation 
turned against that. We have created a system that requires 
certainty in punishment, swifter trials, and the result is a 
very great drop in the crime rate.
    So to my colleagues, we just have to be careful as we go 
forward. I know you have been a United States Attorney, 
Attorney General Holder, and you have seen it as a judge and 
U.S. Attorney, and I think we just have to be careful. We need 
to have good data as we go forward to analyze how we can find 
some areas where crime punishments could be reduced. And I do 
agree with you about the NSA and the metadata question. I think 
you have thought this through. I believe your position is 
sound.
    Attorney General Holder, when I became United States 
Attorney in 1981, the percentage of young people in high 
school, high school seniors, according to the University of 
Michigan authoritative national survey, 50 percent plus had 
admitted using an illegal drug previously, in the previous 
year. That was a dramatic thing. And the Nation energized 
itself. Nancy Reagan has the ``Just Say No'' program. In my 
district--and this was done all over America--groups formed: 
the Partnership for Youth, the Coalition for a Drug-Free 
Mobile. We met--I was involved with it, and we created and 
worked to create in the country hostility to drug use, to 
create an impression that it is not socially acceptable and 
children should not be using it and it is wrong. And the trend 
started the other way. Within 10 years, less than 25 percent of 
the high school seniors under that study admitted using illegal 
drugs.
    I invested a tremendous amount of my time, citizens all 
over America invested huge amounts of their time, volunteer 
efforts, financial contributions, to break the cycle of drug 
use among young people that were threatening the very viability 
of our education system and the future of so many. It was just 
a very serious thing.
    So I have to tell you, I am heartbroken to see what the 
President said just a few days ago. It is just stunning to me. 
I find it beyond comprehension.
    This is the Atlantic article surveying what the New 
Yorker--the President's interview with the New Yorker said. The 
headline is: ``Obama on pot legalization: It is important for 
it to go forward.'' That is the President's quote.
    He goes on to quote from that interview. He said, the 
following things about smuggling marijuana:
    ``I view it as a bad habit and vice, not very different 
from the cigarettes I smoked as a young person.''
    ``I do not think it is more dangerous than alcohol,'' he 
said. In fact, it is less dangerous than alcohol ``in terms of 
its impact on the individual consumer.''
    And then he goes on to say: ``Well, those who argue for 
legalizing marijuana as a panacea and it solves all these 
social problems I think are probably overstating the case.''
    This is just difficult to me to conceive how the President 
of the United States could make such a statement as that.
    So, first, do you support the President's view in that 
regard as the chief law enforcement officer in America?
    Attorney General Holder. Well, let me say there are a 
couple misimpressions there with regard to guns. We are 
prosecuting the same number of people that we did from 2007 to 
2013. There may be fewer numbers of cases, but that means, I 
think, that the cases we are bringing are more significant. 
One-seventh of all the cases that we bring involve guns.
    Senator Sessions. All right. I have the data on that. I 
will submit it for the record, and people can decide. The 
number of gun cases are down, according to the data from the 
Department of Justice.
    [The information referred to appears as a submission for 
the record.]
    Senator Sessions. But what about the President's view on 
this important subject? Do you agree with it?
    Attorney General Holder. Well, I think that, as I--I have 
not read the article, but as I have understood what the 
President said in his totality, it was that he thought that the 
use of marijuana by young people was not a good thing. One of 
our eight priorities is the prevention of distribution of 
marijuana to minors. If there is an indication that marijuana 
is being distributed to minors, that would involve--that would 
require Federal involvement. That is what the Deputy Attorney 
General said in his August 29, 2013, memo to the field.
    Senator Sessions. You think it is a bad habit but not much 
worse than smoking?
    Attorney General Holder. Well, I mean, you know----
    Senator Sessions. Your opinion. Give us your opinion.
    Attorney General Holder. Well, I think that the use of any 
drug is potentially harmful, and included in that would be 
alcohol. Young people----
    Senator Sessions. But the President said, ``I do not think 
it is more dangerous than alcohol.'' Do you agree with that?
    Attorney General Holder. Well, as I said, I think that any 
drug used in an inappropriate way can be harmful, and alcohol 
is among those drugs.
    Senator Sessions. Using marijuana against the law, is that 
appropriate use?
    Attorney General Holder. Well, I mean, as I said, for young 
people to do that, that is something that violates the Federal 
law and something that we said would be something that we would 
continue to use our Federal law enforcement resources.
    Senator Sessions. Are you aware that Gil Kerlikowske, the 
drug Czar the President has appointed, said this in December: 
``Young people are getting the wrong message from the medical 
marijuana legalization campaigns. If it is continued to be 
talked about as a benign substance that has no ill effects, we 
are doing a great disservice to young people by giving them 
that message.''
    Do you agree with that?
    Attorney General Holder. Well, I think that is right, and 
that is why we have said that the distribution of marijuana to 
minors will involve--will entail a very vigorous Federal 
response.
    Senator Sessions. Are you aware--isn't it a fact that if 
the laws are relaxed with regard to adults, it makes this drug 
even more available to minors?
    Attorney General Holder. Well, I am not sure that that is 
necessarily true.
    Senator Sessions. Attorney General Holder, isn't it true 
that if marijuana is legalized for adults, it makes it more 
available for young people?
    Attorney General Holder. Well, I am not sure that that is 
true, and I say that only because, you know, the alcohol--
people cannot buy alcohol I guess now until you are age 18--or 
age 21, but young people find ways to get alcohol because 
adults can have access to it. I am not sure that we will see 
the same thing here given what we have said with regard to law 
enforcement priorities.
    Senator Sessions. Did the President make--conduct any 
medical or scientific survey before he waltzed into the New 
Yorker and opined, contrary to the position of Attorney 
Generals and Presidents universally prior to that, that 
marijuana is not--as I have quoted him? Did he study any of 
this data before he made that statement?
    Attorney General Holder. I do not know, but I think, as I 
said----
    Senator Sessions. Did he consult with you before he made 
that statement?
    Attorney General Holder. No, we did not talk about that.
    Senator Sessions. Well, what about this study from the 
American Medical Association, October 2013, ``Heavy cannabis 
use in adolescents causes persistent impairments in neuro-
cognitive performance and IQ, and use is associated with 
increased rates of anxiety, mood, and psychotic thought 
disorders''? Or this report from Northwestern University, in 
December, last December, the study found that marijuana users 
have abnormal brain structure and poor memory and that chronic 
marijuana use may lead to brain changes resembling 
schizophrenia. The study also reported that the younger the 
person starts using marijuana, the worse the effects upon him. 
Would you dispute those reports?
    Attorney General Holder. I have not read the reports, but I 
do not--if they are, in fact, from the AMA, I am sure they are 
good reports. But that is exactly why one of our eight 
enforcement priorities is the prevention of marijuana to 
minors.
    Senator Sessions. Well, Lady Gaga said she is addicted to 
it and it is not harmless. She has been addicted to it. Patrick 
Kennedy, former Congressman Kennedy, said the President is 
wrong on this subject.
    I just think it is a huge issue. I hope that you will talk 
with the President--you are close to him--and begin to push 
back or pull back from this position that I think is going to 
be adverse to the health of America.
    Thank you, Madam Chair.
    Senator Klobuchar [presiding]. Thank you, Senator.
    Senator Whitehouse.
    Senator Whitehouse. Thank you.
    Welcome back to Congress, Attorney General, and thank you 
for the terrific work that you are doing as our Attorney 
General. As a former U.S. Attorney and as a friend of the 
Department, I not only have my own opinion, but I have other 
folks who are observers of the Department, and I think we are 
very appreciative of the fine leadership you are providing the 
Department of Justice.
    Attorney General Holder. Thank you.
    Senator Whitehouse. Let me talk with you for a moment about 
cyber. Our efforts to address the cyber threat on the military 
side have been quite distinct and have led to the establishment 
of a cyber command with two four-star generals in charge, one 
double-hatted to lead NSA. On the law enforcement side, our 
administrative advancement to meet this threat has been, to put 
it mildly, incremental. And, for instance, responsibility for 
cyber threats within the Department of Justice itself is 
divided between the Criminal Division and the National Security 
Division. And the enforcement responsibility is divided between 
the FBI and the Secret Service, although the FBI has a very 
dominant role--and, by the way, does a terrific job.
    In the spending bill that was just passed, thanks to 
Chairman Mikulski's exemplary legislative talents, there is a 
provision that requires the Department of Justice within 120 
days to put forward a multi-year strategic plan for this. As 
you know, I have had this discussion with the Department of 
Justice, and the Department of Justice has said we cannot talk 
about this because OMB is not in the room and they will whip us 
unmercifully if we talk about budget stuff without their 
presence, because it will look like we are submarining the 
prerogatives of the White House over budget issues. So we 
brought OMB in, and those discussions have gone forward at a 
moderate pace.
    I just wanted to flag for you this legal requirement that 
it be done within 120 days because I am really expecting that 
there will actually be a report within 120 days, and I am 
hoping that you and OMB will both put considerable effort into 
it, because if you look out 4 or 5 years at the rapid rate in 
which the cyber threat is growing, in which it is morphing into 
more complex and varied threats, and at all the ways in which 
it can affect the lives of ordinary Americans, I think that we 
are both underresourced and inadequately structured to deal 
with that problem in the long haul.
    So what assurances can you give me about how you guys are 
going to handle this responsibility for a multi-year strategic 
plan on cyber within 120 days?
    Attorney General Holder. Well, I do not want to be 
alarmist, but I think the concern you have expressed over the 
years is well founded. This Nation needs to be afraid of where 
we could be after a cyber attack. When you see the 
proliferation of these cyber capabilities to criminal 
organizations, to nation states, our Nation is at risk. Our 
infrastructure is at risk. And we as a Nation have not, I 
think, adequately responded to it.
    I think the 120-day examination that we have to do to come 
up with this multi-year plan is indeed a good thing, and we 
will take it very seriously and respond within that timeframe, 
bringing into it OMB and, I think, bringing Members of Congress 
who have expressed an interest--you, for instance--into this 
process as well, at least to be a part so that we have your 
views in formulating what this plan is like.
    But we as a Nation have not dedicated the attention, the 
resources to a problem that is 21st century in its inception 
and will be with us for, I suspect, throughout the duration of 
the century. And it is only going to get worse. The danger to 
us is only going to be heightened.
