[Senate Hearing 113-660]
[From the U.S. Government Publishing Office]
COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS FOR
FISCAL YEAR 2015
----------
THURSDAY, APRIL 3, 2014
U.S. Senate,
Subcommittee of the Committee on Appropriations,
Washington, DC.
The subcommittee met at 10:03 a.m., in room SD-192, Dirksen
Senate Office Building, Hon. Barbara A. Mikulski (chairwoman)
presiding.
Present: Senators Mikulski, Leahy, Landrieu, Shaheen,
Merkley, Shelby, Collins, Murkowski, Graham, Kirk, and Boozman.
DEPARTMENT OF JUSTICE
Office of the Attorney General
STATEMENT OF HON. ERIC H. HOLDER, JR., ATTORNEY GENERAL
OPENING STATEMENT OF SENATOR BARBARA A. MIKULSKI
Chairwoman Mikulski. Good morning. The Subcommittee on
Commerce, Justice, and Science will come to order. And today,
we will take testimony on the budget request from the
Department of Justice.
Today, we will be listening to the Attorney General, Eric
Holder, testifying in behalf of the Justice Department, and,
after that, we hope to hear from the Justice Department's
Inspector General, Michael Horowitz, on important oversight
issues. This is a subcommittee, not only of making sure we
spend the right money in the right way, but also to make sure
we have the wonderful advice of an Inspector General.
We want to alert everyone, though, there could be the
possibility of votes beginning at 11:30 a.m., so we're going to
kind of move it.
This hearing today is one of 60 hearings in 6 weeks, where
we're doing very due diligence in taking a look at the request
from these agencies and the President's budget.
Today, we really take testimony from, I think, one of the
most important agencies in the government constellation, the
Department of Justice, who really has a very key job in making
sure they keep America safe and--whether it's from Federal law
enforcement, Federal prosecution, terrorism, but also the
enforcement of other issues, the important enforcement of white
collar crime, whether it's antitrust or mortgage fraud, to also
civil rights and hate crimes. It is the Department of Justice;
it is not the Department of Anti-Crime. And we're really proud
of them.
Mr. Attorney General, we want you to know we really salute
the 112,000 employees who work for Justice--the 25,000 Federal
agents, the roughly 18,000 prison guards and correctional
staff, the 13,000 prosecutors and investigators, and those
wonderful support staff, you know the GS-5, -7s, and -9s that
really keep the government going. While you and I might get the
headlines, they make sure that they keep it all going.
We know we've had an amazing year. The marshals have
arrested over 11,000 fugitive sex offenders; the FBI has
dismantled 421 criminal enterprises; the DEA, 3400 drug-
trafficking organizations out of business and charged; and the
U.S. Attorneys with charging over 83,000 defendants in criminal
court--all that while facing sequester and slam-down government
shutdown.
So, just imagine, now, what you can do with certainty in
funding. Under the Murray-Ryan budget, we have canceled
sequester for 2014 and for 2015. We have our top line. So, we
now want to really take a look at what your requests are.
And my goals for the hearing are three priorities:
community security, in terms of State and local, of course
national security; oversight and accountability, in terms of
spending dollars wisely; and to uphold the rule of law, protect
civil liberties and communities.
There is a request in here for $2.2 billion for State and
local government that puts cops on the beat, puts away child
abusers, processes rape kits, all of those things at the local
level, and we will be getting your views and insights about how
those partnerships are working and what, through the funding
process, we can actually strengthen them to get better results
and better enforcement. We also want to know that that thin
blue line in the local community that protects us, like our
local police officers, have the equipment that they need.
BUREAU OF PRISONS
We also want to take a look at the issues related to our
prisons. We know that you are leading a review on appropriate
sentencing and how we can reduce the prison population without
increasing risk to our communities. And you've looked at
everything from compassionate parole for those prisoners that
are now in their 70s and 80s to other creative things. We'd
like to hear about that, but we also want to talk about what it
is that we need to fund our prisons, and we need to make sure
that we keep our prison guards safe.
We met with the family and other correction officers
related to Eric Williams, who was one of our prison guards
murdered in a Federal penitentiary in Pennsylvania. It was just
wrenching to hear what they do. They have ideas that they need
for training, what they need to carry in the prisons, how they
have to keep themselves safe with increasing violent criminals
and increasingly mentally ill prisoners. So, we'd like to hear
your thoughts on that.
BOSTON MARATHON BOMBING
About this time last year, we were all gripped with the
Boston Marathon. It really showed us how important national
security is, that national security isn't in the Crimea or in
the Middle East or in Iraq and Afghanistan, it was in the
streets at the Boston Marathon. We had Marylanders injured. One
our really beloved preschool teachers lost her leg there,
cheering her mother on. They're back in Boston, and she's back
on her feet. But, we want to make sure that never happens
again. And we'd like your views on what we can do, in terms of
national security.
CYBER SECURITY
The other threat is cyber security. Mr. Attorney General, I
hope you could join with us in drawing the distinction between
cyber security and surveillance. As you know, a lot of people
are spooked because of the Snowden revelations. And they talk
about 2/15. I will tell you, my constituents are spooked by
cyber security. If you go into a Target, and you go into a
Michael's, the famous crafts store--some even go into Nieman
Marcus--but, most of all, most of America is in places like
Target, and the cybersecurity breach has been phenomenal. The
cybersecurity breach now at universities, my own University of
Maryland, Hopkins, they, themselves, that are really prime-time
schools, now are hacking, stealing identities, stealing
everything. So, from stealing our trade secrets to the kind of
thing that's going on, we need to know, what do we need to do
and what are the resources in cyber security?
Every day, we count on the Justice Department to fulfill
its mission and to protect our lives and protect our way of
life, and to protect our Constitution. We need to hear from you
what is the right funding that we need to make sure we do
justice to the Justice Department.
I now turn to my Vice Chairman, Senator Shelby, a very
strong advocate of--in national security and also in supporting
our local law enforcement. And we're particularly appreciative
of his efforts in behalf of women and children.
STATEMENT OF SENATOR RICHARD C. SHELBY
Senator Shelby. Thank you, Madam Chair.
Welcome to the committee, again, Attorney General Holder.
Today, we will hear from Attorney General Holder about the
Department of Justice's 2015 budget request. Michael Horowitz,
the Department's Inspector General--as the Chairperson has
already said, will testify about his work and the difficulties
he has encountered in executing his oversight responsibility.
Today, I welcome you both.
FISCAL YEAR 2015 BUDGET
The 2015 budget request for the Department of Justice
totals $27.4 billion. I'm concerned that, while the
Department's 2015 budget purports to recognize the multifaceted
nature of the Department's work, it fails to truly prioritize
anything but the administration's pet projects. Programs such
as Smart on Crime, Now is the Time, and nearly 12 new grant
programs, I believe take center stage. Meanwhile, law
enforcement and national security priorities, the main mission,
central mission, of the Department, I believe take a backseat.
This approach is evident in the indiscriminate cuts required of
nearly every component within the Department of Justice.
The 2015 budget requires cuts totaling more than $500
million. These cuts are characterized as miscellaneous program
and administrative reductions, and will be identified once
funds are appropriated. In short, it is the Department's own
version, I believe, of an arbitrary sequester.
Mr. Attorney General, Congress made a conscious decision to
return to regular order, in part to put a stop, as you know, to
indiscriminate cuts that your budget requires. A budget
proposal that uses smoke and mirrors does not provide a stable
foundation to safeguard national security, reduce violent
crime, prosecute criminals, or support our State and local
partners. It calls into question the Department's commitment to
these requirements.
I do not support the approach this budget has taken, and I
look forward to working with you, Madam Chair, to ensure that
Department of Justice is appropriately funded to carry out its
central, its important, missions.
INSPECTOR GENERAL
I also want to touch briefly on a topic of concern that the
Chairperson has already mentioned and that directly impacts the
Inspector General's ability to conduct much-needed oversight of
the Department of Justice.
Since arriving in 2012, Mr. Horowitz has worked diligently
to investigate a myriad of trouble spots. Throughout the course
of these investigations, however, the Inspector General
encountered significant roadblocks. Specifically, he has not
been provided unfettered access to materials essential to
ongoing investigations and audits, unless the Attorney General
approves that.
Think about that. This is the Inspector General. You should
provide him the material to see what's going on in your
Department, good and bad.
I strongly believe that the work of the Inspector General
is essential to well-functioning government agency. They are
independent and should not be encumbered by individuals in
positions of power, even the Attorney General of the United
States.
Mr. Attorney General, yesterday the Chair and I sent you a
letter on this matter. We expect that you will move swiftly to
address our questions and resolve this controversy. But,
without an independent Office of Inspector General that can
truly carry out its oversight responsibilities, I'm concerned
that the honesty and the integrity of the whole Department
could be called into question. And that's something none of us
want.
Madam Chair, I thank you for your time, and I look forward
to hearing more from the Attorney General and also the
Inspector General.
Thank you.
Chairwoman Mikulski. Senator Collins, did you want to say
anything, or do you want to go right to the testimony?
Senator Collins. Madam Chair----
Chairwoman Mikulski. You're welcome to do what you choose.
Senator Collins [continuing]. Thank you very much.
First of all, I want to welcome the Attorney General to the
subcommittee today which has such great leadership on both
sides of the aisle.
I'm going to be directing my questions to you today on
several topics. One has to do with our broken asylum-granting
system, which the Department of Justice has jurisdiction with
the Department of Homeland Security over. Another is the
testing of the boundaries of executive power by this
administration; in particular, the aggressive position the
administration has taken with regard to the President's
enforcement discretion. And third, I hope that--if you don't do
so in your testimony, I will be asking you for an update on the
Department of Justice's activities to bring to justice the
attackers in the Benghazi case.
So, thank you, Madam Chair.
Chairwoman Mikulski. Mr. Attorney General.
SUMMARY STATEMENT OF ERIC H. HOLDER, JR.
Attorney General Holder. Well, good morning, and thank you,
Chairwoman Mikulski, Ranking Member Shelby, Senator Collins,
Senator Kirk, other distinguished members of the subcommittee.
I want to thank you for the opportunity to appear before you
today to discuss the President's fiscal year 2015 budget for
the Justice Department and to provide an overview of the
Department's recent achievements and ongoing priorities.
Now, as we convene this morning, I know that we're all
mindful of yesterday's mass shooting at Fort Hood. I am being
regularly briefed on the situation, and I have directed that
the full resources of the Department of Justice, and, in
particular, the FBI, be made available to ensure the security
of everyone on that base. We will work with local officials and
the Department of Defense to provide assistance to those who
need it and to help conduct a full and thorough Federal
investigation.
As this investigation unfolds and as we work to determine
exactly what happened, and why, my thoughts and prayers will be
with all those whose lives have been impacted by this terrible
tragedy, and with the entire Fort Hood community, which has
displayed such extraordinary strength and resilience since the
horrific events of nearly 5 years ago.
As President Obama said yesterday, it is heartbreaking that
something like this has happened again. And we owe it to all of
our men and women in uniform, and also to their families, to
see that justice is done, to ensure that they are safe here at
home, and to do everything in our power to prevent these too
common tragedies from happening again.
My colleagues and I are firmly committed to doing just
that, and we are determined to continue building upon the
exceptional work, I think, that the Justice Department
employees have performed over the past year. Going forward,
your support will enable us to build on the results that my
colleagues have obtained, and to perform the vital mission with
which we are entrusted.
Many of our accomplishments over the past year are notable,
and even historic, but none have been more important than our
ongoing work to protect the American people from terrorism and
other threats to our national security. Just last week, the
Department achieved a major milestone when we secured the
conviction of Sulaiman Abu Ghaith, the son-in-law of Osama bin
Laden and a senior member of al-Qaeda, on terrorism-related
charges. This verdict has proven that proceedings such as these
can safely occur in the city that I am proud to call home, as
in other locations across our great Nation. It was appropriate
that this defendant, who very publicly rejoiced over the
attacks on the World Trade Center, faced trial in the shadow of
where those buildings once stood. We never doubted the ability
of our Article III court system to administer justice swiftly
in this case, as it has in hundreds of other cases involving
terrorism defendants. And this outcome vindicates, I believe,
the government's approach to securing convictions of senior al-
Qaeda leaders. It would be a good thing, I believe, for the
country if this case has the result of putting that political
debate to rest.
The President's budget request would strengthen our
national security work by investing a total of $4 billion in
the Department's cutting-edge counterterrorism and national
security programs, including 1.5 million to maintain and
operate the FBI's new Terrorism Explosive Device Analytic
Center facility in Alabama. The fiscal year budget also would
invest in other key priorities, providing $273 million to
bolster the Department's vigorous enforcement of Federal civil
rights laws, including $8 million in new resources. It would
also allocate $1.1 billion to support the administration's work
to reduce gun violence. It would enhance the Department's
ability to combat heinous crimes, like human- and sex-
trafficking, as well. And it would provide $173 million to
support our efforts to strengthen the Federal criminal justice
system as a whole through the groundbreaking Smart on Crime
initiative that was announced last August.
Now, this initiative comprises a range of targeted
commonsense reforms, including modification to the Department's
charging policies with regard to mandatory minimum sentences
for certain nonviolent, low-level drug crimes, along with a
renewed focus on evidence-based diversion, rehabilitation, and
reentry programs. The fiscal year 2015 budget would sustain
investments in the Bureau of Prisons reentry programs,
including the Residential Drug Abuse Program, residential
reentry centers, and reentry-specific education programs. These
and other proven programs will help to make our criminal
justice system not only more effective, but also, by freeing up
resources for police and prosecutors as well as other vital law
enforcement priorities, make our system significantly more
efficient. And this, in turn, would enable us to further invest
in the outstanding work that's performed every day by dedicated
attorneys and support staff in each of the Department's
litigating divisions and United States Attorneys' offices.
CIVIL AND CRIMINAL FINES, PENALTIES, AND SETTLEMENT
Thanks to their efforts during the fiscal year ending in
2013, the Justice Department collected a total of more than $8
billion in civil and criminal fines and penalties. And this
represents more than double the approximately $3 billion in
direct appropriations that pay for our 94 U.S. Attorneys'
offices and main litigating divisions.
During fiscal year 2012 and fiscal year 2013, the
Department collected a combined total of more than $21 billion,
a record amount for a 2-year span, and we've obtained a series
of historic resolutions and taken other significant actions to
ensure that we're serving as sound stewards of taxpayer dollars
and protecting American consumers from fraud and other
financial crimes.
Last November, the Justice Department secured a $13 billion
settlement with JPMorgan Chase & Company, the largest
settlement with a single entity in the history of the United
States, to resolve Federal and State civil claims related to
the company's mortgage securitization processes.
As part of our ongoing efforts to hold accountable those
whose conduct sowed the seeds of the mortgage crisis, the
Department also filed a lawsuit against the ratings firm S&P;
and, with a $1.2 billion agreement that we reached with Toyota
just last month, again the largest criminal penalty ever
imposed on an automotive company, we're making good on our
determination to protect consumers and to address fraud in all
of its forms.
PREPARED STATEMENT
I'm very eager to work with this subcommittee and with the
entire Congress to build on these and other successes and to
secure the timely passage of the President's budget request,
which provides a total of $27.4 billion in discretionary
resources for the Department of Justice, including $25.3
billion for vital Federal programs and $2.1 billion for State,
local, and tribal assistance programs, as well. This level of
support will be essential to ensuring that we can continue to
protect the American people and take important actions to
strengthen our criminal justice system.
I want to thank you once again for this opportunity to
discuss this work with you today, and I'd be happy to answer
any questions that you might have.
Thank you.
[The statement follows:]
Prepared Statement of Hon. Eric H. Holder, Jr.
Good morning, Chairwoman Mikulski, Vice Chairman Shelby, and other
distinguished members of the subcommittee. Thank you for the
opportunity to appear before you today to highlight the President's
fiscal year 2015 budget for the U.S. Department of Justice--and to
discuss the Department's recent achievements and future priorities. I
would also like to thank you for your leadership in securing the
passage of the Consolidated Appropriations Act for fiscal year 2014,
which restores Justice Department funding to pre-sequestration levels--
and even adds funding for key priorities.
In February, as a result of the fiscal year 2014 appropriation, I
was able to lift the Department-wide hiring freeze that had been in
place for over 3 years, and had resulted in the loss of over 4,000
employees. We are now able to fill critical vacancies and resume the
normal hiring process for Federal agents, prosecutors, analysts and
other staff we need to fulfill our varied missions, including:
protecting the American people from terrorism and other national
security threats; combating violent crime; eradicating financial fraud;
and safeguarding the most vulnerable members of society.
Across the board, I'm extremely proud of the exceptional work that
Justice Department employees perform on a daily basis, despite
escalating threats and challenges. They are a credit to the Department,
to our Nation, and to the American people we are privileged to serve.
Like you, I am committed to securing the resources and support the
Department of Justice (DOJ) employees need to carry out their important
duties--and to keep advancing the cause of justice that remains our
common pursuit.
The resources provided this fiscal year will help us carry out our
critical law enforcement responsibilities and enhance public safety.
The President's fiscal year 2015 budget request builds on the funds
provided in fiscal year 2014 that are vital to thwarting sophisticated
adversaries, protecting our citizens from gun violence and other types
of crime, and maintaining safe and secure operations throughout the
Federal correctional system.
The President's fiscal year 2015 budget requests $27.4 billion in
discretionary resources for the Department, including $25.3 billion for
Federal programs and $2.1 billion for discretionary State, local, and
tribal assistance programs. This represents a 0.4 percent increase over
the fiscal year 2014 enacted level and allows the Department to
continue its trajectory towards fiscal and operational health. More
specifically, the President's fiscal year 2015 budget request:
--Invests in criminal justice reform. The budget invests $173 million
in my ``Smart on Crime'' initiative, which is designed to
promote reforms to the criminal justice system that will
improve public safety, save money, and ensure the fair and
effective enforcement of Federal laws.
--Invests in Federal civil rights enforcement. To help meet the
Nation's civil rights challenges, the fiscal year 2015 budget
invests a total of $273 million, including $8 million in new
resources, to support the Department's enforcement of Federal
civil rights laws, including laws on human trafficking, hate
crimes, disability rights, and many others.
--Maintains critical counterterrorism and counterespionage programs,
as well as intelligence gathering and surveillance
capabilities. The budget invests a total of $4 billion to
sustain recent increases that support national security
investigations, including an enhancement of $15 million to fund
the costs of the Federal Bureau of Investigation's (FBI) new
Terrorist Explosive Device Analytical Center--or TEDAC--at
Redstone Arsenal in Alabama.
--Supports the administration's initiative to reduce gun violence.
The budget invests a total of $1.1 billion in Federal and grant
programs in support of the President's ``Now is the Time''
initiative, which includes $182 million to sustain investments
provided in fiscal year 2014. These resources will help ensure
that those who are not eligible to purchase or possess guns are
prevented from doing so. In addition, the request delivers
grant funding to continue the Comprehensive School Safety
Program, to encourage the development of innovative gun safety
technology, and to provide training for active shooter
situations.
--Enhances efforts to combat and keep pace with increasingly
sophisticated and rapidly evolving cyber threats. Cybercrimes
are becoming more common, more sophisticated, and more
dangerous. The President's budget invests a total of $722
million, including $8 million in enhancements to Federal
programs and grants, to address computer intrusions and
cybercrimes and defend the security of the Department's
critical information networks.
--Substantially improves the ability to provide legal assistance to
foreign law enforcement partners. In order to better assist
foreign government partners with investigating and prosecuting
criminals, the budget invests an additional $24 million to
reduce the current backlog of Mutual Legal Assistance Treaty
requests, to process requests in a matter of weeks, and to cut
overall response times in half by the end of 2015.
--Sustains financial fraud law enforcement efforts. The budget
invests a total of $681 million in the Department's ongoing
efforts to investigate and prosecute mortgage fraud and
financial schemes that harm the American people and our
financial markets.
--Strengthens enforcement of immigration laws and addresses the
immigration case backlog. To help increase efficiency in the
immigration courts, the budget requests enhancements of $23
million in order to add 35 new Immigration Judge Teams and 15
new Board of Immigration Appeals attorneys and to expand the
successful Legal Orientation Program as well as a pilot program
to implement additional efficiencies in the immigration program
overall.
--Maintains safe and secure prison capacity. The budget provides $8.5
billion to maintain secure, controlled Federal prison and
detention facilities and to continue bringing newly completed
or acquired prisons on-line in order to protect public safety
by alleviating prison crowding. Further, the budget includes
resources to support implementation of the Prison Rape
Elimination Act in Federal, State, and local prisons and jails,
and to help inmates successfully transition back into their
communities.
--Enhances State, local, and tribal law enforcement programs. In
total, the fiscal year 2015 budget requests $3 billion in
mandatory and discretionary funds for State, local and tribal
law enforcement assistance. These funds will allow the
Department to continue to support our State, local and tribal
partners who fight violent crime, combat violence against
women, and support victim assistance programs. The fiscal year
2015 request will bolster the Department's efforts to ensure
that Federal grant funding flows to evidence-based purposes and
helps to advance knowledge of what works in State and local
criminal justice systems.
In addition, the fiscal year 2015 budget proposes additional
discretionary investments as part of the Administration's Opportunity,
Growth and Security Initiative. This initiative targets investments for
State and local assistance grants, such as the Comprehensive School
Safety Program and a new youth investment program; resources to speed
up the process of bringing online newly completed or acquired prisons;
and funding for the investigation and prosecution of the full spectrum
of financial fraud.
The fiscal year 2015 budget recognizes the multi-faceted nature of
the Department's work and outlines spending priorities for critical
mission areas. We must continue to grow both tougher and smarter on
crime. This budget builds on the great work being done by the dedicated
employees of the Department across the country and around the world to
reduce violent crime and reform our criminal justice system.
becoming smarter on crime
Just over 1 year ago, at my direction, the Justice Department
launched a targeted review of the criminal justice system in order to
identify reforms that would ensure Federal laws are enforced fairly and
efficiently. In 2013, as part of this review, the Department studied
all phases of the criminal justice system, including charging,
sentencing, incarceration and reentry, to identify the practices that
are successful at deterring crime and protecting the public.
Today, a vicious cycle of poverty, criminality, and incarceration
traps too many Americans and weakens too many communities. While we
will continue to aggressively enforce Federal criminal statutes, we
recognize that we cannot arrest and incarcerate our way to becoming a
safer nation. To be effective, Federal efforts must also focus on other
critical aspects of criminal justice, including prevention and reentry.
With that in mind, the budget requests $173 million in support of
the Department's efforts to promote alternatives to incarceration for
people convicted of low-level, non-violent drug offenses, and invests
in reentry programs in order to reduce recidivism among formerly
incarcerated individuals. Each dollar spent on prevention and reentry
at the Federal, State and local levels has the potential to save far
more in incarceration costs.
safeguarding the most vulnerable members of society
Last month, I had the privilege of attending a celebration
commemorating the upcoming 50th anniversary of the Civil Rights Act of
1964 alongside many esteemed jurists, public servants and public safety
officials. In the years that followed adoption of this landmark
legislation, this struggle--to secure what President Johnson once
called the ``dignity of man and the destiny of democracy''--would lead
to the passage of the Voting Rights Act of 1965 and a range of other
reforms, both large and small. Together, these changes altered the
course of the 20th century. Moreover, they led the Department of
Justice to take an active role in defending the civil rights to which
everyone in this country is entitled--work that remains among our top
priorities today.
Since 2009, the Civil Rights Division has filed more criminal civil
rights cases than at any other time in our history, including record
numbers of police misconduct and human trafficking cases. Under the
leadership of our Civil Rights Division and our Community Relations
Service (CRS), we are using important tools like the Matthew Shepard
and James Byrd Jr. Hate Crimes Prevention Act to prevent and respond to
hate crimes on behalf of those who are victimized because of who they
are, what they look like, or who they love. Under the leadership of the
Civil 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 all
married same-sex couples. And we are vigorously enforcing Federal
voting protections to help ensure that every eligible American has
access to the franchise.
The fiscal year 2015 budget will support the Department's
appropriately aggressive enforcement of Federal civil rights laws in
all of these areas, in addition to fair housing, fair lending, and
disability rights, among many others. In total, the request seeks $273
million to help meet the Nation's civil rights challenges, including an
additional $8 million in program increases for the Civil Rights
Division and CRS.
protecting the american people from terrorism and other national
security threats
As I have said many times before, the Department's top priority
must always be the protection of the American people from terrorism and
other national security threats. The fiscal year 2015 budget provides a
total of $4 billion in direct funding to maintain critical
counterterrorism, counterespionage, intelligence collection, and
national security oversight programs. In addition, the budget sustains
recent increases that support national security investigations. The
fiscal year 2015 budget also requests a $15 million program increase to
fund the cost of operations and maintenance of the FBI's new TEDAC
facility at Redstone Arsenal in Huntsville, Alabama, which will become
operational in late 2014. TEDAC provides direct support to U.S.
Government efforts to prevent and mitigate improvised explosive device
attacks both in the United States and abroad, and has already provided
critical assistance to domestic and international cases, including last
year's Boston Marathon bombing.
The FBI uses intelligence and investigations to combat national
security threats and protect and defend the United States against
terrorism and foreign intelligence threats. In fiscal year 2013, the
FBI dedicated approximately 4,500 agents to investigating more than
18,000 national security cases.
The National Security Division (NSD) is responsible for overseeing
terrorism investigations and prosecutions; handling counterespionage
cases and matters; and assisting the Attorney General and other senior
department and executive branch officials in ensuring that the national
security-related investigations and activities of the United States are
consistent with the Nation's laws and regulations, including those that
protect privacy interests and civil liberties. In coordination with the
FBI, the Intelligence Community, and the U.S. Attorneys' Offices, NSD's
primary operational functions are to prevent acts of terrorism and
espionage inside the United States and to facilitate the collection of
information regarding the activities of foreign powers and their
agents.
The Department has had many noteworthy successes on the national
security front. We have continued to: strengthen key intelligence-
gathering capabilities; refine our ability to identify and disrupt
potential terrorist plots; and ensure that those charged with
terrorism-related offenses are held accountable to the fullest extent
of the law. From the recently-unsealed guilty plea of Ahmed Abdulkadir
Warsame, a former senior al-Shabaab commander and emissary to al-Qaeda
in the Arabian Peninsula, on charges of terrorism, to the extraordinary
and highly-coordinated FBI-led response to last year's Boston Marathon
bombing, the Department and its law enforcement allies have
relentlessly worked to secure the American homeland and bring those who
would harm our people to justice. In fact, just last week, the
Department achieved a major milestone when we secured the conviction of
Sulaiman Abu Ghayth, the son-in-law of Usama bin Laden and a senior
member of al Qaeda, on terrorism-related charges.
This verdict has proven that proceedings such as these can safely
occur in the city I am proud to call home, as in other locations across
our great Nation. It was appropriate that this defendant, who publicly
rejoiced over the attacks on the World Trade Center, faced trial in the
shadow of where those buildings once stood. We never doubted the
ability of our Article III court system to administer justice swiftly
in this case, as it has in hundreds of other cases involving terrorism
defendants--and this outcome vindicates the Government's approach to
securing convictions of senior al Qaeda leaders. It would be a good
thing for the country if this case has the result of putting that
political debate to rest.
In addition to its national security work, the Department has
successfully executed ground-breaking counterintelligence operations to
safeguard sensitive U.S. military and strategic technologies and keep
them from falling into the wrong hands. In February, Robert Patrick
Hoffman II, a cryptologic technician with the Navy, was sentenced to 30
years in prison for attempting to commit espionage on behalf of the
Russian Federation against the United States. Working aboard or in
conjunction with U.S. submarines for much of his naval career, Hoffman
held security clearances and regularly received access to classified
national defense information about U.S. submarines and their
capabilities, and about adversaries, specific missions, and U.S.
military and naval intelligence. Hoffman supplied to undercover FBI
agents, among other things, national defense information classified at
the levels of Secret and Top Secret/Sensitive Compartmented
Information. By attempting to hand over some of America's most closely
held military secrets, Hoffman put U.S. servicemembers and this country
at risk.
National security threats are constantly evolving, requiring
significant resources to adapt to those threats. However, as President
Obama noted in a speech at the Justice Department earlier this year, it
is imperative that we continue working to protect our national security
while upholding the civil liberties we all hold dear. In January, we
and our partners in the Intelligence Community took a significant step
toward fulfilling the President's commitment to greater transparency by
permitting communications providers to disclose more information than
ever before about the number of national security orders and requests
they receive and the number of customer accounts targeted under those
orders and requests. And as we move forward with the timely
implementation of other reforms, my colleagues and I remain committed
to working closely with Congress to implement the President's
transparency directives and determine the best path forward for these
programs.
improving our ability to implement and enforce gun safety measures
Gun violence has touched every State and locality in America, and
addressing this epidemic remains a high priority for the Department. In
2013, following the Newtown, Connecticut, school shootings, the
administration proposed a range of legislative remedies to address mass
shootings and reduce gun violence. The Department is working to
implement a number of these actions and requests a total of $1.1
billion in fiscal year 2015 to address violent gun crimes.
Of the total, $1 billion in Federal law enforcement resources will
allow the Department to ensure that those who are not eligible to
purchase or possess guns are prevented from doing so. Within this
amount, $182 million is included for the President's ``Now is the
Time'' initiative to support additional background checks, allow for
continued focus on inspections of federally-licensed firearms dealers,
improve tracing and ballistics analysis, and keep guns out of the hands
of dangerous criminals and other prohibited persons. The Department
also has been working to strengthen the national background check
system. For example, in January 2014, the Department proposed a rule to
clarify the definition of persons prohibited for mental health reasons
from receiving, possessing, shipping, or transporting firearms.
Further, an additional $13 million is provided to the FBI to sustain
the substantial investment made in the National Instant Criminal
Background Check System (NICS) in fiscal year 2014.
The Department is also taking a hard look at our Federal laws and
our enforcement priorities to ensure that we are doing everything
possible at the Federal level to keep firearms away from drug
traffickers and other criminals. To support the enforcement of Federal
laws, the Department is requesting an additional $22 million for the
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), which will
allow ATF to sustain the firearms enforcement and inspection efforts
funded in fiscal year 2014.
The budget also requests $147 million to help State and local
governments continue to implement the administration's proposals for
increasing firearms safety and supporting programs that help keep
communities safe from mass casualty violence. In addition to the FBI's
role with the Federal side of NICS, the Department is working to
strengthen national background checks by addressing gaps in the State
records currently available in NICS. Incomplete or insufficient records
significantly hinder the ability of NICS to quickly confirm whether a
prospective purchaser is prohibited from acquiring a firearm. In fiscal
year 2015, the Department requests a total of $55 million in grant
funding to further assist States in making more records available in
NICS and enhancing the National Criminal History Improvement Program.
Beyond keeping guns out of the wrong hands, we also want to help
those on the ground prevent and mitigate violent situations when they
do occur. To this end, the Office of Justice Programs (OJP), with the
support of the FBI, will be providing a specialized training course for
active shooter situations for law enforcement officers, first
responders, and school officials. The Department is requesting a total
of $15 million to support this training and other officer safety
initiatives. In addition, the Department is requesting $75 million in
grant funding for the Comprehensive School Safety Program, which was
funded for the first time in fiscal year 2014. Finally, the budget
includes $2 million for OJP to support the administration's challenge
to the private sector to develop innovative and cost-effective gun
safety technology. The funding for this initiative will provide prizes
for those technologies that are proven to be reliable and effective.
investigating cybercrime and protecting our nation's critical networks
Like other national security threats, cyber threats are constantly
evolving and require a coordinated and comprehensive plan for
protection and response. The Department has a unique and critical role
in cyber security that emphasizes domestic mitigation of threat actors
and involves countering the threat by investigating and prosecuting
intrusion cases, gathering intelligence in support of nation state
attribution, and providing legal and policy support to other agencies.
The Department is also responsible for establishing effective internal
network defense and serving as a model for other departments and
agencies.
The fiscal year 2015 budget provides a total of $722 million for
cyber enforcement and maintains recent increases for NSD's
prosecutorial efforts and the FBI's Next Generation Cyber Initiative,
which has enhanced capabilities to combat cyber threats from
individuals, organized groups and rogue actors. The request also
includes an increase of $3 million for the Criminal Division to
strengthen its investigative and prosecutorial capabilities, and $5
million to provide grants related to cybercrime and intellectual
property enforcement.
