[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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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.]
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