    Senator Whitehouse. I spoke to the FBI Cyber Division, I 
guess yesterday morning, and used the example of the United 
States Air Force, which, before the opportunity and threat of 
air warfare was fully appreciated, began as a subcomponent of 
the Army Signal Corps. And then, obviously, it had to grow, and 
then it became the Army Air Corps, and finally we got a U.S. 
Air Force. And I think a similar process needs to be planned 
for on this.
    The other issue I wanted to raise with you is that many of 
us have been shocked by the discrepancy between the filings 
that political organizations have made at the Internal Revenue 
Service, promising under oath that they were not going to spend 
any money on political activities, and at the same time filing 
declarations under oath at the Federal Election Commission that 
they had spent tens of millions of dollars in political 
activities.
    I suspect that those discrepancies reflect false statements 
that could be prosecuted under 18 U.S.C. Section 1001. There 
have been no cases from the Department in that respect because 
the IRS has not referred anything. I think the IRS has been 
frightened of the power behind these big political machines, so 
they have basically chickened out and pitched it in. But now 
they have decided to take a look at those rules, and I would 
ask you to assign somebody on your staff to track the IRS 
process, make sure that you are comfortable with where those 
rules are coming out, and make sure that if there are open and 
notorious conflicts between sworn statements by these 
organizations, it leaves room for the Department of Justice to 
step in and get in front of a grand jury and bring in some 
evidence and find out if they are, in fact, the prosecutable 
false statements that they appear to be on their face.
    Attorney General Holder. I think that is something that is 
worthy of examination. I think the problem exists in that under 
the Tax Reform Act, this is information that is called ``tax 
return information'' that is always guarded very zealously. 
There is a Memorandum of Understanding that exists between the 
Department and----
    Senator Whitehouse. You do not get to look at it unless 
they have referred to you.
    Attorney General Holder. Right.
    Senator Whitehouse. But when an open and notorious 
violation appears to be happening in place, I do not think 
there is anything in that law that prevents the Department of 
Justice from saying to the IRS, ``Excuse me, why are you not 
referring this to me? I can see what is happening right here in 
the plain light of day. They said zero dollars in this filing 
under oath and $20 million in this filing under oath. They 
cannot both be true. Somebody is lying somewhere. We would like 
to look into it.''
    Attorney General Holder. Yes, I think those referrals only 
occur in what I think are termed ``extraordinary 
circumstances,'' and I think that is just a question of 
defining what ``extraordinary'' means. And I think that an 
examination of this issue makes a great deal of sense, and this 
is not an ideological issue. This is one that, you know, groups 
on the left and on the right I think should be held to the full 
letter of the law.
    Senator Whitehouse. The crime of lying to a Federal 
official has no partisan component to it, and I appreciate that 
you will take a look at it with that in mind. And I have gone a 
bit over my time, so I thank my colleagues, and I yield my 
time.
    Senator Klobuchar. Very good. Senator Cornyn.
    Senator Cornyn. Thank you, Madam Chairman. Good morning, 
Attorney General Holder.
    Attorney General Holder. Good morning.
    Senator Cornyn. I want to introduce you to a constituent of 
mine and Senator Cruz, Catherine Engelbrecht of Houston, Texas. 
She founded two organizations known as True the Vote and King 
Street Patriots dedicated to improving elections and furthering 
the ideals of our Founding Fathers. She leads a coalition of 
citizen volunteers who work as election monitors, who provide 
resources for voter registration drives, and are dedicated to 
rooting out election fraud. Yet the Federal Government has 
targeted Catherine Engelbrecht and her organizations with 
harassment and discrimination.
    In the spring of 2010, True the Vote and King Street 
Patriots both filed for nonprofit status. Like so many 
organizations, they just wanted to participate in the political 
process. When the IRS failed to respond, in January 2011 I 
wrote a letter inquiring about the status of True the Vote's 
application. A few weeks later, the now notorious Cincinnati 
office of the IRS began a series of gratuitous and invasive 
inquiries into Ms. Engelbrecht's organizations. This 
investigation was so over the top that the Federal Government 
demanded, among other things, every Facebook post and every 
Tweet that Ms. Engelbrecht had ever posted.
    For more than 3 years, the IRS denied True the Vote and 
King Street Patriots the nonprofit status they requested and 
subjected both Ms. Engelbrecht and her family and her business 
to this kind of harassment.
    This kind of abuse of power was not limited to the IRS, 
however. According to CBS News, within 2 months--or within 
months of True the Vote's filing, two arms of the Justice 
Department targeted Ms. Engelbrecht. The FBI made calls to King 
Street Patriots and attended some of its meetings. And the ATF 
has twice audited Ms. Engelbrecht's business.
    Coincidence? Maybe. But where there is smoke, there is 
fire. The IRS finally, 3 years after they applied, granted True 
the Vote's tax-exempt status that it requested.
    But we now know that True the Vote was just one of the 
conservative organizations that was targeted for 
discrimination, harassment, and intimidation by the Federal 
Government, the IRS in particular. IRS officials at the highest 
levels targeted the leaders of conservative organizations based 
solely on their political beliefs. In Ms. Engelbrecht's case, 
the intimidation tactics were shocking: threatening to bankrupt 
an American family and the business they built simply because 
they dared criticize the Federal Government. This is chilling, 
and it should be unacceptable in the United States of America.
    The President, to his credit, agrees that this is a 
terrible abuse. He called the IRS scandal ``intolerable'' and 
``inexcusable,'' and he called for those guilty of this 
misconduct to be held accountable.
    But when your Department was asked to step in and 
investigate, no one has been held accountable for this abuse. 
In fact, your Department installed a political donor of the 
President's to lead the investigation. Appointing a political 
donor to investigate a political activity I think calls the 
entire investigation into question, and I cannot imagine how 
this would be designed to instill public confidence in the 
investigation.
    Now, FBI Director Comey, to his credit, said this 
investigation was an important one for his agency. Now, though, 
it has been publicly reported that the Department will not 
pursue criminal charges against any IRS official, even though 
the FBI's investigation has not yet been concluded. And, 
shockingly, the Department made this decision, if it is true--
and you can certainly confirm it or refute it if it is not. 
They made this decision without even talking to Catherine 
Engelbrecht. I talked to her yesterday. She verified she has 
not heard a word from the Department of Justice or the FBI.
    So I would like to know, General Holder, what you have to 
say to Ms. Engelbrecht and other Americans who spent thousands 
of dollars defending themselves against harassment by the 
Internal Revenue Service for daring to exercise their 
constitutional right to participate in the political process. 
And I would like to ask you whether you will agree to make sure 
that your Department consults personally with every victim of 
this type of intimidation by the Federal Government. And if you 
can tell us, what kind of accountability can the American 
people expect from this abuse of power?
    Attorney General Holder. Well, what I would say is, first 
off, that I do not remember the exact words that I used, but I 
think shortly after the President made the statements that you 
made, I expressed similar concerns, and I was the one who 
actually ordered the investigation into these matters. They are 
being handled by the Criminal Division in the Justice 
Department, the Civil Rights Division in the Justice 
Department, the Treasury Inspector General, and the FBI, as you 
indicated. This is a matter that is an open inquiry. The matter 
is still going on.
    Press reports that I think you were referring to with 
regard to how the case is ultimately going to be decided is a 
press report. I can tell you that the reporters who have made 
those assertions are not people privy to what is actually going 
on in the investigation. It is something, as I said, that is 
open. The investigation is proceeding.
    Senator Cornyn. So is there still a potential for criminal 
charges to be brought in connection with the investigation 
since it has not been concluded?
    Attorney General Holder. Well, I would--I mean, obviously 
all the options that we have are on the table, given the fact 
that there has not been a determination either to bring charges 
or to decline the case.
    Senator Cornyn. Well, don't you think it is the 
responsibility of the Department to actually contact the people 
with the most information about what exactly happened, like 
this victim of this abuse of power, like Catherine Engelbrecht?
    Attorney General Holder. I am not familiar with the woman 
who you refer to, but I have confidence in the career people at 
the FBI and the other investigative agencies to conduct a 
thorough, comprehensive investigation, and that is what I would 
expect of them, and that is why matters like this take as long 
as they do.
    Senator Cornyn. Well, would you please, in conclusion--I 
know my time is up. Would you please commit here to me and 
publicly to contact Catherine Engelbrecht and to get her side 
of the story or have somebody on your staff do so?
    Attorney General Holder. The determinations as to who gets 
interviewed will be made by the career people who are 
conducting the investigation. As you have said--and I do not 
want to cast any doubt on what you have said--she seems like a 
logical person to talk to on the basis of what you have said. I 
do not have any independent knowledge of what her involvement 
is or what her organization is about. But that is something 
that I would leave to the people who are, as I said, career 
professionals to make determinations as to who needs to be 
interviewed.
    Senator Cornyn. Well, I hope the Department would talk to 
the victim.
    Chairman Leahy [presiding]. Okay. Thank you, Senator 
Cornyn.
    Senator Klobuchar will be recognized, and I am also turning 
the gavel over to her following another matter. But I also want 
to express again to the Attorney General my appreciation not 
only for being here, but being available to so many of us on 
this Committee on both sides of the aisle whenever we have 
called you. I appreciate that. That has not always been the 
precedent in the Department, so I appreciate the fact you have 
always been available.
    Senator Klobuchar [presiding]. Thank you very much, Mr. 
Chairman.
    Welcome, Attorney General Holder. Thank you for being here. 
You and I have talked about this many times, but I want to make 
sure my Republican colleagues are aware of the fact that the 
State of Minnesota has not had a full-time U.S. Attorney for 
882 days. This came about because our U.S. Attorney was 
appointed to head up the ATF after the mess with Fast and 
Furious. He did an able job. He is now, through the vote of 
this Senate, the Director of the ATF. But during that time, for 
2 years he was a part-time U.S. Attorney and, in fact, he was 
at the ATF much more than he was the U.S. Attorney.
    During that time our drug prosecutions have gone down 
remarkably. I have had Federal judges call me repeatedly. I 
have had the FBI Director call me in Minnesota repeatedly. And 
we now have a very good candidate who is supported by law 
enforcement, who is supported by our Republican Congressman, 
who made it through this Committee with no objections, but he 
is now on hold because right now this Senate has decided not to 
take up unanimous nominees, and it is being blocked.