The Department is committed to carrying out its cyber security
role, emphasizing intelligence and information sharing as well as the
preservation of privacy, data confidentiality, and civil liberties. The
administration is working to improve Government mechanisms for
providing timely cyber threat information to the private sector so it
can better protect and defend itself against cyber threats. Pursuant to
an Executive Order on Improving Critical Infrastructure Cybersecurity,
each Federal department and agency is also required to develop and
implement privacy and civil liberties safeguards in concert with its
cyber security activities.
And although we work tirelessly to bring cyber criminals to
justice, we need additional tools to strengthen the Justice
Department's ability to combat crime and ensure individual privacy.
I've recently called on Congress to create a strong national standard
for quickly alerting consumers whose personal identifying information
may be compromised. This would empower the American people to protect
themselves if they are at risk of identity theft. It would enable law
enforcement to better investigate these crimes. And it would hold
compromised entities accountable when they fail to keep sensitive
information safe. I hope I can count on your support.
improving collaboration with foreign law enforcement partners
Criminal activity transcends national boundaries, requiring the
United States and its foreign partners to cooperate in the provision of
evidence and the extradition of persons. Mutual Legal Assistance Treaty
(MLAT) requests are the formal way in which countries request
assistance in obtaining evidence located in a foreign country for
criminal investigations and proceedings located in another country.
However, delays and difficulties in obtaining evidence, especially
Internet records, through the MLAT process are increasingly becoming a
source of frustration for many of our foreign partners.
Continued delays in producing this type of information to our
foreign counterparts could reduce their compliance with U.S.-initiated
MLAT requests and their cooperation with U.S. law enforcement agencies,
thus hampering our ability to investigate crime and prosecute
criminals. In his January speech on the review of signals intelligence,
the President stated that he ``will devote the resources to centralize
and improve the process we use to handle foreign requests for legal
assistance, keeping our high standards for privacy while helping
foreign partners fight crime and terrorism.'' Pursuant to the
President's commitment, the Department is leading an interagency effort
to update, improve, and accelerate the handling of requests from
foreign governments for evidence requested pursuant to MLATs.
Over the past decade, the number of requests for assistance from
foreign authorities handled by the Criminal Division's Office of
International Affairs has increased nearly 60 percent, and the number
of requests for computer records has increased 10-fold. While the
workload has increased dramatically, our ability to handle them has not
kept pace. The Department's fiscal year 2015 budget requests a total of
$44 million, including an increase of $24 million for the Criminal
Division, the FBI and U.S. Attorneys, for the Department to
significantly expand the number of personnel dedicated to reviewing and
executing MLAT requests, and for technological enhancements to improve
the way requests are analyzed, categorized, and prioritized. With these
additional resources, the Department will implement a robust
centralized processing system, reduce backlog, cut its response time by
half by the end of 2015, and respond to legally sufficient requests in
a matter of weeks. Additionally, the resources will support training
efforts for foreign partners to ensure they can meet U.S. evidentiary
standards, which will enable the Department to respond to their
requests more quickly.
This MLAT reform effort involves collaboration among the
Departments of Justice, State, and Commerce. Funds identified in the
fiscal year 2015 President's budget for improvements to the MLAT
program will be coordinated across these departments and agencies as
well as the commercial sector.
prosecuting financial and mortgage fraud
Protecting consumers, investors, and our financial markets from
fraud is one of the Department's top priorities. The budget maintains
support to investigate and prosecute financial and mortgage fraud,
providing a total of $681 million for financial fraud enforcement. It
also continues efforts to strengthen the Department's ability to pursue
large-scale financial fraud.
Fraud harms the American people and has the potential to undermine
our financial markets, and fraudulent misconduct may have contributed
to the worst economic crisis in recent history. With its criminal and
civil enforcement tools, the Department plays a crucial role in
achieving justice for those who have been victimized. Fraud cases are
complex matters that can take years to investigate and prosecute. Last
year, as part of our ongoing effort to hold accountable those whose
conduct sowed the seeds of the mortgage crisis, the Department filed
lawsuits against Bank of America and the ratings firm Standard &
Poor's. Since 2009, we have filed criminal charges against more than
46,000 white-collar defendants, more than half of whom are financial
fraud defendants. And in November, the Department reached a $13 billion
settlement with JPMorgan Chase & Co.--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. These
results demonstrate that no firm, no matter how profitable, is above
the law--and the passage of time is no shield from accountability. They
also reinforce our commitment to integrity and equal justice in every
case, in every circumstance, and in every community.
enforcing immigration laws and addressing the immigration case backlog
The Department has substantial responsibilities with respect to
immigration, including enforcement, detention, judicial functions,
administrative hearings, and litigation. The Department's Executive
Office for Immigration Review (EOIR) maintains a nationwide presence,
overseeing the immigration court and appeals processes, receiving cases
directly from Department of Homeland Security enforcement personnel.
EOIR's immigration court caseload is increasing to unsustainable
levels. Between fiscal year 2009 and fiscal year 2013, the caseload
pending adjudication grew by 56 percent--from 229,000 to 358,000.
The fiscal year 2015 budget includes $23 million in new resources
to support and advance EOIR's mission. Of this amount, $17 million is
requested for EOIR to support 35 additional Immigration Judge Teams and
15 additional Board of Immigration Appeals attorneys. An additional $3
million is included to expand EOIR's Legal Orientation Program, which
improves immigration court proceedings for those who are detained by
increasing their awareness of their rights and the overall process.
Another $3 million is requested to allow EOIR to continue the
development and expansion of a pilot program that provides counsel to
vulnerable populations, such as unaccompanied alien children, for which
funding was provided in fiscal year 2014.
maintaining safe and secure prison and detention facilities
The Department continues to prioritize the maintenance of secure,
controlled prison and detention facilities, as well as investment in
programs that can reduce recidivism. Federal prisons are operating over
30 percent above rated capacity. Spending on Federal prisons consumes a
quarter of the Department's budget--an unsustainable figure that is
nevertheless projected to continue to increase.
As part of the ``Smart on Crime'' approach I announced last August,
I directed a significant change to the Department's charging policies
to ensure that people accused of certain low-level, non-violent Federal
drug crimes receive sentences appropriate to their individual conduct--
and that stringent mandatory minimum sentences are reserved for the
most serious crimes. Alongside other important reforms, this change
will make our criminal justice system not only fairer, but also more
efficient, reducing the burden on our overcrowded prison system and
freeing up resources for police and prosecutors and other vital law
enforcement priorities.
The fiscal year 2015 budget includes funding to support this
initiative, providing $8.5 billion for prisons and detention, including
$6.9 billion for the Bureau of Prisons (BOP) and $1.6 billion for
Federal Prisoner Detention under the U.S. Marshals Service. Included in
the total is $29 million to sustain the investments made in fiscal year
2014 for BOP's reentry programs, including the Residential Drug Abuse
Program, Residential Reentry Centers, and reentry-specific education
programs. In all, the budget requests a total of $660 million for BOP's
reentry-related activities. These resources provide critical
opportunities for inmates to successfully transition back into their
communities. Further, $32 million in program increases are requested
for Federal detention to pay for increases in the average daily
detainee population under the U.S. Marshals Service.
investing in state, local and tribal assistance programs that work
The Department continues to support its partnerships with State,
local, and tribal law enforcement. The fiscal year 2015 budget
maintains these commitments without cutting the Department's Federal
operational role. Simultaneously, the budget identifies efficiencies to
help ensure that Federal resources are being targeted to the most
effective grant programs. The fiscal year 2015 request for State,
local, and tribal law enforcement assistance is $3 billion, including
$2.1 billion for discretionary grants and $891 million for mandatory
grants.
The Department is requesting $1.5 billion for the Office of Justice
Programs' discretionary grants. The request increases funding for an
evaluation clearinghouse, an indigent defense initiative, and evidence-
based competitive programs. This includes funding to establish the
Byrne Incentive Grants and Juvenile Justice Realignment Incentive
grants, which will provide supplementary awards to States and
localities using formula grant funds for evidence-based purposes. The
budget also requests funding to address school safety and gun violence
with resources to improve criminal history records information and for
the Comprehensive School Safety Program, which initially received
funding in fiscal year 2014. In addition, the budget requests $33
million to support the Department's Access to Justice Initiative
efforts, including to assess and improve the quality of indigent
defense services in the United States. Finally, the request includes
$35 million for a new grant for communities to develop plans and
identify the most critical needs to address sexual assault prevention,
investigation, prosecution and services, including addressing untested
sexual assault evidence kits at law enforcement agencies or backlogged
crime labs.
The fiscal year 2015 budget includes a total of $423 million for
the Office on Violence Against Women, and continues the
administration's strong commitment to providing Federal leadership in
developing the Nation's capacity to combat sexual assault and violence
against women. The request includes an increase of $9 million for Legal
Assistance to Victims Programs, Campus Violence, Grants to Support
Families in the Justice System, and the Transitional Housing program.
These programs fund proven and innovative interventions to save lives,
hold abusers accountable, and rebuild families and communities. As a
result of prior investments in this area, civil and criminal justice
systems are more responsive to victims, and crimes of violence
committed against women have declined in recent years. Even so,
reducing such violence and meeting the needs of the almost 1.3 million
women victimized annually by rape and sexual assault, and the nearly
seven million victims of intimate partner violence each year, remains a
critical priority.
Finally, the request includes $274 million for Community Oriented
Policing Services (COPS), which supports a $71 million increase for
COPS Hiring and Tribal Law Enforcement programs. These resources will
fund the hiring or retention of approximately 1,300 police officers and
sheriffs' deputies across the United States, thereby supporting the
efforts of State, local and tribal law enforcement agencies in meeting
the challenge of keeping their communities safe.
conclusion
Chairwoman Mikulski, Vice Chairman Shelby, and members of the
subcommittee, I want to thank you for this opportunity to share the
significant accomplishments of the Department over the past year, to
highlight our ongoing priorities, and to discuss how the funding
proposed in the fiscal year 2015 President's budget will help make the
criminal justice system more effective and efficient.
The Department recognizes the need for fiscal restraint, and we
have focused our resources on priority initiatives. As evidenced by our
national security and law enforcement achievements, and our continued
ability to demonstrate a significant return on investment, we have
proven our ability to target and respond to the Nation's highest
priorities efficiently and effectively. I look forward to working with
this subcommittee and with the entire Congress to build on these
successes. And I would be happy to answer any questions you may have.
Chairwoman Mikulski. Thank you very much, Mr. Attorney
General.
We're going to follow a 5-minute time limit and try to get
to as many people as we can. And if there's a chance, we will
do a second round.
FEDERAL PRISONS
So, let me get right to my question. Mr. Attorney General,
one of the biggest areas, in terms of the Justice Department,
is the funding of Federal prisons. And my question to you is--
two--and we're concerned about two things--one, the adequacy of
the funding; second, the protection of prison guards, looking
back to that terrible death. And, number three, what is your
plan? Because there are now 18,000 prison guards, doing a great
job. We're very proud of our guards in the Cumberland
facility--and the stress that they're under every day. But,
you've got initiatives here. And now, the prison guard
population is one-third of the Justice Department.
So, we've got to keep the bad people off the street, but
are we just loading up our Federal prisons, and are there other
ways where we protect America? It's almost impossible to keep
up with this prison population demand. Could you give us your
views on the resources needed and the policy directions you see
going in?
Attorney General Holder. Well, I agree with you, Madam
Chairwoman. We have to focus on looking at the intake, how many
people we are bringing into our Federal prison system, and make
sure that only those people who should be charged with Federal
crimes are actually brought into the system. And so, that's one
of the ways in which we can, I think, do a better job.
The safety of the people who work at the Federal Bureau of
Prisons, the people who are there in our system on a day-to-day
basis, is what we must keep uppermost in our minds. Our budget
request includes a total of $6.8 billion to maintain the
enhancements provided in the 2014 budget and to support
mandatory prison operations. And one of the things that we want
to do, as well, is to prioritize the filling of staff positions
so that we have adequate numbers of people in our prisons. That
will not only mean that people are treated fairly, humanely in
the system, it also keeps our employees safe. We have a renewed
and good relationship with the union that represents our prison
officers. And I think that, through the combination of the work
that Director Samuels is doing, with the help of this
committee, I think that we can keep our Bureau of Prisons
adequately funded, and keep the people who work there safe.
Chairwoman Mikulski. Well, I met with prison--well, of
course, I've been up to the Cumberland prison, but also with
prison guards that were mates of--teammates, if you will, of
Officer Williams, who died in Pennsylvania. They had--they,
through the union, really had very specific things that they
felt they could do to--that they needed to do to protect
themselves. And I would encourage you to have ongoing and
regular meetings with them, because it's almost like--it's not
labor management negotiation, it's safety conversation on
protecting them so they can protect us.
HEROIN CRISIS
In my time, I'm going to go to another question, and this
goes to the heroin crisis. The heroin crisis is sweeping
America. I'm now hearing it in my own State of Maryland, from
county executives, cops on the beat, and so on. Heroin is
selling in Baltimore today for $6 a bag. You know, cheaper than
buying a bag of kale at a gourmet grocery store kind of thing.
The Governor of Vermont made it the focus of the State of the
Union. Senator Leahy has spoken. Could you share with us, one,
your view on this, and what are the resources needed at the
Department of Justice level and how you would work with State
and local law enforcement on dealing with this, really, new
epidemic that is both criminal and public health?
Attorney General Holder. Well, I first started to hear
about the resurgence of the use of heroin about 3 years or so
ago as I was going around the country to various U.S.
Attorneys' offices, and was struck by the fact that I was
hearing about heroin. This was something that I had consigned,
in my own mind, to a problem that existed in the 1960s. But,
there is no question that over the course of these last few
years this has become a national problem. It's not a regional
problem, it's not a State problem; this is something that is
national in significance.
What we need to do is have a balanced approach to dealing
with this issue. We need to have a strong enforcement component
to it. Our Drug Enforcement Administration takes the lead in
that regard. We've recovered record amounts of heroin coming
from the Mexican cartels into the United States. But now, this,
I think, is important--we need to focus on the public health
component as well, and work with our partners at HHS and at
CDC, to come up with ways in which we can educate people about
the issues that surround heroin use, and also the connected
problem of prescription drug abuse, the use of opioids, and how
that leads to the use of heroin.
This is all part of a problem that will require, I think,
more than simply the Justice Department to really get at it,
though I think we have to be in the lead, given our enforcement
responsibilities that we take very seriously.
Chairwoman Mikulski. My--thank you very much, Mr. Attorney
General--my time is up. I'm going to turn to Vice Chairman
Shelby.
But, I think we cannot underestimate that this heroin
matter is a new epidemic. And if we were hit by an infectious
disease or a new kind of flu, we'd have Fauci, from NIH, and
Francis Collins, and Sebelius on the edge of her chair, and
Arne Duncan worrying about children in school needing
vaccinations. I think we've got to go to the edge of our chair
here.
This is prescription drugs, this is prescription drug
addiction that's then leading to people buying heroin because
it's easier to get. We've got suburban people driving into
Baltimore looking into heroin markets that were featured in
some of those awful movies about us. I mean, we are really
concerned about what this is, and it's--and I think, if we
marshal the resources of the Federal Government, working with
the American Medical Association, doctors in the community, et
cetera, we can deal with this. This is not only crime, it is
public health.
And can I count on you to take the lead in this?
Attorney General Holder. Yes, I will. And I will engage
with other members of the Cabinet. But, beyond that, to go
beyond the Federal Government to try to enlist others who I
think have an interest, and should have an interest, in this--
as you've indicated, the American Medical Association and
others--so that we can really get at this problem in a balanced
way. This is simply not an enforcement problem, this is
something we have to deal with as a public health issue as
well.
Chairwoman Mikulski. Right.
Senator Shelby.
Senator Shelby. Thank you.
DRUG-RELATED CRIME
I just want to pick up on the Chairwoman's area, there.
What percent of the people in Federal prison, roughly--and you
might want to furnish the exact number, if you don't have it
offhand--for the record--are in prison but related to drug
abuse, drug use, drug sales, or connected to drugs?
Attorney General Holder. Roughly 50 percent.
Senator Shelby. Fifty percent.
Attorney General Holder. Yes.
Senator Shelby. And in the State, I believe it's higher
than that.
Attorney General Holder. I think that's correct. In most
States, I think that the number is probably higher.
Senator Shelby. What is the rate of--not just drug
related--what's the rate of recidivism, repeat offenders, in
the prison--that go into the prison system and go back, you
know, after a while?
Attorney General Holder. Again, that'll vary from State to
State. I think the Federal rate is----
Senator Shelby. I'm speaking of the Federal. The Federal.
Attorney General Holder. Okay. Federal rate is roughly, I
think, around 35-40 percent.
Senator Shelby. About a third, more or less----
Attorney General Holder. Right. I think that's about right.
Senator Shelby [continuing]. Of the people who go to prison
come back.
Attorney General Holder. Right.
Senator Shelby. So, basically, our prison systems, State
and Federal, are challenged, to say the least, are they not, on
rehabilitating----
Attorney General Holder. Yes.
Senator Shelby [continuing]. People, getting them back in
society?
Attorney General Holder. Absolutely.
Senator Shelby. What percent of the Federal prison--of
people in Federal prison are there connected in some way to
violent crime, the people that we need to get off the streets,
period?
Attorney General Holder. I don't know----
Senator Shelby. Can you furnish that for the record?
Attorney General Holder. Yes, we can certainly furnish that
for the record----
Senator Shelby. Do you have----
Attorney General Holder [continuing]. We have drug
offenses, about 50 percent; weapons, explosives, arson, about
5.4 percent. So----
Senator Shelby. But, violent-related.
Attorney General Holder. Yes.
Senator Shelby. People that you wouldn't want in your
neighborhood or your school or around your children----
Attorney General Holder. Yes.
Senator Shelby [continuing]. You know, period.
Attorney General Holder. I can provide you with----
Senator Shelby. Okay.
Attorney General Holder [continuing]. A more precise
number, Senator.
[The information follows:]
Question. What percentage of the Federal prison population is
connected in some way to violent crime?
Answer. Of the sentenced inmates in BOP custody, one third (33.8
percent) are serving time for a violent offense, defined to include
homicide, robbery, aggravated assault, sex offenses, weapons and
explosives (68,486 out of 202,397). Half (49.5 percent) have a previous
conviction for a violent offense (100,142 out of 202,397). Data as of
August 30, 2014.
Senator Shelby. Do you believe that a lot of our prisons
are overcrowded, State and Federal?
FEDERAL PRISONS
Attorney General Holder. Yes. If you look at the Federal
prison system, we don't have enough beds for the people, and
especially when you look at those people who we consider the
most significant offenders. It's one of the reasons why we try
to bring online more of our prisons.
Senator Shelby. Do you believe it's the--when you make
priorities, as a prosecutor, that you should look at violent
crime and get people off the street, get them out of doing harm
to other people in institutions first?
Attorney General Holder. Sure. There are a range of things
that we have to----
Senator Shelby. Absolutely.
Attorney General Holder [continuing]. Do in the Federal
system. National security, violent crime, drug offenses. We
have a range of things that we have to do, working with our
State and local partners, as well. They do the vast majority of
the prosecuting when it comes to violent crime.
Senator Shelby. I know it's been said that the Department,
led by you, is trying to figure ways out to lessen the impact
of some tough sentencing, which is statutory, I think. So, a
lot of that--a lot of the sentencing by Federal courts over--on
drugs and other things, I believe that's according to statute.
Is that right, Mr. Attorney General?
SENTENCING REFORM
Attorney General Holder. There are certain mandatory
minimum sentences that exist with regard to how we charge
certain crimes. We have discretion as to----
Senator Shelby. I'm talking about after they're sentenced,
they're sentenced on--based on a statute, are they not?
Attorney General Holder. There are guidelines that are
advisory now, but they're no longer mandatory.
Senator Shelby. Well, once a judge sentences a prisoner for
X years after going through a court or a plea, do you have the
power, as the Attorney General, to change that sentence?
Attorney General Holder. I have limited amounts of power.
Senator Shelby. Like what? Explain.
Attorney General Holder. With regard to people, for
instance, as the Chair was saying, people who I can release, or
the director of Bureau of Prisons can release on the basis of
compassionate release, somebody who is 70-80 years old, who is
no longer a threat to society. I have that capacity. But,
generally, the Attorney General----
Senator Shelby. It's statutory, is it not?
Attorney General Holder. Yes. Statutory and regulatory.
But, generally, the Attorney General does not have the ability
to reduce sentences. That is something the President can do.
Senator Shelby. And if there's any change in the laws on
sentencing, it came from Congress--it had come from Congress to
modify, repeal, or enact something to supersede it, is that
correct?
Attorney General Holder. Yes. And that's why we are
supporting the efforts of Senator Lee, Senator Leahy, and
Senator----
Senator Shelby. Okay.
Attorney General Holder [continuing]. Durbin, to try to
make changes to our Federal system.
ROLE OF INSPECTOR GENERAL
Senator Shelby. I just have a few seconds left, but this is
important, I think. A lot of us--I raised it in my opening
statement--we're concerned about the issues raised dealing with
the Inspector General. I think Congress has been clear, as has
this committee, that the Inspector General must have unfettered
access to any and all documents necessary to carry out his
duties. Do you disagree with that?
Attorney General Holder. I would say that the Inspector
General should have access to those materials necessary to do
the investigations that he does, and consistent with the laws
that govern some of the material that he might want access to.
Senator Shelby. Well, it's all consistent with the law,
but----
Attorney General Holder. Well, the law is written in such a
way that, with regard to certain requests that are made, the
Attorney General or the Deputy Attorney General has to make a
determination that it can be appropriately shared.
But, one thing I would point out. There has never been an
instance, as long as I have been Attorney General, that the
Inspector General has asked for materials that I have said he
could not have. That has just not happened.
Senator Shelby. It hasn't happened.
Attorney General Holder. Has not happened.
Senator Shelby. Do you believe that the Inspector General
should have to seek your approval to access grand jury
documents relevant to ongoing investigations, something that
he's charged, statutorily, to investigate and oversee?
Attorney General Holder. I think, as the law exists now
with regard to grand jury material, wiretap information, there
is an approval process that I think is an appropriate one to go
through. But, as I said, there's never been an instance where,
with regard to a request made by an Inspector General, I or the
Deputy Attorney General have not said, ``You can't have access
to that material.''
Senator Shelby. Have you, or will you, direct the
Department of Justice that you oversee to grant the Inspector
General unfettered access to relevant documents to carry out
his investigations within the Department, even though it might
be detrimental to somebody in the Department of Justice,
including yourself?
Attorney General Holder. Yes. I mean, the question of
whether or not this material is turned over or the Inspector
General has access to it is not a function of who is under
investigation or what harm is going to happen to the
Department. It is really a function of making sure that we are
following the----
Senator Shelby. But, what if----
Attorney General Holder [continuing]. Laws that exist.
Senator Shelby [continuing]. He was investigating somebody
high up in the Justice Department, and he had reason to do
this, and he needed documents. Would you give him access to
those documents? Would you cause him trouble?
Attorney General Holder. They'd have access to the
documents, as they have in the past.
Senator Shelby. And you're not going to block the Inspector
General from doing his work.
Attorney General Holder. No. There is no tension between
making sure the Inspector General has the documents that he or
she needs and also making sure that the laws that govern the
release of those materials are followed. And we have done so in
the past.
Senator Shelby. Well, if a head of the Department, even the
Justice Department, like you or, say, Secretary of Energy or
Secretary of State, or whatever, if you have an Inspector
General there to do oversight and uncover wrongdoing, if they
could say, ``You can't go there,'' it would impede their
investigation, would it not?
Attorney General Holder. Yes, but the Attorney General has
a unique responsibility, in that I am the possessor of, for
instance, grand jury material, wiretap information that the
Secretary of State or Secretary of Energy would not have access
to, and so, the need for the statutory requirements that we
have to go through at the Justice Department are different than
what would exist in other executive-branch agencies.
Senator Shelby. But, the Inspector General at the
Department of Justice couldn't do his job unless they had
unfettered access to stuff he was seeking. You seem to be
stalling on giving him access to things in the Justice
Department. I don't understand that.
Attorney General Holder. Well, you'll have the ability to
talk to the Inspector General. I think he'll echo----
Senator Shelby. Sure.
Attorney General Holder [continuing]. What I've just said,
which is that there has never been an instance where material
has been sought that has not been granted to them.
There was a question that was actually raised by Mr.
Horowitz's predecessor about whether or not there was a legal
basis for the position that we were taking. What we offered to
do was to send it to the Office of Legal Counsel for a
determination as to whether the view that the Attorney General
or the Deputy Attorney General was taking was correct. The
decision was made by the Inspector General not to have that OLC
opinion done. We have copies of the letter, that I will be more
than glad to make available to the committee, that shows that
what we have done is consistent with the law and also
consistent with the important responsibilities that the
Inspector General has.
[The information follows:]
summary of the department of justice office of the inspector general's
position regarding access to documents and materials gathered by the
federal bureau of investigation
Introduction
In November 2009, the Office of the Inspector General (OIG)
initiated a review of the Department's use of the material witness
statute, 18 U.S.C. Sec. 3144. Pursuant to our responsibilities under
Section 1001 of the Patriot Act, a significant part of our review is to
assess whether Department officials violated the civil rights and civil
liberties of individuals detained as material witnesses in national
security cases in the wake of the September 11 terrorist attacks. In
addition, the review will provide an overview of the types and trends
of the Department's uses of the statute over time; assess the
Department's controls over the use of material witness warrants; and
address issues such as the length and costs of detention, conditions of
confinement, access to counsel, and the benefit to the Department's
enforcement of criminal law derived from the use of the statute.
In the course of our investigation, we learned that most of the
material witnesses in the investigations related to the September 11
attacks were detained for testimony before a grand jury. At our
request, between February and September 2010 the Department of Justice
National Security Division and three U.S. Attorneys' offices (Southern
District of New York (SDNY), Northern District of Illinois (NDIL),
Eastern District of Virginia (EDVA)) provided us with grand jury
information concerning material witnesses pursuant to Fed. R. Crim. P.
6(e)(3)(D), which permits disclosure of grand jury matters involving
foreign intelligence information to any Federal law enforcement
official to assist in the performance of that official's duties. We
also sought a wide range of materials from other Department components,
including the U.S. Marshals Service, the Federal Bureau of Prisons, and
the Federal Bureau of Investigation (FBI). All of the Department's
components provided us with full access to the material we sought, with
the notable exception of the FBI.
In August 2010, we requested files from the FBI relating to the
first of 13 material witnesses. In October 2010, representatives of the
FBI's Office of General Counsel informed us that the FBI believed grand
jury secrecy rules prohibited the FBI from providing grand jury
material to the OIG. The FBI took the position that it was required to
withhold from the OIG all of the grand jury material it gathered in the
course of these investigations. The FBI has also asserted that, in
addition to grand jury information, it can refuse the OIG access to
other categories of information in this and other reviews, including
Title III materials, Federal taxpayer information; child victim, child
witness, or Federal juvenile court information; patient medical
information; credit reports; FISA information; foreign government or
international organization information; information subject to non-
disclosure agreements, memoranda of understanding or court order;
attorney client information; and human source identity information. The
information we have requested is critical to our review. Among other
things, we are examining the Department's controls over the use of
material witness warrants, the benefit to the Department from the use
of the statute, and allegations of civil rights and civil liberties
abuses in the Department's post-9/11 use of the statute in the national
security context. The requested grand jury information is necessary for
our assessment of these issues.
The FBI has also asserted that page-by-page preproduction review of
all case files and e-mails requested by the OIG in the material witness
review is necessary to ensure that grand jury and any other information
the FBI asserts must legally be withheld from the OIG is redacted.
These preproduction reviews have caused substantial delays to OIG
reviews and have undermined the OIG's independence by giving the entity
we are reviewing unilateral control over what information the OIG
receives, and what it does not.
The FBI's position with respect to production of grand jury
material to the OIG is a change from its longstanding practice.\1\ It
is also markedly different from the practices adopted by other
components of the Department of Justice. The OIG routinely has been
provided full and prompt access to grand jury and other sensitive
materials in its reviews involving Department components in high
profile and sensitive matters, such as our review of the President's
Surveillance Program and the investigation into the removal of nine
U.S. Attorneys in 2006. Those reviews would have been substantially
delayed, if not thwarted, had the Department employed the FBI's new
approach.
---------------------------------------------------------------------------
\1\ Since 2001, when the OIG assumed primary oversight
responsibility for the FBI, the OIG has undertaken numerous
investigations which required review of the most sensitive material,
including grand jury material and documents classified at the highest
levels of secrecy. Through all of these reviews, the FBI never refused
to produce documents and other material to the OIG, including the most
sensitive human and technical source information, and it never asserted
the right to make unilateral determinations about what requested
documents were relevant to the OIG reviews. On the rare occasion when
the FBI voiced concern based on some of the grounds now more broadly
asserted in this matter, quick compromises were reached by the OIG and
the FBI. Indeed, with only minor exceptions, the FBI's historical
cooperation with the OIG has been exemplary, and that cooperation has
enabled the OIG to conduct thorough and accurate reviews in a timely
manner, consistent with its statutorily based oversight mission and its
duty to assist in maintaining public confidence in the Department of
Justice.
---------------------------------------------------------------------------
In many respects, the material witness warrant review is no
different from other recent OIG reviews conducted in connection with
our civil rights and civil liberties oversight responsibilities under
the Patriot Act in which Department components granted the OIG access
to grand jury and other sensitive material. For example, in our review
of the FBI's use of ``exigent letters'' to obtain telephone records, at
our request the Department of Justice Criminal Division and the FBI
provided us grand jury materials in two then ongoing sensitive media
leak investigations involving information classified at the TS/SCI
level. The grand jury materials were essential to our findings that FBI
personnel had improperly sought reporters' toll records in
contravention of the Electronic Communications Privacy Act and
Department of Justice policy.\2\
---------------------------------------------------------------------------
\2\ We described this issue in our report, A Review of the Federal
Bureau of Investigation's Use of Exigent Letters and Other Informal
Requests for Telephone Records, (January 2010).
---------------------------------------------------------------------------
Similarly, in our review of the FBI's investigations pertaining to
certain domestic advocacy groups, the OIG assessed allegations that the
FBI had improperly targeted domestic advocacy groups for investigation
based upon their exercise of First Amendment rights. In the course of
this review, the FBI provided OIG investigators access to grand jury
information in the investigations we examined. This information was
necessary to the OIG's review as it informed our judgment about the
FBI's predication for and decision to extend certain investigations.
The lack of access to this information would have critically impaired
our ability to reach any conclusions about the FBI's investigative
decisions and, consequently, our ability to address concerns that the
FBI's conduct in these criminal investigations may have violated civil
rights and civil liberties.\3\
---------------------------------------------------------------------------
\3\ Our findings are described in our report, A Review of the FBI's
Investigations of Certain Domestic Advocacy Groups (September 2010).
---------------------------------------------------------------------------
When the OIG has obtained grand jury material, the OIG has
carefully adhered to the legal prohibitions on disclosure of such
information. We routinely conduct extensive pre-publication reviews
with affected components in the Department. The OIG has ensured that
sensitive information--whether it be law enforcement sensitive,
classified, or information that would identify the subjects or
direction of a grand jury investigation--is removed or redacted from
our public reports. In all of our reviews and investigations, the OIG
has scrupulously protected sensitive information and has taken great
pains to prevent any unauthorized disclosure of classified, grand jury,
or otherwise sensitive information.
For the reasons discussed below, the OIG is entitled to access to
the material the FBI is withholding. First, the Inspector General Act
of 1978, as amended (Inspector General Act or the Act), provides the
OIG with the authority to obtain access to all of the documents and
materials we seek. Second, in the same way that attorneys performing an
oversight function in the Department's Office of Professional
Responsibility (OPR) are ``attorneys for the government'' under the
legal exceptions to grand jury secrecy rules, the OIG attorneys
conducting the material witness review are attorneys for the government
entitled to receive grand jury material because they perform the same
oversight function. Third, the OIG also qualifies for disclosure of the
grand jury material requested in the material witness review under
amendments to the grand jury secrecy rules designed to enhance sharing
of information relating to terrorism investigations.
I. THE INSPECTOR GENERAL ACT
The FBI's refusal to provide prompt and full access to the
materials we requested on the basis of grand jury secrecy rules and
other statutes and Department policies stands in direct conflict with
the Inspector General Act. The Act provides the OIG with access to all
documents and materials available to the Department, including the FBI.
No other rule or statute should be interpreted, and no policy should be
written, in a manner that impedes the Inspector General's statutory
mandate to conduct independent oversight of Department programs. See,
e.g., Watt v. Alaska, 451 U.S. 259, 267 (1981) (A court ``must read
[two allegedly conflicting] statutes to give effect to each if [it] can
do so while preserving their sense and purpose.'').
A. The Inspector General Act Grants the OIG Full and
Prompt Access to any Documents and Materials
Available to the DOJ, Including the FBI, that
Relate to the OIG's Oversight Responsibilities
The Inspector General Act is an explicit statement of Congress's
desire to create and maintain independent and objective oversight
organizations inside of certain Federal agencies, including the
Department of Justice, without agency interference. Crucial to the
Inspectors General (IGs) independent and objective oversight is having
prompt and complete access to documents and information relating to the
programs they oversee. Recognizing this, the Inspector General Act
authorizes IGs ``to have access to all records, reports, audits,
reviews, documents, papers, recommendations, or other material
available to the applicable establishment which relate to programs and
operations with respect to which that Inspector General has
responsibilities under this Act.'' 5 U.S.C. App. 3 Sec. 6(a)(1). The
Act also authorizes the IGs to ``request'' necessary ``information or
assistance'' from ``any Federal, State, or local governmental agency or
unit thereof,'' including the particular establishments the IGs
oversee. Id. Sec. 6(a)(3); id. Sec. 12(5) (defining the term ``Federal
agency'' to include the establishments overseen by the Inspectors
General). Together, these two statutory provisions operate to ensure
that the Inspectors General are able to access the information
necessary to fulfill their oversight responsibilities.
The only explicit limitation on IGs' right of access to information
contained in the Inspector General Act concerns all agencies'
obligation to provide ``information or assistance'' to the Inspectors
General. However, this limitation does not apply to IGs' absolute right
of access to documents from their particular agency. This circumscribed
limitation provides that all Federal agencies shall furnish information
or assistance to a requesting IG ``insofar as is practicable and not in
contravention of any existing statutory restriction or regulation of
the Federal agency from which the information is requested[.]'' 5
U.S.C. Sec. 6(b)(1) (emphasis added).\4\
---------------------------------------------------------------------------
\4\ The legislative history is silent on the reason for
conditioning agencies' furnishing of ``information or assistance'' to
all IGs on practicability or statutory restriction, but imposing no
such limitation on an agency's absolute requirement to provide its
documents to its own IG. However, there are possible explanations for
the distinction. For example, providing access to documents and
materials maintained in agency systems and files is simple,
inexpensive, and an undeniable precondition to the fair, objective, and
successful exercise of the IGs' oversight responsibilities.
Accordingly, the Act's unconditional language authorizing IGs to have
access to the documents and materials of the agency it oversees is
understandable and sensible. In contrast, agencies may not always be
able to fulfill requests for ``information or assistance'' immediately,
even from their agency's IG. A request of one agency from another
agency's IG may require more careful scrutiny because it would entail
information being transmitted outside of the requested agency. In
addition, busy agency schedules must be accommodated when fulfilling a
request for an interview; subject matter experts may not be immediately
available to interpret documents or may have left the agency's
employment; responses to interrogatories often require revisions and
approvals; and annotations, explanations, and written analyses of
existing documents and materials can take significant amounts of time.
Despite the OIG's historical success at reaching reasonable compromises
with components of the DOJ responding to requests for ``information or
assistance,'' the OIG readily acknowledges that circumstances could
arise where a component's delay, difficulty, or even refusal in
responding to a request for ``information or assistance'' would be
reasonable. These considerations are not applicable, however, to IGs'
access to documents and materials of the agency it oversees, and
therefore, that provision of the Act authorizes access in absolute
terms.
---------------------------------------------------------------------------
Another provision of the Inspector General Act grants the
Inspectors General discretion to report instances of noncooperation to
the head of the relevant agency, whether that noncooperation impedes on
the IGs' authority to obtain documents or ``information and
assistance.'' Under that section, when an IG believes ``information or
assistance'' is ``unreasonably refused or not provided, the Inspector
General shall report the circumstances to the head of the establishment
involved without delay.'' 5 U.S.C. App. 3 Sec. 6(b)(2). The FBI
contends this reporting provision of the Act is a further limitation on
the agencies' obligation to provide documents and ``information and
assistance'' to the Inspectors General. The FBI has argued that the
provision implicitly recognizes that requests for both documents and
``information and assistance'' can be ``reasonably refused.''
The OIG believes the FBI's reliance on this reporting section as
limiting an IG's right of access to documents in the custody of the
agency it oversees is misplaced. This provision of the Act is entirely
consistent with the right of full and prompt access to documents and
materials and does not create a limitation, explicit or implicit, on
the authorities provided elsewhere in the Act. By granting the
Inspectors General the discretion to decide that some instances of
noncooperation by an agency do not rise to the level of a reportable
incident, the provision accounts for the practical reality that many
instances where Inspectors General are not granted access to documents
or materials, or are not provided ``information or assistance'' in
response to a request, do not merit a report to agency management.\5\
---------------------------------------------------------------------------
\5\ For example, IG document requests can be very broad,
particularly before IG investigators have learned the details of the
program under review. In such instances, formal requests are often
informally and consensually narrowed after discussions with the agency
under review, and a report to the agency head is unnecessary.
Similarly, an agency's failure to provide the Inspector General with
access to a document is often inadvertent or such a minor inconvenience
that the Inspector General could reasonably view the noncooperation as
de minimis.
---------------------------------------------------------------------------
To summarize, the Inspector General Act provides the Inspectors
General a right of full and prompt access to documents and materials in
the custody of the agency they oversee, a right to request
``information or assistance'' from any agency that is modestly limited,
and an obligation to report instances of agency noncooperation to the
agency head when, in the judgment of the Inspector General, such
noncooperation is unreasonable. Accordingly, the Act provides
Inspectors General unconditional authority to gather documents and
records in the custody of the agency they oversee, an authority
necessary to obtain the basic information to conduct independent and
objective reviews and investigations.
B. The Only Limitation on the OIG's Authority to Conduct
Audits and Investigations within its Jurisdiction
is Section 8E of the Inspector General Act, and
that Limitation Must Be Invoked by the Attorney
General
In the law creating the DOJ OIG, Congress inserted an exception to
the normal authority granted to Inspectors General. In a section
captioned ``Special provisions concerning the Department of Justice,''
the IG Act provides the Attorney General the authority, under specified
circumstances and using a specific procedure, to prohibit the OIG from
carrying out or completing an audit or investigation, or from issuing
any subpoena. See 5 U.S.C. App. 3 Sec. 8E. This authority may only be
exercised by the Attorney General, 5 U.S.C. App. 3 Sec. 8E(a)(1)-(2),
and only with respect to specific kinds of sensitive information. Id.
Sec. 8E(a)(1). The Attorney General must specifically determine that
the prohibition on the Inspector General's exercise of authority is
necessary to prevent the disclosure of certain specifically described
categories of information, or to prevent the significant impairment to
the national interests of the United States. Id. Sec. 8E(a)(2). The
Attorney General's decision must be conducted in writing, must state
the reasons for the decision, and the Inspector General must report the
decision to Congress within 30 days. Id. Sec. 8E(a)(3). These
provisions represent an acknowledgement of the fact that the Department
of Justice often handles highly sensitive criminal and national
security information, the premature disclosure of which could pose a
threat to the national interests.
These exacting procedures confirm that the special provisions of
Section 8E represent an extraordinary departure from the baseline rule
that the Inspectors General shall have unconditional access to
documents and materials, and broad authority to initiate and conduct
independent and objective oversight investigations. These procedures
also confirm that only the Attorney General, and not the FBI, has the
power to prohibit the OIG's access to relevant documents and materials
available to the Department.
II. GRAND JURY SECRECY RULES
The Federal Rules of Criminal Procedure provide the general rule of
secrecy applicable to grand jury information and various exceptions to
that general rule. One of the exceptions allows disclosure of grand
jury information to ``an attorney for the government.'' This exception
provides a basis, additional to and independent of the Inspector
General Act, for disclosing the requested grand jury materials to the
OIG.\6\ The OIG's reliance on the ``attorney for the government''
exception to obtain access to grand jury material is supported by an
Office of Legal Counsel (OLC) opinion and a Federal court decision. OIG
access to grand jury material under this exception is consistent with
the broad authority granted to the OIG under the Inspector General Act,
and it avoids an oversight gap so that Department employees cannot use
grand jury secrecy rules to shield from review their adherence to
Department policies, Attorney General Guidelines, and the Constitution.
The ``attorney for the government'' exception allows for automatic
disclosure of grand jury materials and is, therefore, particularly well
suited to ensure that the OIG's ability to access documents and
materials, and to access them promptly, is coextensive with that of the
Department and the FBI.
---------------------------------------------------------------------------
\6\ Rule 6(e)(3)(A)(i) provides: ``Disclosure of a grand jury
matter--other than the grand jury's deliberations or any grand juror's
vote--may be made to: (i) an attorney for the government for use in
performing that attorney's duty. . . .'' Fed. R. Crim. P.
6(e)(3)(A)(i).
---------------------------------------------------------------------------
A. OIG Attorneys Are ``Attorneys for the Government''
In an unpublished opinion issued subsequent to United States v.
Sells Engineering, Inc., 463 U.S. 418 (1983) (a Supreme Court opinion
narrowly construing the term ``attorney for the government'' as used in
the exception to the general rule of grand jury secrecy), the OLC
determined that, even in light of the Court's decision, the Rule was
broad enough to encompass Office of Professional Responsibility (OPR)
attorneys exercising their oversight authority with regard to
Department attorneys.
In Sells, Civil Division attorneys pursuing a civil fraud case
sought automatic access to grand jury materials generated in a parallel
criminal proceeding. The Supreme Court interpreted the exception that
provides for automatic disclosure of grand jury materials to
``attorney[s] for the government'' for use in their official duties, as
limited to government attorneys working on the criminal matter to which
the material pertains. Sells, 463 U.S. at 427. The Court held that all
other disclosures must be ``judicially supervised rather than
automatic,'' id. at 435, because allowing disclosure other than to the
prosecutors and their assistants would unacceptably undermine the
effectiveness of grand jury proceedings by: (1) creating an incentive
to use the grand jury's investigative powers improperly to elicit
evidence for use in a civil case; (2) increasing the risk that release
of grand jury material could potentially undermine full and candid
witness testimony; and (3) by circumventing limits on the government's
powers of discovery and investigation in cases otherwise outside the
grand jury process. See id. at 432-33.
In its unpublished opinion, OLC concluded that the three concerns
the Supreme Court expressed in Sells were not present when OPR
attorneys conduct their oversight function of the conduct of Department
attorneys in grand jury proceedings. OLC concluded that as a delegee of
the Attorney General for purposes of overseeing and advising with
respect to the ethical conduct of department attorneys and reporting
its findings and recommendations to the Attorney General, OPR is part
of the prosecution team's supervisory chain. Thus, OPR attorneys may
receive automatic access to grand jury information under the
supervisory component inherent in the ``attorney for the government''
exception.
OIG attorneys should be allowed automatic access to grand jury
material in the performance of their oversight duties because OIG and
OPR perform the identical functions within the scope of their
respective jurisdictions. Like OPR attorneys conducting oversight of
Department attorneys in their use of the grand jury to perform their
litigating function, OIG attorneys are part of the supervisory chain
conducting oversight of the conduct of law enforcement officials
assisting the grand jury. Both the OIG and OPR are under the general
supervision of the Attorney General, compare 28 C.F.R. 0.29a(a) (OIG)
with 28 C.F.R. 0.39. Just like OPR, the Inspector General must ``report
expeditiously to the Attorney General whenever the Inspector General
has reasonable grounds to believe there has been a violation of Federal
criminal law.'' 5 U.S.C. App. 3, Sec. Sec. 4(d) & 8E(b)(2). OIG
attorneys make findings and recommendations to the Attorney General
regarding the conduct of law enforcement officials assisting the grand
jury, and the Attorney General then imposes any discipline or
implements reform. Therefore, for purposes of the ``attorney of the
government'' exception, the OIG is in the same position as OPR, both
with respect to its oversight function and its relationship to the
Attorney General.
More to the point, whatever formal differences exist in the
relative structures of the OIG and OPR, the two offices are
functionally indistinguishable for purposes of access to grand jury
materials for all of their oversight purposes. The risks to the secrecy
of the underlying grand jury proceedings from disclosure to the OIG, if
any, are no different from those created by automatic disclosure to
OPR. OPR's oversight of the conduct of Department attorneys is an
after-the-fact examination of what happened during the grand jury
process, just as is OIG's oversight of law enforcement agents' conduct.
OIG review of law enforcement conduct in such circumstances is not
undertaken to affect the outcome of a civil proceeding related to the
target of an underlying criminal investigation. Therefore, disclosure
of grand jury materials to the OIG runs no risk of creating an
incentive to misuse the grand jury process in order to improperly
elicit evidence for use in a separate administrative or criminal
misconduct proceeding against the target of the grand jury's
investigation. Similarly, because our review is of law enforcement
conduct and not of lay witnesses who are called to testify, the
willingness of those witnesses to testify should not be implicated. OIG
oversight also ensures that the Department's law enforcement officials
who testify before the grand jury do so fully and candidly, and that
Department employees do not ignore their legal obligations to the grand
jury.
Moreover, the OIG's inherent supervisory role with regard to
Department employees who assist the grand jury was recognized by a
Federal court overseeing proceedings relating to the death of Bureau of
Prisons inmate Kenneth Michael Trentadue. The district court granted
the government's motion for access to grand jury materials, finding
that the OIG's investigation of alleged misconduct ``is supervisory in
nature with respect to the ethical conduct of Department employees.''
The court stated that ``disclosure of grand jury materials to the OIG
constitutes disclosure to `an attorney for the government for use in
the performance of such attorney's duty[.]' '' In re Matters Occurring
Before the Grand Jury Impaneled July 16, 1996, Misc. #39, W.D. Okla.
(June 4, 1998).
Accordingly, there is no principled basis upon which to deny OIG
attorneys the same access as OPR is allowed to review grand jury
materials necessary to carry out its oversight function. Both OPR and
OIG attorneys require access to grand jury materials to fulfill a
supervisory function directed at maintaining the highest standards of
conduct for Department employees who assist the grand jury. As such,
OIG attorneys should also be able to obtain automatic access to matters
that pertain to law enforcement conduct in matters related to the grand
jury within the jurisdiction of the OIG.
B. The OIG is entitled to Receive Grand Jury Materials
Involving Foreign Intelligence Information
Another exception to the general rule of grand jury secrecy allows
an attorney for the government to disclose ``any grand-jury matter
involving foreign intelligence, counterintelligence . . ., or foreign
intelligence information . . . to any Federal law enforcement,
intelligence, protective, immigration, national defense, or national
security official to assist the official receiving the information in
the performance of that official's duties.'' Fed. R. Crim. P.
6(e)(3)(D). This exception was added in 2001 as part of the USA PATRIOT
Act and was designed to enable greater sharing of information among law
enforcement agencies and the intelligence community to enhance the
government's effort to combat terrorism.\7\
---------------------------------------------------------------------------
\7\ Public Law 107-56, Sec. 203(A)(1), 115 Stat. 272, 279-81
(2001).
---------------------------------------------------------------------------
This exception encompasses the OIG's request for the grand jury
materials at issue in its material witness warrant review. The grand
jury proceedings pursuant to which the materials were collected were
all investigations of international terrorist activity conducted in the
wake of the terrorist attacks of September 11, 2001. All of the grand
jury information gathered in them is thus necessarily ``related to,''
``gathered . . . to protect against,'' or ``relates to the ability of
the United States to protect against,'' among other things,
``international terrorist activities.'' See 50 U.S.C. Sec. 401a and
Rule 6(e)(3)(D). All of the grand jury material gathered in those
investigations thus constitutes foreign intelligence, counter
intelligence, or foreign intelligence information (collectively,
Foreign Intelligence Information).
In addition, OIG officials qualify as law enforcement officials
within the meaning of the rule by virtue of the Inspector General's
authority to conduct criminal investigations, apply for search
warrants, make arrests, and investigate violations of civil rights and
civil liberties. See, e.g., 5 U.S.C. App. 3 Sec. 6(e)(1); USA PATRIOT
ACT, Public Law 107-56, Sec. 1001, 115 Stat. 272, 391 (2001). Also, the
OIG's oversight activities constitute law enforcement duties for
purposes of the foreign intelligence exception because they directly
affect the design and implementation of the Department's law
enforcement programs.
The OIG has discussed the access issues with Department leadership
and sought their assistance in resolving the dispute with the FBI.
Although the Department's consideration of all these issues is ongoing,
in July 2011, the Department concluded that, at a minimum, the foreign
intelligence exception authorizes an ``attorney for the government'' to
disclose grand jury information to the OIG for use in connection with
OIG's law enforcement duties, such as the material witness warrant
review, to the extent that the attorney for the government determines
that the grand jury information in question involves foreign
intelligence. Since then, an ``attorney for the government'' in the
Department's National Security Division (a Department component under
review in the Material Witness Warrant review), has been conducting a
page-by-page review of the materials withheld by the FBI to determine
whether they qualify as Foreign Intelligence Information under the
exception before providing them to the OIG. In addition, the FBI has
continued its own page-by-page review of some of the requested files to
identify and redact grand jury and other categories of information,
before the National Security Division attorney performs yet another
review for the purpose of sending the material back to the FBI for the
removal of grand jury foreign intelligence information redactions.
The Department's confirmation that the foreign intelligence
exception is one basis for authorizing the OIG to obtain access to
grand jury information was helpful. However, the page-by-page review of
the material being conducted by the FBI and National Security Division
to implement that decision is unnecessary. In our view, such page-by-
page review is not necessary here because all of the grand jury
material we have sought to date in the material witness review was
collected in investigations of international terrorist activity
conducted in the wake of the terrorist attacks of September 11, 2001,
and thus necessarily falls within the very broad definitions of foreign
intelligence, counterintelligence, or foreign intelligence information.
See 50 U.S.C. Sec. 401a and Rule 6(e)(3)(D). Therefore, the exception
allows the OIG to receive all of the grand jury information from those
investigations.\8\
---------------------------------------------------------------------------
\8\ As noted above, such page-by-page reviews are also improper
because they are contrary to the provisions of the Inspector General
Act granting the OIG broad access to any document or material that is
available to the agency overseen; undermine the independence of the
Inspector General by granting a component under review unilateral
authority to determine what materials the Inspector General receives,
and result in unacceptable delays in the production of materials
necessary for the OIG to conduct its oversight.
---------------------------------------------------------------------------
Although the Department's determination that the OIG is entitled to
access to the requested grand jury information in the material witness
review under the foreign intelligence exception is helpful, that
decision does not resolve the access issue. First, it does not address
access to grand jury material that does not involve foreign
intelligence information. Second, the Department's preliminary decision
under the foreign intelligence exception does not address access to
grand jury material in other OIG reviews. And third, the decision has
been construed by the National Security Division and the FBI to require
page-by-page review of the information, thereby undermining the
independence and timeliness of the OIG's review as described above.
Accordingly, a full decision confirming the OIG's right of access to
grand jury and other information under the Inspector General Act and
the ``attorney for the government'' exception is still necessary to
enable the OIG effectively to carry out its oversight mission.
III. CONCLUSION
The objective and independent oversight mandated by the Inspector
General Act depends on the fundamental principle that the Inspectors
General should have access to the same documents and materials as the
establishments they oversee. This principle explains why the Inspector
General Act grants the IGs access to the documents and materials that
are available to their establishments. It explains why OIG
investigators are routinely granted access to TS/SCI materials when
reviewing TS/SCI programs. It explains why OIG investigators are
routinely read into some of the government's most highly classified and
tightly compartmented programs, such as the President's Surveillance
Program and the programs involved in the Robert Hanssen matter. And it
explains why any instance of unreasonable denial of access to documents
or materials under the Inspector General Act must be reported to the
head of the agency, and why the Attorney General's decision to preclude
an OIG audit, investigation, or subpoena must be reported to Congress.
The FBI's withholding of grand jury and other information is
unsupported in law and contrary to the Inspector General Act and
exceptions to the general rule of grand jury secrecy. The OIG is
entitled to access under the Inspector General Act. Moreover, the OIG
qualifies for two exceptions to the general rule of grand jury secrecy.
See supra; see also 5 U.S.C. App. 3 Sec. 6; Fed. R. Crim. P.
6(e)(3)(D), 6(e)(3)(A)(i). It is true, of course, that under Section 8E
of the Inspector General Act, the Attorney General could deny the OIG
access to the documents at issue, as many of the documents constitute
sensitive information within the scope of that Section. See 5 U.S.C.
App. 3 Sec. 8E. But the Attorney General has not done so, and until he
makes the written determination required in Section 8E(a)(2) and sets
out the reasons for his decision, the OIG is entitled to prompt and
full access to the materials.
Denying the OIG access to the materials it is seeking would also
represent an unnecessary and problematic departure from a working
relationship that has proven highly successful for years. Since its
inception, the OIG has routinely received highly sensitive materials,
including strictly compartmented counterterrorism and
counterintelligence information, classified information owned by other
agencies, and grand jury information, and it has always handled this
information without incident. The OIG has always conducted careful
sensitivity reviews with all concerned individuals and entities, both
inside and outside the Department, prior to any publication of
sensitive information, and it has been entirely reasonable and
cooperative in its negotiations over such publications. The OIG's
access to sensitive materials has never created a security
vulnerability or harmed the Nation's interests; far from it, the OIG's
access to sensitive information has markedly advanced the Nation's
interests by enabling the independent and objective oversight mandated
by Congress.
Simply put, there is no reason, legal or otherwise, to depart from
the time-tested approach of allowing the OIG full and prompt access to
documents and using a thorough prepublication sensitivity review to
safeguard against unauthorized disclosure of the information therein.
Access to grand jury and other sensitive materials is essential to the
OIG's work, perhaps never more so than when the OIG is overseeing such
important national security matters as the Department's use of material
witness warrants and the FBI's use of its Patriot Act authorities. But
whatever the subject matter, the authorities and mandates of the
Inspector General are clear, and neither grand jury secrecy rules nor
any other statutory or internal policy restrictions should be read in a
manner that frustrates or precludes the OIG's ability to fulfill its
mission.
Senator Shelby. But, we want to make sure the Inspector
General can do his job, even in the Justice Department.
Chairwoman Mikulski. Senator Shelby, why don't we, then,
continue this with the Inspector General? And----
Senator Shelby. We will.
Chairwoman Mikulski [continuing]. Given the fact that
there's an 11:30 vote----
Senator Shelby. Okay.
Chairwoman Mikulski [continuing]. We want to be sure
members have a chance to----
Senator Shelby. Thank you for your time.
Chairwoman Mikulski [continuing]. Answer their questions.
No, and not to stifle--this is really crucial----
Senator Shelby. It is.
Chairwoman Mikulski [continuing]. And we acknowledge the
essential nature of this conversation. And we'll, hopefully----
Senator Shelby. Sure.
Chairwoman Mikulski [continuing]. Be able to squeeze in the
Inspector General.
Senator Collins.
Senator Collins. Thank you.
GRANTING ASYLUM
Mr. Attorney General, I mentioned, in my opening remarks,
that the Department of Justice, along with the Department of
Homeland Security, plays a critical role in reviewing claims
for asylum. I believe that this system is seriously broken. It
has allowed individuals to remain in this country under grants
of asylum who never should have been allowed to remain here.
And yet, it takes too long to adjudicate the legitimate cases
of asylum-seekers, thus delaying their ability to work and
support their families, and imposing a huge burden on
communities' general assistance funds while these asylum-
seekers are waiting for their cases to be adjudicated.
I'd like to give you an example of both, and then get your
response and find out what you're doing with the Department of
Homeland Security to improve the system.
Later this month, as we who live in New England are
particularly aware, it will be 1 year since the terrorist
attacks at the Boston Marathon. The circumstances under which
the perpetrators of the Boston Marathon bombing came to be in
the United States underscores the need for reform of our asylum
process. The younger of the two Tsarnaev brothers came to the
U.S. on a tourist visa in 2002, and was granted asylum on his
father's petition shortly thereafter. Now, asylum is supposed
to be available only to those who can show a credible fear of
persecution in their home country. Yet, the elder Tsarnaev came
to the United States, leaving behind his wife and three other
children in the country that he claimed to fear. So, it's
difficult for me to understand how he possibly could have met
the burden of proving a credible fear of persecution by the
country in which he left his wife and remaining children.
Even more troubling are the questions surrounding the grant
of asylum to Ibragim Todashev. That is the Chechen immigrant
who was killed while being questioned by the FBI agents and
local law enforcement regarding his association with the
Tsarnaevs and also a triple homicide. It turns out that he came
to the U.S. in 2008 on a J-1 visa to participate in an exchange
program that was sponsored by an entity in my State, the
Council on International Education Exchange. And that is a J-1
visa sponsor organization.
Now, from the start, it appears that Todashev had no
intention of complying with the J-1 visa rules. And indeed,
shortly after he arrived, the Council withdrew their
sponsorship of him because he failed to provide the required
documentation with respect to employment. That very day, the
Council in Maine instructed him to make immediate plans to
leave the country, recorded the information on the Federal
database that is used. And yet, despite this agency doing
everything correct, and despite the fact that Mr. Todashev was
out of compliance with the requirements of his visa, he was
later granted asylum and even a green card. This shocked the
entity in Maine that reported him from being out of compliance
with the visa years ago.
I find this very troubling. How is that a young man from
Chechnya comes to the United States to participate in a
cultural exchange program, immediately violates the conditions
of his visa, is told to leave the country, and then is granted
asylum? That, to me, shows there's a real problem with sharing
of information and with the system.
Now, on the other side, we have the problem of legitimate
asylum-seekers, and they have been forced to rely on local
governments for the money that they need to live on. In Maine,
for example, the cities of Portland and Lewiston, alone, have
contributed $10 million from their general assistance programs
to support nearly 4,000 asylum-seekers and their families over
the past 2 and a half years while they're awaiting the
adjudicating of their claims to give them a work authorization.
So, we've got problems on both ends of the spectrum, which
suggests to me that the entire system is broken. What is the
Department of Justice doing to work with the Department of
Homeland Security to solve these very serious problems?
Attorney General Holder. Well, the responsibility for the
immigration system, I think, largely falls into the hands of
DHS, but that is not to try to shirk the responsibility that
the Justice Department has. We simply need more immigration
judges. The number of cases that have been pending has
continued to increase, an increase of 56 percent since 2009.
Our budget request will enable EOIR, our EOIR, immigration
component, to add 35 new immigration judge teams. That would
increase our capacity to look at these cases, adjudicate them
in an appropriate way, listen to the evidence, and make
decisions that are based on the facts as they are actually
developed. We simply don't have, at this point, the ability to
do the job in as timely a way as I think we should have that
ability to do.
Senator Collins. Well, I support your request for
additional resources, but, frankly, if those judges aren't
looking at the databases and aren't looking at the information
from DHS, consulting with the Department of State on whether
there should be a credible fear of prosecution, looking at
whether there are violations of visas, adding more judges won't
solve the problem. I think we need to do both.
Thank you, Madam Chairman.
Chairwoman Mikulski. That was an eye opener. Thank you very
much. It was very meaty. And it also shows, when we do
immigration reform, we have to look at these practical
implementations at the local level. What Maine is paying is
stunning.
Senator Shaheen.
Senator Shaheen. Thank you, Madam Chairman.
Mr. Attorney General----
Attorney General Holder. Good morning.
Senator Shaheen [continuing]. Thank you very much for being
here.
HEROIN AND PRESCRIPTION DRUG ABUSE
As I'm sure you're aware, what we've seen in New Hampshire
and northern New England is a real epidemic spread of heroin
and prescription drug opioid use. And we're seeing that very
much in New Hampshire over the last 10 years. The number of
people admitted to State treatment programs has increased 90
percent for heroin use and 500 percent for prescription drug
use. And, just in the last year, we've seen double the number
of deaths from heroin abuse between 2012 and 2013.
Now, this summer, New Hampshire plans to institute a new
prescription drug monitoring program in the State because of a
Department of Justice grant that we have received. And I wonder
if you could comment on how effective these types of monitoring
programs have been in other parts of the country, and what
other Federal resources might be available to help us in the
States as we try and combat this real epidemic of heroin and
prescription drug use?
Attorney General Holder. Well, Senator, I think you're
correct to point out--and the term that's used, I think, is a
correct one, there is an epidemic. It is one that we certainly
see in your State, in that region of the country, but it's
something that we see nationwide. And I think we have to have a
balanced approach to dealing with this. There has to be an
enforcement component. The DEA will lead that. We have an
increase of more than 320 percent, between 2008 and 2013, in
the amount of heroin that we have taken from the cartels that
was meant for our shores.
But, beyond that, enforcement alone is not enough. We have
to also make sure that we identify this problem as a public
health problem. Police officers, doctors, educators. We have to
come up with treatment programs, prevention programs, and
educational programs.
I don't think that we should repeat the mistake, frankly,
that we made when we dealt with the crack epidemic, where we
looked at it only as an enforcement issue. There has to be an
enforcement component, but we have to bring into play all of
these other resources that we have, including supporting the
programs that you have described, these monitoring programs. It
is why I think it is so important that our capacity to aid our
State and local partners be made whole in our budget. These are
issues that the Federal Government clearly has an interest in,
but, on the ground, it's our State and local partners who have
to do these kinds of things. And I want to have the ability,
through our grant making ability, to support these efforts.
DRUG MONITORING
Senator Shaheen. Well, thank you. And obviously the Byrne
Justice grants have been very helpful to us in New Hampshire,
and there has been a real coordinated effort on the part of law
enforcement. I would hope that you might consider sending
someone up from the Justice Department to meet with our local
law enforcement officials as we try and address this issue,
because, as you point out, it's going to require a multilevel
approach to really do something to make a difference as we look
at how many people are being affected.
Can you talk a little bit about some of the other efforts
the Department has undertaken to better integrate these kinds
of strategies, other than--we know the Byrne grants are very
helpful, we know that the monitoring programs are another way
to try and address it. What else is the Department doing that
can be helpful to States like New Hampshire?
Attorney General Holder. Well, we certainly have a variety
of things. I mean, we have a great U.S. Attorney in New
Hampshire. And so, there is----
Senator Shaheen. Who's doing a great job, I might add.
Attorney General Holder [continuing]. And so, there is
certainly the help that we can give on the enforcement side
there.
With regard to grants, I think that's certainly something
that we want to consider. We have the COPS program, so that we
have the ability to put more police officers on the ground,
again, to deal with these kinds of issues. We also want to come
up, I think, with programs that we work with the Department of
Health and Human Services, as the Chair had suggested. This has
to be something that is more than simply a Justice Department
initiative. And I think that we have the ability now to really
potentially nip this in the bud. But, I think that we have a
relatively small window before this potentially gets even more
out of control than it is.
And I think, as I said, if we take a balanced approach
involving agencies beyond the Justice Department making sure
that we are supportive of our State and local partners, and so
that we educate, and especially educate young people, about the
dangers of prescription drug use, opioid use, and the problem
with heroin use, I think that we can really have a significant
impact on this problem.
Senator Shaheen. Thank you.
Thank you, Madam Chair.
Chairwoman Mikulski. Senator Shaheen, we thank you for
raising the issue here. We--also, others have raised it. I hear
it, too. We've asked the Attorney General to really take the
lead in interagency, because we've got to go to--starting with
the prescription drug issue up to this. So, thanks.
And I say to my members here that, as the Attorney General
develops a strategy, we can arrange a staff briefing to get
updates and make sure we put this in.
Senator Kirk, a well-known anti-gang fighter.