    We have a situation where over 100 people are working now 
for 882 days without a full-time boss, and I just think it is 
absolutely outrageous. When Minnesota became a State, we got 
our U.S. Attorney through President Zachary Taylor in 2 days, 
and we have not had a full-time boss for 882 days. This is the 
office that prosecuted the second biggest white-collar case 
next to Madoff in the last few years. This is the office that 
dealt with what would have been the additional terrorist for 9/
11, Moussaoui. This is the office that has handled numerous 
complex cases and has been one of the best U.S. Attorney's 
Offices. And I fear, knowing half the people that work there 
that used to work for me when I was a prosecutor, there is a 
decline in morale. They need a boss. And I am angry at everyone 
about this, as you know, but it has to end.
    So I just ask my Republican colleagues, when Senator 
Grassley and I both have a U.S. Attorney in Iowa and Minnesota, 
when Senator Grassley has repeatedly criticized this office in 
Minnesota because of these crime numbers and other things that 
I have mentioned, that we be allowed to get a U.S. Attorney in 
Minnesota. And so I would just like you to comment about that.
    Attorney General Holder. I agree with you, and I share that 
concern, and I think that the point that you made at the end is 
one that I think is extremely relevant and hopefully the Senate 
will consider. This is not simply a United States Attorney for 
Minnesota. We also have a United States Attorney in Iowa who 
needs to be confirmed. We also have other people in the Justice 
Department who are awaiting confirmation and who are on the 
floor and who traditionally--these are people who are not 
very--they are not controversial at all. They are simply 
waiting to go through the normal Senate process, which is 
usually by unanimous consent. I would hope that we would get to 
the point where that process can be begun again so that we 
could have installed Senate-confirmed people in these 
positions, because it really does matter. Having a Senate-
confirmed person either as United States Attorney, an Assistant 
Attorney General, it matters. So that is something that I hope 
that we would be able to work our way through.
    Senator Klobuchar. I appreciate that, and I just would 
suggest to my colleagues, though, that no one ever allows this 
to go on so long, to have a job share. I will never do this 
again. And I understand the reasons for it, but because our 
Congress has not been able to do simple things like approve 
people for the ATF or approve people when you have a U.S. 
Attorney's Office that clearly needs a U.S. Attorney, we just 
cannot take the responsibility to do that job. And because of 
that, no one should ever allow their U.S. Attorney to take 
another job at the same time, because we cannot handle the 
responsibility of confirming a replacement or confirming that 
person for that job. And so we deserve what we get if that is 
what happens.
    I want to turn to something else, which is sex trafficking, 
something that Senator Cornyn and I have a very strong bill 
with a lot of support, bipartisan support, to literally take 
Minnesota's safe harbor model, which has been a very good force 
in our State, just getting started, but we had last month a 40-
year sentence from the Ramsey County Attorney's Office against 
the head of one of these rings. And if you could talk about the 
President's Interagency Task Force, what is going on. The Super 
Bowl is approaching us this weekend, which is a concern which 
many have raised in terms of the uptick in the number of sex-
trafficking ads. In Dallas in 2011, there was a 300-percent 
increase in people advertising things like Super Bowl specials, 
just what the Justice Department is doing about this increasing 
problem, due in part to the number of ads and what we are 
seeing.
    Attorney General Holder. Well, one thing I think you have 
said, it is something that our country needs to take note of, 
that where Super Bowls locate, you see a decided increase in 
human trafficking. You see young girls, young women brought 
into these areas for illicit sexual purposes. That is an ugly 
thing that this Nation has got to confront, has got to deal 
with, but it really is just indicative of a larger problem, 
that is, this scourge of human trafficking. This is a top 
priority for the Justice Department. It is a top priority for 
me as well.
    We need to stop--we need to have effective mechanisms to 
investigate and hold accountable people who would engage in 
these activities. We need to see the young women who are 
involved in this as victims, not as criminals, and come up with 
rehabilitative services for them.
    We have a proposal--the proposal I think that you have 
made--with regard to getting trafficking experts together to 
look at this problem and come up with ways in which we are more 
effective in dealing with this issue. It is one that I fully 
support.
    We also have to deal, I think, quite frankly, with the way 
in which this is advertised in the media. There are certain 
publications that make it known that young women--ads that are 
published, that are available for these inappropriate sexual 
purposes, and that is something that we need to deal with as 
well.
    We as a Nation are not dealing with this nearly as 
effectively as we can. We have specialists in our U.S. 
Attorney's Offices who are trying to deal with the issue, but 
we need to help our State and local partners as well.
    Senator Klobuchar. Thank you. The last thing, synthetic 
drugs, something that Senator Schumer and Senator Grassley and 
Senator Feinstein and I have worked on, as well as others in 
this room. This is the new drug on the scene. We have had 
several people die in our State, and I did want to thank you 
and the U.S. Attorney's Office for the prosecution in Duluth, 
Minnesota, of a major head shop owner that had been going on, 
people literally laying on the streets from all these synthetic 
drugs. And while the sentencing, we are awaiting the 
sentencing, it was a major prosecution, and the shop has been 
shut down. The guy in charge, they just found something like 
$700,000 in bags hidden in his bathroom, and I just want to 
thank you for that work.
    Attorney General Holder. Yes, I mean, that is an issue 
that, again, we need to confront. There is this myth, 
especially among young people, that somehow or other these 
synthetic drugs are not dangerous. We have to dispel that myth. 
Our DEA, Drug Enforcement Administration, is really devoting a 
lot of time to dealing with these issues. We have had a number 
of significant busts.
    But I think there also is an educational component to this 
that we really have to focus on young people about the dangers 
of these synthetic drugs that are marketed in such a way to 
make them think that there are no dangers in using them.
    Senator Klobuchar. Very good. Thank you very much.
    And I believe Senator Lee is next.
    Senator Lee. Thank you, Madam Chair, and thank you, General 
Holder, for joining us today.
    I appreciate the support you expressed earlier for the 
Smarter Sentencing Act. I appreciated the opportunity to work 
with Senator Durbin on that and welcome the support of my 
colleagues as we try to move forward in a way that makes our 
law enforcement efforts more effective and makes sure that we 
do not continue to escalate our Federal prison population at a 
rate of about tenfold as we have over the last 30 years.
    I wanted to talk to you first a little bit about metadata. 
Regardless of how you read Smith v. Maryland and regardless of 
whether you think under Smith v. Maryland and its progeny a 
constitutional case can be made for the collection of this data 
as it relates to American citizens, wouldn't you agree that at 
some point, when you amass an enormous volume of metadata on 
American citizens and you retain within the Federal Government 
the capacity to search that data, targeting potentially 
specific Americans, that gives the U.S. Government a lot of 
power to peer into things that are, by their nature, very 
private?
    Attorney General Holder. Yes, and it is one of the reasons 
why in the interim, before we come up with whatever our 
proposals are going to be, the President has indicated that in 
querying that data base now, we should only do so through use 
of judicial authorization. And so that ultimately may be 
something that we want to enshrine in the program. But that is 
what the President has asked us to do in the interim, unless 
there is an emergency situation.
    Senator Lee. Right. So you would make that tantamount to a 
warrant, in other words, because right now what you have are 
internal operating procedures, internal regulations that can be 
changed; whereas, if we put that in law, that would provide 
greater protection.
    Attorney General Holder. I think we want to try to work out 
what the mechanism might be so that we would afford the 
appropriate amount of protection while at the same time not 
having a negative impact on the operational abilities of people 
who need to potentially get access to that information on a 
pretty quick basis.
    But I think one thing we should understand is that although 
there might be billions of records in those metadata bases, I 
think the number for last year, in terms of the number of 
queries that were made of that data base, was about 300 or so.
    Senator Lee. I understand that. I understand that, and I 
think for purposes of this discussion, even if we were to 
assume that all of the men and women serving us within the NSA, 
even if they are acting in good faith and abiding by their own 
rules, at some point there is a very grave risk of abuse. And I 
do not know whether that might happen a day from now, a year 
from now, 10 years or 20 years from now. But, you know, we have 
seen this movie before. We know how it ends, and we know that 
it is not pleasant. This will ultimately be abused unless we 
put in place some very significant restrictions.
    I heard you mention a few minutes ago in response to some 
of the questions asked by Senator Grassley that it is the 
President's preference to work with Congress and that, wherever 
possible, he would like to get Congress to agree with him, to 
pass legislation that he would like. But, of course, the other 
side of that coin is something that the President referred to 
repeatedly last night in his State of the Union address, which 
is that if he cannot get Congress to act, he will go it alone. 
If Congress will not act the way he wants Congress to act, then 
he will issue an Executive order anytime he gets the chance.
    This brings to mind a concern that I have had as to whether 
or not sufficient analysis is being undertaken when these 
Executive orders are issued. As you know, the Supreme Court has 
since Youngstown Sheet & Tube v. Sawyer and Justice Jackson's 
concurrence, and certainly since Dames & Moore v. Regan, when 
that Jackson concurrence was adopted by the majority of the 
Court, it has tended to separate out Executive orders into 
three categories.
    You know, in Category 1 you have a situation where Congress 
acts pursuant to authorization by Congress, and that is where 
his authority to act with an Executive order is at its 
strongest.
    Category 2 is where you have the President acting in the 
absence of either a congressional authorization or a 
congressional prohibition. Justice Jackson described this as 
sort of a twilight zone where it is a little unclear, it is a 
little murky.
    Category 3 is where you have the President taking measures 
that are incompatible with a congressional command.
    And so I would ask, number one, is this analysis undertaken 
each time the President issues an Executive order? And, number 
two, was that kind of analysis undertaken when the President, 
for example, announced on July 2, 2013, that he would not be 
enforcing the employer mandate of the Affordable Care Act 
throughout the duration of 2014, even though by law the 
employer mandate was set to take effect as of January 1, 2014?
    Attorney General Holder. Before the President exercises the 
Executive authority that he discussed last evening--and, again, 
I want to preface that with I think the pretty clear indication 
from the President that he wants to work with Congress on 
behalf of the American people. In the absence of that kind of 
activity, as he has done with regard to raising of the minimum 
wage, he has used his Executive authority--well, will use his 
Executive authority to raise the minimum wage for those who do 
business with the Federal Government. Those kinds of activities 
by the President are done after consultation with the Justice 
Department and an analysis is done to make sure that the 
President is acting in an appropriate and a constitutional way, 
and those three categories that you talk about, that we all 
studied in law school from Justice Jackson, are, you know, 
among the things that obviously are a part of the analysis, you 
know, where the President's authority is greatest, at twilight 
zone, and at where the President's authority is weakest.
    Senator Lee. So in which of those three categories would 
you put the President's decision to delay the enforcement of 
the employer mandate? Is that Category 1, 2, or 3?
    Attorney General Holder. To be honest with you, I have not 
seen--I do not remember looking at or having--I do not remember 
having seen the analysis in some time, so I am not sure where 
along the spectrum that would come.
    Senator Lee. How about the Executive order that he proposed 
last night with regard to minimum wage? Would that be Category 
1, Category 2, or Category 3?
    Attorney General Holder. Well, again, without having delved 
into this to any great degree, that would----
    Senator Lee. But you are the Attorney General. I assume he 
consulted you.
    Attorney General Holder. Well, there have been 
consultations done with the Justice Department. From my 
perspective, I think that would put us in Category 1. Given the 
congressional involvement in the matter, the ability of the 
President to regulate things that involve the executive branch, 
and how contracting is done, it seems to me the President is 
probably at the height of his constitutional power in that 
regard, with regard to the one we----
    Senator Lee. So you are saying there is a Federal statute 
that authorizes him to issue the Executive order regarding the 
minimum wage?
    Attorney General Holder. No, I think that there is a 
constitutional basis for it, and given what the President's 
responsibility is in running the executive branch, I think that 
there is an inherent power there for him to act in the way that 
he has.
    Senator Lee. And with regard to the employer mandate?
    Attorney General Holder. Again, as I said, I have not had a 
chance to look at, you know, for some time exactly what the 
analysis was there, so I am not sure that I would be able to 
put it in what category. But, again, I would think that given 
that we are talking about a statute passed by Congress that 
delegates or devolves to the executive branch certain 
authorities, I would think that you are probably in Category 1 
there as well. But, again, I have not looked at the analysis in 
some time.
    Senator Lee. Okay. I appreciate your candor on that, and I 
see my time has expired. But as I conclude, I would just like 
to point out that this is very, very important and it is one of 
the reasons why, as one of my colleagues suggested earlier, it 
could be very helpful for you to release legal analysis 
produced by the Office of Legal Counsel or whoever is advising 
the President on these issues. It is imperative within our 
constitutional system that we not allow too much authority to 
be accumulated in one person, and it is one of the reasons why 
we have a Constitution, is to protect us against the excessive 
accumulation of power. And I think the President certainly owes 
it to the American people and you owe it to the President as 
his Attorney General to make sure that when he does act by 
Executive order, that he do so clearly and clearly state the 
basis of his authority so that the American people can be aware 
of what is happening and on what basis he is claiming that 
authority.
    I look forward to hearing your explanation. Perhaps you can 
submit something to us in writing after this hearing about his 
basis for making some of these decisions, particularly with 
regard to the delay of the employer mandate. Thank you.
    Thank you, Madam Chair.
    Attorney General Holder. Let me just say that I have great 
respect for your legal, analytical skills. You are clearly your 
father's son. But I also want to assure you and the American 
people that the President will not act in a way that is 
inconsistent with the way other Presidents have acted in using 
their Executive authority. He has made far less use of his 
Executive power at this point in his administration than some 
of his predecessors have. And he will only do so, as I 
indicated previously, where he is unable to work with Congress 
to do things together. That is the desire of the President, to 
work with Congress to deal with the issues that confront the 
American people.
    Senator Lee. General Holder, I respectfully but forcefully 
disagree with the assertion, if this is what you are saying, 
that because the number of Executive orders issued by this 
President might be comparable to the number of Executive orders 
issued by previous Presidents, that that means that he has not 
made more use of it than other Presidents have. When you look 
at the quality, not just the quantity but the quality, the 
nature of the Executive orders that he has issued, he has 
usurped an extraordinary amount of authority within the 
executive branch. This is not precedented. And I point to the 
delay, the unilateral delay--lawless delay, in my opinion--of 
the employer mandate as an example of this.
    And so at a minimum, I think he owes us an explanation as 
to what his legal analysis was, particularly given the fact 
that it is difficult to imagine who has got standing to 
challenge this, and it is difficult to imagine who, if given--
if acquiring standing to challenge this could do so in a timely 
enough manner so as to avoid a mootness problem in the case. So 
it is all the more reason why it is important in this case.
    Thank you very much.
    Attorney General Holder. We have to separate then--I mean, 
with regard to the notion that there is a usurpation or that 
the President has acted in a lawless way, I think that is 
totally inconsistent with what the President has done and what 
his desires are to do.
    Senator Klobuchar. Very good. Senator Blumenthal.
    Senator Blumenthal. Thank you, Madam Chairman.
    I want to begin--I had not planned to begin this way, but I 
want to begin by respectfully taking issue with my colleague 
Senator Lee and say that the use of Executive orders in the 
past has been very sparing and cautious, and, in fact, in my 
view the numbers of Executive orders, which have been far less 
than any recent President, reflect that very sparing and 
cautious use--in my view, too cautious and too sparing. And I 
applaud the President's apparent determination to use his 
authority more aggressively and more vigorously in areas that 
matter so much to the well-being of the American people, 
particularly when it comes to economic opportunity as well as 
to immigration and veterans issues.
    The basic concept here is that the President is using his 
authority. Whether you adopt the construct of three categories 
or any other method of analysis, at the end of the day the 
President is simply executing the law and using authority that 
has been granted to him by Congress for the well-being of the 
American people, to protect their health and safety and to 
advance the national interest. And in my view--and I have 
expressed this view through the Subcommittee that I chair on 
regulation, in some instances the delay in using that authority 
has been more on the side of caution than on the side of how 
aggressively it should be used. So I think your position that 
any use of Executive power will be in accordance with the law 
and his legal authority clarifies the point that I think has 
been missed in a lot of the reaction to the President's speech. 
Where some of his critics have said that he is going to be 
legislating or bypassing the Congress, in fact, he is using 
legislation that has granted him authority.
    Let me just say on the issue of sex trafficking, I welcome 
your comments on that score. I have proposed a resolution, a 
bipartisan resolution with my colleague Rob Portman, who is not 
a member of this Committee, basically saying that there should 
be more vigorous enforcement of these laws, particularly around 
the time of the Super Bowl, because the trafficking on websites 
like backpage.com tends to increase during this time. So I 
welcome your comments.
    And let me just add briefly, to take Senator Leahy's 
comment, I want to thank you and the Department of Justice for 
really over these past years viewing these legal issues on 
their merits, on their legal merits, putting politics aside. 
The Justice Department went through a dark period, in my view, 
under a previous administration when politics all too often 
became a part of the analysis, and I want to thank the career 
Justice Department employees who worked so hard and long under 
you to make sure that the rule of law is preserved.
    Let me turn to a part of the President's speech where I 
might have hoped he had said more on the issue of preventing 
gun violence. The mention by the President was very brief, but 
I hope, and I hope you will join me in the view, that the 
President remains completely committed to end gun violence in 
this country, adopting commonsense, sensible measures like 
background checks and mental health initiatives, a ban on straw 
purchases and illegal trafficking. The bill that was before us 
unfortunately failed to pass, but I would like your commitment 
on behalf of the administration that he remains resolutely and 
steadfastly in support of these initiatives.
    Attorney General Holder. Yes, we do still have that 
commitment. The worst day that I had as Attorney General of the 
United States was the day that I went to Newtown to thank the 
first responders, crime scene search officers who were there, 
and they took me on a tour of that school. And if people had 
the ability--if the American people, legislators, Members of 
Congress had had the ability to be with me on that day, to walk 
through the classrooms and see the caked blood, to see the 
tufts of carpet that I did not quite understand when I first 
saw the carpet picked up, then I realized that that was where 
bullets had gone through and picked up the carpet, if people 
had seen the crime scene search pictures of those little 
angels, I suspect that the outcome of that effort that we 
mounted last year would have been different.
    Our resolve remains the same. My resolve is as firm as it 
was back then. And I think what we should also understand is 
that the vast majority of the American people still want those 
commonsense gun safety measures that we advanced last year. Our 
commitment is real, and we will revisit these issues.
    Senator Blumenthal. And on the subject of the use of the 
President's authority, my hope is--and I would urge that he 
take whatever action is possible, as he has done in a number of 
steps already and as you have done in trying to clarify the 
mental health issues that have to be reported to the NICS 
system. My hope is that additional measures, Executive actions 
are contemplated under that authority.
    Attorney General Holder. Yes, the President, it is his 
intention to, again, try to work with Congress, but in the 
absence of meaningful action to explore all the possibilities 
and use all the powers that he has to, frankly, just protect 
the American people.
    Senator Blumenthal. Thank you. One last subject. I have a 
lot of subjects that I could explore with you, but I am hoping 
that the administration will also explore very vigorously what 
it can do to stop sexual assaults on campus. I applaud the 
President's initiative, and you were part of the task force 
that he has appointed. The report of the Council on Women and 
Girls very recently emphasizes how pressing and pervasive this 
problem is on our campuses. I am intending an initiative in 
Connecticut to try to raise awareness about it. And I would 
like your commitment that you will work with me and others on 
this Committee on this issue.
    Attorney General Holder. I look forward to working with you 
on that very important issue. I mean, the statistics are very 
alarming: 20 percent of all young women are either sexually 
assaulted or an attempt made at a sexual assault. Usually--who 
are in college. Usually this happens in their freshman or the 
early part of their sophomore years. We are going to try to use 
those kinds of statistics and the work of this task force that 
the President has put together to try to deal with that issue, 
and we will look forward to working with you and other Members 
of Congress in trying to come up with meaningful ways that we 
can deal with an issue that has too often been, if not ignored, 
not given the attention that it deserves.
    Senator Blumenthal. And just so no one thinks that this 
issue merely involves rhetoric, there is a legal basis for 
action in Title IX and other Federal statutes for the Federal 
Government to be involved in protecting women against the 
ongoing assaults and other kinds of harm that they suffer on 
our campuses.