GANGS
Senator Kirk. I wanted to ask you, Mr. Attorney General,
about the $18 and a half million that this subcommittee has
approved to fight gangs of national significance to also
highlight the work of Anita Alvarez, the State's Attorney for
Cook County, that took down an entire gang, called the Black
Souls, at one shot with using resources from your Department. I
would say that's a very good model that the public can get
behind, taking out a whole gang. I would say that this was not
one of the vast gangs--like we have the Gangster Disciples,
over 18,000 members. There were 23 defendants, in the case of
the Black Souls arrest in June.
GANGS OF NATIONAL SIGNIFICANCE
I would just highlight that issue as a way of attacking
this problem. We do have about 253 factions of the GDs in
Chicagoland. If we can execute the $18-and-a-half-million
strategy to whack a number of those factions and totally
eliminate them, that you will have a lot of support from this
subcommittee.
Attorney General Holder. Well, I certainly appreciate that,
Senator. I think you're right to identify that as a challenge
that we have to meet. You know, Chicago, I think, in some ways,
gets an unfair rap. This is not a problem that is Chicago only.
This is a problem that exists throughout the country, this
problem of gangs. Our Marshal Service plans to hire gang and
technical operation group investigators in seven regional
fugitive task forces. And we've begun that process, because we
understand this is a problem that is really nationwide in
scope. And the effort that you described, where you take down
significant numbers of these gang members at one time, can
really tend to cripple them. And so, we're looking to make
those kinds of cases.
We want to be strategic in the way in which we use the
resources that we have. But, the reality is, unless we get at
this gang problem, we won't get at what I think is really the
root of our violence problem in too many of our cities. And,
you know, as I said, it's just not Chicago, it goes well beyond
Chicago.
Senator Kirk. Yes. And----
Madam Chairwoman.
Chairwoman Mikulski. And, Senator Kirk, we want to continue
the effort that you so ably undertook, and keep this going.
You're onto something big, here, and we think it's crucial.
Senator Kirk. Thank you.
Chairwoman Mikulski. Senator Merkley.
FINANCIAL FRAUD
Senator Merkley. Thank you, Madam Chair. And thank you.
About a year ago, you set off a bit of a firestorm when you
noted that one of the reasons that certain companies couldn't
be prosecuted is because of the economic impact of potential
indictments. And later, you backed off that a little bit. But,
the general point continues to resonate that there have been a
host of dramatic activities. It seems like every 3 months, we
have another major scandal, and these scandals involve
wrongdoing; and often at the heart of it is criminal
wrongdoing, but largely the institution ends up paying a fine
and everyone goes back to business as usual.
I'm just kind of stunned by the list of things that have
happened during the time that I've been in the Senate. We have
offshore tax evasion by international banks, we have the
manipulation of the LIBOR interest index, we have structured
mortgage-backed securities that were designed to fail, we have
foreclosure fraud, including robo-signing. We have the
laundering, of which, I think, the premier example was Hong
Kong Shanghai Bank Corporation, of what was estimated to be
hundreds of billions of dollars, possibly a trillion dollars,
and there were laundering activities that involved terrorist
activities, drug rings, they involved transactions, the
proceeds of transactions with states where we have economic
sanctions that are very important to our national security,
like our relationship with Iran, and trying to prevent Iran
from having a nuclear weapon. We have the manipulation of
electricity prices in an Enron-style scheme. I mean, it just--
the list goes on.
INDICTING CORPORATIONS
Have we reached a different point now? Have we successfully
tackled the issue of ``too big to fail'' and its close cousin,
which is more in your realm, of ``too big to jail''?
Attorney General Holder. Well, what I'd say is, first, that
there might have been some misinterpretation, misunderstanding
about what I said. So, I wouldn't say that I necessarily pulled
back from what I said in that initial statement. Maybe I
clarified it. But, let me be very clear. No institution is too
big, no person is too important, to be held accountable in a
criminal sense, if that is appropriate.
And if you look at what we have done, beginning in 2013,
and look at the guilty pleas we've gotten from financial
industries--UBS, RBS, SAC Capital, Wegland, a Swiss bank; if
you look at individuals, we've gotten individuals from
JPMorgan, Goldman Sachs, Morgan Stanley, Credit Suisse, UBS,
Rabobank, ICAP, Galleon, SAC, Stanford Financial Group. So, we
have gotten pleas, both from institutions and from individuals.
We've also done creative and, I think, appropriate things--
appropriately aggressive things with regard to our use of the
civil law, as well.
I am proud of what this Department has done in holding
accountable people who were partially responsible for the
mortgage meltdown that led to our financial crisis, and other
things that we have done in the financial realm. This
Department's record, under my leadership, will, I think, stand
the test of time. And I'll compare it to any other Justice
Department, any other Attorney General, at any other time.
Senator Merkley. So, you would say there is no hesitation
to pursue criminal charges because of the potential impact on
an institution? I mean, Arthur Andersen was the example so
often put forward. And certainly a large bank falling would
have big reverberations. We all understand that, and that's
been the dilemma. But, are you saying, today, that dilemma
doesn't exist and it's not weighed at all by the Justice
Department?
Attorney General Holder. There are factors that we
considered. There was a process that was begun under a Deputy
Attorney General named Holder, back in the Clinton
administration, where we put out a certain number of factors
that have to be considered before a determination is made about
when an institution is criminally prosecuted.
If you go after an organization, and you put that
organization out of business as a result of the indictment,
that is something that I think you should appropriately
consider. There are innocent people who then get punished--
potentially, employees, shareholders. Doesn't mean that you
shouldn't--you might have to make the determination that
because the company is a recidivist or the harm is so great
that that is, in fact, the price that innocent people will have
to pay.
But, these are the kinds of things that we have to
consider. And I think our track record shows that, where we
have made the determination that people and institutions should
be held accountable, we have not hesitated in doing so.
Senator Merkley. Well, I'll close with this. I think what
really stuck in my mind is that, the same week that the
settlement came out with HSBC, which, I may be wrong, but I
don't think involved any individuals being prosecuted--that
same week, there was a story about a woman whose boyfriend
stashed his drug money in a coffee can in her attic. And, if I
recall right, I think she is serving 15 years in prison. And
so, one involved a few dollars, the other hundreds of billions
of dollars. And it just seemed like the sort of thing that
sticks in people's minds as to whether the justice system is
not weighted heavily in favor of the powerful. And I just want
to encourage you to do all you can--and I understand that often
it makes sense when individuals are involved, to go after the
individuals rather than the institution, for the reasons we're
discussing. But, it's important to our system in the United
States that the powerful don't pay a fine while the ordinary
person goes to prison.
Attorney General Holder. Senator, you make an excellent
point----
Chairwoman Mikulski. Thank you very much. Thank you.
Attorney General Holder. I was just going to say this. One
of the reasons why our Smart on Crime initiative has at its
base the notion that there has to be proportionality in regard
to how we enforce the criminal law. And so, what I'm trying to
do is work with Congress so that we put some sense of balance
back into the system that has gotten a little out of balance.
But, the concerns that you raise are very legitimate ones.
Chairwoman Mikulski. Thank you very much, Senator Merkley.
Senator Murkowski.
DRUGS
Senator Murkowski. Thank you, Madam Chairman. Madam
Chairman, you have raised, as well as Senator Shaheen, the
issue of apparent heroin and what we need to do as we move
forward. And you've used the terminology that we need to be on
the edge of our chair when it comes to issues like heroin.
I would suggest, also--and I present this to you, Mr.
Attorney General--that we are seeing an increasing level of
synthetic drugs that are coming into our communities and doing
great damage. And, of course, the problem is that, as a State,
you can say that, based on this formulary, this is a drug under
this schedule, but all these individuals have to do is change
that formulary, and they evade or avoid those laws. We're
seeing some really devastating impact in some of our very, very
remote communities, where the only way to get these drugs is by
the mail. And the drugs are coming into the community through
the mail, and----
Chairwoman Mikulski. Through the Post Office?
Senator Murkowski. Through the United States Post Office,
Madam Chairman.
Attorney General Holder. Yes.
Senator Murkowski. And it is--it's something that we've
been trying to work on some issues up north, but, again, we're
seeing--I don't know whether we call it an epidemic, a crisis,
but we are being beat on these issues and the impact to our
communities, again, utilizing legal processes to get these
drugs in there that are, in many cases, wiping out families.
So----
Attorney General Holder. Well, Senator----
Senator Murkowski [continuing]. We need some assistance,
here.
Attorney General Holder. Senator, you've raised something
that I think is a point that we really need to focus on. And I
had the same reaction that the Chair did when I first heard
about this. But, you're right, the Postal Service, the mail, is
being used to facilitate drug dealing. We need to work with the
Postal Service to come up with ways in which we get at that
problem. It is shocking to see the amount of drugs that get
pumped into communities all around this country through our
mail system. And we have to deal with that. That's a major
problem that we have to deal with.
Senator Murkowski. It is major. We need to be talking
further about this. I've got some ideas, but we need to get on
it yesterday.
PROSECUTION OF SENATOR STEVENS
Mr. Attorney General, as you know, I continue to seek
further answers in the miserable prosecution that brought
Senator Ted Stevens down. We had the FBI Director, Mr. Comey,
before the committee last week. He indicated, at that time, to
me that the FBI agent who had brought about this whole issue,
that he had been severely disciplined. He--the investigation
came under scrutiny, he was severely disciplined. He didn't
indicate what that was. And I think we all know there may be
varying degrees of--what might be severe discipline to one is a
slap on the wrist to another. Can you shed any light on the
status of that individual, whether he's still working for the
FBI? If so, in what capacity? I have requested from Mr. Comey a
copy of the report to be submitted here to the subcommittee so
we can further review it. But, it is important that we
understand what happened.
Attorney General Holder. Yes. I'll support that effort to
make sure that you get that information with regard to the FBI
agent. There also were two prosecutors, two lawyers, who were
found to have acted inappropriately. They have been sanctioned.
They have appealed the penalties that we sought to impose. And
their appeals are now presently pending before the Merit
Systems Protection Board. Once that body makes its
determination, we'd be more than glad to share with you--I
think that's appropriate--to share with you what the Board
decides to do with those lawyers. But, we imposed sanctions
against those lawyers, and that is now--as I said, that has
been appealed to the MSPB.
Senator Murkowski. And so, they're still working with the
FBI?
Attorney General Holder. I'm talking about the lawyers. The
lawyers are still at--still at----
Senator Murkowski. Excuse me. With Department of Justice.
Attorney General Holder. They're still at the Department,
yes.
Senator Murkowski. So, I--again, I would suggest, you know,
Is this really harsh discipline?
Let me inquire further in this area. Last year, I
introduced the Fairness in Disclosure of Evidence Act, and what
we're attempting to do is ensure that the obligation to
disclose the exculpatory evidence to Federal defendants, in
accordance with Brady rules, is uniformly applied across the
districts. I think we saw, in the Stevens case, that this was
part of the problem. This bill was endorsed by broad spectrum
of folks, but, at the end of the day, apparently was
unacceptable to the Department. And yet, there was no real
assistance or guidance, in terms of what was not acceptable to
the Department.
So, what I would ask of you--I mean, I can keep trying to
write bills on this. I'm not going to give up. I think that
this is too important. But, if you would be willing to work
with us to determine what might be acceptable, in terms of
those parameters--because, again, I think, when we lack
uniformity with regards to these--this obligation to disclose
this evidence, you're going to get outcomes that will not only
be upsetting, but are difficult, then, to defend from within
your Department.
So, if you would give me some assurance that we can be
working with you to try to better define this, I'd appreciate
it.
Attorney General Holder. Well, certainly we want to work
with you and certainly maybe make available to you, or aware
of, the training that we do in the Department. There----
Senator Murkowski. We've been told about the training. But,
again, you've got--you don't have uniformity across the
districts. And so, if you're--if you've got training going on
over here, and you focus in one area, and the application is
different than we have over there, it doesn't achieve the same
end result.
Attorney General Holder. Yes. And that's something we've
tried to eradicate through this training so that there is one
person in every office, every U.S. Attorneys' Office--at least
one--who can be seen as almost an ethics guru, a person to whom
you can go if you have a question about what materials should
be turned over. And we also try to make sure that every
prosecutor understands his or her obligations under what is
clear Supreme Court law, as defined in Brady and in subsequent
cases.
I think that the problems that were identified in the
Senator Stevens case, and which I think justified my decision
to dismiss the case, are not typical of what happens with
Federal prosecutors around this country who, in millions of
cases, making millions of decisions, are complying with their
Brady and other ethical obligations.
And I think there's a danger that we paint with too broad a
brush the really terrible experience that we had in Stevens,
and blame other people, other prosecutors who have not done
anything improper, inappropriately, and they are seen in the
same light.
So, I'd be more than glad to work with you and talk to you
about this issue, and try to come up with a way in which we can
satisfy you that we are doing a good job. And if there are
suggestions that you have about ways in which we can do this
better, I'd be more than glad to sit down and talk to you and
work with you in that regard.
Senator Murkowski. Thank you, Madam Chairman.
Chairwoman Mikulski. Senator Landrieu.
Senator, before you begin, I want to advise the committee
that the votes at 11:30 a.m., have been postponed to late this
afternoon, now pending at approximately 4:30. Who knows.
Senator Landrieu.
SAFETY OF CORRECTIONAL OFFICERS
Senator Landrieu. Thank you, Attorney General Holder, for
your service. And thank you, Madam Chair, for your leadership.
I have three questions. One of them is about the safety of
our corrections officers in some of our high-security Federal
prisons. As you know, one of the challenges that the Chairwoman
of this committee has taken up, and the Nation is focused on,
is the overcrowding of our prisons, the per-capita--you know,
the per-capita statistics about the number of people in prison
in the U.S. We've had discussions about this, this morning. We
need to change our policies, we need to provide additional
resources. But, I want to focus specifically on the safety of
our corrections officers.
You may be aware that in Louisiana we had one of our
corrections officers brutally----
Attorney General Holder. Right.
Senator Landrieu [continuing]. Brutally beaten and stabbed.
He, because of the rules of the Department of Justice and the
staffing requirements, was on a floor, Madam Chair, with 100
prisoners out of their cells, and there was one security
officer.
PRISON STAFFING
Now, in the letter that I wrote to you, and you responded,
one of the responses--part of the response was that you all had
provided pepper spray for some of these officers. Now, I'm not
sure how effective pepper spray is going to be, Mr. Secretary,
in the hands of one officer with 100 prisoners out of their
cells.
So, the budget request to help upgrade the security for
these officers was $79 million. It was not submitted in your
budget. There are other priorities, I understand. But, did
you--did this come up to you? Did it come to a lower level of
decision about the allocation of resources to protect these
officers that we're asking to do pretty dangerous jobs in
pretty dangerous situations? And would you reconsider?
Attorney General Holder. Well, the concerns you've raised
are very legitimate, Senator. And what we're trying to do is
work at this from two angles:
First, to work with the union. We have a different
relationship with the new leadership of the union, a new
director of the Bureau of Prisons, and I think we have made
really substantial progress in that relationship. It is not as
antagonistic as it once was. And, I think, through that
relationship and through the interaction that they're going to
have, I think we'll do better.
We're also prioritizing the filling of staff positions. The
fiscal year 2015 request supports the hiring of 4300 new
officers that were included in our 2014 enacted appropriation.
We need, simply, more bodies, and that is why we are
prioritizing filling staff positions, so that we have more
people there, in addition to whatever else that we're doing
with the union.
Senator Landrieu. Okay. Well, I would appreciate your
continued focus on that. The prison in Pollock is this
particular situation, but I understand there have been
literally dozens, if not, you know, hundreds, of incidents of
attacks against correctional officers. And, while we do want to
focus on the safety of the prisoners, which is important, as
well, we really want to focus on the safety of the men and
women in uniform doing their job to keep order in the prison
and in our country.
TRANSITION TECHNICAL ASSISTANCE PROVIDERS
My second question is about domestic violence. It's
something that the Chairman and I have supported, and many
members of this committee, literally for years and years.
There's some kind of new provision that you all are encouraging
in the budget called ``transition officers''--I'm sorry,
``technical assistance providers'' to the domestic violence
shelters around the country. I've been hearing some complaints
about that from my network of--that I trust; in and out of
administrations, Republican and Democrat, they've been very,
very good to do this work. They're saying that some of these
transition technical assistance providers come in without a lot
of knowledge about what's actually happening on the ground in
our regions and in our cities. I'm encouraged that your budget
includes 423 million to reinforce efforts to combat domestic
violence. We rank, Louisiana, one of the top States,
unfortunately, for domestic violence in the country.
But, can you comment about this office, this new
contractual arrangement with technical assistance providers?
What are they supposed to be doing, and why are they needed?
Attorney General Holder. Well, I'll be very honest with
you, I'm not familiar with the complaints that you have raised.
And perhaps our staffs can get together and we can get some
more specifics about the complaints that have been raised so
that we can examine who these people are and what the nature of
the problems might be.
We have an Office on Violence Against Women budget request
of $423 million, and this whole notion of combating domestic
violence, sexual assaults, and violence against women
generally, is a priority for this Justice Department, and it
has been a priority of mine throughout my career. To the extent
that there are issues in the way in which we are using all--
those resources, I'd----
Senator Landrieu. Well, I would----
Attorney General Holder [continuing]. Like to spend some
more time with you --
Senator Landrieu [continuing]. Appreciate that, because I
know it's been a priority, and I want to commend you and the
President for your emphasis on it. But, that's what worries me,
when this came up. So, I'll follow----
And, Ms.--Madam Chairman, I'm just going to submit this
question to the record.
The New Orleans Police Department entered into a consent
decree with your office. There doesn't seem to have--they don't
have the review that was required yet. My question, in writing,
What is causing the delay? And what process are you using to
review the NOPD Justice? And I'll submit that in----
[Note: See response to Senator Landrieu's question in the
``Additional Committee Questions'' at the end of the hearing.]
Attorney General Holder. Okay.
Senator Landrieu [continuing]. Writing.
Attorney General Holder. Thank you.
Chairwoman Mikulski. Senator, that was excellent.
Senator Boozman, you've been very patient.
Senator Boozman. Thank you, Madam Chair, as always.
And thank you for being here.
I was looking--when you look back 15 years ago, the Bureau
of Prisons' enacted budget was $3.1 billion. I think this year
we're asking for--fiscal year is $6.9 billion, which I'm very
supportive of. Senator Landrieu has outlined some of the
problems that we have. I've had the opportunity to visit some
prisons, and see that there are really difficult situations.
The problem is--right now, it's taking up 25 percent of your
budget--as opposed to, not too long ago, just 16 percent. So,
we've got to do something to bend the cost curve.
DRUG COURTS
One of the things that I'm being supportive of, very
interested in, is drug courts. And a GAO study in 2011
confirmed that drug courts reduce crime by up to 58 percent.
The best drug courts cut crime rates in half, return $27 to
their communities for every $1 invested.
The other thing is, when people go off to prison, usually
they're working, and help to support the family----
Attorney General Holder. Right.
Senator Boozman [continuing]. So you leave the family
destitute.
So, I would really encourage us to look at that. I think
it's something--to me, it's just a no-brainer. We don't do a
good job of supporting at the Federal level, our States aren't
doing a good job of it. We do need to look and make sure that--
I say the good drug courts are returning that----we do need to
have standards and make sure that they're doing things
appropriately. But, again, if you could look at that, and I
know that you are interested in, it's something that we can get
done.
The other thing I'm really concerned about as has been
mentioned on several occasions today, is the prescription drug
problem. Now, we don't want to put meth on the back burner,
which it seems to be done a little bit, because, when I talk to
our sheriffs--though it might not be used as much, it's the
cause of the violent crime. It's the--when you look at who's in
prison, you've got all these people using different things, but
the people that are actually in prison causing violent crimes
are meth-related. So, there's just something about that drug
that totally rewires your system.
But, in regard to the prescription drug problem, I really
do wish you'd get a task force together. This is something that
the CDC needs to be involved, the NIH and research, our
prescribers--there's no good data as to how addictive this
stuff is. And so, it's being overprescribed. We need to educate
the prescribers more than we need to educate the individuals
that are doing it.
We all have these drug take-back days. You can go into some
little community, and they have a drug take-back, and there'll
be pounds and pounds of this stuff that come in. These are the
good people, that actually go to the trouble to drop it off. As
I visit with my sheriffs, going to the rehab centers and asking
them where they're getting it, many of the people that got
their prescription drug pills through the mail or whatever, it
was sold to them through senior citizens that are supplementing
their Social Security. The VA's been terrible about this, and
they're doing a better job. You know, we're staying after----
So, I guess what I would really encourage, we really need
to get all of those groups together. Prescribing is a huge
issue. We need to get really aggressive. I think that--my
understanding is that probably the leading cause of accidental
death in young people now is----
Attorney General Holder. Drugs.
Senator Boozman [continuing]. Prescription drugs and
alcohol. If we had the same sort of casualty rate overseas,
with young people dying as a result of some sort of situation
we were in, as far as a war, there would be a tremendous
uproar.
But--I've gone on too long, but if you would just consider
those things, I think we can actually do some good.
Attorney General Holder. Well, Senator, I actually think
that you didn't go on too long, because I think what you've
talked about is extremely important. The use of drug courts is
extremely important. About a third of our budget now is taken
up by expenses connected to the Bureau of Prisons. And we
certainly have to do all that we can to keep people who work in
our prisons safe. But, if a third of the budget, and
increasingly more of the budget, is going to the Bureau of
Prisons, that's fewer prosecutors that we can hire, fewer
agents who we can put out on the streets. And drug courts are a
way in which we can handle these kinds of problems in a way
that's more cost-effective, reduce the prison population, and
that has all kinds of benefits that flow from it.
We have focused on heroin here today, but your focus on
meth is exactly right. This continues to be a problem that is
directly connected, for whatever reason--pharmacological, I'm
not sure--with violence. And we cannot lose sight of that
problem, as well.
So, the approaches that you are talking about, I think make
a great deal of sense and are consistent with the approaches
that we are trying to push as part of the Smart on Crime
initiative, where we are looking at new, innovative ways--
evidenced-based ways in which we can deal with these issues.
Strong enforcement--we're not giving up on that at all--but
also looking at ways in which we deal with these drug problems
in new ways, through, for instance, as you describe, drug
courts, which I think have a great record, if done well, of
turning people around, getting them off their habits, and
cutting the recidivism rates, which ultimately saves us money.
Senator Boozman. Thank you, Madam Chair.
Chairwoman Mikulski. I'm turning to Senator Leahy, who
spoke to me about the heroin problem and has continued to speak
in a very forceful way.
And you can hear where we are here, Mr. Attorney General.
Senator Boozman has really outlined how, in some ways, the
Federal Government are enablers, from the Post Office to the
VA, giving drugs to one group, et cetera. And we've got--this
is where the Interagency Task Force needs to happen, and I
think sooner rather than later.
Senator Leahy, I know you've spoken on this, and, of
course, you're the chair of our Judiciary Committee. We're
eager to hear your questions and, again, your----
Senator Leahy. Well, I----
Chairwoman Mikulski [continuing]. Expertise in this area.
Senator Leahy. Madam Chair, I appreciate what you've said
and what Senator Shaheen said earlier about what I've been
doing up in Vermont. The Attorney General and I have known each
other for a long time, long before he was Attorney General.
We've talked about this a great deal.
DRUGS
I saw the article, the other day on the front page of the
Post, about where they've tried to--I guess this was in New
Jersey--have a program set up so that if somebody is having an
overdose and one of the people with the person can call for
medical help without being arrested----
Attorney General Holder. Right.
Senator Leahy [continuing]. Themselves. We actually did
this in a thing called The Place, in Burlington, Vermont, for 7
or 8 years, back in the late '60s and early '70s, because, as
chief law enforcement officer of that county, I could put it
off limits. The police agreed with me on that. Somebody could
come in, having an overdose, their friends could come in. They
just had to empty their pockets of any drugs they had, but
nobody would follow up the record. We had young interns and
residents at the medical school who volunteered their time to
be there, one of whom is now a very noted surgeon in this area.
So, I appreciate what you said. And Senator Shaheen and
Senator Boozman and I have talked about this before.
Also, just my--and--well, this is not the issue here
today--Senator Murkowski talked about the Senator Stevens case.
Just so it doesn't appear to be partisan, I totally agree with
her. And you and I discussed that. I applauded your decision to
dismiss that case. It should not have been handled the way it
was. And I agree with that.
On a happier note, when the Justice Department arrested
Sulaiman Abu Ghaith, Osama bin Laden's son-in-law, you received
a huge amount of criticism because you had read him his Miranda
rights and did not bring him straight to Guantanamo so he might
face a military commission and instead you said that America's
strong enough, we can use our courts, the best in the world,
and brought him to New York. And he was convicted--in fact, I'd
much rather be the prosecutor in that case than the defense
attorney--and demonstrated that--I think we've had three or
four convictions in the military tribunals, we've had several
hundred in our Federal courts. So, thank you for doing that. It
proved that--proved to the rest of the world, we use our
system, it works. And you got a good conviction there. So, I
commend you on that.
In Burlington, Vermont, we've implemented a community
impact team approach, law enforcement tools for targeting drug
traffickers, but also steering addicts to treatment. I would
urge you and the Department to continue helping local and State
governments in these kinds of programs.
Attorney General Holder. Well, that is certainly our
intention. It is interesting, I'd like to hear more about The
Place and see how that worked. Those are the kinds of locally
based, innovative kinds of things that we want to identify. If
the evidence shows that they are effective, we want to try to
support it. And that's why I think the grant making function of
the Justice Department can be so important.
We are working, as best we can, to deal with this epidemic
of heroin, the continuing problem of meth. Drugs continue to be
a problem for this Nation. The connection between drugs and
violence is inescapable. The number of people who are on drugs
or have drug-related crimes who are in our prisons is still
exceedingly high. And no one should take from this Smart on
Crime initiative any sense that we are retreating from our
enforcement responsibilities in that regard. All we're trying
to do is to come up with ways in which we can be more effective
and ultimately knock down the recidivism rate by dealing with
people who have drug problems that tend to breed crime.
Senator Leahy. Well, your excellent U.S. Attorney in
Vermont, Tris Coffin, has worked with the local and State, and
that's been very helpful, to have the Justice Department so
involved.
I--in that regard, I know the Office of Juvenile Justice
and Delinquency Prevention, we've mentioned, has indicated an
intention to change eligibility requirements for grantees on a
national mentoring program by requiring they have a presence in
just 30 States rather than the current requirement they serve
at least 45 States. Obviously, when you're representing the
second-smallest State in the country, I worry--are you going to
give priority to national programs that have shown a proven
capacity?
Attorney General Holder. Yes, we certainly want to
support--again, what we want to do is try different things.
And, for those things that the evidence shows work, we want to
support those. And, to the extent that you have a concern about
OJJDP's perhaps pulling back, that's something I'd like to talk
to you about, or our staffs could talk about, because I don't
want size to be the prime determinant as to how we are
apportioning our funds or how we're using our grant making
capability. We want to make sure that, in large cities and in
small towns, to the extent that we can, a positive Justice
Department presence is there.
IMMIGRATION COURTS
Senator Leahy. And lastly, if I just might note, Madam
Chair, the Nation's immigration courts are understaffed--you've
got 32 vacancies, nearly half of the 200 immigration judges
eligible for retirement, pending caseload has grown by 50
percent. You've requested $17 million to support an additional
35 immigration judges to help process the backlog of over
350,000 cases. Is this a priority? Because I really worry that
we're going to reach such a tipping point that justice will
just be totally denied.
Attorney General Holder. Yes. It is a priority. We have
made a specific request for those 35 immigration judge teams.
We think that that would have the potential to reduce a
caseload, I think, of between 20- and 35,000 cases. We have to
get at the backlog that exists. We can do that, I think, by
coming up with innovative procedures and processes. But, I
think, at base, we just simply need more immigration judges,
and that's why we have included in our fiscal year 2015 request
those additional funds for those additional teams.
Senator Leahy. Thank you very much.
Thank you, Madam Chair.
Chairwoman Mikulski. And, Senator Leahy, we're sharing with
the Attorney General your idea on how to look at cops on the
beat involved in heroin, as well as the interagency.
Senator Graham.
Senator Graham. Thank you, Madam Chairman.
SEX TRAFFICKING
My Reserve unit last night got a briefing from the FBI
about 69 task forces that are dealing with crimes of sex
trafficking, exploitation of young women, in particular. And I
was just really impressed with what I saw. So, I want to come
visit and see how can we maximize that. I think the committee
would be astonished as to what's going on out there. At least I
was, I'll just speak for myself. And I just want to commend you
on that program.
EFFECTS OF SEQUESTRATION
So, tell us, if you could--in 2016, sequestration kicks
back in. Could you walk through, fairly quickly, what does it
mean to your Department, future Attorney Generals, to be able
to protect this Nation if sequestration is fully implemented,
going forward?
Attorney General Holder. I can tell you that it will have a
devastating impact, as it did over the course of the last
couple of years. Since I put into effect a hiring freeze, I
guess 3 years or so ago, we lost about 4,000 people, in total,
in the Justice Department--about 1,470 attorneys and support
staff, 900 attorneys and support staff. We lost 6 percent of
the roughly 10,000 lawyers in the Department. The FBI lost over
900 agents, analysts, and other staff. DEA lost 700; ATF, 500;
United States Marshals, 300.
Those are pretty daunting numbers, and you can't expect the
Justice Department to do the job that the American people want
us to do, and that we want to do, if we are faced with that
kind of issue again.
I would not wish this upon any of my successors.
Senator Graham. And it gets worse over time, right?
Attorney General Holder. Absolutely. We have in place now a
budget for the next 2 years that will, I think, help us make up
some of the lost ground. But, unless we have, in 2016, a
realistic budget that deals with the need--we can't have
another flat budget, and we certainly can't go to
sequestration--unless we have a budget that increases the
amount of money that goes to the Justice Department, we're
going to find ourselves in the same place. And, at the end of
the day, it's going to have at some point, an effect on
performance. It simply will.
Senator Graham. We'll be less safe as a Nation?
Attorney General Holder. I think that's absolutely right.
TERRORISM
Senator Graham. Do you agree with me that we're still
involved in a war against radical Islam, for lack of a better
definition?
Attorney General Holder. For lack of a better definition, I
would agree with that, yes.
Senator Graham. Okay. And homegrown terrorism is a threat
that we have to deal with now? It's probably growing.
Attorney General Holder. Absolutely, and it's----
Senator Graham. So, our----
Attorney General Holder. It is growing. That is the one
that keeps me up at night.
Senator Graham. Yes. Rightly so.
Cyber attacks on this country, we're going to have to get
ahead of that. A lot of infrastructure to be built. Do you
agree?
Attorney General Holder. Yes.
Senator Graham. So, the threats we face are growing, and
our budgets are shrinking?
Attorney General Holder. That's right.
Senator Graham. Who would have thought of that? The
Congress. Okay? Not you. So, I hope the Congress will rethink
this and we can, in bipartisan fashion, give some relief to
sequestration, where Republicans give, Democrats give, and we
replace it with something that will make sure the country's
safe.
Now, back to my favorite topic, how to defend America
that's at war. I've always told you that I agree that Article
III courts have a very viable role in the war on terror. And
you've told me that you believe there's a place for military
commissions. Are we still on the same sheet of music?
Attorney General Holder. Agreed, yes.
Senator Graham. Okay. Do you agree with me that enemy
combatant status being conferred on a potential terrorist
suspect is still lawful in this country, and we can hold
somebody as an enemy combatant if they meet the criteria?
Attorney General Holder. If they meet the criteria, yes,
there is a legal basis to do that.
Senator Graham. Okay. Do you agree with me that
intelligence-gathering is very important when it comes to
stopping potential attacks against the country?
Attorney General Holder. I totally agree with that, and
we've done so in the use of our Article III system, gathered
intelligence from people before we have prosecuted them.
Senator Graham. Okay. Now, how long have we held people at
Guantanamo Bay as enemy combatants? Isn't there a group being
held for years down there?
Attorney General Holder. Yes, I think there are people
there for----
Senator Graham. Yes.
Attorney General Holder [continuing]. There 10, 11, 12
years.
Senator Graham. So, this idea that bin Laden--we caught him
because of waterboarding. People say that's not true. And I'm
in that camp. I think we were able to catch bin Laden because
we gathered intelligence over a long period of time from people
held at Guantanamo Bay, and we put the puzzle together. Do you
think that's a fair statement?
Attorney General Holder. Yes, I think there were a variety
of things that led to the death of bin Laden. Some was
intelligence gathered from people who were detained at
Guantanamo.