    Attorney General Holder. Yes, and the Justice Department is 
using all the tools that we can. We worked out an agreement 
with the University of Montana using our civil rights statutes 
where that problem was not being adequately addressed, and we 
worked out--to the credit of the university, we put in place a 
consent decree, and other universities, as I now understand it, 
are talking to the University of Montana to see what measures 
they have put in place, and it is our hope that this kind of 
thing will expand and cover more college campuses.
    Senator Blumenthal. Thank you very much. Thank you for your 
testimony today and for your and the Department of Justice's 
service to our Nation. Thank you.
    Attorney General Holder. Thank you.
    Senator Klobuchar. Thank you, Senator.
    Senator Graham.
    Senator Graham. Thank you. Good morning, Mr. Attorney 
General.
    Attorney General Holder. Good morning.
    Senator Graham. People on both sides of the aisle are 
asking you to do some very worthy things. I mean, this is a 
great area for you to be involved in. Tell me how sequestration 
over the next decade affects your ability not only to do more 
but to do what you are tasked to do today in terms of fighting 
crime and terrorism.
    Attorney General Holder. Were sequestration to remain in 
place, we would simply not be able to do the kinds of things 
that the American people expect of us. We have 4,000 fewer 
people in Justice Department now than we did in January 2011 as 
a result of sequestration, or the expectation of sequestration 
that forced me to put into place a hiring freeze. And we simply 
have--we have fewer investigators, fewer prosecutors. Our 
ability to do the job is just very negatively impacted by 
sequestration, or has been negatively impacted by 
sequestration.
    Senator Graham. It is one thing to become more efficient. 
Eventually it becomes a lack of ability.
    Attorney General Holder. Right.
    Senator Graham. So I hope we will all remember that.
    Over the next decade, do you see threats to our homeland 
increasing, decreasing, or staying about the same regarding 
terrorist activity?
    Attorney General Holder. That is an interesting question. I 
would say that in terms of the threat from core al Qaeda, the 
threat I think is likely to be less severe. I am more concerned 
about homegrown violent extremists who get radicalized in a 
variety of ways that, you know, you are very familiar with and 
what they might try to do, where you have one-offs or two 
people----
    Senator Graham. So there are two threats: homegrown 
terrorism--which I agree is definitely on the rise. The 
likelihood of being attacked by someone here who has been 
radicalized as an American citizen I think, as Boston, may be 
the future. But you have got to remember the Pakistan Taliban 
are the ones that trained the guy in New York, so it is just 
not core al Qaeda.
    Attorney General Holder. No, I mean the affiliates. No, you 
are right. The affiliates are----
    Senator Graham. They are out to get us, and I just want 
people to understand that, you know, privacy is important, but 
understanding the threat, too, is also important.
    About the IRS, do you agree with me that the allegation is 
that the IRS agency targeted people who were political enemies 
of the President, perceived to be political enemies of the 
President, and made it harder for them to organize and express 
themselves? Isn't that the basic allegation?
    Attorney General Holder. It is certainly what generated my 
desire to have an investigation done.
    Senator Graham. Yes, I mean, this is not the first time 
that has happened in Washington. I mean, there are some Nixon--
--
    Attorney General Holder. I am old enough to remember the 
Nixon----
    Senator Graham. Right, and things do happen. But I guess 
how we handle it is important.
    Senator Cruz has written you a letter that please pay good 
attention to, because Senator Cornyn suggested that the victim, 
the person trying to organize in Houston--is that where the 
lady is from?--has not been talked to. Is that possible?
    Attorney General Holder. Well, because the investigation is 
not completed----
    Senator Graham. Okay. But how could you investigate a 
matter if you do not talk to the people who are claiming to be 
the victim of the offense? It would be almost impossible to say 
that was a thorough investigation, wouldn't it?
    Attorney General Holder. Well, you are certainly going to 
have to talk to the victims. My only point was that the 
investigation is not over, so it is possible----
    Senator Graham. Yes. No, I understand. But at this point in 
the investigation, could you--how many victims of the Tea Party 
organizations that claim to have been abused by the IRS, how 
many people have been actually talked to, the victims 
themselves, by anybody in the Justice Department?
    Attorney General Holder. Yes, this is an ongoing matter, 
and I am not necessarily sure I want to get into the specifics 
of what we have done, what we----
    Senator Graham. Well, if the answer were none, that would 
be stunning, wouldn't it, at this late date?
    Attorney General Holder. Well, you say ``late date.'' The 
investigation has been going on for some time. I am not sure 
how much longer it is going to go, so I am not sure if we can 
say we are at a late date.
    Senator Graham. Okay, and I do not mean to belabor this, 
but do you know if any of the victims have been talked to by 
the Department of Justice about what they allege happened to 
them?
    Attorney General Holder. Well, again, I do not want to get 
into--I have been briefed on this matter on a couple of 
occasions. I do not want to share what happened in the 
briefing.
    Senator Graham. Well, finally, the idea of a special 
prosecutor seems to me makes sense here, that the gentleman 
that you have appointed--I am sure he is a fine man. He made a 
donation to the President, and that bothers some people. I 
understand why it would. Don't you think we would be better off 
just to have somebody clearly disconnected from the politics of 
President Obama, certainly not be a Republican but just 
somebody that does not--that cannot be seen as maybe having a 
political allegiance to close this matter, either through 
prosecution or dismissal?
    Attorney General Holder. Well, this is----
    Senator Graham. Do you think the country would be better 
served if we did that?
    Attorney General Holder. I think this is an investigation 
that is being done by career people who have constitutional 
rights to engage in political activity. The men and women of 
the Justice Department have from time immemorial put aside 
whatever their political leanings are and conducted 
investigations in a way that----
    Senator Graham. I understand----
    Attorney General Holder. Rely only on the facts and the 
law.
    Senator Graham. Right. You have got political appointees 
and you have got career people, and I respect both. But we have 
got a country to run here, a democracy, and when a group of 
people, apparently with great reason, believe that their own 
Government made it difficult for them to organize and express 
themselves politically, that sort of goes to the heart and soul 
of the democracy, and it would be better for us all if somebody 
with an independent viewpoint looked at that.
    Attorney General Holder. I do not think there is any basis 
to believe that anybody who is involved in this investigation 
would conduct themselves in a way that is inappropriate or 
would be shaded by their----
    Senator Graham. Well, the person you appointed----
    Attorney General Holder. Political activity.
    Senator Graham. What do I tell someone in South Carolina, 
the person investigating the abuse of power by the Obama 
administration against conservative groups was a donor to the 
President?
    Attorney General Holder. I would say that people have 
constitutional rights. The Hatch Act----
    Senator Graham. I totally agree that--I am just saying from 
a perception problem, for lack of a better word. I mean, you 
know, to me it just is a no-brainer. I mean, I am glad that 
someone outside the Nixon administration eventually looked at 
Watergate. And I am not saying this is Watergate. I am saying 
on its face it is not a good moment.
    So let us go to Benghazi. Can we expect any prosecutions 
anytime soon against alleged perpetrators in Benghazi?
    Attorney General Holder. We have been working very hard in 
connection with that investigation. We are dealing--the work we 
are doing is in a very challenging environment. We have 
identified people who we believe are responsible for----
    Senator Graham. Is one of them a Mr. Khattala?
    Attorney General Holder. I do not want to comment on 
anybody specifically that----
    Senator Graham. Well, let me just say that Mr. Khattala is 
commonly identified in the press as one of the planners of the 
attack, a man who participated in the attack in Libya. That is 
what the press reports are, and I have reason to believe they 
are right. He has been interviewed by CNN, the Times of London, 
and Reuters. Why can't we grab him if the press can talk to him 
openly in the hotel in Libya?
    Attorney General Holder. I will say that we are determined 
to hold accountable the people who were responsible for that 
attack, and we will take and use all measures of the American 
Government in order to effectuate that desire.
    Senator Graham. A few more questions. The FBI interviewed 
the survivors of the attack in the State Department on the 
15th, 16th, and 17th of September. I have asked for those FBI 
interviews because I want to know what they said about a 
potential protest. The Deputy Director, now retired, of the FBI 
said that none of the survivors told the FBI agents in Germany, 
15, 16, and 17 September, there was anything other than a 
terrorist attack. They never mentioned a protest. Would you 
allow us as Members of Congress to have access to those 
interviews?
    Attorney General Holder. I am not aware what happened in 
those interviews. I am not aware of--you say these 3 days of 
interviews. I am not conversant with what happened during the 
course----
    Senator Graham. When did you first get notified about what 
happened in Benghazi? And did you believe it to be a terrorist 
attack?
    Attorney General Holder. I would have to think about it. I 
am not sure when I first heard about the attack. I am sure it 
is some time shortly after. It is probably within----
    Senator Graham. Did the FBI ever brief you after these 
interviews? Do you remember being briefed by the FBI about what 
they learned in Benghazi?
    Attorney General Holder. After the attack or----
    Senator Graham. Yes. After the interview.
    Attorney General Holder. I have been briefed by the FBI on 
a number of occasions with regard to both the attack and the 
investigation into the attack.
    Senator Graham. If the last interview was done on the 17th 
of September, can you look back in your notes and recall and 
tell us when is the first time you were informed by the FBI 
about what they had found about the attack? Is that possible?
    Attorney General Holder. I am not sure I understand. When--
--
    Senator Graham. Okay. My time is up, but the point I am 
trying to make, when did the Attorney General of the United 
States--were you made aware of the fact that the FBI had 
interviewed the survivors of the attack? When did they tell you 
about the interview and about what they found?
    Attorney General Holder. I would have to look at the 
records on that. I mean, what we tried to do initially was to 
work with the Libyan Government to get the FBI into Libya to 
look at the crime scene. That was our primary concern, our 
initial concern. And then from there interviews were done of 
people who were in the facility at the time and who survived 
the attack.
    Senator Graham. If you could go back and look and let us 
know in writing when you were first made aware of the FBI's 
results, I would appreciate it.
    Thank you.
    Senator Klobuchar. Thank you very much, Senator.
    Senator Franken. And I do want to note that Senator Franken 
and I both jointly recommended Andy Luger as the U.S. Attorney. 
We started our process way before Todd Jones had even been 
confirmed, despite some pushback in doing that, and so it has 
now been 189 days since we recommended him.
    Senator Franken.
    Senator Franken. Thank you, Madam Chairman.
    I would associate myself with the Chairwoman's remarks. 
Andy is an outstanding nominee. We passed him through the 
Committee here, and I hope he gets to the floor as fast as 
possible.
    Mr. Attorney General, thank you for your service. I want to 
talk to you about a matter that is pressing right now. It is 
very urgent right now. Minnesota and a number of other States 
are experiencing a severe shortage in propane, and the cost of 
propane is skyrocketing. This is a real crisis. I wrote the 
President about it over the weekend urging him to take 
immediate action. I just spoke an hour or so ago with Secretary 
of Energy Moniz. One of the things that the administration can 
do is to work with the industry to make sure propane is getting 
to the regions of the country that really need it. I think 
there are about 25 States that are in crisis here.
    But one of the potential challenges with getting companies 
in a room to address the crisis is there may be a concern over 
antitrust violations, however unintended. And I know this issue 
may not yet be on your radar, but will you commit to working 
with me to make sure that any of those issues can be addressed 
and avoided in the midst of this crisis?
    Attorney General Holder. Yes, we will certainly do that. We 
will try to do all that we can to make sure that the relief 
that people need with regard to the provision of propane 
occurs, and we will look at what we can do to be as flexible as 
we can.
    Senator Franken. Yes, to allow these companies to meet. I 
was pleased to see that you visited a veterans treatment center 
in Roanoke last week. We have some very successful veterans 
treatment courts in Minnesota and across the country, but not 
nearly enough to meet the demand. Can you tell the Committee 
what you learned from your visit to the veterans treatment 
court and why you think it is worthwhile for the Federal 
Government to invest in these programs?
    Attorney General Holder. Well, first I think that we as a 
Nation owe a debt to people who have served and have done so 
obviously putting their lives at risk. They oftentimes come 
back with issues that were generated as a result of their 
service that puts them in conflict with the law. They break the 
law, and they should be held individually responsible. But I 
also think we need to come up with ways in which we deal with 
those underlying issues that generated or that caused that 
involvement with the law. And what I saw in Roanoke and 
something that I think we want to try to expand was a very 
difficult thing. You talk to these veterans, and they said it 
would be a lot easier simply to plead guilty, do 30 days in 
jail, a year in jail, and be done with it, as opposed to going 
through a 6-month program where you have to report every week, 
where you are subject to random drug tests, where you have to 
prove that you have a good living situation, that you have 
employment. It is very rigorous.
    But the recidivism rate is tiny compared to what other 
people go through, and so we save money by not incarcerating 
people unnecessarily, and we enhance public safety by 
decreasing the number of recidivist crimes. What I saw in 
Roanoke I think was very heartening to see and is something 
that we need to support and expand.
    Senator Franken. I really appreciate that response. This is 
a very important issue to me and to a lot of members of both 
the House and the Senate on a totally bipartisan basis. I have 
a bill, the Justice and Mental Health Collaboration Act, which 
would authorize Federal funding for veteran treatment courts 
along with a whole bunch of other things. I mean, we do have 
too many people incarcerated who have not committed violent 
crimes, who are there because of mental health issues or there 
for addiction, who would be better off not being in prison and 
who we are paying way too much money to keep incarcerated and 
who have more recidivism because of being put in prison instead 
of being put in treatment. This is about mental health courts, 
this is about veterans courts, and I would like to submit 
records of support that I have received from the American 
Legion, the Wounded Warrior Project, and AmVets, and I would 
like to submit articles from the Star Tribune and Minnesota 
Public Radio website that discuss this issue, Madam Chairman. 
Do you object?
    Senator Klobuchar. No objection. They are in the record.
    Senator Franken. Thank you.
    [The information referred to appears as submissions for the 
record.]
    Senator Franken. Attorney General Holder, on Monday the 
Department announced that it would let companies disclose the 
number of certain surveillance orders they get and the number 
of customers affected by those orders. I think this is a step 
forward for transparency, and I want to thank you for your work 
on this. But, respectfully, I do not think there is enough 
transparency. The disclosures do not apply to the largest 
surveillance program that has been declassified, 215, the call 
records program that affects hundreds of millions of Americans. 
And what is more, company disclosures are optional and 
voluntary. And unless the Government tells the American people 
how many of them have had their information collected under all 
of these programs, the public will not know the full scope of 
surveillance.
    I have a bipartisan bill with Senator Dean Heller of Nevada 
that would force the Government to give the American people a 
good idea of how many of them have had their information 
collected under all these programs and how much of it has been 
queried, how much of their information has been looked at. 
Senator Heller introduced this bill with me, and Chairman Leahy 
has cosponsored it, along with several other colleagues on this 
Committee. But the Government has opposed this measure, and it 
refuses to disclose this information on its own. This is 
surprising to me because I think it is common sense that if the 
public knew this information, it would be able to make a better 
decision for itself as to both the purpose, the efficacy of 
this program, and to what extent--I think it would--and I think 
the President said it last night. It would help gain trust.
    So my question is: When will the Government give the 
American people a good idea of how many of them have had their 
information collected and viewed or queried or accessed under 
this program?
    Attorney General Holder. Well, one of the things that we 
want to try to do--and I think you are right that the action 
that we took on Monday was a first step. It was only a first 
step. There is, I think, a need for greater transparency for 
people to understand the nature of the programs that are being 
run. We always have to understand, though, that the value in 
these programs, a substantial part of the value of these 
programs is that they are done--they are intelligence programs, 
and, therefore, they have to be kept secret. So how we strike 
that balance is something that Director Clapper and I will be 
working on in conjunction with other people, and we would 
certainly invite your involvement in that process, so that we 
ultimately come up with a system that is effective and keeps 
the American people safe, but at the same time gives the 
American people a degree of assurance that we are only doing 
that which is necessary to make those programs effective. And 
to the extent that we can share information, as we did on 
Monday, about what actually is being collected in terms of 
numbers, to the extent that we can do that, I think that is 
something that we want to try to encourage.
    Senator Franken. Thank you. My time has expired. I would 
like to submit some questions for the record.
    Thank you, Madam Chair.
    [The questions of Senator Franken appears as a submission 
for the record.]
    Senator Klobuchar. Thank you very much.
    Senator Cruz.
    Senator Cruz. General Holder, thank you for being here. I 
would like to talk to you about abuse of power and the 
integrity of the Department of Justice.
    Eight months ago, the Inspector General at the Department 
of Treasury concluded that the IRS had improperly targeted 
conservative citizen groups, Tea Party groups, pro-Israel 
groups, pro-life groups. The day that was made public, 
President Obama described what had occurred as ``intolerable 
and inexcusable,'' and he said, ``Americans have a right to be 
angry about it, and I am angry about it.'' Likewise, that same 
day you said the IRS' targeting of conservative citizens groups 
was ``outrageous and unacceptable.'' That was 8 months ago.
    In the 8 months that have transpired, Lois Lerner, the head 
of the office that targeted conservatives improperly, has gone 
before Congress and pleaded the Fifth, which, as you know, 
means she raised her hand and said, ``If I testify, I may 
incriminate myself in criminal conduct.'' For a senior 
Government official to plead the Fifth is a major occurrence.
    In the 280 days since that Inspector General report, nobody 
has been indicted. Not a single person. In the 280 days since 
that Inspector General report, it has been publicly reported 
that no indictments are planned. Today in this hearing, you 
were unwilling to answer a question whether even a single 
victim of the targeting has been interviewed in the 280 days 
that have transpired. And most astonishingly, it has now been 
publicly reported that the lead lawyer heading the 
investigation was, number one, appointed from the Civil Rights 
Division, which has historically been the most politically 
charged Division in the Department of Justice, and even more 
astonishingly, is a major Democratic donor and donor to 
President Obama. Indeed, between 2004 and 2012, she has 
personally given $6,750 to President Obama and the Democratic 
Party.
    I must tell you, I find it astonishing that the Department 
of Justice appointed a major Obama donor to head this 
investigation. So the first question I want to ask is: Did you 
know that the lawyer in charge of this investigation was a 
major Obama donor?
    Attorney General Holder. Well, first off, the 
characterization of this lawyer as the ``lead lawyer'' on the 
case I think is not correct. This is an investigation being 
done by the Civil Rights Division as well as by the Criminal 
Division of the Justice Department. And if I had to assign a 
lead in this, I would say that the Criminal Division, the 
Public Integrity Section, has actually got the lead. It is also 
involving the FBI as well as the Inspector General from the 
Treasury Department.
    Senator Cruz. General Holder, with all respect, you did not 
answer the question I asked, which is: Did you know that this 
lawyer was a major Obama donor?
    Attorney General Holder. No, I do not know anything about 
the political activities of any of the people who are involved 
in this investigation.
    Senator Cruz. Now, previously, when you were asked about 
this, you made a reference to the fact that she has a First 
Amendment right to be involved in politics, and that is surely 
right. No one is talking about restraining her First Amendment 
right to be involved in politics. But the Department of Justice 
ethics guideline says that if a lawyer ``believes your 
impartiality might be questioned, you must either disqualify 
yourself or see the ethics officer.'' And indeed, it goes on to 
say, ``In a case where your impartiality might be questioned, 
you may obtain a formal opinion that the Department's interest 
and your participation in this matter outweighs the concern 
that the integrity of the Department's operation would be 
questioned.''
    Now, I have to tell you, the fact that a major Obama donor 
is playing this leadership role has resulted in the integrity 
of the Department being questioned.
    Is it your position that out of the 117,000 employees at 
the Department of Justice the only lawyer available to head 
this investigation was a major Obama donor?
    Attorney General Holder. Well, first, we have got 112,000 
people, but beyond that, the people who are assigned to this 
case, the assignments were done by career people within the 
Department to make sure that the best people with the greatest 
amount of experience would handle this matter. Your repeated 
reference to her as the ``lead lawyer,'' as I said, I think is 
not--is not borne out by the role she is actually playing.
    I do not have any basis to believe that the people who are 
engaged in this investigation are doing so in a way other than 
investigations are normally done, that is, by looking at the 
facts, applying the law to those facts, and reaching the 
appropriate conclusions. I do not have any basis to believe 
that anything other than that is occurring.