Senator Graham. And some was outside.
Attorney General Holder. Some outside.
Senator Graham. Now, here's what I want to make sure you
understand. I will support Article III courts, but, Mr.
Attorney General, you'll never convince me that the criminal
justice system is the best way to gather intelligence in a war.
I don't know of any military in the world that uses their
criminal justice system to gather intelligence from enemy
combatants. They have a military intelligence-gathering
process, which is a completely different legal endeavor. Do you
agree that gathering intelligence is different than
prosecuting?
Attorney General Holder. Yes, it is. And it's why the
process that we have put together involves the use of the HIG--
--
Senator Graham. The HIG, yes, good system.
Attorney General Holder. We put the HIG in there, they
talk----
Senator Graham. Yes.
Attorney General Holder [continuing]. To people who we
capture. We then put in a whole different team that's
responsible for the trial of the case.
Senator Graham. Okay. Convictions are great. I'm more
worried about finding, from that suspect, what the enemy's up
to. The trial is important. The son-in-law of bin Laden, how
long was he interrogated before his Miranda rights were read?
Attorney General Holder. I believe about a week or so. I'm
not sure about that.
Senator Graham. I think it's hours, not days.
Attorney General Holder. All right. Well, I'm not----
Senator Graham. And here----
Attorney General Holder [continuing]. I'd have to----
Senator Graham. Right.
Attorney General Holder [continuing]. Get you a more----
Senator Graham. Here's my only point. I think the Article
III trial was the right venue for him. Here's where we differ.
If we keep criminalizing the war--when we capture these guys,
if we don't hold them for a period of time to gather
intelligence, and put them right into the criminal justice
system, I believe we're missing great opportunities to find out
what the enemy's up to, because I personally believe that once
you Mirandize someone and give them a lawyer, it is much harder
to gather intelligence than it would be if you let your
military and CIA officers lawfully--not torture--gather
intelligence.
So, I just hope that you'll be sensitive to this, because I
think we're giving up intelligence-gathering opportunities by
putting people in court right off the bat. And it makes it more
likely we get attacked if we go down criminalizing the war.
That's just my two cents' worth.
Attorney General Holder. Well, I think our experience has
shown--and I think, in some ways, it's surprising--that once we
come into contact with these people, and even after they're
given their rights, there is still, for whatever reason, a
desire on their part to talk, and they waive their rights,
frequently, and speak with us, and we've had, I think, very
fruitful interactions, where we have gathered usable
intelligence in the Article III setting. People, I think, tend
to forget that--I have sent people to the military commissions.
I think we have to have both. But, I don't think we should shy
away from using a system that is tried and true----
Senator Graham. I----
Attorney General Holder [continuing]. And that I think
has----
Senator Graham. I'm way over my time. I couldn't agree----
Chairwoman Mikulski. You are.
Senator Graham [continuing]. With you more. I just want to
make sure that, before we put them in the military commission
and Article III courts, that we try to gather as much
intelligence as possible, lawfully, before we try them. That's
all I'm saying.
Attorney General Holder. And look--and that's what we try
to do.
Chairwoman Mikulski. Mr. Attorney General, we thank you for
your testimony today. And, as you could see, this is a pretty
smart, aggressive committee, and--but, most of all, where
we're--we really want to work across the aisle and, really,
protecting our people, starting first of all with the
Constitution. So, we want to protect the Constitution, we want
to protect the people against all enemies, foreign and
domestic. And that means the scam and scum who prey on people
with greed, like mortgage fraud, all the way up to these
despicable acts of terrorism. You've got a big job, and we wish
you had a bigger budget, but we're going to take a good look at
it and see how we can support you.
Yes.
Attorney General Holder. I just--maybe I could say just one
thing, and that is a thank you to this committee and to the
Chair, as well as Senator Shelby. We had dark days in 2013, and
the flexibility that you allowed us with regard to moving money
around meant that people at the Justice Department did not have
to be furloughed, it meant that people had the basic ability to
pay mortgages, to keep their kids in school, to buy groceries.
It allowed the Justice Department to do its job, under very
trying circumstances. We would not have been able to do that
without the flexibility that you gave us.
So, on behalf of the 113,000 men and women of the Justice
Department, I want to thank you--this committee generally, but
you two specifically--for that flexibility.
Chairwoman Mikulski. Well, really, we could not have done
it had we not worked on a bipartisan partnership and, really,
with our colleagues in the House, Congressmen Rogers and Lowey.
But, this is where we're trying to say, we're here--we're all
in it together. We all take the same oath to the Constitution
and to protect it. And so, we thank you for that. And you're in
the front lines, and we're going to worry about the bottom
lines.
So, we're going to excuse you now and say that if there are
questions related to the Attorney General, the record will be
open, and we----
Senator Shelby. Madam Chair.
Chairwoman Mikulski [continuing]. Ask them to respond in 30
days.
We're going to go to the Inspector General now.
Senator Shelby.
Senator Shelby. Madam Chair, I have several questions for
the record for the Attorney General, but I'm sure others do,
too.
Chairwoman Mikulski. Yes. So, the Senator's right will be
protected, as are others.
We're really doing these 60 hearings in 6 weeks, so there
are many who wanted to come, but couldn't. So, there'll be
additional questions.
Thank you very much, Mr.----
Attorney General Holder. Thank you.
Chairwoman Mikulski [continuing]. Attorney General.
So, we now call upon the Inspector General, Michael
Horowitz.
Mr. Horowitz, we're glad to see you, and we're glad a
changing in the vote schedule allows us to take your testimony
in person. Both Senator Shelby and I are vigorous supporters of
the Inspector General system, and we look forward to your
testimony and your advocacy here.
Please proceed, sir.
STATEMENT OF HON. MICHAEL E. HOROWITZ, INSPECTOR
GENERAL
Mr. Horowitz. Thank you, Madam Chairwoman and Ranking
Member Shelby, members of the subcommittee. Thank you for
inviting me to testify today, and for your continued strong
support of our work.
It would be hard for me to overstate the importance of
having an appropriated budget this fiscal year that we can plan
around and that will enable us to rebuild our staff, which
shrunk by nearly 10 percent over the past 2 years. Moreover,
removing furlough and shutdown threats provides a much-deserved
boost to the morale of our staff, which has steadfastly
performed at an extraordinarily high level over the past 2
years.
Since my appearance before you last June, our office has
issued numerous reports that have important implications for
the Department's budget and that promote transparency and
increased efficiency. Just last month, for example, we reported
on the Department's efforts to address mortgage fraud, we
examined the operations of the Organized Crime Drug Enforcement
Task Force Fusion Center, we audited the FBI's management of
Terrorist Watch List nominations, and we reported on the
Federal Bureau of Prisons' efforts to improve acquisitions
through strategic sourcing, and we continue to conduct
extensive oversight of the Department's cyber security efforts
and its national security initiatives.
For example, we are reviewing the FBI's implementation of
its next-generation cyber initiative, as well as the FBI's
regional computer forensic laboratories. We are reviewing, with
three other inspector generals, the U.S. Government's handling
and sharing of intelligence information leading up to the
Boston Marathon bombing. We also continue our efforts to ensure
that allegations from whistleblowers are reported,
investigated, and handled appropriately.
I'm proud that our efforts were recently recognized with
certification from the Office of Special Counsel. We will
continue to foster an open and effective environment for
whistleblowers to come forward with information about waste,
fraud, abuse, and misconduct.
Late last year, in our Annual Top Management Challenges
Report, we identified six areas where the Department is facing
major challenges: addressing the crisis in the Federal prison
system, protecting taxpayer funds from mismanagement and
misuse, enhancing cyber security, safeguarding national
security consistent with civil rights and civil liberties,
ensuring effective and efficient law enforcement, and restoring
confidence in the integrity, fairness, and accountability of
the Department. I'd like to highlight the first two of those
areas today.
The crisis in the Federal prison system continues today.
During my testimony before this subcommittee last year, I
discussed at length two interrelated crises in the Federal
prison system. The first is that costs continue to consume an
ever-larger share of the Department's budget, with no evidence
that the cost curve has been broken. For example, the BOP's
budget continues to increase over the last 2 years at an even
faster rate than the Department's budget. Moreover, while the
number of Department employees has decreased since fiscal year
2012, the number of BOP employees has increased during that
same time. As a result, one out of every three Department
employees now works for the BOP. In the past year, the
Department has announced several new initiatives to address
this challenge, but much will depend on the success of their
implementation, which we will, of course, monitor.
In connection with this challenge, the Department must
consider its growing number of elderly inmates. From fiscal
year 2010 to fiscal year 2013, the population of BOP inmates
over age 65 increased by 31 percent, while the population of
inmates 30 or younger decreased by 12 percent. This demographic
trend has significant budgetary implications, because older
inmates have higher healthcare costs and are more expensive to
incarcerate. The OIG is currently conducting a review in this
important area.
The other half of the prison crisis, which was discussed
earlier today, is ensuring the safety and security of staff and
inmates in overcrowded Federal prisons. Despite having a nearly
$7 billion budget as of November 2013, the BOP was operating
its facilities at approximately 36 percent over rated capacity.
Moreover, the BOP's inmate-to-staff--inmate-to-correctional-
officer ratio has remained at approximately 10 to 1 for more
than a decade. In comparison, in 2005 the five largest State
correctional systems had no more than an inmate-to-correctional
ratio of over 6 to 1. Thus, not only must the Department
evaluate the BOP's cost structure, it must also find ways to
address capacity and staffing challenges.
Avoiding wasteful and ineffective spending is another
fundamental responsibility of Federal agencies in any budgetary
environment, but it's particularly important in the current
climate. In 2013, the OIG reports identified more than $35
million in questioned costs and more than $4 million in
taxpayer funds that could have been put to better use. The
Department must remain vigilant on the monies it gives to third
parties, whether contractors or grants, and make sure that they
demonstrate that the money--the value that's being received is
worth the money that's being given out.
Let me turn briefly now to two areas of our effectiveness
that I'd like to address. Providing strong and independent
oversight of the IG's--of the ability of the IG to oversee the
Department is critical. For any oversight agency to be
conducted effectively, we must have complete and timely access
to all records in our agency's possession that we deem relevant
to our ongoing reviews. This is the principle Congress codified
in Section 6 of the IG Act. Most of our audits and reviews are
conducted with full and complete cooperation from the
Department. However, there have been occasions when our office
has had issues arise with timely access to certain records due
to the Department's view that access was limited by other laws.
Ultimately, in each instance, the Attorney General or the
Deputy Attorney General provided the OIG with permission to
receive the materials, and they have made it clear they will
continue to do so, as necessary, going forward.
However, requiring an Inspector General to request and
receive permission from Department leadership in order to
review critical documents impairs our independence and can
delay our work unnecessarily. Stated simply, under the
Inspector General Act, an Inspector General should be given
prompt access to all relevant documents within the possession
of the agency it is overseeing.
Let me turn briefly to an issue, finally, that was
discussed during my testimony before you last June. Unlike
Inspectors General throughout the Federal Government, our
office does not have the authority to investigate alleged
misconduct by lawyers in the Department. In those instances,
the Inspector General Act grants exclusive investigative
authority to the Department's Office of Professional
Responsibility. My office has long questioned the distinction
between the treatment of agents who engage in alleged
misconduct and those of Department attorneys. Last month, the
independent, nonpartisan Project on Government Oversight issued
a report that was critical of the OPR's lack of transparency,
and recommended that Congress empower our office to investigate
misconduct by DOJ attorneys.
PREPARED STATEMENT
Our office's statutory and operational independence from
the Department ensures the integrity of our investigations and
that they occur through a transparent and publicly accountable
process. Giving the OIG the ability to exercise jurisdiction on
all attorney misconduct cases, just as it does in matters
involving non-attorneys, would enhance the public's confidence
in the outcomes of these important investigations and provide
our office with the same authority as every other Inspector
General.
Thank you again. I look forward to working with the
subcommittee, and I look forward to answering your questions.
[The statement follows:]
Prepared Statement of Hon. Michael E. Horowitz
Chairwoman Mikulski, Senator Shelby, and members of the
subcommittee:
Thank you for inviting me to testify at today's hearing on the
Department of Justice's (Department or DOJ) fiscal year 2015 budget
request. At the outset, I want to thank the subcommittee for its
continued strong support of our work. Perhaps the biggest challenge I
have had in my 2 years as Inspector General has been trying to manage
the staffing and budget for our 400-plus person agency as we faced,
seemingly every few months, another budget crisis, with ever-present
threats of furloughs and shutdowns. It would be hard for me to
overstate the importance of having an appropriated budget for this
current fiscal year that we can now plan around. Our current budget
will enable us to rebuild our staff, which has shrunk by nearly 10
percent over the past 2 years, thereby enhancing our ability to conduct
oversight of the Department. Our fiscal year 2015 budget request is
relatively straightforward--we are seeking funding at our current base
level of $86.4 million, plus $2.2 million in adjustments to base to
cover, for example, rent increases and other inflationary costs.
Having a budget, and removing the furlough and shutdown threats,
also provides a much-deserved boost to morale among Office of the
Inspector General (OIG) employees, who have remained admirably
dedicated to the office's mission despite the significant budget
uncertainty of the past few years. As we prepare later this month to
mark the 25th anniversary of our office's creation in April 1989, I am
confident that we are an organization capable of conducting the high
quality, independent oversight that Congress mandated so many years
ago.
In my testimony today, I would like to highlight some examples of
our recent and ongoing oversight work, discuss two significant
challenges facing the Department that will impact its fiscal year 2015
budget, and briefly comment on two legislative initiatives that I
believe would materially enhance the OIG's ability to conduct timely
and independent oversight.
recent doj oig oversight of the department's operations
Our office has issued numerous reports since my appearance before
the subcommittee last June that have important implications for the
Department's budget, and that promote transparency, increase
efficiency, and enhance our national security. The findings from four
reports that we issued in just the last month exemplify these results.
First, our audit of the Department's efforts to address mortgage fraud
identified examples of DOJ-led efforts to prioritize the investigation
and prosecution of mortgage fraud cases, but also found that, despite
having been appropriated significant funding for the purpose, DOJ and
the Federal Bureau of Investigation (FBI) did not uniformly ensure that
mortgage fraud was prioritized at a level commensurate with its public
statements. The OIG also found significant deficiencies in DOJ's and
the FBI's ability to report accurately on its mortgage fraud efforts.
Second, our report examining the operations of the Organized Crime Drug
Enforcement Task Forces (OCDETF) Fusion Center (OFC) found deficiencies
in the OFC's operations that could limit its contribution to the OCDETF
Program's effectiveness in dismantling significant drug trafficking and
money laundering organizations. We also found that OFC management took
actions during our review that created difficulties for the OIG in
obtaining information from OFC employees, and that there were
reasonable grounds to believe that two OFC employees who met with us to
describe concerns they had about the OFC's operations were subsequently
subjected to adverse retaliatory personnel actions. Third, our follow-
up report on the FBI's management of terrorist watchlist nominations
found that the FBI's time requirements for the submission of watchlist
actions could be strengthened and identified weaknesses in the database
used by the FBI to submit, monitor, and track non-investigative subject
nominations. Finally, our report on the Federal Bureau of Prisons'
(BOP) efforts to improve acquisition through strategic sourcing found
that while the BOP had established national contracts and blanket
purchase agreements, it had not established a program to implement and
oversee the General Services Administration's (GSA) Federal Strategic
Sourcing Initiative or other Federal strategic sourcing initiatives,
and thus may be missing an opportunity for greater cost savings.
Reviews completed at the end of the last fiscal year were similarly
important. In September, we issued a report on the Bureau of Alcohol,
Tobacco, Firearms and Explosives' (ATF) income-generating undercover
operations in which we found that ATF did not properly authorize,
manage, or monitor these investigations, misused their proceeds, and
failed to properly account for 2.1 million cartons of cigarettes that
were associated with these investigations, the retail value of which
was more than $127 million. Also in September, we issued an interim
report on the Department's use and support of unmanned aircraft systems
(UAS), often referred to as ``drones,'' in which we found that the
technological capabilities of drones--such as their ability to fly for
extended periods of time and maneuver effectively yet covertly around
residences--and the current, uncoordinated approach of Department
components to using UAS may merit the Department developing consistent
UAS policies to guide their use. Notably, that report also found that
two of the Department's grantmaking components had failed to require
award recipients to report specific data necessary to measure the
success of UAS testing, or to share the results of their programs with
the Department.
In addition, we continue to conduct extensive oversight of the
Department's efforts to combat significant crime issues, such as cyber
security, and its national security initiatives. For example, we have
initiated a review of the FBI's implementation of its Next Generation
Cyber Initiative and a review of the FBI's Regional Computer Forensic
Laboratories, among two of the Department's most important efforts to
respond to the serious, rapidly evolving threat posed by cyber
criminals. On national security issues, we are reviewing, with three
other Inspectors General, the U.S. Government's handling of
intelligence information leading up to the Boston Marathon bombings.
This review is examining the information available to the U.S.
Government before the bombings and the information-sharing protocols
and procedures followed between and among the intelligence and law
enforcement agencies. We also are continuing our reviews of the FBI's
use of National Security Letters (NSL), requests for business records
under Section 215 of the Foreign Intelligence Surveillance Act (FISA),
the Department's use of pen register and trap-and-trace devices under
FISA, and the Department's use of the material witness warrant statute,
18 U.S.C. Sec. 3144. We are also continuing our review of the Federal
Witness Security Program and will evaluate the Department's progress in
implementing corrective measures in response to the recommendations
contained in the interim report, which we discussed during my
appearance before the subcommittee last June.
In addition, our Investigations Division's case load continues
unabated: during fiscal year 2013, it received more than 12,000
complaints, had dozens of arrests and convictions resulting from
corruption and fraud cases, and investigated allegations that resulted
in more than 250 administrative actions against Department employees.
Finally, before turning to our assessment of the challenges facing
the Department, I would like to give you a brief update on our efforts
to ensure that allegations against whistleblowers are reported,
investigated, and handled appropriately. Among other initiatives, last
year we developed an education program on whistleblower rights and
protections for our employees, posted informational posters at our
offices, and created a section our public Web site containing
information about whistleblower rights for employees throughout the
Department. I am proud to report that we were recognized for our
efforts last year with certification from the Office of Special Counsel
under 5 USC Sec. 2302(c). Additionally, we continue to lead a working
group of Federal Whistleblower Ombudspersons that we helped launch
through the Council of Inspectors General on Integrity and Efficiency
(CIGIE). I will continue to increase awareness among my staff and
provide the training and reporting mechanisms necessary to foster an
open and effective environment for whistleblowers to come forward with
information about waste, fraud, abuse, and misconduct within the
Department.
future work and top challenges facing doj
Let me turn now to the issues that we feel represent significant
challenges facing the Department of Justice in 2014, and will impact
its budget in the coming fiscal year.
In December 2013, we identified the following six major challenges
for the Department:
--Addressing the Crisis in the Federal Prison System;
--Safeguarding National Security Consistent with Civil Rights and
Liberties;
--Protecting Taxpayer Funds from Mismanagement and Misuse;
--Enhancing Cybersecurity;
--Ensuring Effective and Efficient Law Enforcement; and
--Restoring Confidence in the Integrity, Fairness, and Accountability
of the DOJ.
I would like to highlight for the subcommittee two challenges with
potentially significant impacts on the Department's budget, and on its
operational efficiency and effectiveness. A detailed discussion of our
assessment of each challenge is available on in the ``Top Challenges''
section of our Web site, http://www.justice.gov/oig.
The Crisis in the Federal Prison System Continues
During my testimony before the subcommittee last year, I discussed
at great length the two interrelated crises the Department is facing
regarding the Federal prison system. The costs of the Federal prison
system continue to escalate, consuming an ever-larger share of the
Department's budget. In an era of flat budgets, the continued growth of
the prison system budget poses a threat to the Department's other
critical programs--including those designed to protect national
security, enforce criminal laws, and defend civil rights. Second,
Federal prisons are facing a number of important safety and security
issues, including, most significantly, that they have been overcrowded
for years. Meeting this challenge will require a coordinated,
Department-wide approach in which all relevant Department components
participate in helping to reduce the costs and crowding in our prison
system.
The Department's leadership has acknowledged that rising prison
costs threaten the Department's ability to fulfill its mission in other
areas. Yet the costs of the Federal prison system continue to grow,
with no evidence that the cost curve has been broken. For example, even
though the Department's discretionary budget increased slightly from
fiscal year 2012 to fiscal year 2014, the BOP's budget once again
increased at an even faster rate, resulting in the BOP's share of the
Department's budget continuing to grow. Moreover, while the number of
Department employees has actually decreased since fiscal year 2012, the
number of BOP employees has increased during that same time. As a
result, the BOP now has over 38,000 employees, or approximately one-
third (33 percent) of all the employees at the Department.
To its credit, in the past year the Department has announced
several new initiatives to address this issue, such as an initiative to
limit the number of defendants charged under statutes carrying
mandatory minimum sentences, and the Smart on Crime initiative, which
sets out five principles designed to identify reforms to enforce
Federal laws more fairly and efficiently. Efforts to better align the
investigative and prosecutive policies that drive incarceration costs
with the Department's current budget situation represent important
steps toward addressing rising Federal prison costs, but much will
depend on the success of their implementation.
The Department must also ensure that it is identifying and
addressing the growing challenges that will affect the Federal prison
budget in coming years. One ongoing challenge is BOP's management of
its private prison contracts, which is the subject of an ongoing OIG
review. Another such challenge is the increasing number of elderly
inmates. From fiscal year 2010 to fiscal year 2013, the population of
inmates over the age of 65 in BOP-managed facilities increased by 31
percent, from 2,708 to 3,555, while the population of inmates 30 or
younger decreased by 12 percent, from 40,570 to 35,783. This
demographic trend has significant budgetary implications for the
Department because older inmates have higher medical costs. The
National Institute of Corrections has estimated that elderly inmates
are roughly two to three times more expensive to incarcerate than their
younger counterparts. For example, according to BOP data, in fiscal
year 2011, the average cost of incarcerating a prisoner in a BOP
medical referral center was $57,962 compared with $28,893 for an inmate
in the general population. Moreover, inmate health services costs are
rising: BOP data shows that the cost for providing health services to
inmates increased from $677 million in fiscal year 2006 to $947 million
in fiscal year 2011, a 40 percent increase. The OIG is currently
reviewing the trends in the BOP's aging inmate population, the impact
of incarcerating a growing population of aging inmates, the effect of
aging inmates on the BOP's incarceration costs, and the recidivism rate
of inmates age 50 and older who were recently released.
Managing the cost of the Federal prison system is just part of the
Department's challenge; it must also ensure the safety of staff and
inmates in Federal prison and detention facilities. This task has been
made exponentially harder by the prolonged, system-wide overcrowding in
BOP's correctional facilities: as of November 2013, the BOP was
operating with its facilities at approximately 36 percent over rated
capacity, with medium security facilities operating at approximately 45
percent over rated capacity and high security facilities operating at
approximately 51 percent over rated capacity.
The growth of the inmate population, along with the Department's
tightened budget situation in recent years, has prevented the BOP from
reducing its inmate-to-correctional officer ratio, which has remained
at approximately 10-to-1 for more than a decade. In comparison, the
Congressional Research Service reported that among the five largest
State correctional systems in 2005--California, Texas, New York,
Florida, and Georgia--the highest ratio of inmates to correctional
officers was just over 6-to-1. And importantly, overcrowding at BOP
institutions is not just a problem for the BOP; it also has a
significant impact on the U.S. Marshals Service (USMS), which is
responsible for housing pre-trial detainees and is projected to detain
an average of 62,131 individuals per day in fiscal year 2014, a 15-
percent increase since fiscal year 2004. The USMS estimates that the
BOP will only be able to house approximately 18 percent of USMS
detainees, meaning that the USMS must pay to house the remainder--an
average of about 50,000 detainees per day--in approximately 1,100
State, local, or private facilities.
There are several other important safety and security issues at
Federal prison and detention facilities that the OIG is monitoring
carefully. For example, the Prison Rape Elimination Act of 2003 (PREA)
expanded the Department's responsibility to prevent the sexual abuse of
inmates in BOP facilities and detainees in the custody of the USMS. The
OIG's agents have long been involved in leading investigations of staff
on inmate sexual misconduct, resulting in numerous criminal convictions
and administrative actions by the BOP and the USMS. PREA also required
the Department to issue national standards for preventing, detecting,
reducing, and punishing sexual abuse in prison, which it did in May
2012. With national standards in place, the Department must ensure that
those standards are being met, which will require careful oversight of
BOP, USMS, and Federal contract facilities, including residential
reentry centers, and an extensive program for compliance auditing. The
OIG intends to monitor the Department's efforts to ensure that the
national standards are met.
DOJ Must Continue its Efforts to Protect Taxpayer Funds from
Mismanagement and Misuse
Avoiding wasteful and ineffective spending is a fundamental
responsibility of Federal agencies in any budgetary environment, but in
the current climate of budget constraints the Department needs to take
particular care to ensure that it is operating as efficiently and
effectively as possible. The OIG's recent oversight work has
demonstrated the challenges facing the Department. In fiscal year 2013
alone, the OIG's reports, including those related to audits performed
by independent auditors pursuant to the Single Audit Act, identified
more than $35 million in questioned costs and more than $4 million in
taxpayer funds that could be put to better use.
The Department must remain particularly vigilant when taxpayer
funds are distributed to third parties, such as grantees and
contractors. In part due to the sheer volume of money and the large
number of recipients involved, grant funds present a particular risk
for mismanagement and misuse: according to the USASpending.gov Web
site, from fiscal year 2009 through fiscal year 2013 the Department
awarded approximately $17 billion in grants to thousands of
governmental and non-governmental recipients.
These risks were evident in a recent OIG audit which questioned
nearly all of the more than $23 million in grant funds awarded by the
Department to Big Brothers Big Sisters of America (BBBSA), which
resulted in the Department's Office of Justice Programs (OJP) deciding
to freeze the disbursement of all grant funds to BBBSA. Even so, it is
my understanding that BBBSA subsequently submitted an application to
the Department of Labor for grant funds and was awarded a grant
totaling $5 million. This situation demonstrates the importance of
ensuring that there is appropriate information sharing between grant-
making agencies across the Federal Government.
The Department has reported taking important steps toward improving
its management of this vast and diverse grantmaking effort. For
example, the Associate Attorney General's Office established a Grants
Management Challenges Workgroup that is responsible for developing
consistent practices and procedures in a wide variety of grant
administration and management areas. In January 2012, the Department
issued policy and procedures the workgroup developed to implement the
Department-wide high risk grantee designation program, which allows the
Department to place additional restrictions on the use of funds it
provides to grantees who, for example, are deemed financially unstable
or have failed to conform to the terms and conditions of previous
awards. The Department should continue to be aggressive in identifying
high risk grantees and placing appropriate restrictions on their
funds--or halting their funding altogether. It should also use the
other tools at its disposal to mitigate the risk of releasing funds to
grantees, such as ensuring that grantees have adequate accounting
procedures in place to track their use of Department funds and actively
seeking suspension and debarment of grantees in appropriate cases,
especially where doing so will help to protect grant funds administered
by other Federal agencies.
strengthening the independent oversight of the doj
Providing strong and effective independent oversight over agency
operations is at the core of any OIG's mission. The taxpayers rightly
expect much from Inspectors General, and it is important that we have
the necessary tools to allow us to conduct our significant oversight
responsibilities. The Inspector General Act provides us with many of
those tools. However, there are several areas where our ability to
conduct effective and independent oversight can be strengthened. I
would like to highlight for you today two such areas that directly
affect the work of the DOJ OIG.
Access to Documents Relevant to OIG Reviews
For any OIG to conduct effective oversight, it must have complete
and timely access to all records in the agency's possession that the
OIG deems relevant to its review. This is the principle codified in
Section 6(a) of the Inspector General Act, which authorizes Inspectors
General ``to have access to all records, reports, audits, reviews,
documents, papers, recommendations or other material available to the
applicable establishment which relate to programs and operations with
respect to which that Inspector General has responsibilities under this
Act.'' This principle is both simple and important, because refusing,
restricting, or delaying an OIG's access to documents may lead to
incomplete, inaccurate, or significantly delayed findings or
recommendations, which in turn may prevent the agency from correcting
serious problems in a timely manner.
Most of our audits and reviews are conducted with full and complete
cooperation from Department components and with timely production of
material. However, there have been occasions when our office has had
issues arise with timely access to certain records due to the
Department's view that access was limited by other laws. For example,
issues arose in the course of our review of Operation Fast and Furious
regarding access to grand jury and wiretap information that was
directly relevant to our review. Similar issues arose during our
ongoing review of the Department's use of Material Witness Warrants.
Ultimately, in each instance, the Attorney General or the Deputy
Attorney General provided the OIG with permission to receive the
materials because they concluded that the two reviews were of
assistance to them. The Attorney General and Deputy Attorney General
have also made it clear that they will continue to provide the OIG with
the necessary authorizations to enable us to obtain records in future
reviews, which we of course appreciate. However, requiring an Inspector
General to rely on permission from Department leadership in order to
review critical documents in the Department's possession impairs the
Inspector General's independence and conflicts with the core principles
of the Inspector General Act.
We have had similar issues raised regarding our access to some
other categories of documents. And I understand from the Inspector
General for the Peace Corps that her office has had a similar issue
regarding access to records within her agency. Although our office has
not yet had an instance where materials were ultimately withheld from
us that were necessary to complete a review, we remain concerned about
the legal questions that have been raised and the potential impact of
these issues on our future reviews. Moreover, issues such as these
have, at times, significantly delayed our access to documents, thereby
substantially impacting the time required to complete the reviews.
My view, and I believe the view of my colleagues in the Inspector
General community, is straightforward and follows from what is
explicitly stated in the Inspector General Act: an Inspector General
should be given prompt access to all relevant documents within the
possession of the agency it is overseeing. For a review to be truly
independent, an Inspector General should not be required to obtain the
permission or authorization of the leadership of the agency in order to
gain access to certain agency records, and the determination about what
records are relevant and necessary to a review should be made by the
Inspector General and not by the component head or agency leadership.
Such complete access to information is a cornerstone of effective
independent oversight.
Limitations on the DOJ OIG's Jurisdiction
Let me briefly turn to an issue that was discussed during my
testimony last June before this subcommittee, which is an oversight
limitation that is unique to my office: unlike Inspectors General
throughout the Federal Government, our office does not have authority
to investigate all allegations of misconduct within the agency we
oversee. While we have jurisdiction to review alleged misconduct by
non-lawyers in the Department, under Section 8E of the Inspector
General Act, we do not have the same jurisdiction over alleged
misconduct committed by Department attorneys when they act in their
capacity as lawyers--namely, when they are litigating, investigating,
or providing legal advice. In those instances, the Inspector General
Act grants exclusive investigative authority to the Department's Office
of Professional Responsibility (OPR). As a result, these types of
misconduct allegations against Department lawyers, including those that
may be made against the most senior Department lawyers (including those
in leadership positions) are handled differently than misconduct
allegations made against law enforcement agents or other Department
employees.
My office has long questioned this distinction between the
treatment of misconduct by attorneys acting in their legal capacity and
misconduct by other Department employees. Such a system cannot help but
have a detrimental effect on the public's confidence in the
Department's ability to review misconduct by its own attorneys. In
recent months, others have expressed a similar concern. For example,
the independent, non-partisan Project on Government Oversight (POGO)
issued a report last month that was critical of OPR's longstanding lack
of transparency and recommended empowering our office to investigate
misconduct by DOJ attorneys. And I would like to thank Senator
Murkowski for co-sponsoring S.2127, a bipartisan bill that would amend
the Inspector General Act to enable our office to investigate
allegations of attorney misconduct.
The jurisdictional limitation on our office is a vestige of the
fact that OPR preexisted the creation by Congress in 1988 of the DOJ
OIG, resulting in the statutory carve-out on our jurisdiction. The
Department has consistently taken the position that because OPR has
specialized expertise in examining professional conduct issues
involving Department lawyers, OPR should handle professional misconduct
allegations against Department attorneys. Whatever merit such an
argument may have had in 1988 when the OIG was established by Congress,
it is surely outdated.