    Senator Cruz. Well, I will say a lot of American citizens 
have a basis to believe it given that 280 days have passed, no 
one has been indicted; 280 days have passed and many, if not 
all, of the victims have not even been interviewed; 280 days 
have passed and apparently the anger and outrage that both the 
President and you expressed has utterly disappeared. Indeed, 
last night in the State of the Union address, the President did 
not so much as mention the word ``IRS.'' So that anger and 
outrage sees very little manifestation in actual action.
    Now, I would also point out----
    Attorney General Holder. I would actually hope that the 
President would not discuss an ongoing investigation. I do not 
know if you have ever conducted an investigation, Senator, but 
the fact that it has taken--and I will just take you at your 
word--280 days is not unusual for complex investigations. We 
want to make sure that what we do is comprehensive and that at 
the end of the day we get it right. I do not----
    Senator Cruz. Well, many of the victims have not----
    Attorney General Holder. Ask people to do things on a short 
basis. I ask people simply to do them right, and----
    Senator Cruz. Many of the victims have not been 
interviewed. Has the investigation examined the meetings 
between the head of the IRS and White House political 
operatives to determine the degree of political influence that 
was exercised from the White House over this political 
targeting?
    Attorney General Holder. As I said to, I think it was, 
maybe Senator Graham, I am not going to discuss an ongoing 
investigation and what steps have been taken in connection with 
that investigation. And that is not something I am only doing 
for this inquiry. This would be an answer you would get from me 
for any investigation that the Justice Department was involved 
in. It is not appropriate for an Attorney General or any 
Justice Department person to discuss an ongoing criminal 
investigation. That is just----
    Senator Cruz. Has any investigation been done about whether 
individual donors to Governor Romney have been audited and 
targeted by the IRS at a greater rate than donors to President 
Obama? I will tell you, as I travel the country, I have heard 
from dozens of financial supporters for Governor Romney who 
told me that they had never been audited in their life, and 
within a week, a month of it becoming public that they were 
raising money for Mitt Romney, they discovered they were being 
audited.
    Now, those are anecdotal stories, but it would be 
relatively simple to examine the prosecution rates of Obama 
donors versus Romney donors, and if there were a sharp 
differential, if it were the case that Romney donors were being 
audited at a much higher frequency, that would raise 
substantial basis to investigate further.
    Has the investigation inquired as to that?
    Attorney General Holder. Senator, you know, I will say--I 
will give you the same response to the questions that you are 
asking that are in many ways very similar. I am not going to 
discuss what we have done in an ongoing investigation. This is 
a matter that is presently being investigated; interviews are 
being done; analysis is being conducted. And it would be 
inappropriate for me to talk about the matter in the way that 
you have asked.
    Senator Cruz. Well, my time has expired, but let me say 
this in conclusion, which is, I sent you last week a letter 
laying out this record, laying out the abuse of power, laying 
out the obvious conflict of interest. In my view, the integrity 
of the Department of Justice has been severely compromised. 
Predecessors of yours in both parties, Democrat and Republican, 
when faced with serious charges of abuse of power for partisan 
gain, have made the right decision and appointed special 
prosecutors.
    Elliot Richardson appointed Archibald Cox to investigate 
allegations of President Nixon's abuse of power. No one would 
have trusted John Mitchell to investigate Richard Nixon. 
Likewise, Janet Reno appointed Robert Fisk to investigate 
allegations against President Clinton.
    I would call upon you to carry out the tradition of 
independence that Attorneys General have honored that office 
with for centuries and protect the integrity of the Department 
of Justice. Given the political sensitivities, given the fact 
that individual citizens believe they are being persecuted by 
the Federal Government for partisan reasons, it would further 
justice and further the integrity of the Department of Justice 
for you to appoint a special prosecutor with a meaningful 
degree of independence to investigate and find out what 
happened. And I would suggest that any special prosecutor 
should have integrity beyond reproach and not be a major Obama 
donor.
    Attorney General Holder. Well, let me just say this: The 
statute--a lot of what Attorney General Reno did with regard to 
the appointment of independent counsel was pursuant to a 
statute that no longer exists. The regulations that now exist 
were put in place under my supervision when I was a Deputy 
Attorney General in the Clinton administration, and so I am 
familiar with both the regulations and when it ought to be 
applied. I do not think that there is a basis for us to 
conclude on the information as it presently exists that there 
is any reason for the appointment of an independent counsel. I 
have faith in the career people who are handling this matter to 
do so in a way that is free of any kind of partisan or 
ideological tint and to come to an assessment of the facts and 
the law based only on the facts and on the law. And the notion 
that somehow this has caused a loss of faith in this Justice 
Department I think is inconsistent with the facts.
    Senator Klobuchar. All right. Senator Coons.
    Senator Coons. Thank you, Senator Klobuchar, and thank you, 
Attorney General Holder, for your testimony today and for your 
service.
    I wanted to first focus on an area of shared concern and 
interest. The Department of Justice, as questioning has 
highlighted today, has a broad range of responsibilities toward 
promoting justice and public safety for our country. One of 
particular interest to me is strengthening and sustaining the 
vital connections between Federal, State, and local law 
enforcement, and in your opening statement you emphasized your 
gratitude for the appropriations this year which makes possible 
strengthening that relationship.
    In Delaware, in particular, the Justice Reinvestment 
Initiative is one example of this partnership that is making a 
real difference, and sustained Federal support is going to be 
critical to ensuring that newly enacted State reforms actually 
translate into reduced recidivism, save lives, and save 
dollars.
    Can you just comment at the outset for me why it is 
important for the Federal Government to invest in State and 
local law enforcement, training, information sharing, funding 
assistance? Why does this make a difference?
    Attorney General Holder. Well, I think there are at least a 
couple of bases--one, to try to increase the capacity of our 
State and local partners. The reality is that the vast majority 
of criminal law enforcement is conducted by people who are in 
our State and local law enforcement agencies, and so helping 
them just do their jobs makes a great deal of sense.
    But I also think that what we see is innovative practices 
being done by our State and local counterparts that we want to 
try to support, experiments almost, and see which things work 
and then try to push those out to other parts of the country.
    If we want to have a truly safe country with safe 
communities, with really innovative law enforcement practices, 
the Federal Government I think has the unique capacity through 
our funding mechanisms to funnel money to agencies that have 
particular crime problems that they are dealing with or have 
innovative solutions to crime problems that many communities 
around the Nation are facing.
    Senator Coons. Thank you. I am a strong believer in the 
capacity of the Federal Government to find specific programs 
and to combine research, training, and funding assistance to 
sort of catalytically leverage those either unique practices or 
important and special programs, and I want to draw your 
attention to two of them that we have discussed before:
    The Victims of Child Abuse Act has in the past funded child 
advocacy centers that are a really important tool, and Senator 
Klobuchar discussed with you earlier the critical importance of 
strengthening our enforcement against sex trafficking. I think 
these child advocacy centers have played a central role in 
that.
    And, second, the Bulletproof Vest Partnership Act, which 
has made possible the deployment of cutting-edge vests that 
protect local law enforcement officers, particularly in smaller 
or more rural departments where they could not sustainably 
field them themselves.
    Regrettably, both of those were zeroed out in the 
President's Fiscal Year 2014 Budget, and through action on the 
Appropriations Committee funding was restored, and I think we 
are continuing to work in partnership to ensure that they are 
actually carried forward and deployed.
    I know that you have spoken in support of these programs in 
the past, and budgets are difficult and they are also an 
important tool to convey our values and our priorities. Would 
you just comment on how these specific programs can help State 
and local law enforcement, particularly in ways that are not 
possible if done alone at the State or local level?
    Attorney General Holder. Well, I think the child advocacy 
centers are things that I have been familiar with since my time 
as United States Attorney here in Washington, D.C. They are a 
primary tool, a good tool for people in law enforcement to 
successfully prosecute cases that involve children who are 
victims. But beyond that, it also helps the healing process for 
young victims so they do not get re-victimized by the process 
that they go through and, then once through with the process, 
can try to get on and to heal. For too long we did not 
understand the unique needs that children had, and child 
advocacy centers I think have really gone a long way to 
increase our sensitivity in that regard.
    We do not have budget numbers yet for Fiscal Year 2015. We 
have them in a macro sense, but we do not have the micro 
numbers with regard to the Justice Department, but I will be 
advocating on behalf of these child advocacy centers. I think 
they are proven to work, and given who they assist, I think 
that as we are trying to decide what our priorities are, the 
protection of our most vulnerable citizens, our children, has 
to be a place where we put our money.
    With regard to the vests, I think that--we have talked 
about this before, a concern--you have raised a very legitimate 
concern that we not make the provision of vests dependent on 
the size of the community. Officers who are on two-, three-man 
police forces are just as at risk when they are making a stop 
on a highway in the middle of the night as is somebody who 
works on the New York Police Department. And to the extent that 
we can, we want to get as many of these vests out there as we 
can.
    Senator Coons. The recent report from the Presidential 
Commission on Election Administration confirms an issue I have 
raised previously, that there is a widespread lack of 
compliance with Section 5 of the National Voter Registration 
Act, the so-called motor-voter law. In fact, the report very 
specifically says that DMVs, which are supposed to play an 
absolutely central role in registration, are the weakest link 
in the system. Many State DMVs disregard the laws. Others have 
erected impediments to the seamless transfer of voter 
registration data from motor vehicle to voter registration.
    Do you see this report as a call to action for enforcement 
of Section 5 of the NVRA by the Department? And what is your 
plan to make sure this important law is enforced?
    Attorney General Holder. Well, I think we need to look at 
that report. I think that that was a very thoughtful and 
potentially very consequential piece of legislation. And for it 
not to be enforced and for it not to be paid attention to would 
go against what I think is really important, which is to 
somehow in an appropriate way, without any fraud, expand the 
franchise and make it easier for people to get to vote. And so 
to the extent that issues have been identified in that report, 
we will look at them and that will help shape our enforcement 
efforts.
    Or just to bring--when I say ``enforcement efforts,'' that 
does not necessarily mean we are going to have to bring cases, 
but just to bring to the attention of departments in various 
States that are not doing that, if we bring to their attention 
sometimes just best practices, we can hopefully modify things 
that are inconsistent with the Act.
    Senator Coons. Let me, if I might, ask a last question 
about FISA reform. The President has publicly recently 
instructed you to develop options to reform the Section 215 
bulk collection program in ways that would better respect and 
defend civil liberties in this country. Is it the Department's 
position that Section 215 can be used for suspicion-less bulk 
collection of metadata beyond phone records, including location 
information, financial records, or other Internet records? And 
how do you view the best way moving forward to ensure the 
public that the framework for making these decisions is right? 