Over the past 25 years, our Office has shown itself to be capable
of fair and independent oversight of the Department, including
investigating misconduct allegations against its law enforcement
agents. Indeed, a similar argument was made many years ago by those who
tried to forestall our Office's oversight of alleged misconduct by FBI
agents. This argument against Inspector General oversight of the FBI
was rejected, and we have demonstrated through the numerous
investigations and reviews involving Department law enforcement matters
since then, including our Operation Fast and Furious review, that our
office has the means and expertise to handle the most sophisticated
legal and factual issues thoroughly, effectively, fairly, and
independently. Moreover, Inspectors General across the Federal
Government have the authority to handle misconduct allegations against
lawyers acting as such within their agencies, and they have
demonstrated that they are fully capable of dealing with such matters.
Seen in this context, the carve-out for OPR from our Office's oversight
jurisdiction is best understood as an unnecessary historical artifact.
Eliminating the jurisdictional exception for OPR in the Inspector
General Act would ensure the ability of our Office to fully review and,
when appropriate, investigate allegations of misconduct of all
Department employees. Moreover, even with such a jurisdiction change,
the Department's OPR would almost certainly remain in place to handle
``routine'' misconduct allegations that do not require independent
outside review by an OIG, much as the internal affairs offices at the
FBI and the Department's other law enforcement components remain in
place today even though the OIG's jurisdiction was expanded years ago
to include those components. The current system with the law
enforcement components works well, particularly given the OIG's limited
resources. Each day, the OIG reviews new allegations of misconduct
involving law enforcement personnel and determines which ones warrant
investigation by an independent OIG, such as those that involve high-
level personnel, those that involve potential crimes and other serious
misconduct, and those that involve significant issues related to
conduct by management. Those that we determine do not meet these
standards are returned to the law enforcement component's internal
affairs unit for handling, although the OIG frequently requires the
internal affairs unit to report back to the OIG on the outcome of its
investigation or review.
Our Office's statutory and operational independence from the
Department ensures that our investigations of alleged misconduct by
Department employees occur through a transparent and publicly
accountable process. Unlike the head of OPR, who is appointed by the
Attorney General and can be removed by the Attorney General, the
Inspector General is a Senate confirmed appointee who can only be
removed by the President after notification to Congress, and the
Inspector General has reporting obligations to both the Attorney
General and Congress.
Giving the OIG the ability to exercise jurisdiction in all attorney
misconduct cases, just as it does in matters involving non-attorneys
throughout the Department, would enhance the public's confidence in the
outcomes of these important investigations and provide our office with
the same authority as other Inspectors General.
conclusion
Due in large part to the continued support of this subcommittee,
fiscal year 2013 represented a strong and productive year for the OIG,
which we are continuing in fiscal year 2014. I look forward to working
closely with this subcommittee to ensure that our office can continue
its vigorous oversight through fiscal year 2015 and beyond.
This concludes my prepared statement. I would be pleased to answer
any questions that you may have.
Chairwoman Mikulski. Thank you, Mr. Horowitz. You and your
team do such a great job.
And, tell me, how many employees do you have?
Mr. Horowitz. We have on board now about 405, roughly.
Chairwoman Mikulski. And what is your budget?
Mr. Horowitz. $86.4 million is our base, and we've asked
for that for the next fiscal year, plus 2.2 million in
enhancements.
Chairwoman Mikulski. So, it would be 2.2 million more.
Mr. Horowitz. Correct.
Chairwoman Mikulski. Is that correct? Well, we ask you to
do a very important job overseeing $37 billion.
CYBER SECURITY IMPROVEMENTS
I know Senator Shelby will be raising questions about
access to records. I want to welcome your insights on prison
reform, but I'm going to go to cyber security. It's an area of
keen interest with me----
Mr. Horowitz. Yes.
Chairwoman Mikulski [continuing]. And have been an
advocate. And one of the things I fear is techno-boondoggles.
Mr. Horowitz. Right.
Chairwoman Mikulski. You know, we go through the FBI case
file thing. Now, we understand the FBI--excuse me, the fiscal
'15 budget request from Justice is 722 million. They're
actually decreasing it, though the threat is increasing. You
note that--you cite 130 open recommendations for improving the
security of the Department's own IT system. Could you comment
on what you think are--where you think appropriate in an open
and public session, so we don't tip any bad guys, here----
Mr. Horowitz. Right.
Chairwoman Mikulski [continuing]. What you think they need
to do to improve their cyber security. And do you think it's
money, do you think it's management, or do you think it's a
government wide problem?
Mr. Horowitz. Our----
Chairwoman Mikulski. I have my own views. I would like to
hear yours, sir.
Mr. Horowitz. Yes. Our 130 recommendations come from our
FISMA audits, which are obviously marked sensitive, given the
nature of the information, but generally they have involved the
handling of configurations of systems and account management of
those systems, as well. We've made a number of very specific
requests, and have outlined the issues that I think need to be
addressed. I think, generally, it is a function of both the
needs--additional needs, potentially, for the systems, as well
as the possibility of the requirement for additional personnel.
We, ourselves, for example, are struggling with both of those
issues, as well, in a tightening budget environment, making
sure we've got the right IT people, as well as enough funding
for the right systems. And so, that's one of the things I've
tried to do with our budget this year, is catch up,
essentially, from where we fell behind over the last 2 years.
Chairwoman Mikulski. Do you feel that the Justice
Department is prime time in implementing your recommendations?
Mr. Horowitz. I think that, in a number of areas, the
Department needs to do a better job in implementing the
recommendations we make faster, and going and looking at them
seriously and taking them seriously. We continue to push on
that. The Attorney General and the Deputy Attorney General,
have supported that effort, and we will continue to press on
that.
Chairwoman Mikulski. So, you feel you have the support. So,
again, I'll come back, is it a resource issue? Is it a
consistent resource issue? Senators Shelby, Graham, others,
have raised, you know, sequester----
Mr. Horowitz. Right.
Chairwoman Mikulski [continuing]. Closed--you know, slam
down and shut down, furloughs. What's the issue, here? We can't
hire tech people?
Mr. Horowitz. I think it's probably a combination of both
issues that you identified, that the needs continually change,
they're continually evolving, technology is continually
evolving, the threats are continually evolving; and that's one
of the reasons, frankly, we've undertaken the next cyber
initiative review, because Congress has given a substantial
amount of money to the Department to undertake that effort, and
that is a very significant part of the Department's budget and
a critical part of dealing with threats, going forward.
Chairwoman Mikulski. Well, thank you.
We could ask more, but I'm going to turn to Senator Shelby,
here.
Senator Shelby. Thank you.
Thank you, Mr. Inspector General. We appreciate the work
you're doing, your dedication. And, as the Chairman said, we
want to make sure you have the tools to do your job, because
the Inspector General, whether it's in the Justice Department,
whether it's in the Pentagon, or whether the--we created that
position for a reason----
Mr. Horowitz. Right.
Senator Shelby [continuing]. And so forth. You know this
well.
INSPECTOR GENERAL ACCESS
Do you believe that you, the Inspector General of the
Department of Justice, should have to seek approval of the
Attorney General to access grand jury documents, or any
documents, relevant to ongoing investigations?
Mr. Horowitz. I don't, Senator. It's inconsistent, in my
view, with the----
Senator Shelby. With your mandate, is it?
Mr. Horowitz. Correct. And the--with the Inspector
General----
Senator Shelby. Because, even though it's the Justice
Department, but it could be any Department----
Mr. Horowitz. Right.
Senator Shelby [continuing]. If you have to go to the head
of the Department, the Secretary----
Mr. Horowitz. Right.
Senator Shelby [continuing]. For example, a Cabinet-level
position, to approve what you're seeking, it seems that could
be, under dire circumstances, an impediment to doing your job.
Mr. Horowitz. Well, and ultimately--that's correct--and
ultimately, the letters that we've gotten from the Attorney
General or the Deputy Attorney General----
Senator Shelby. Yes.
Mr. Horowitz [continuing]. Giving us access have focused on
a finding that the review was important to their oversight of
the Department. The Act sets it up such a way that the
oversight decisions, I think, should be made by Inspectors
General, not by the Secretaries or Cabinet hats.
Senator Shelby. Have you been, basically--have you had
unfettered access to relevant documents?
Mr. Horowitz. In--with regard to certain records, we have
only gotten them after the Attorney General----
Senator Shelby. Right.
Mr. Horowitz [continuing]. Or the Deputy General have made
a determination----
Senator Shelby. After you had to jump through a lot of
hoops, right?
Mr. Horowitz. After we had to get a letter from them to the
component, informing them that they had the permission to give
us the documents.
Senator Shelby. Do you know if your fellow Inspector
Generals, say, at the Department of State or Pentagon or
Agriculture or, you name it--Commerce--do they have to jump
through these hoops to do that?
Mr. Horowitz. Well, I understand that there's one Inspector
General at the Peace Corps, for example, who has tried to get
records to do the oversight I think Congress expected in
connection with sexual attacks on volunteers oversees, that has
an opinion from her general counsel indicating that the IG Act
does not give her authority to look at those records.
AUTONOMY OF OFFICE
Senator Shelby. Have you thought about whether or not
perhaps we need to address this legislatively, to be direct on
this to Secretaries and--Attorney General, whoever--that they
must furnish unfettered access to documents? Otherwise, you
can't do your job.
Mr. Horowitz. I think it's critical that Inspectors General
have that ability to make the decision for themselves, and
legislation obviously would clear it up entirely, and it's a
relatively small fix, understanding legislation is always
difficult to get enacted.
Senator Shelby. Well, it might not be that hard to get
enacted, when the Chair of an Appropriations Committee--who
knows. But, I think that we need to make sure, under all
circumstances, that you and your fellow Inspector Generals have
unfettered access to documents that could root out wrongdoing
in any Department.
Mr. Horowitz. I couldn't agree more, Senator. And, I think,
ultimately, that what's set up now is--Who should make that
decision? Should it be the Inspector General who decides what's
relevant----
Senator Shelby. No.
Mr. Horowitz [continuing]. And what's needed?
Senator Shelby. I think you're put there to do that job, in
your sworn oath to do that job.
Thank you, Madam Chair.
Chairwoman Mikulski. We believe the Inspector Generals--
this is a bipartisan----
Mr. Horowitz. Right.
Chairwoman Mikulski [continuing]. Approach that--should
have access to the information, compliant with existing law.
There are certain rules and so on. I'm not a lawyer. But, you
know, there's legal compliance and there's access. So, that's
one thing.
Second thing, I am familiar with this--or becoming familiar
with this Peace Corps situation. A young lady, who was a Peace
Corps volunteer, saw another Peace Corps volunteer allegedly
sexually assault, reported it, and then the Peace Corps server
who reported it was murdered. Well--this is big.
So, we want to maintain the integrity of the Inspector
General process. We believe in the Inspector General process.
Government should be never so big or so insulated or so
isolated that it does not have an independent Senate-confirmed
institution to red-team their work for waste, fraud, or other
forms of mismanagement. So, we look forward to working with you
on this.
And, Mr. Inspector General, you come with an extensive
background in sentencing, incarceration, and so on. You
actually were head of the Sentencing Commission.
Mr. Horowitz. I was a member of the Sentencing----
Chairwoman Mikulski. Yes, sir. So, you come with, actually,
hands-on experience. And you've seen the good and bad and ugly.
Mr. Horowitz. Yes.
Chairwoman Mikulski. So, we really welcome your insight on
how we can reduce the prison population without increasing the
risk to our communities. And also, the thoughts on how we can
look out for the safety of our prison guard population, where
they, themselves, don't feel that they're captive by the
prisoners.
You bring up a compassionate situation, the over 65. We
welcome your insights. I think evidence shows that, if you
committed murder, you're not likely to commit murder after 65.
But, if you're a sexual predator, you'll be--you could be out
in that playground once again.
Mr. Horowitz. Right.
Chairwoman Mikulski. So, we welcome your insights on how we
can work constructively, evidence-based conceptual thinking,
and your own experience, because you--you bring the experience
of longitude from, really, enforcement to sentencing, and now
the Inspector General. We're--we really appreciate your
service.
So, I'm going to ask the staff, on both sides of the aisle,
because this has been raised----
Mr. Horowitz. Yes.
Chairwoman Mikulski [continuing]. By other members, so this
is not a party thing----
Mr. Horowitz. Right.
Chairwoman Mikulski [continuing]. This is a committee
thing--to meet with our staff on how we can implement, working
with the Attorney General, prison reform. We also want to work
with you--Senator Shelby and I--for you to get the access to
the information that you need.
Mr. Horowitz. Thank you.
Chairwoman Mikulski. So, we're going to possibly be having
votes soon, so--we could talk with you all day, but we're going
to thank you for your service, look forward to these reports,
ask staff to work hands-on----
Mr. Horowitz. Absolutely.
Chairwoman Mikulski [continuing]. With you, and look
forward to bringing about some much needed reform.
ADDITIONAL COMMITTEE QUESTIONS
Chairwoman Mikulski. If there's no further questions--
Senators may submit additional questions--this committee stands
in recess to the call of the Chair.
[The following questions were not asked at the hearing, but
were submitted to the Department for response subsequent to the
hearing:]
Questions Submitted to Hon. Eric H. Holder, Jr.
Questions Submitted by Senator Barbara A. Mikulski
stopping child predators
Question. What was the level of funding for each component agency
handling Adam Walsh Act efforts at the Department in fiscal year 2013
and what is the level in fiscal year 2014? How does the Department
coordinate efforts?
Lead-in information from original document.--
The National Center for Missing and Exploited Children
(NCMEC) estimates there are over 100,000 non-compliant sex
offenders at-large in the United States. The Adam Walsh Child
Protection and Safety Act of 2006 (Public Law 109-248) gave the
U.S. Marshals Service the authority to treat convicted sex
offenders as fugitives if they fail to register, as well as to
assist jurisdictions to locate and apprehend these individuals.
Answer. The Department received a total of $186.5 million in fiscal
year 2013 and $200.2 million in fiscal year 2014 for Adam Walsh Act
(AWA) programs. The funding levels in thousands of dollars by component
are as follows:
------------------------------------------------------------------------
Fiscal year Fiscal year
Component 2013 2014
funding funding
------------------------------------------------------------------------
Bureau of Prisons............................. 9,741 9,838
Criminal Division............................. 4,389 4,639
INTERPOL, Washington.......................... 1,490 1,924
Office of Justice Programs.................... 54,386 57,730
Office on Violence Against Women.............. 22,281 27,000
United States Attorneys....................... 40,757 43,660
United States Marshals Service................ 52,429 55,425
-------------------------
Total, Adam Walsh Act Resources......... 186,473 200,226
------------------------------------------------------------------------
The primary vehicle for coordination of the AWA enforcement is the
Sex Offender Sentencing, Monitoring, Apprehending, Registering, and
Tracking (SMART) Office, which is part of the Office of Justice
Programs and was authorized by the Adam Walsh Child Protection and
Safety Act of 2006. The United States Marshals Service (USMS) Sex
Offender Investigations Branch (SOIB) and National Sex Offender
Targeting Center (NSOTC) work in conjunction with SMART to assist at
all levels of domestic, international, military, and tribal law
enforcement to identify, locate, and prosecute non-compliant sex
offenders. In addition, USMS Sex Offender Investigations Coordinators
(SOIC) coordinate sex offender enforcement with all necessary law
enforcement partners in their districts, including Assistant U.S.
Attorneys, registering agencies, local law enforcement, U.S. Probation,
and local prosecutors.
Personnel from the USMS and the National Center for Missing and
Exploited Children (NCMEC) are assigned to the NSOTC, along with an
agent from the Department of State's Diplomatic Security Service (DSS)
and two members of the United States Army. The NSOTC has also assigned
an intelligence analyst to the Customs and Border Protection Targeting
Center, a Senior Inspector to USNCB-INTERPOL's Human Trafficking and
Child Protection Division, and a contractor to serve as a liaison with
the SMART Office. These employees work to track and verify information
on sex offenders who travel abroad. The NSOTC also meets with the
Office of Tribal Justice (OTJ) to discuss and coordinate DOJ programs
and training related to Native American sex offenders.
In addition, the Bureau of Justice Assistance administers the
reallocation of funds derived from penalties against Byrne Justice
Assistance Grant (JAG) awards to States that have not yet substantially
implemented the requirements of the Sex Offender Registration and
Notification Act (SORNA). The SMART Office assists interested
jurisdictions in developing and/or enhancing programs designed to meet
SORNA implementation requirements.
Question. In fiscal year 2012, the Marshals Service estimated it
needed a dedicated force of 500 deputies to fully implement the Adam
Walsh Act. Have they reached this level yet? If not, why not and when
will they reach this level?
Answer. The USMS has an estimated 211 positions (160 operational
and 51 administrative) and approximately $56 million available to
support the AWA. With these resources, and with the growing
partnerships with State, local, and tribal authorities, in fiscal year
2013, the USMS opened 2,191 criminal investigations for violations of
18 U.S.C. Sec. 2250. From those investigations, 316 Federal warrants
were issued and 279 convictions were obtained. Additionally, the USMS
planned and participated in over 390 sex offender related enforcement
operations with 1,368 law enforcement agencies, resulting in 39,854
compliance checks of known registered sex offenders.
USMS continues to vigorously pursue violators of the AWA to stem
the violence against children by targeting apprehension of sex
offenders who prey on children; augment staffing in areas of the
country with large numbers of non-compliant sex offenders; expand the
staff at the NSOTC; and provide broader support to States in enforcing
sex offender registration laws and in prosecuting non-compliant sex
offenders.
Question. In December 2012, the Marshals Service received
administrative subpoena authority for these investigations in the Child
Protection Act (Public Law 112-206). When were deputies first able to
start using this authority? How many fugitive sex offenders have been
arrested due to this authority?
Answer. Following enactment of this legislation, the USMS formed a
working group to ensure appropriate implementation of the
administrative subpoena authority. The USMS realized the critical
importance of developing clear policy and protocols with sufficient
controls, oversight, and accountability to address privacy concerns
with the information collected. The USMS analyzed risks involving
privacy information and met with stakeholders to craft a policy that
addressed and resolved several concerns. During this time, the USMS
reviewed other systems and devised an implementation strategy that
safeguarded the privacy of information. Because the administrative
subpoena language limits and restricts its use, the USMS also addressed
changes to its law enforcement database system to restrict access to
the collected information.
As of August 2014, all USMS Sex Offender Investigations Branch
(SOIB) personnel and full-time Sex Offender Investigations Coordinators
have been trained on the policy, standard operating procedures and
updates to the Criminal Case Module in the Justice Detainee Information
System (JDIS) including administrative subpoena enhancements. The
enhancements allow the administrative subpoena process to be managed
entirely within JDIS and allow access to documents and information to
be restricted to only those with a vested interest in the case.
Training sessions for district management were provided last October
2014. This training provided a brief overview of the USMS
Administrative Subpoena program and a detailed presentation on the
request and approval process. The USMS/SOIB will continue to provide
training on administrative subpoenas including programmatic and legal
updates to USMS investigators during the SOIC Basic Training courses,
and to district senior management during regional management trainings.
The widespread use of administrative subpoenas did not begin until
September 1, 2014. To date, 34 administrative subpoena requests have
been submitted, of which 31 were approved and served, two were denied,
and one is currently going through the approval process.
human trafficking
Question. With multiple Justice Department agencies involved in
fighting human trafficking, how are you coordinating efforts and
tracking results?
Lead-in information from original document.--
Human trafficking crimes involve the act of compelling or
coercing a person's labor, services, or commercial sex acts.
The coercion can be subtle or overt, or physical or
psychological. Trafficking doesn't just mean smuggling people
in or out the country as traffickers have demonstrated their
ability to exploit other vulnerable populations like runaway
children and documented guest workers.
The Justice Department has multiple agencies working on
issues related to human trafficking and in fiscal year 2013,
made 161 forced labor and sex trafficking prosecutions, a 25
percent increase, and the highest number of human trafficking
cases on record. Prosecutions are handled by the U.S. Attorneys
Office and Civil Rights Division, grant funding is provided
through the Office of Justice Programs and the FBI is the lead
investigative agency. For fiscal year 2015, the Department
requests $45 million to combat human trafficking across the
Department, a decrease of $3 million below fiscal year 2014.
Answer. As the Department's anti-trafficking enforcement efforts
continue to grow in scope, complexity, and impact, we are continuing to
strengthen coordination among the many DOJ components participating in
these efforts. The Department's Human Trafficking Working Group
coordinates between and among DOJ components involved in victim
assistance programs, State and local law enforcement grants and
technical assistance programs, and Federal law enforcement. The Federal
Enforcement Working Group coordinates among the Civil Rights Division's
specialized Human Trafficking Prosecution Unit (HTPU), the Executive
Office for United States Attorneys (EOUSA), the U.S. Attorneys' Offices
(USAOs), FBI, and other Federal law enforcement agencies. HTPU and the
Child Exploitation and Obscenity Section of the Department's Criminal
Division (CEOS) coordinate extensively on cases and issues that affect
child sexual exploitation, including sex trafficking of minors, which
is within the subject matter expertise of CEOS, and international sex
trafficking, sex trafficking of adults by force, fraud, and coercion,
and forced labor which is within the subject matter expertise of HTPU.
The Office of the Deputy Attorney General coordinates among DOJ
agencies on policy issues, performance data, and interagency matters
affecting multiple DOJ components.
Question. How does the Justice Department collaborate with other
Federal agencies like the Department of Homeland Security and
Department of Labor? Do agencies regularly share information?
Lead-in information from original document.--
Human trafficking crimes involve the act of compelling or
coercing a person's labor, services, or commercial sex acts.
The coercion can be subtle or overt, or physical or
psychological. Trafficking doesn't just mean smuggling people
in or out the country as traffickers have demonstrated their
ability to exploit other vulnerable populations like runaway
children and documented guest workers.
The Justice Department has multiple agencies working on
issues related to human trafficking and in fiscal year 2013,
made 161 forced labor and sex trafficking prosecutions, a 25
percent increase, and the highest number of human trafficking
cases on record. Prosecutions are handled by the U.S. Attorneys
Office and Civil Rights Division, grant funding is provided
through the Office of Justice Programs and the FBI is the lead
investigative agency. For fiscal year 2015, the Department
requests $45 million to combat human trafficking across the
Department, a decrease of $3 million below fiscal year 2014.
Answer. Coordination among the Department of Justice (DOJ),
Department of Homeland Security (DHS) and Department of Labor (DOL) has
never been stronger. All of these agencies participate in the Federal
Enforcement Working Group (FEWG), which brings together the National
Program Managers and subject matter experts from HTPU, EOUSA, FBI Civil
Rights Unit, DHS--Homeland Security Investigations--Human Smuggling and
Trafficking Unit, DOL--Wage and Hour Division and DOL-OIG to streamline
coordination among Federal investigators and Federal prosecutors both
at the HQ level and at the regional level. Through the efforts of this
interagency FEWG, in 2011 the Attorney General and Secretaries of
Homeland Security and Labor jointly developed the Anti-Trafficking
Coordination Team (ACTeam) Initiative. During Phase I of this
Initiative, the FEWG conducted a nationwide rigorous, competitive,
interagency selection process culminating in the launch of six Phase I
Pilot ACTeams charged with implementing a coordinated interagency
strategy to advance Federal human trafficking investigations and
prosecutions. Based on the results of Phase I, the interagency FEWG
unanimously agreed to initiate Phase II during 2014. In connection with
this initiative, DOJ, DHS, and DOL jointly developed and delivered an
intensive week-long Advanced Human Trafficking Training Program for
interagency teams of Federal investigators and Federal prosecutors.
In addition, DOJ and DHS collaborate extensively on their U.S.-
Mexico Bilateral Enforcement Initiative which has established
coordination structures to exchange leads and evidence with Mexican law
enforcement counterparts to more effectively apprehend traffickers,
rescue victims, recover victims' children, and dismantle trafficking
networks operating across the U.S.-Mexico border. DOJ and DOL meet
regularly to collaborate on cross-training and cross-referral protocols
to enhance victim identification capacity.
To strengthen victim services, DOJ, HHS, and DHS co-chaired an
interagency effort to develop the Federal Strategic Action Plan on
Services for Victims of Human Trafficking in the United States 2013-
2017. The plan outlines Federal governmentwide goals for short- and
long-term improvements in identifying and serving victims of human
trafficking. A draft plan was circulated for informal public comment in
April 2013 and a series of weekly interagency meetings was held to
review the comments and improve the plan. The final plan was released
at a survivor forum in January 2014 and is available at http://
www.ovc.gov/pubs/FederalHuman
TraffickingStrategicPlan.pdf.
Question. How is the Department addressing sex trafficking on the
Internet?
Lead-in information from original document.--
Human trafficking crimes involve the act of compelling or
coercing a person's labor, services, or commercial sex acts.
The coercion can be subtle or overt, or physical or
psychological. Trafficking doesn't just mean smuggling people
in or out the country as traffickers have demonstrated their
ability to exploit other vulnerable populations like runaway
children and documented guest workers.
The Justice Department has multiple agencies working on
issues related to human trafficking and in fiscal year 2013,
made 161 forced labor and sex trafficking prosecutions, a 25
percent increase, and the highest number of human trafficking
cases on record. Prosecutions are handled by the U.S. Attorneys
Office and Civil Rights Division, grant funding is provided
through the Office of Justice Programs and the FBI is the lead
investigative agency. For fiscal year 2015, the Department
requests $45 million to combat human trafficking across the
Department, a decrease of $3 million below fiscal year 2014.
Answer. The Department of Justice shares Congress's concerns about
sex trafficking on the Internet. The Department has attacked this
problem with a robust investigative and prosecutorial response, as well
as through training and outreach. The Criminal Section of the Civil
Rights Division (CRT) and CRT's Human Trafficking Prosecution Unit
(HTPU), in collaboration with United States Attorneys' Offices (USAOs)
nationwide, have principal responsibility for prosecuting human
trafficking crimes, except for cases involving sex trafficking of
minors. The Child Exploitation and Obscenity Section of the
Department's Criminal Division (CEOS) shares responsibility and
collaborates closely with USAOs nationwide in the investigation and
prosecution of Federal cases involving child sexual exploitation,
including the prostitution of children and the extraterritorial sexual
abuse of children.
In 2011, the Department expanded Project Safe Childhood (PSC).
Founded in 2006, PSC had initially focused on the effective prevention,
investigation, and prosecution of technology-facilitated child sexual
exploitation crimes. In 2011, the Department broadened the program to
cover all Federal child sexual exploitation crimes, including the sex
trafficking of children and child sex tourism. As a result of the
expansion of PSC, U.S. Attorneys conducted threat assessments of the
harm posed in their districts by crimes involving the commercial sexual
exploitation of children, resulting in enhanced ability to develop and
share expertise on the prevention and prosecution of these crimes. In
the Department's Strategic Plan for fiscal year 2014-2018, one of the
four priority goals is to protect vulnerable populations by increasing
the number of investigations and prosecutions concerning child
exploitation, human trafficking, and non-compliant sex offenders, and
by improving programs to prevent victimization, identify victims, and
provide services. The Department co-led an interagency effort to
develop the Federal Strategic Action Plan on Services for Victims of
Human Trafficking in the United States, which is available at http://
www.ovc.gov/pubs/FederalHumanTraffickingStrategicPlan.pdf. This plan is
intended to improve the response to all victims of trafficking,
including those whose trafficking was facilitated by the Internet.
The sections below provide examples of the Department's successful
prosecutions, ongoing initiatives and partnerships with law enforcement
agencies, and training and outreach efforts involving sex trafficking
on the Internet.
1. A. Prosecutions
United States v. Daniel Burton (D. Md.): In January 2014, Daniel
Burton, a/k/a Snoop, age 30, of Capitol Heights, Maryland was sentenced
to 262 months in prison followed by a lifetime term of supervised
release following his guilty plea to the sex trafficking of a minor.
According to his plea agreement, in March 2008, Burton recruited a 13-
year-old girl to engage in prostitution for him. Burton drove her to
hotels, photographed her in lingerie, and advertised her on Craigslist
for sexual services. The girl had sex with many clients that responded
to the ads, and Burton kept all the money she earned. Burton provided
the girl with alcohol, marijuana, and ecstasy. On April 8, 2008, law
enforcement saw a Craigslist ad for the girl's sexual services and
arranged a ``date.'' Law enforcement arrived at the hotel and arrested
Burton, who was sitting outside.
The case was investigated by the FBI-led Maryland Child
Exploitation Task Force (MCETF), created to combat child prostitution,
with members from 10 State and Federal law enforcement agencies. MCETF
also partners with the Maryland Human Trafficking Task Force, formed in
2007 to discover and rescue victims of human trafficking while
identifying and prosecuting offenders.
United States v. Weylin Rodriguez, et al. (M.D. Fla.): In March
2013, Weylin Rodriguez received a sentence of life imprisonment
following his conviction in November 2012 by a Federal jury for sex
trafficking of three minors and two adults through the use of force,
fraud, and coercion, as well as firearms offenses. Co-conspirators
Tatjuana Joye and Pria Gunn pled guilty to one count of conspiracy to
engage in sex trafficking of minors and by force, fraud and coercion.
In December 2012, Gunn was sentenced to 46 months incarceration and in
February 2013, Joye, who cooperated with the Government's
investigation, was sentenced to time served. Rodriguez ran a
prostitution ring called ``GMB'' (aka ``Get Money Bitch'') and lured
several minors and young adults into his ring through a variety of
means, including promising them jobs as models. Rodriguez advertised
the victims on backpage.com and also forced the victims to walk the
streets to pick up ``dates.'' The victims were required to follow
numerous rules and give all the money from their ``dates'' to
Rodriguez. To prevent the victims from leaving his ring, Rodriguez
inflicted severe beatings on them and threatened them with guns.
The FBI's Tampa, Florida Office, the Orlando Metropolitan Bureau of
Investigation, and the Orange County (Florida) Sheriff's Office
investigated the case, with additional investigation conducted by the
Osceola County (Florida) Sheriff's Office and the Charlotte-Mecklenburg
Police Department (North Carolina).
1. B. Investigations and Initiatives
In 2003, the FBI established the Innocence Lost National Initiative
(ILNI) as a means to combat the increasing frequency of commercial
sexual exploitation of children through prostitution, much of which is
initiated online via advertisements. The ILNI is victim centered, and
is primarily designed to identify and recover children. Over the past
11 years, the FBI and its partners have developed specific operations
to target both the supply side (individuals responsible for the
facilitation of this crime problem) and the demand side (those who pay
to engage in sex with children).
Over 2,100 investigations opened since the inception of the ILNI
have resulted in over 1,450 convictions on Federal, State, and local
charges, and over 3,100 children recovered and/or identified. The
youngest victim was 9 years old. Substantial sentences of convicted
pimps have been obtained, including 13 life sentences and many
sentences ranging from 25 to 50 years in prison.
The FBI has partnered with nearly 400 State, local, and Federal
agencies to form 69 Child Exploitation Task Forces (CETF) throughout
the United States. FBI field offices focus their resources on criminal
enterprises engaged in the transportation of juveniles for the purpose
of prostitution, using intelligence driven investigations and employing
sophisticated investigative techniques. The FBI uses the Internet as an
investigative tool to identify online advertisements for prostitution
involving children located on over 100 Web sites.
In addition, the FBI has coordinated seven iterations of Operation
Cross Country (OCC) since June 2008. OCC is a national enforcement
operation, conducted over 3-to-5-day periods, to combat commercial
sexual exploitation of children through prostitution in the United
States. FBI field offices, working with their law enforcement partners,
participated in the operation by targeting venues such as truck stops,
motels, and casinos where children are exploited, as well as the
Internet. Law enforcement officers from over 450 local, State, and
Federal law enforcement agencies joined together to recover victims and
apprehend those who have victimized them. As a result of these
operations, 434 child victims have been safely recovered and 581 pimps
engaged in the commercial sexual exploitation of children have been
arrested.
1. C. Training
The Department has led and participated in numerous training events
in recent years. CEOS provides advice and training to prosecutors, law
enforcement personnel and government officials both worldwide and in
the United States. The FBI also provides training and promotes
interagency sharing of skills in investigating sexual exploitation
offenses to develop a nationwide capacity to provide a rapid,
effective, and measured investigative response to crimes against
children.