Do you support more disclosures of the legal rationales for 
various aspects of the surveillance program?
    Attorney General Holder. Yes, I think that we have to ask 
some very frank questions about the bulk collection component 
of Section 215 and make a decision as a Nation about whether or 
not we are getting from that program sufficient amounts of good 
information, sufficient amounts of usable information to 
balance the, I think, very legitimate concerns that people have 
expressed about the wide--potentially wide-ranging nature of 
the program.
    I come into this, I will be honest with you, with an open 
mind. You know, there are certain programs, section 702, for 
instance, that I think has to be guarded almost at all costs. 
With regard to 215, I think the metadata part of 215, I think 
that we have to ask ourselves some difficult questions and not 
simply do things, as the President has said, simply not do 
things because we can do them. The question is: Should we do 
them?
    As I said, I think 215 is legal, but that does not answer 
the question that the President has posed to us.
    Senator Coons. Well, thank you, Mr. Attorney General. I 
join a number of colleagues in urging and hoping that the 
investigation into IRS actions is done in a balanced and 
professional and appropriate way, and I assume it is unless 
demonstrated otherwise. And what I have heard is that there 
were progressive groups as well as Tea Party groups that were 
perhaps allegedly on the receiving end of reviews of their 
501(c)(3) applications, and it is my expectation that we will 
hear more in an appropriate and timely way about the conduct of 
this investigation.
    Attorney General Holder. Well, let me assure you and the 
American people that the investigation of what we call the IRS 
investigation will be done in a nonpartisan, non-ideological 
way, that we will make determinations only on the basis of the 
good investigative techniques that we always employ in the 
Justice Department. And let me also express confidence in the 
men and women who are part of the team who are investigating 
the case now.
    As I said, I see no basis to question their impartiality, 
and we will try at the conclusion of the investigation to share 
as much information as we can about the conclusions that we 
have reached, either through prosecutions or declinations, 
however the case ends up.
    Senator Coons. Thank you.
    Senator Klobuchar. Very good. Last but not least, Senator 
Flake.
    Senator Flake. Thank you. I appreciate you being here, and 
I just want to say I share the concerns that some of my 
colleagues have expressed about some of the, for lack of a 
better term, extra-constitutional actions taken by the 
President with regard to the ACA. But you have been asked those 
questions. Some answers have been given, some not. I do not 
think I will plow any new ground by going over that.
    Also, I share the concerns about the investigation, the 
timeliness of it. I hope that we can move forward quickly, and 
I am concerned about whether there are leaks or whether there 
are statements by the FBI that should not have been made about 
that there will be no criminal prosecution, I think that is 
concerning. When the FBI says something like that or leaks that 
out, I would hope that DOJ refutes that. And I do not think we 
saw that.
    Let me just talk about an area that I do not think has been 
talked about. It is with regard to waste or inefficiency in the 
grant programs. DOJ administered about $17 billion in grants 
just between 2009 and 2013. Inspector General Michael Horowitz 
issued a report in December that I think is some pretty tough 
medicine. He is saying that we need some budget constraints, we 
need some things put in place to make sure that we are not 
squandering a lot of taxpayer resources. DOJ, it was reported 
by someone, has squandered perhaps as much as $100 million in 
taxpayer dollars over the past 5 years. The OIG audit 
questioned, for example, all of the more than $23 million in 
grant funds awarded by the Department to Big Brothers and Big 
Sisters of America. There just are not the controls in place 
that there need to be to shed a light on where this money is 
going.
    Mr. Horowitz highlighted the problem yesterday. He said 
that there is ``virtually no visibility'' on how grant funds 
are actually being used by the recipients.
    ``Unless there is an OIG audit or investigation or the 
granting agency dedicates resources to collecting and analyzing 
the accounting information from a recipient, the Government and 
taxpayers are virtually in the dark regarding how grant funds 
are actually used.''
    This is an ongoing problem. I just want to know what is 
being done to remedy this.
    Attorney General Holder. First, I think what we have to 
understand is that I do not the Inspector General indicated 
that he is concerned that these funds have necessarily been 
misused as much as there are not mechanisms in place to assure 
that they are being used in an appropriate way, which I--that 
is a serious concern. I think, as I remember the report, that 
he had said that over the past couple of years, I think, that 
things have gotten better than they perhaps were at the 
beginning. I might be confusing the reports, but I think that 
is what he said.
    But what we have to do, I mean, the concern you raise is a 
legitimate one, and we have to have in place the mechanisms so 
that we know that the money that is given to grantees is being 
used in an appropriate way, first so that we know that it is 
being done for the purpose that it was given, but also just to 
assess the effectiveness of the grants.
    Senator Flake. Let me get beyond just platitudes on this. 
DOJ said in 2012 that you would conduct an assessment of these 
programs to see where there is overlap and where money perhaps 
is being wasted. The Inspector General said that that 
assessment has not been completed or provided to him or to 
Congress. Is that the case?
    Attorney General Holder. Well, we will have to, you know, 
get that assessment completed, share it with Congress, and 
share it with the Inspector General.
    Senator Flake. You mentioned with regard to the 
investigation, the IRS, that it is perhaps routine to go 260 
days, or whatever figure was used, and I understand that. It 
probably is routine. What I would suggest is that it is not 
routine to go for a year, a year and a half, 2 years before you 
come back with an assessment that you said that you would do 
with regard to these programs. Is that routine to take a year 
and a half or so after you say you will have an assessment?
    Attorney General Holder. I would not say it is routine, but 
obviously what we want to do is make sure that we have looked 
at these things and done a good and complete job. If, in fact, 
it is 18 months, whatever the timeframe is, that would seem to 
me to be on the excessive side.
    Senator Flake. Speaking of which, it was brought up earlier 
in the hearing that the questions that were submitted after the 
last oversight hearing in March of last year, that DOJ has not 
returned any answers to those questions by this oversight 
Committee. Is that routine to go nearly a year without 
answering specific questions that have been asked as part of 
the oversight hearing?
    Attorney General Holder. I think what we generally try to 
do is make sure--I think as Senator Grassley said, to try to 
make sure that we answer all the questions before the next 
oversight hearing. I do not know how many of the questions have 
not been responded to. I just do not know. I will have to look 
into that at the conclusion of----
    Senator Flake. I think it was the case that none of the 
questions had been submitted. Nothing.
    Attorney General Holder. All right. The answers actually 
have been prepared. They are now under review by the Office of 
Management and Budget.
    Senator Flake. So nearly a year later, when we come to the 
next oversight hearing, we still have not received answers to 
the questions from the last oversight hearing. I realize we 
have not gone through regular order in this place for a while, 
but it is difficult to provide oversight when the answers do 
not come back.
    Attorney General Holder. That is a fair criticism, and we 
obviously are going to have to do a better job in the 
administration, both at the Department and OMB, to get answers 
to you in a more timely fashion.
    Senator Flake. We will have some follow-up questions to 
this, and I would like to have a commitment, if I could, that 
you will get back in a more timely fashion.
    Attorney General Holder. We will do better. I promise.
    Senator Flake. With regard to just one quick question on 
immigration, as you know, I was part of the group, the 
bipartisan group here, that put together an immigration bill. I 
share the President's concern and his desire to get immigration 
reform done. Let me just tell you, in all honesty, one of the 
most difficult questions I face at home from constituents and 
others is about this new legislation we are putting forward, as 
they say why in the world do we want to create more laws when 
we simply are not enforcing the ones that we have, or the 
Department, the administration takes it upon itself to 
interpret the laws that we have and use perhaps a little too 
much discretion in terms of implementing those laws. They have 
very little confidence that the new legislation put forward, 
when it becomes a law, will be implemented as it was intended.
    Do you understand that sentiment out there, at least? And 
what can the administration do to help us? We are trying to get 
this done. I am on your side, and those who want to get 
immigration reform done, but I can tell you it is very 
difficult when we see things like release of individuals with 
multiple felonies into the community. I asked questions of 
Secretary Napolitano. Those answers never got back to us 
either. I mean, that kind of stuff at home makes it very 
difficult to instill the confidence that we need that these 
laws will be faithfully executed.
    Attorney General Holder. Well, I think that if people truly 
understood how we enforce the laws, how completely we enforce 
them, how we use the discretion that we possess, they would 
have a greater degree of comfort in how the Justice Department, 
DHS for that matter, conduct themselves and not focus 
necessarily on anecdotal things but really on a more systemic--
have a more systemic view of how it is we do what we do, 
because I am actually quite proud of the way in which we use 
the limited resources that we have to keep the American people 
safe.
    Senator Flake. I agree with that, and I would just tell you 
that if people understood--perhaps they would better understand 
if they had answers to these questions. What I am telling you 
is we are not getting answers to those questions. I am unable 
to go back to my constituents and say here is the reason that 
these people with multiple felonies were released into the 
community, because I am not getting answers back from the 
Department of Homeland Security or in some cases from DOJ. So I 
take your point, but just tell you it is very difficult when we 
do not hear back from the Department a year later in conducting 
oversight hearings.
    So I just would leave you with that, and I appreciate you 
being here, and we will have further written questions to 
follow up.
    Attorney General Holder. And, Senator, the concern you 
raise is a fair one. That is a fair one. And as I said, we will 
have to do better. And I am not criticizing anybody in the 
Justice Department. I mean, we have to, as an executive branch, 
do better in responses to the questions that you are talking 
about.
    Senator Flake. Thank you. I yield back.
    Senator Klobuchar. Thank you very much, Senator Flake.
    Thank you, Attorney General Holder, and I think the people 
who watch this hearing can see the range of work the Justice 
Department does, everything from--I was jotting down some 
notes--legal issues regarding surveillance, autism, propane 
fuel, sex trafficking, IRS investigations, and drug policy. So 
we thank you for answering such a broad range of questions at 
this oversight hearing today and look forward to seeing you 
again soon. The record will stay open for 2 weeks. Thank you.
    Attorney General Holder. Thank you.
    [Whereupon, at 1:06 p.m., the Committee was adjourned.]
    [Additional material submitted for the record follows.]

                            A P P E N D I X

              Additional Material Submitted for the Record

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