CEOS attorneys travel all over the world to conduct trainings for
investigators, law enforcement and others involved in investigations
and prosecutions of child exploitation offenses, including sex
trafficking over the Internet. For example, CEOS attorneys participated
in three separate training conferences in Mexico in 2013, including
presenting at the Homeland Security Investigations Immigration and
Customs Enforcement (HSI ICE) Human Trafficking Seminar in August 2013.
CEOS also consults with numerous foreign delegations in the United
States to discuss efforts to enhance worldwide efforts against child
sexual exploitation crimes, including commercial sexual exploitation of
children.
Furthermore, in the United States, CEOS conducts trainings and
participates in coordination meetings with law enforcement and
prosecutors' offices. The FBI provides training on child exploitation
investigations as well. Since 2003, the FBI has partnered with NCMEC to
host Protecting Victims of Child Prostitution training courses. To
date, over 1,300 law enforcement officers and prosecutors have received
this training on the comprehensive identification, intervention, and
investigation of the commercial sexual exploitation of children.
Question. What is being done to address human trafficking on tribal
land?
Lead-in information from original document.--
Human trafficking crimes involve the act of compelling or
coercing a person's labor, services, or commercial sex acts.
The coercion can be subtle or overt, or physical or
psychological. Trafficking doesn't just mean smuggling people
in or out the country as traffickers have demonstrated their
ability to exploit other vulnerable populations like runaway
children and documented guest workers.
The Justice Department has multiple agencies working on
issues related to human trafficking and in fiscal year 2013,
made 161 forced labor and sex trafficking prosecutions, a 25
percent increase, and the highest number of human trafficking
cases on record. Prosecutions are handled by the U.S. Attorneys
Office and Civil Rights Division, grant funding is provided
through the Office of Justice Programs and the FBI is the lead
investigative agency. For fiscal year 2015, the Department
requests $45 million to combat human trafficking across the
Department, a decrease of $3 million below fiscal year 2014.
Answer. The Department of Justice's strong commitment against human
trafficking is represented in every United States Attorney's Office in
each district. All USAOs participate in a human trafficking taskforce,
where Indian country cases are discussed. In particular to Indian
country, the Executive Office for United States Attorneys recently
conducted a forensic interviewing class wherein DOJ employees were
trained to better interview victims of human trafficking (including
Native victims).
Additionally, the FBI investigates human trafficking and other
crimes that occur in Indian country. The FBI is also making a concerted
effort to increase awareness through training of Federal and tribal law
enforcement and victim specialists as well as supporting investigations
as they are identified. The FBI is working to also provide training
opportunities that highlight victim identification, investigative
techniques, and available resources.
From July 8, 2013 through July 12, 2013, the Department's Office on
Violence Against Women (OVW) conducted a site visit to western North
Dakota meeting with local law enforcement, tribal leaders, victim
advocates, the U.S. Attorney for North Dakota, State and tribal
coalition leaders, and service providers from both North Dakota and
Montana. OVW is exploring providing funds to law enforcement and victim
service providers in western North Dakota and eastern Montana to
address domestic violence, sexual assault, stalking, and trafficking.
In fiscal year 2012, the Bureau of Justice Assistance (BJA) solicited
proposals to address the issue of human trafficking in Native American
communities by developing and providing training to build awareness of
the existence of human trafficking in Indian Country, and providing law
enforcement and community stakeholders with the tools necessary to
begin the process of victim identification, rescue and restoration,
while providing appropriate consequences for perpetrators in a
consistently applied manner. BJA received four applications through a
competitive process and awarded $305,000 to the Upper Midwest Community
Policing Institute (UMCPI) to develop and pilot the training.
Since the award to UMCPI was made in September 2013, UMCPI, working
with BJA, developed curriculums and delivered human trafficking
trainings to tribal law enforcement. A summary of the curriculums and
the training sessions is provided below.
Curriculum Development
The Human Trafficking in Native American Communities curriculum was
developed by UMCPI, based on recommendations from a focus group of
subject matter experts that included State, tribal and municipal law
enforcement personnel, some with expertise in human trafficking;
Federal officials from the U. S. Attorney's Office--Western Washington
and Department of Homeland Security; and State Social and Health Indian
Child services unit. The curriculum provides training for tribal law
enforcement, tribal leaders and community stakeholders that includes
components covering: (1) basic understanding of human trafficking; (2)
outreach to the community, tribal leaders and service providers; (3)
the development of protocols and policies to increase the community's
capacity to address human trafficking; and (4) specialized
investigative and case coordination training for law enforcement.
Tribal Youth Peer-to-Peer Human Trafficking in Indian Country
Prevention Curriculum is an interactive, culturally responsive
curriculum that is to be delivered by persons who currently work with
Native American youth and who have completed the required train-the-
trainer program, offered by UMCPI. The curriculum is designed to
provide Native American youth with an understanding of the types of
human trafficking that can occur; how human trafficking can occur in
their community and provide them with information to help them identify
internal and external resources that can serve as protective factors
against human trafficking crimes.
UMCPI is also reviewing its other existing human trafficking
training, to explore how such training may be customized for the Native
American Community.
Trainings
--Representatives from law enforcement, tribal council, social
services, casino security, wildlife law enforcement, courts,
and a gaming regulatory commission attended the Human
Trafficking in Native American Communities pilot training.
--Representatives from education, recreation, tribal wellness
organizations and tribal council and a research organization
attended two Tribal Youth Peer-to-Peer Human Trafficking in
Indian Country Prevention pilot trainings.
Future Trainings
--Two additional Human Trafficking in Native American Communities
pilot trainings are scheduled to be held between August and
December 2014.
BJA is currently working with UMCPI to determine available funding
for future training classes. Additional information about UMCPI's human
trafficking training is available at its Web site, http://
www.umcpi.org/Services/NationalInitiatives/HumanTrafficking.aspx.
task forces
Question. How does the Department ensure there is not duplication
of effort across task forces? How is task force effectiveness measured?
Which component agencies have the largest number of task forces?
Lead-in information from original document.--
The Justice Department has 570 task forces covering areas
from terrorism and fugitive apprehension to intellectual
property and child recovery. These task forces are comprised of
teams of not only Federal law enforcement but State and local
police and intelligence agencies working together to identify
and respond to crime at the local level.
Answer. While several DOJ components operate task forces with
similar missions, each component brings a unique set of experience and
skills to its investigations. Further, DOJ has several deconfliction
mechanisms, such as DEA's Special Operations Division (SOD) and the
Organized Crime Drug Enforcement Task Forces (OCDETF) Fusion Center, to
ensure that task forces are not conducting investigations of the same
target. In fiscal year 2012 and fiscal year 2013, the Department
consolidated or eliminated more than 40 task forces to reduce intra-
agency overlap and ensure efficient task force management. The
Department recently adopted a mandatory policy regarding the use of
deconfliction systems in the course of all current and future
investigative activity, which took effect on May 30, 2014.
Implementation of this policy will address investigative, target, and
event data; improve effective coordination and collaboration of
investigative activity; maximize departmental performance; and most
importantly ensure officer safety. Regarding effectiveness, each of the
agencies' task forces have a unique mission, defined goals, and
individualized performance metrics incorporated into their overall
agency leadership and culture. DEA operates 250 task forces, including
its regional task forces, its Tactical Diversion Squads, and High
Intensity Drug Trafficking Area (HIDTA) task forces. FBI operates 217
Safe Streets and Safe Trails task forces focused on violent gangs,
violent crime, and major theft, and the USMS operates 67 fugitive task
forces, including its 7 Regional Fugitive Task Forces.
Question. How have cuts by State and local governments to their law
enforcement agencies impacted these operations? Have there been demands
for additional task force help in communities or States that have had
to downsize their public safety budgets? Or has participation in task
forces declined because States and localities can't spare the personnel
to participate?
Answer. DOJ's investigative agencies have seen mixed impacts on
State and local task force participation. For example, DEA's Tactical
Diversion Squads have seen a significant increase in participation
while participation on ATF's task forces and FBI's Joint Terrorism Task
Forces has remained stable. In some localities, participation is down
on FBI's criminal task forces while requests for operational assistance
have increased.
assets forfeiture
Question. What has been shared with State and local partner
agencies via equitable sharing programs or as part of asset forfeiture
in fiscal year 2012 and 2013 and what is expected to be shared in
fiscal year 2014?
Answer. The Department's Asset Forfeiture Program (AFP) made
payments of $447.3 million in fiscal year 2012 and $657.2 million in
fiscal year 2013 to State and local partner agencies through the
equitable sharing program. In fiscal year 2014, the AFP made equitable
sharing payments of $425.1 million to State and local partner agencies.
Additionally, the Department's AFP made available $140.5 million in
fiscal year 2012 and $154.7 million in fiscal year 2013 and fiscal year
2014 for expenses incurred by State and local law enforcement officers
participating in joint law enforcement operations with Federal
agencies.
______
Questions Submitted by Senator Patrick J. Leahy
immigration courts
Question. What will be the real impact, of an additional 35
immigration judge teams, to the existing backlog when the staffing
needs appear to be so dire?
Lead-in information from original document.--
I am concerned about the large and expanding docket of our
Nation's immigration court system. Between 2009 and 2013, the
pending caseload grew 50 percent. The Executive Office for
Immigration Review has stated the court system has 32
vacancies. To make matters worse, nearly half of the 200
immigration judges are eligible for retirement. However, I was
encouraged the Department of Justice requested a $17 million to
support an additional 35 Immigration Judge teams to help
process the backlog of over 350,000 cases.
Answer. The addition of 35 Immigration Judge Teams will allow
EOIR's immigration courts to process a greater number of pending cases.
The number of pending cases over time depends on the volume of existing
cases, new charging documents filed by DHS, and case completions. EOIRs
current pending caseload volume in fiscal year 2014 is approximately
389,000 proceedings. The number of annual completions by an Immigration
Judge varies according to a number of factors, including the type of
docket to which the judge is assigned. Taking into account variable
completion rates among judges, EOIR estimates that 35 additional IJ
teams will likely complete between 21,000 and 28,000 proceedings
annually. The effect of this added productivity upon the pending
caseload or backlog will depend on the number of additional charging
documents filed by DHS during the same period. Finally, any gains in
staffing and productivity may be lowered slightly due to normal staff
attrition.
Question. What other steps is EOIR taking to promote efficiencies
to address the immigration court backlog?
Answer. EOIR continues to work closely with DHS, other government
agencies, and non-profit organizations to explore ways to promote
efficiencies to address the immigration courts pending caseload. In
conjunction with these groups, EOIR has conducted test pilots across
the country in the areas of non-contested dockets, alternatives-to-
detention, pre-trial conferences, and unaccompanied alien children
scheduling adjustments to try to streamline immigration proceedings.
To improve the effective and efficient adjudication of immigration
removal proceedings for vulnerable populations, such as unaccompanied
alien children and detained aliens who are deemed mentally incompetent
to represent themselves in immigration proceedings, EOIR dedicated over
$3 million in fiscal year 2014 resources to provide legal aid services
to these populations.
Additionally, in fiscal year 2014, EOIR dedicated approximately
$6.6 million for the Legal Orientation Program (LOP), which improves
efficiencies in immigration court proceedings for detained aliens by
increasing their awareness of their rights and the overall process. As
a result of the increased funding provided in fiscal year 2014, EOIR
expanded the program to provide these services at five additional adult
facilities and four family detention facilities. Today, the LOP is
available at 32 sites across the country. Evaluation reports have shown
that LOP participants complete their immigration court cases in
detention an average of 12 days faster than detainees who do not
participate in an LOP, which saves the Government approximately $12.3
million annually. EOIR has requested another $2.8 million in fiscal
year 2015 to respond to elevated demand at existing LOP sites and to
add 12 more sites.
forensics reform
Question. Would you agree that there must be national leadership in
the area of forensic science, and that the Department of Justice,
working with the FBI and other elements of the executive branch, can
play a central role in the development of this important part of our
criminal justice system?
Lead-in information from original document.--
Last month, I introduced a comprehensive bill aimed at
strengthening and improving the forensic sciences used in the
criminal justice system. I am pleased that Senator Cornyn has
joined as a cosponsor of this bill, and hope that we can
continue to build support for this bipartisan, commonsense
bill. I know that the Department of Justice has been a leader
in the forensic sciences, particularly with regard to DNA
analysis in their FBI crime labs. But I think you will also
agree with me that more work needs to be done.
Answer. Yes, the Department of Justice (DOJ) agrees that there must
be national leadership in the area of forensic science. To that end,
DOJ, in collaboration with the National Institute of Standards and
Technology, established the National Commission on Forensic Science to
provide Federal leadership in forensic science while also encouraging
strong State and local participation. The Commission will have an
important role in strengthening the validity and reliability of the
forensic sciences and enhancing quality assurance and quality control.
Scientifically valid and accurate forensic analysis supports all
aspects of our justice system.
Question. Will you commit to working with me on the forensics
reform bill that I introduced last month?
Answer. The Department is committed to working closely with you and
others in Congress to strengthen forensic science. We are grateful for
your interest in this important issue and will be glad to work with
Congress on efforts to enhance the validity and reliability of forensic
sciences.
budget cuts
Question. Can you describe what DOJ programs have faced shrinking
budgets in recent years and what impact, if any, this threatens to have
on public safety?
Lead-in information from original document.--
In recent years the Bureau of Prisons' budget has expanded at
unprecedented levels despite overall funding for the Justice
Department remaining relatively stagnant.
Answer. Since fiscal year 1994, the Federal prison population more
than doubled, and the detention population more than tripled. As a
result, the budget for prisons and detention has constituted an
increasing portion of the Department's total budget. Prisons and
detention costs increased from 27 percent of DOJ's discretionary budget
in fiscal year 2000 to 31 percent in fiscal year 2013, leaving less
funding for other DOJ functions even before sequester. During this same
period, including grants for State and local law enforcement, funding
for grants decreased from 26 percent of DOJ's fiscal year 2000 budget
($4.0 billion) to 8 percent ($2.0 billion) in fiscal year 2013.
If this trend continues unabated while DOJ's total authority
remains flat, the discretionary funding available for other DOJ
activities that protect public safety--including resources for
investigation, prosecution, prevention, intervention, and assistance to
State and local law enforcement--will decrease.
This reality has only served to intensify the need for smarter
investments to protect public safety. For this reason, on August 12,
2013, the Attorney General announced his ``Smart on Crime'' initiative,
which prioritizes prosecutions of the most serious cases, reforms
sentencing policies to help control Federal prison spending and ensure
that people convicted of low-level, non-violent drug offenses receive
appropriate sentences, invests in alternatives to incarceration for
low-level, non-violent offenders, and improves reentry to curb repeat
offenses and re-victimization.
prisoner reentry
Question. In furthering its goal of ensuring public safety, what
has the Department of Justice found to be the most effective tools or
methods to reducing recidivism rates?
Lead-in information from original document.--
Last year, Senator Portman and I introduced the Second Chance
Reauthorization Act, which is aimed at improving prisoner
reentry.
Answer. The Department of Justice (DOJ) is committed to fulfilling
the objectives outlined in the Second Chance Act (SCA). Reentry
programming provides a major opportunity to reduce recidivism, save
taxpayer dollars and make our communities safer. One of the primary
goals of the SCA has been to reduce recidivism by using risk and needs
assessments to identify returning offenders with moderate- to high-risk
of returning to prison or jail. Focusing on these moderate- to high-
risk offenders allows agencies to concentrate their resources on those
offenders with the most significant needs. The Department's Bureau of
Justice Assistance (BJA) manages the SCA grant programs and believes
that the most effective tools to prevent recidivism are a set of
``comprehensive wrap-around services'' based on evidence-based programs
that meet the identified needs of individual offenders. For example, it
does little good to find an offender a job if his or her substance
abuse or mental health problems are barriers to keeping the job.
Likewise, simply having a place to live may not stabilize an offender
unless he or she has access to supportive case management services
designed to help him or her adjust to independent living situations.
There are no ``silver bullets'' that will magically eradicate
recidivism; rather, it takes a complete tool box of services to apply
to each unique situation based on the specific needs of the returning
offender.
Bureau of Prisons (BOP) also offers a variety of programs to help
inmates return to their communities as law-abiding citizens, including
work, education, vocational training, substance abuse treatment,
observance of faith and religion, psychological services and
counseling, and other programs that impart essential life skills.
To strengthen the focus on its reentry mission, BOP created the
Reentry Services Division (RSD) in fiscal year 2013. RSD will enhance
reentry programming and community resource transition, thereby
decreasing the recidivism rate of released offenders and increasing
public safety. RSD is comprised of five branches that were previously
part of the Correctional Programs Division: National Reentry Affairs,
Chaplaincy Services, Residential Reentry Management, Female Offenders,
and Psychology Services.
Some of BOP's most successful programs include:
--Federal Prison Industries (FPI or trade name UNICOR) is one of the
BOP's most important correctional programs. Approximately
13,000 inmates work in FPI. It has been proven to substantially
reduce recidivism. Research has demonstrated that inmates who
participate in the FPI are 24 percent less likely to reenter
the Federal system than similar non-participating inmates. FPI
gives inmates the opportunity to develop marketable work skills
and a general work ethic--both of which can lead to viable,
sustained employment upon release. This is particularly
noteworthy for reentry given the barriers to post-release
employment many offenders face. FPI also keeps inmates
productively occupied; inmates who participate are
substantially less likely to engage in misconduct.
--FPI inmate employment has significantly decreased in recent
years. This decrease is a result of the downturn in the
economy, a decrease in supplies needed to support the war
effort, as well as legislative changes. Legislation enacted
over the past few years (including various provisions in
Department of Defense authorization bills and
appropriations bills) also have weakened FPI's standing in
the Federal procurement process by requiring FPI to compete
for the work of Federal agencies in many instances where it
was previously treated as a mandatory source of supply.
--More recently, Congress has enacted legislation to assist in
enhancing inmate work opportunities. Staff in BOP's New
Business Development Group are dedicated to developing
repatriation and Prison Industries Enhancement
Certification Program (PIECP) opportunities, and are
enthusiastically pursuing many different products and
working with a number of different potential partners.
--Educational programming provides inmates with an opportunity to
learn the functional skills that support their reintegration
into the community. Inmate education programs include literacy,
English-as-a-Second Language (ESL), occupational education,
advanced occupational education (AOE), parenting, release
preparation courses, and a wide-range of adult continuing,
wellness, and structured and unstructured leisure time
activities. At the end of fiscal year 2013, 34 percent of the
designated inmate population was enrolled in one of more
education/recreation program. Empirical research has found that
participation in educational programs leads to a 16 percent
reduction in recidivism by inmates who participate in these
programs.
--The BOP's substance abuse strategy includes a required drug
education course, non-residential drug abuse treatment,
residential drug abuse treatment, and community transition
treatment. Because certain non-violent offenders who
successfully complete all components of this recidivism-
reducing program are eligible for an incentive of up to 1 year
off their sentence, inmates are strongly motivated to
participate. Empirical research has shown that inmates who
complete the residential drug abuse treatment program are 16
percent less likely to recidivate and 15 percent less likely to
have a relapse in their substance use disorder use within 3
years after release (male inmates).
______
Questions Submitted by Senator Dianne Feinstein
prosecuting gitmo detainees in u.s. courts
Question. Now that we have seen that conviction rates have been
higher in Federal criminal courts than in Military Commissions, aren't
there some GTMO detainees who we would be better off prosecuting in
Federal criminal court, especially for conspiracy and material support?
Answer. The Department has never doubted the ability of the Article
III court system to administer justice swiftly and effectively in
terrorism-related prosecutions. Hundreds of terrorism-related cases
have demonstrated the effectiveness of this approach, including the
March 2014 conviction by a Federal jury in Manhattan of Sulaiman Abu
Ghayth, the son-in-law of Usama bin Laden and a senior member of al
Qaeda, and the May 2014 conviction by a Federal jury in Manhattan of
Mustafa Kamel Mustafa a/k/a ``Abu Hamza al Masri'', another al Qaeda-
linked figure who, among other things, conspired to establish a
terrorist training camp here in the United States. The decision of
whether to prosecute terrorism cases in Article III courts or in
military commissions must be based on the facts and circumstances and
our national security interests on a case-by-case basis. As you know,
however, Section 1034 of the National Defense Authorization Act for
fiscal year 2014 continues the ban against using Department of Defense
funds to transfer Guantanamo detainees into the United States for any
type of trial or any other purpose.
Question. If GTMO detainees can be held safely and securely before,
during, and after their trial in Federal criminal courts, when will we
start bringing GTMO detainees into the United States for prosecution
again?
Lead-in information from original document.--
Like you, I was pleased to see that, last month, a senior al-
Qaeda figure named Sulaiman Abu Ghayth was convicted in Federal
criminal court of all three counts against him, which could
bring a sentence of life in prison.
With the high rate of convictions we have seen in the Federal
courts since 9/11, I'd like to get your thoughts on
transferring detainees from Guantanamo for prosecution in the
U.S. Although Abu Ghayth was not transferred from Guantanamo,
he was a senior al-Qaeda figure. And there is the precedent of
Guantanamo detainee Ahmed Ghailani being transferred to New
York City where he was sentenced to life in prison in Federal
court for conspiracy to kill Americans even though he was
acquitted of most of the other charges against him.
Answer. There is ample evidence that terrorism defendants can be
held safely and securely before, during, and after trial in the United
States. As you know, however, the National Defense Authorization Act
for fiscal year 2014 continues the ban against using Department of
Defense funds to transfer Guantanamo detainees into the United States
for trial or any other purpose.
Question. Will you please work with this Committee to oppose any
restrictions on these transfers to the U.S. that would make it harder
to bring these terrorists in Guantanamo to justice?
Answer. The Administration remains committed to closing the
detention facility at Guantanamo Bay, as continued operation of the
facility weakens our national security. We welcomed the loosening of
some of the restrictions related to the transfer of detainees to
foreign countries in the National Defense Authorization Act for fiscal
year 2014. However, the continuing restrictions on transfer of
Guantanamo detainees to the United States and the remaining
restrictions on transfer of detainees to third countries unnecessarily
curtails the flexibility and options available to the executive branch.
The Justice Department will continue to work with Congress to remove
these transfer restrictions.
terrorist asylum
Question. Mr. Attorney General, as you know, one of the arguments
critics use to justify their position that more terrorists should be
sent to Guantanamo is that they can be granted asylum if they are
prosecuted on U.S. soil. What is your response to that claim?
Answer. As explained more fully in the recently submitted
congressional report requested by Section 1039 of the National Defense
Authorization Act for fiscal year 2014, no Guantanamo detainee
relocated to the United States would have a right to receive a grant of
asylum in the United States. Asylum is a discretionary form of relief
generally available to an alien who demonstrates, inter alia, that he
was persecuted or has a well-founded fear of persecution in his country
of nationality on account of his actual or imputed race, religion,
nationality, membership in a particular social group, or political
opinion. Although an alien who is physically present in the United
States may, with limited exceptions, file an application for asylum,
that application may be denied as a matter of discretion even if the
alien were able to satisfy the eligibility requirements. Moreover, in
many cases involving Guantanamo detainees, one or more of a number of
statutory bars to eligibility could also apply. For example, an alien
who has engaged in terrorist activity as described in INA
Sec. 212(a)(3)(B), 8 U.S.C. Sec. 1182(a)(3)(B), is ineligible for
asylum. An alien is also barred from obtaining asylum where he has
ordered, incited, assisted, or otherwise participated in persecution on
account of a protected ground or where there are reasonable grounds for
regarding the alien as a danger to the security of the United States.
Additionally, where an alien, having been convicted of a particularly
serious crime, poses a danger to the community or where there are
``serious reasons for believing that the alien has committed a serious
nonpolitical crime'' outside the United States, the alien is also
barred from receiving asylum.
funding for the bureau of alcohol, tobacco, firearms and explosives
(atf) attrition
Question. How will the loss of special agents affect ATF's ability
to conduct criminal investigations, train new agents, and carry out the
Bureau's work?
Answer. ATF's ability to effectively address violent crime in our
communities and neighborhoods is directly tied to the number of special
agents and industry operations investigators in our workforce. ATF
faces several challenges including the anticipated retirement and
attrition of hundreds of special agents in the next few years. While
ATF has traditionally worked in partnership with State and local law
enforcement agencies to leverage its capabilities and impact on violent
crime, these approaches alone are not sufficient to overcome
significant losses within its agent cadre. The loss of hundreds of
special agents jeopardizes ATF's mission capacity; however, the fiscal
year 2014 Appropriation began to address this challenge and ATF was
able to hire approximately 217 special agents in fiscal year 2014. With
the funding requested in the fiscal year 2015 President's budget, ATF
will be able to sustain the hiring effort started this year.
Question. What steps is ATF taking to address this attrition?
Answer. ATF hired approximately 217 special agents in fiscal year
2014 in an effort to offset the impact of recent attrition as well as
projected future attrition and retirements. ATF anticipates that a
sustained hiring effort will be required over the next several years in
order to maintain the special agent cadre and ensure that there is no
degradation of ATF's mission capability as a result of personnel loss.
ATF is also revitalizing and expanding its advanced agent training
programs and leadership development programs. For example, ATF has
undertaken course redesign/review efforts related to its advanced
investigations training program, the advanced firearms training
program, and the Industry Operations Investigator (IOI) training
programs. The goal for these efforts is to create updated curricula
that can be broken out into individual modules and delivered by
instructors already in the field. ATF is also accelerating its
leadership development efforts. For example, ATF has completed
development and implementation of the ATF Leadership Philosophy, which
provides a consistent contextual basis for developing and emphasizing
leadership principles throughout the organization. ATF has also
initiated development of a new Leadership and Command course for agents
in the supervisory and managerial ranks, addressing a critical need
within those cadres. Further, ATF is investing in additional training
opportunities for managers through the Center for Creative Leadership
(CCL) and is increasing its support for its Aspiring Leaders and
Leadership Enhancement programs.
While hiring new agents serves as a numerical offset to attrition,
many years of training and experience are required before a new agent
is fully capable of replacing a senior agent. ATF is working to
accelerate that development process, taking advantage of the existing
experience of senior agents within the workforce to prepare new agents
for the technical and leadership challenges that lie ahead.
Question. How does the President's budget request for ATF address
this attrition?
Answer. ATF anticipates that a sustained hiring and training effort
will be required over the next several years in order to maintain ATF's
special agent cadre and ensure that ATF's mission capability is not
degraded due to retirements and attrition. ATF hired approximately 217
special agents in fiscal year 2014 in an effort to offset the impact of
recent attrition as well as projected future retirements and the fiscal
year 2015 President's budget sustains these hiring efforts.
Question. How imperative is it that Congress fully fund ATF in line
with the President's budget request?
Answer. The fiscal year 2015 President's budget request includes
$22 million in adjustments to base that sustains the momentum and
positive steps the Bureau is made in fiscal year 2014 to address areas
of concern and vulnerability. In particular, ATF anticipates that a
sustained hiring and training effort will be required over the next
several years in order to maintain ATF's special agent cadre and ensure
that ATF's mission capability is not degraded due to retirements and
attrition.
unaccompanied alien children
Question. Have you considered developing dockets in immigration
courts dedicated to children, so that non-profit organizations and pro
bono attorneys can better coordinate legal representation and child
advocates for children? If so, what steps have you taken thus far?
Lead-in information from original document.--
A recent surge in widespread organized crime and violence in
Central America has led to an unprecedented increase in the
number of unaccompanied alien children (UAC) crossing the U.S.-
Mexico border. Many of these children wind up in the custody of
the Office of Refugee Resettlement. I applaud the work done for
these children by the Legal Orientation Program. However, the
Program doesn't serve children who have been released from
custody. Considering the increased numbers of these children,
and the fact that many of those already released from custody
still have pending immigration cases, more has to be done to
ensure these children have Child Advocates and attorneys to
represent them navigate immigration court.
Congress allocated $315 million for the Executive Office for
Immigration Review (EOIR) and the Office of the Pardon Attorney
in the 2014 Consolidated Appropriations Act (Public Law 113-
76), instructing DOJ to ``better serve vulnerable populations
such as children,'' and ``improve court efficiency through
pilot efforts aimed at improving legal representation.''
Answer. EOIR has established ``juvenile dockets'' throughout the
country to facilitate consistency, encourage child-friendly courtroom
practices, and promote pro bono representation for unaccompanied alien
children (UAC). Currently, there are juvenile dockets in 26 immigration
court locations. In addition, DOJ has appointed an Assistant Chief
Immigration Judge (ACIJ) for vulnerable populations, who has the
responsibility for continuing the development and implementation of
EOIR policy concerning vulnerable populations. The ACIJ is focusing on
the UAC population in particular, and is working with EOIR's Office of
Legal Access Programs and the various immigration courts to further
improve training for court staff, as well as examine and implement
improved procedures for handling UAC cases.
Question. Will the DOJ take steps to allocate funds to provide
legal representation for unaccompanied children?
Answer. The Department of Justice, through EOIR, entered into a
strategic partnership with the Corporation for National and Community
Service (CNCS), which operates the AmeriCorps national service program,
to provide legal aid to certain unaccompanied minors and to improve the
effective and efficient adjudication of immigration removal proceedings
involving those children. The Justice Department and CNCS partnership,
known as Justice AmeriCorps, responds to Congress' direction to EOIR in
its fiscal year 2014 appropriation ``to better serve vulnerable
populations such as children [and to] improve court efficiency through
pilot efforts aimed at improving legal representation.'' On September
12, 2014, CNCS awarded $1.8 million in grants to organizations and
coalitions providing services at approximately 17 sites. It is
anticipated that the organizations and coalitions will begin providing
legal representation services in January 2015.
In addition, EOIR allocated $200,000 in funding to the Vera
Institute of Justice to provide direct legal representation for
unaccompanied children appearing before the Baltimore Immigration
Court. The Baltimore Representation Initiative for Unaccompanied
Children will be operational January 2015.
Question. Will the DOJ commit to looking at how to expand access to
legal counsel for immigrant children?
Answer. The Department of Justice is committed to looking at how to
expand access to legal counsel for immigrant children. In addition to
launching the Justice AmeriCorps program and the Baltimore Initiative
to provide legal aid to unaccompanied children, the Department
continues to work closely with other government agencies and non-profit
organizations to explore ways to increase access to legal services for
unaccompanied children in removal proceedings, as well as other
vulnerable populations. Over the past several years, EOIR, together
with its government and non-governmental partners, has made great
strides to improve the adjudication process for children. These
include:
--Issuing guidance to immigration court staff to implement more
child-friendly court practices and improve access to pro bono
legal services.
--Creating special children's dockets at the majority of immigration
courts to better accommodate pro bono legal services and
implement more child-friendly court practices.
--Expanding Immigration Judge training for hearing cases involving
children.
--Facilitating Legal Access Programs funded by the Office of Refugee
Resettlement (ORR), which provides ``know your rights''
presentations and pro bono legal services at all ORR shelter
care locations.
--Creating the Legal Orientation Program for Custodians of UAC
(LOPC), which funds non-governmental organizations to provide
legal orientation presentations and pro bono referral services
to the custodians (adult caregivers) of UACs. The purpose of
this program is to inform UAC custodians of their
responsibilities in ensuring the child's appearance at all
immigration proceedings, as well as protecting the child from
mistreatment, exploitation and trafficking. In fiscal year
2014, EOIR allocated $2.5 million in funding to this program.
--Engaging public stakeholders to improve access to pro bono legal
services, especially for children and family groups. These
ongoing efforts have included large stakeholder meetings with
EOIR's Director, Deputy Director, and Assistant Chief
Immigration Judges in cities with the largest unaccompanied
child populations.
immigration court backlog
Question. Assuming that the 35 new immigration judge teams were to
be filled, would that suffice for EOIR's needs?
Answer. Hiring 35 Immigration Judge teams will assist EOIR with
managing the incoming caseload. As of November 2014, EOIR's Immigration
Judge Corps consists of 241 Immigration Judges, which is below an
optimal staffing level to appropriately address the incoming and
pending caseload. In light of the ongoing surge in immigration,
especially along the Southwest Border, EOIR initiated the hiring of
more than 30 Immigration Judges in fiscal year 2014 to address a
longstanding shortfall exacerbated by a 5 percent to 10 percent
attrition rate per year. EOIR anticipates the above-mentioned 35
Immigration Judge teams in 2015 will allow EOIR to better address the
incoming caseload and begin to reduce the pending caseload.
Question. What impact will an additional 35 immigration judge teams
have on the existing backlog?
Answer. The addition of 35 Immigration Judge Teams will allow
EOIR's immigration courts to process a greater number of pending cases.
The number of pending cases over time depends on the volume of existing
cases, new charging documents filed by the Department of Homeland
Security (DHS), and case completions. EOIRs current pending caseload
volume in fiscal year 2014 is approximately 389,000 proceedings. The
number of annual completions by an Immigration Judge varies according
to a number of factors, including the type of docket to which the judge
is assigned. Taking into account variable completion rates among
judges, EOIR estimates that 35 additional Immigration Judge (IJ) teams
will likely complete between 21,000 and 28,000 proceedings annually.
The effect of this added productivity upon the pending caseload or
backlog will depend on the number of additional charging documents
filed by DHS during the same period. Finally, any gains in staffing and
productivity may be lowered slightly due to normal staff attrition.
Question. What other steps is EOIR taking to promote efficiencies
to address the immigration court backlog?
Answer. EOIR continues to work closely with DHS, other government
agencies, and non-profit organizations to explore ways to promote
efficiencies to address the immigration courts pending caseload. In
conjunction with these groups, EOIR has conducted test pilots across
the country in the areas of non-contested dockets, alternatives-to-
detention, pre-trial conferences, and unaccompanied alien children
scheduling adjustments to try to streamline immigration proceedings.
To improve the effective and efficient adjudication of immigration
removal proceedings for vulnerable populations, such as unaccompanied
alien children and detained aliens who are deemed mentally incompetent
to represent themselves in immigration proceedings, EOIR dedicated over
$3 million in fiscal year 2014 resources to provide legal aid services
to these populations.
Additionally, in fiscal year 2014, EOIR dedicated approximately
$6.6 million for the Legal Orientation Program (LOP), which improves
efficiencies in immigration court proceedings for detained aliens by
increasing their awareness of their rights and the overall process. As
a result of the increased funding provided in fiscal year 2014, EOIR
expanded the program to provide these services at five additional adult
facilities and four family detention facilities. Today, the LOP is
available at 32 sites across the country. Evaluation reports have shown
that LOP participants complete their immigration court cases in
detention an average of 12 days faster than detainees who do not
participate in an LOP, which saves the Government approximately $16.6
million annually. EOIR has requested another $2.8 million in fiscal
year 2015 to respond to elevated demand at existing LOP sites and to
add 12 more sites.
Question. Since many people in immigration court lack attorneys and
a basic understanding of the immigration court process, what steps is
EOIR employing, or considering, to give these people better access to
information so they can move through court proceedings more
expeditiously without sacrificing due process?
Answer. EOIR has established an Office of Legal Access Program to
administer several programs and initiatives to provide people with
better access to legal information and counsel. The programs and
initiatives include: the Legal Orientation Program (LOP), the Legal
Orientation Program for Custodians of Unaccompanied Alien Children
(LOPC), Self Help Legal Centers, Self Help Guides, Model Hearing
Program, and Pro Bono Liaison Judge meetings.
______
Questions Submitted by Senator Mary L. Landrieu
new orleans consent decree
Question. What is causing the delay in Department of Justice's
review of the New Orleans Police Department's policies?
Lead-in information from original document.--
As you know the New Orleans Police Department entered into a
consent decree with the Department of Justice in 2012. A
Federal court imposed an October deadline for the review of
important policies and those policies have not been fully
reviewed.
Answer. A comprehensive Consent Decree designed to bring the New
Orleans Police Department (NOPD) into compliance with the Constitution
is in place, and in July 2013 the court appointed an experienced
monitoring team to oversee implementation of the Decree.
The Department and the city of New Orleans, with the Court's
approval and oversight, have worked cooperatively to devise a policy
review process that will allow the NOPD to adopt and implement policies
that are consistent with the law as quickly and efficiently as
possible.
NOPD has provided a limited number of policies to DOJ and the
Consent Decree Monitor (``Monitor''), and both DOJ and the Monitor have
provided comments and suggestions regarding those policies in a timely
manner. NOPD, DOJ, and the Monitor have worked together to revise those
policies to ensure that they comply with the Consent Decree and
applicable law, and to ensure that they will be effective for NOPD's
particular needs. In some instances, that process is ongoing. In
others, that process has been completed and DOJ and the Monitor have
provided final approval for NOPD to adopt and implement those policies.
The Department continues to work closely with the city and police
department, as well as the Monitor, to facilitate transformative change
and ensure reform of the New Orleans Police Department. The Department
has reviewed, and will continue to review, all policies submitted to it
in a timely fashion and in compliance with the Decree and all Court
Orders.
Question. What process is the Department of Justice utilizing to
review NOPD's policies? Are there subject matter experts within the DOJ
who are actively engaged in the review of the policies? If not, are the
DOJ lawyers qualified to adequately and efficiently review the
policies?
Answer. Once NOPD submits policies to DOJ and the Monitor, DOJ
lawyers review those policies to ensure that they comply with the law
and the Consent Decree, are internally consistent, and provide NOPD
officers with effective guidance. In performing that review, DOJ
lawyers consult the Monitoring team, subject matter experts, and any
other necessary sources in order to ensure that the review is thorough
and effective.
Question. Did the Department of Justice analyze the effects of
creating the office of police secondary employment in New Orleans? Has
the Department of Justice ever included provisions related to secondary
employment in any other consent decree? If so, in which municipalities?
Answer. The Department's investigation of NOPD revealed that NOPD's
unregulated system of secondary employment was a significant
contributor to unconstitutional policing in New Orleans. As detailed in
the Department's findings letter, unregulated secondary employment both
undermines the accountability structure within NOPD and encourages
corruption, favoritism, and unprofessional and unconstitutional
policing more broadly. For these reasons, which were specific to NOPD,
for the first time, provisions related to secondary employment were
included in the Consent Decree, which the city has agreed, and the
Federal courts have found, is fair, adequate, and reasonable. In
crafting the Consent Decree, DOJ worked with the city to create a
system that would allow officers to continue to work secondary
employment, but that would also address the ways in which secondary
employment has contributed to a pattern or practice of unconstitutional
conduct. DOJ remains committed to working with the city to ensure that
its secondary employment system is fair and accountable.
Question. Has the Department of Justice undertaken any efforts to
regulate the Orleans Parish Sheriff's Office's paid detail system? Does
the Department of Justice have a position on whether OPSO's staffing
levels in the jail are affected by deputies performing paid details?
Has the Department of Justice undertaken that analysis in light of its
stated position that staffing is a major issue at the jail?
Answer. The Department of Justice is enforcing compliance with the
consent judgment it achieved in Jones v. Gusman, 12cv859, a pattern or
practice civil rights case addressing conditions in the Orleans Parish
Prison. Secondary employment by Sheriff Deputies is beyond the scope of
that agreement. As required by the Prison Litigation Reform Act (PLRA),
the terms of the consent judgment are narrowly tailored to address the
constitutional violations in the jail. Among other terms, the consent
judgment requires correctional staffing and supervision that is
sufficient to adequately supervise prisoners, fulfill the terms of the
consent judgment, and allow for the safe operation of the jail,
consistent with constitutional standards. In February 2014, as required
by the consent judgment, the Orleans Parish Sheriff's Office provided a
staffing analysis and plan to all parties to the consent judgment and
to the city of New Orleans. Staffing remains a very serious problem at
the jail and the United States is attempting to determine the causes of
the problem in the context of the litigation. The United States is
aware of a substantial increase in the hiring of Deputies for paid
details and assessing whether that increase has an impact on the
implementation of the consent decree or raises justiciable issues. The
Department of Justice is committed to vigorously enforcing the consent
judgment, including all PLRA-compliant measures to achieve adequate
staffing and supervision to address the ongoing unconstitutional
conditions and unacceptable levels of violence in the jail.
______
Questions Submitted by Senator Jeff Merkley
white collar crime prosecution
Question. How many criminal prosecutions and convictions has the
DOJ secured related to the 2008 crisis? If there is a stark difference,
why is that so? To what degree have inadequate resources constrained
DOJ's efforts? How many DOJ prosecutors work full time on white collar
crime? Can you give me specific numbers on the following types of
crimes (differentiate between full time and as a percentage of
individual portfolios, please also differentiate from those who have
been detailed to other assignments):
--mortgage and securities fraud;
--market manipulation in derivatives, oil or other commodities,
financial indices, or currencies;
--offshore tax evasion;
--money laundering and sanctions; and
--payment system and other financial fraud.
Lead-in information from original document.--
In the Savings and Loan Crisis in the 1980's pervasive fraud
led to economic disaster. The DOJ during those years
aggressively stepped up its white collar task forces and over
150 people from DOJ and Treasury worked on Savings and Loan
fraud full time. By 1992, there had been over 1,100 criminal
prosecutions with over 839 convictions.
By contrast, the DOJ's response to the recent crisis appears
much more muted.
Answer. With regard to your first question on the number of
criminal prosecutions and convictions that the Department has secured
related to the 2008 crisis, it must be stated at the outset that the
Department's position is, and always has been, that no person, and no
corporation, is above the law. The Department is committed to
aggressively investigating allegations of wrongdoing at financial
institutions and, along with our law enforcement and regulatory
partners, holding individuals and corporations responsible for their
conduct through the criminal, civil, and administrative enforcement
tools available to us. That being said, it is difficult to pinpoint
precisely which cases are and are not directly related to the
catastrophic economic events that began unfolding in 2008. What we can
report is that the Department has prosecuted an incredible number of
financial fraud cases since the inception of the financial crisis.
Specifically, from fiscal year 2008 through the second quarter of
fiscal year 2014, the United States Attorneys' Offices filed 21,544
financial fraud cases against 31,349 defendants.\1\ During that same
time period, 28,496 defendants were convicted of financial fraud
crimes, and 18,063 were sentenced to prison for such crimes. Some of
the more notable individuals in the financial industry prosecuted in
the aftermath of the financial crisis are:
---------------------------------------------------------------------------
\1\ Financial fraud encompasses the following program categories:
Federal procurement fraud; Federal program fraud; financial institution
fraud; bankruptcy fraud; advance fee schemes; other fraud against
businesses; consumer fraud; securities fraud; commodities fraud; other
investment fraud: mortgage fraud; or corporate fraud.
---------------------------------------------------------------------------
--JP Morgan (London Whale individuals)
--Goldman Sachs (Rajat Gupta; Matthew Taylor)
--Morgan Stanley (Garth Peterson)
--Credit Suisse (Kareem Serageldin and several others)
--UBS (2 London Interbank Offered Rate (LIBOR) individuals and
individuals in antitrust cases)
--Rabobank (3 LIBOR individuals)
--ICAP (3 LIBOR individuals)
--Galleon (Rajaratnam and several others)
--SAC Capital (many)
--Stanford Financial Group (Allen Stanford and others)
Further, with respect to prosecutions of institutions, beginning in
2013, the Department has obtained guilty pleas from the following
financial industry institutions:
--UBS Subsidiary (LIBOR) (plus $100 million fine)
--RBS Subsidiary (LIBOR) (RBS parent paid $100 million penalty)
--SAC Capital (plus $1.8 billion in fines and forfeiture)
--Wegelin (Swiss Bank)
Moreover, in November 2013, the Department announced the largest
settlement with a single entity in American history: a $13 billion
settlement with JPMorgan, to resolve Federal and State civil claims
arising out of the packaging, marketing, sale and issuance of
residential mortgage-backed securities by JPMorgan, Bear Stearns and
Washington Mutual.
With regard to your second question on the differences between the
1980s savings and loan (S&L) crisis and the 2008 financial crisis, the
circumstances of the two situations and the types of criminal conduct
found in those two events were vastly different. In the S&L crisis, in
part because of pervasive speculative lending practices by financial
institutions, financial institution examiners and Federal investigators
were confronted with hundreds of failed financial institutions across
the country. The FBI's investigations of failed financial institutions
reached its peak at 758 in July 1992. Financial Institution Fraud Unit,
Financial Crimes Section, FBI, Financial Institution Fraud and Failure
Report--Fiscal Year 2002 at 2-3 (2002), http://www.fbi.gov/stats-
services/publications/fiff-2002. Moreover, during the period of the
late 1980s to the early 1990s, approximately 60 percent of the fraud
reported by financial institutions related to bank insider abuse. Id.
at 1. Those financial practices, which often involved collusion between
bank insiders and outsiders as well as falsification of records by bank
insiders regarding particular loans and borrowers, were vastly
different in types from those associated with the 2008 crisis.
With regard to your third question, concerning the degree to which
inadequate resources have constrained the Department's efforts, the
Department has sought appropriate resources to pursue all types of
white-collar crime. The Department's efforts to combat financial fraud
will continue to play a key role not only in ensuring that those who
have engaged in fraudulent activities will be held accountable for
their illegal conduct, but in deterring future fraudulent conduct and
in recovering funds for fraud victims.
With regard to your fourth and fifth questions, regarding the
number of Department of Justice prosecutors who ``work full time on
white collar crime,'' the Department does not maintain the precise type
of statistical data you are seeking. While Assistant United States
Attorneys often specialize in certain areas of criminal law and are
assigned to specific sections within their offices' criminal divisions,
they are generally not required to work full-time in any one area. This
allows the United States Attorneys' offices flexibility in assigning
cases and managing workload. Prosecutors track their time using
category codes that describe the types of cases on which they have
worked (e.g., white collar crime, violent crime, immigration). In
fiscal year 2008, the United States Attorneys' offices devoted more
than 831 full-time equivalent (FTE) workyears to white collar crime.\2\
That number has increased every fiscal year since then. The largest
increase was between fiscal year 2008 and fiscal year 2009, when the
number of FTE devoted to white collar crime rose by more than 100 FTE.
The table below shows the FTE workyears for white collar crime over the
last six fiscal years, including overtime hours (hours in excess of 40
hours per week) that average more than 200 additional FTE per fiscal
year.
---------------------------------------------------------------------------
\2\ One FTE equals 2080 hours.
---------------------------------------------------------------------------
[See Table below]
Although there are white collar crime subcategories to which
prosecutors can assign time, they are limited to financial institution
fraud and healthcare fraud. Consequently, the Department cannot break
down white collar crime FTE workyears according to the specific
categories you identified. There are, however, specific components of
the Department that are dedicated exclusively to prosecuting one or
more types of white collar crime. With regards to the types of white-
collar crime mentioned in your questions, relevant components would
include the Fraud Section of the Criminal Division, the Criminal
Enforcement Sections of the Tax Division, and the Criminal Sections of
the Antitrust Division. The Fraud Section of the Criminal Division has
approximately 100 trial attorneys and supervisors, the Criminal
Enforcement Sections of the Tax Division also have approximately 100
trial attorneys and supervisors, and the Criminal Sections of the
Antitrust Division have approximately 101 trial attorneys and
supervisors.
WHITE COLLAR CRIME FTE
----------------------------------------------------------------------------------------------------------------
Fiscal Fiscal Fiscal Fiscal Fiscal Fiscal
Workyears year year year year year year
2008 2009 2010 2011 2012 2013
----------------------------------------------------------------------------------------------------------------
Attorney Workyears.................................. 831.66 944.80 982.71 1028.79 1029.76 1067.29
Attorney 40+ Workyears.............................. 180.65 194.32 226.29 227.75 226.07 225.75
Attorney and 40+ Workyears.......................... 1012.31 1139.12 1209.00 1256.54 1255.83 1293.04
----------------------------------------------------------------------------------------------------------------
payment fraud
Question. I'm very concerned about financial institutions and
payments providers engaging in payments fraud or providing services to
those engaged in illegal activities, such as lending into States in
violation of State payday lending laws. Are you committed to continuing
to investigate and pursue payment fraud and crack down on institutions
that clear payments for illegal lenders?
Answer. The Department of Justice (DOJ) is committed to protecting
the American people from fraudulent practices in all industries. The
Financial Institutions Reform, Recovery and Enforcement Act
(``FIRREA'') allows for civil penalties in a variety of situations in
which frauds are perpetrated affecting federally insured financial
institutions. Those situations include instances where a financial
institution knowingly participates in a fraud or processes transactions
deliberately ignoring evidence that they are fraudulent. One key DOJ
mission is to investigate violations of Federal law, especially those
involving fraudulent conduct that threatens to harm the American
public. We are working diligently to protect the public from this fraud
by holding accountable those banks and payment processors that violate
Federal law.
______
Questions Submitted by Senator Christopher A. Coons
victims of child abuse act
Question. Last year, Congress demonstrated its commitment to
helping victims of child abuse by appropriating $19 million under the
Victims of Child Abuse Act. I welcome DOJ's fiscal year 2015 request of
$11 million for these programs, especially compared to levels in past
budgets. Does DOJ plan to embrace an increased role in helping victims
of child abuse in 2015 and beyond?
Answer. The fiscal year 2015 President's budget request for the
Office of Justice Programs (OJP) reflects the administration's strong
support for addressing the needs of young people within the justice
system and its commitment to promoting evidence-based programs and
practices throughout the criminal and juvenile justice systems. The
fiscal year 2015 President's budget request supports programs to serve
victims of child abuse, to prevent and address youth violence, to
improve outcomes of young people involved in the juvenile justice
system, and ensure that all kids, particularly at-risk kids, are not
swept up into the juvenile justice system. The request includes
increased or continued funding for programs such as the Defending
Childhood/Children Exposed to Violence Program ($23 million), Missing
and Exploited Children's Programs ($67 million), and Title V Prevention
Programs ($42 million)--a combined $34 million increase in fiscal year
2015 over the fiscal year 2014 enacted levels for these programs.
DOJ remains committed to utilizing existing resources to address
the most urgent national priorities and to ensure the most efficient
possible use of the juvenile justice funding appropriated under OJP.
OJP will continue to respond to the changing needs of the juvenile
justice community by providing greater flexibility in the use of
funding (where allowed by statute) and improving coordination of these
programs with other juvenile justice programs. The Office of Juvenile
Justice and Delinquency Prevention (OJJDP) also will look at how other
resources can be leveraged to help the Child Advocacy Centers (CACs)
and Multi-Disciplinary Teams (MDTs) operate more efficiently and cost
effectively.
bulletproof vest program
Question. In your proposed fiscal year 2015 budget, you requested
$22.5 million for the Bulletproof Vest Partnership Program. As you may
know, I have joined several other Senators in advocating for a $30
million appropriation for this program. What impact would this
additional $ 7.5 million have on DOJ's ability to help State and local
law enforcement acquire this life-saving equipment?
Answer. The Bulletproof Vest Partnership (BVP) Program fills a
critical need for State, local, and tribal law enforcement and public
safety agencies by reimbursing them for up to half of the cost for
qualifying, life-saving body armor for their officers. The fiscal year
2015 funding request of $22.5 million is equal to the fiscal year 2014
enacted level and will allow this program's activities to continue at
their current level of effort. An additional $7.5 million would allow
jurisdictions to purchase an estimated 8,700 additional vests.
______
Questions Submitted by Senator Richard C. Shelby
fiscal year 2015 budget cuts
Question. Why does the budget include undefined reductions to
programs instead of providing an accurate funding picture for the
Department? More importantly, why must these difficult decisions be
made after the appropriations bills have passed?
Lead-in information from original document.--
The 2015 budget includes more than $500 million in
programmatic cuts. I am curious why the Department failed to
identify these cuts in advance of the budget submission.
Moreover, I question whether law enforcement components can
actually deliver the level of cuts required.
Answer. The fiscal year 2015 budget provides an accurate funding
picture of the Department by estimating the actual fiscal year 2015
current services need, or the cost to maintain current operations and
staffing levels planned through fiscal year 2015. In addition, the
fiscal year 2015 budget is fiscally responsible in terms of spending
because it meets the caps set by Congress in the Bipartisan Budget Act
of 2013. In order to adhere to the congressionally directed caps, the
DOJ Federal programs must absorb $503 million in unspecified program
and administrative offsets. These offsets support anticipated
inflationary increases, such as the costs for base pay, benefits and
rent. These offsets are unspecified because of the limited time
available between the enactment of the Bipartisan Budget Act and the
conclusion of the fiscal year 2015 budget process. The $503 million in
proposed offsets represents a fraction of the $1.6 billion in sequester
cuts that the Department absorbed during the last 9 months of fiscal
year 2013. DOJ program managers will have this fiscal year to identify
opportunities for savings and prepare for the offsets.
Question. Do you really believe that the FBI can cut $168 million,
the U.S. Marshals Service can find $33 million, or that the U.S.
Attorneys can eliminate $30 million from their budget--without cutting
core mission requirements or essential personnel? And if so, why didn't
you require them to do so before the budget was released?
Answer. The Department proposed programmatic reductions in order to
adhere to the fiscal year 2015 caps set by Congress with the Bipartisan
Budget Act of 2013. The fiscal year 2013 sequester cut the salaries and
expenses (S&E) appropriations of the Federal Bureau of Investigation
(FBI) by $541.7 million, U.S. Marshals Services (USMS) by $59.1 million
and U.S. Attorneys (USA) by $98.6 million. These cuts were much deeper
than the programmatic offsets the fiscal year 2015 budget proposes and
components will have more time to consider how to identify savings.
Core mission requirements are not threatened because even with the
proposed fiscal year 2015 offsets, S&E funding will essentially remain
flat from the fiscal year 2014 appropriated levels for the FBI, USMS
and USA.
doj cuts
Question. According to your own statements, sequestration was
devastating to the Department and its ability to perform core mission
activities--why then will this version of sequestration be less
devastating? Is there really that much fat to trim inside the
Department of Justice?
Lead-in information from original document.--
In a 2013 Washington Post Op Ed on the impact of
sequestration you said, ``This shameful state of affairs is
unworthy of our great Nation, its proud history and our finest
legal traditions. In purely fiscal terms, the cuts imposed by
sequestration defy common sense . . .'' By eliminating the
discretionary sequester for 2014 and 2015 Congress has done its
part to ensure that the Department can be properly funded.
However, the Department's decision to include its own version
of a sequester in the 2015 budget request defies logic.
Answer. The fiscal year 2015 request demonstrates the Department's
continued commitment to fiscal prudence and adheres to the spending
caps directed by Congress in the Bipartisan Budget Act of 2013. The
fiscal year 2014 Appropriations Act restored the fiscal year 2013
sequester funding cuts to the Department and provides sufficient
resources to lift the hiring restrictions put in place on January 21,
2011. Even with the proposed program offsets, law enforcement funding
essentially remains flat from fiscal year 2014 to fiscal year 2015.
However, these levels are significantly higher than the fiscal year
2013 sequestered funding levels that hindered the Department's capacity
to perform its mission. For example, funding for the Federal Bureau of
Investigation increases by nearly 11 percent from fiscal year 2013 and
funding for the U.S. Marshals Service and U.S. Attorneys increases by
nearly 7 percent from fiscal year 2013.
smart crime initiative
Question. First, what authority do you currently have to alter
incarceration rates? Can you reduce sentences for incarcerated
criminals, can you change the minimum sentence required for a drug
crime--what action can you take?
Lead-in information from original document.--
The budget advances the Smart on Crime Initiative which seeks
to reform the criminal justice system by improving public
safety and saving money. Reducing the number of ``low-level''
Federal crimes prosecuted and pursuing alternatives to
incarceration are listed as two of the initiative's core
principals. While reform of our criminal justice system is a
laudable goal, I am concerned that the principals of the
proposal may be contradictory and in fact, lead to higher crime
rates and an increase in the number of serious crimes
committed.
Answer. Once a Federal offender is sentenced by a Federal judge,
the Department of Justice generally cannot reduce the sentence imposed.
But before sentencing, Federal prosecutors have always exercised
discretion in the cases they bring and offenses they charge. Most
criminal prosecutions are brought at the State level. Within that
context, Federal prosecutors maximize the Federal enforcement
contribution to improving public safety efforts by prosecuting the
right criminal cases consistent with our mission. Our U.S. Attorneys
set quality, evidence-based priorities for the types of cases we bring
with an eye toward promoting public safety, deterrence, and fairness.
This necessarily means focusing our resources on the most significant
cases.
Question. You have stated that the Department will shift to a focus
solely on the most serious cases. First, I wonder how such a shift is
not negligent. Second, how can you be sure that a focus on only the
most serious cases will not result in an increase in crime rates or an
escalation in the number of serious crimes committed?
Answer. As stated above, most criminal prosecutions are brought at
the State level. Federal prosecutions contribute to public safety
efforts by prosecuting cases consistent with our particular mission.
Our U.S. Attorneys collaborate with their State and local partners and
set quality, evidence-based priorities for the types of cases we bring
so that all of the public safety resources--local, State and Federal--
working together, will maximize public safety, deterrence, and
fairness. This means in most districts focusing our Federal resources
on the most significant cases. It does not mean that lower level
offenders are not held accountable for their crimes. It does mean that
Federal resources will be focused--as they must be given limits on
those resources--on the more serious cases.
Question. What happens to the criminals we decline to prosecute?
Answer. Many lower level offenders will be prosecuted at the State
level. However, some will be subject to diversion or other alternatives
to imprisonment. These alternatives have a long history and allow non-
violent, less serious offenders who are in need of drug treatment, for
example, to receive such treatment in lieu of imprisonment. If crafted
properly, these alternatives can have the twin effects of reducing the
burden on the Federal prisons and reducing crime rates.
Question. Is this proposal the best path forward or is it simply a
means to reduce the overall prison population in hopes of decreasing
Federal spending on incarceration?
Answer. The Smart on Crime Initiative is modeled after many State
criminal justice reforms, which have reduced prison spending while
improving public safety in States across the country. We continue to
monitor and work with the States to determine the best approaches to
achieving improved public safety while also achieving cost
efficiencies.
Question. Will this initiative simply shift more of the burden to
the States?
Answer. No. As stated previously, while many lower level offenders
will indeed be prosecuted at the State level, some will be subject to
diversion or other alternatives to imprisonment within the Federal
criminal justice system.
tedac/hds/ncetr facilities
Question. Could you speak to the importance of the facilities
individually and collectively? Would you also explain how these
facilities fit into the larger national security framework?
Lead-in information from original document.--
After many years of working with the Department and the FBI,
I was pleased to see that the 2015 budget included $15 million
for the FBI's new TEDAC Facility. The budget also includes
funding for the FBI's Hazardous Devices School and the ATF's
National Center for Explosives Training and Research. These
facilities are unique and serve important functions in the
overall national security framework.
Answer. The FBI's Terrorist Explosive Device Analytical Center
(TEDAC) and Hazardous Devices School (HDS) and ATF's National Center
for Explosives Training and Research (NCETR) serve extremely important
functions in protecting public safety and national security. While
these three facilities are focused on combating explosives and their
threat to the Nation, they each perform discrete missions in the phases
of the forensic, intelligence and training cycle.
TEDAC: Improvised Explosive Devices (IEDs) are one of the most
readily available weapons utilized by terrorists and criminals to
damage critical infrastructure and inflict casualties. The U.S.
Government relies on TEDAC to conduct forensic and technical
exploitation of IEDs and related materials collected around the globe
in order to gather and share intelligence with domestic and foreign
partners to identify bomb makers, to develop techniques to disarm and
disrupt IEDs, and most importantly, to prevent future attacks. TEDAC
also shares device design information with HDS to inform the training
provided to bomb technicians responsible to render IEDs safe and
protect our citizens.
In February 2013, the President updated the national strategy
focused on countering the IED threat. The implementation plan resulting
from the updated policy statement calls for a ``single U.S. Government
strategic-level IED exploitation center and repository of IEDs.'' TEDAC
fulfills this mission and is the only U.S. Government entity that meets
the requirement outlined in the 2013 Counter IED Implementation Plan.
TEDAC operations will transition over the next few years from Quantico,
Virginia to new facilities in Huntsville, Alabama, as a multi-phased
construction effort concludes. These new facilities will enable TEDAC
to continue supporting the national security framework through
operations, such as nominating individuals to the Terrorist Screening
Database and the Department of Defense Biometric Enabled Watchlist
(BEWL), which biometrically matches IEDs examined by TEDAC to those
included in DOD's Automated Biometrics Identification System (ABIS). In
addition to continuing current operations, the facilities will house
the TEDAC Improvised Explosives Detection and Synthesis (TIEDS) Center,
which is a research and development partnership with the Department of
Homeland Security (DHS). The TIEDS Center will conduct research and
experimentation focused on improvised explosives synthesis and
characterization, improvised explosives detection technologies, and
testing and evaluation of Render Safe Procedures and tools in order to
deliver real time information on IED threats to the intelligence, law
enforcement, and homeland security communities. TEDAC's vast research
experience with IEDs and visibility into the threat will allow for the
development of appropriate countermeasures for TSA and other members of
the homeland security community to stay ahead of the IED threat.
The intelligence gleaned from TEDAC exploitation and analysis also
feeds directly into curriculum development for training conducted by
HDS. This enables bomb technicians and law enforcement partners to
receive training on real threats that are being encountered worldwide
and what countermeasures are needed for defeat.
HDS: The HDS operates through a joint partnership between the FBI
and the United States Army. The FBI administers HDS and maintains the
sole authority to certify and accredit all of the approximately 3,100
public safety bomb technicians assigned to 468 public safety bomb
squads in the United States. The success of the public safety bomb
technician community in the United States is, in large part, the result
of standardized certification and render-safe procedure training. The
standardized training at HDS enables bomb technicians assigned to
different bomb squads to work effectively together in complex, multi-
jurisdiction operations, such as the Boston Marathon bombing response
or the dozens of special events held each year, including the Super
Bowl.
HDS also provides advanced training in evolving threats such as
radio-controlled IEDs, large vehicle-borne IEDs, suicide bombers, and
improvised or homemade explosives. HDS develops and provides this
training to address the threats posed by devices used by terrorists and
criminal enterprises around the world. The intelligence that TEDAC
provides through device exploitation is critical to defining and
implementing advanced render safe training.
Finally, standard certification and training is critical to
national security as public safety bomb technicians trained at HDS are
the first line of defense against the full spectrum of IED threats,
including weapons of mass destruction (WMD). HDS trains bomb
technicians to identify a potential WMD, to notify the FBI, and to
integrate seamlessly with FBI Special Agent Bomb Technicians and
national assets, should such resources be required. Without the
standardized training that HDS provides, there is a real risk that
Federal WMD response assets would not be notified about a potential WMD
in time to take emergency action.
In addition to TEDAC's identified role in the national Counter-IED
strategy, the FBI, on behalf of the Department of Justice, leads the
Joint Program Office for Countering IEDs, which coordinates the efforts
of the Department and oversees the implementation of the U.S. policy to
Counter IEDs.
NCETR: The ATF's NCETR serves an integration function for ATF by
bringing together NCETR resources with the United States Bomb Data
Center, ATF's international bomb and arson training, ATF criminal
investigations, ATF industry operations, TEDAC and HDS. NCETR also
consolidates key ATF explosives, fire, canine, and response operations
in Huntsville, Alabama. NCETR consists of the Explosives Enforcement
and Training Division, the Explosives Research and Development
Division, and the Fire Investigation and Arson Enforcement Division,
all located at Redstone Arsenal, along with the National Canine
Division in Front Royal, Virginia and ATF's partnership in the National
Explosives Task Force in Washington, DC. ATF provides training
facilities and the expertise of its training staff in the delivery of
life-saving advanced explosives and arson training for our Nation's
explosives handlers, bomb technicians, criminal investigators, State
and local law enforcement personnel, and our military's EOD operators
at NCETR.
NCETR provides advanced explosives training and research that
leverages lessons learned and best practices to provide focused support
to ATF's core mission of investigating the criminal misuse of
explosives and regulation of the industry, and to align this support
with the whole-of-Government counter-IED effort.
NCETR employs a layered approach to explosives training in support
of the Whole of Government approach to the C-IED effort, and to meet
the goals and tasks of the JPO Training and Operations working group.
As an example, ATF's Advanced Explosives Disposal Techniques (AEDT) was
developed by ATF and its State and local partners in the 1990's to
address the high incidence of injuries and deaths to bomb technicians
during explosives disposal operations. AEDT provides a ``cradle to
grave'' approach to the identification, handling and disposal of
commercial, military and homemade or improvised explosives materials.
Everything from production methods, storage, explosives range
management, environmental concerns, personal protective equipment and
clothing, and the latest disposal tools and techniques are covered in
AEDT. This includes a ground-breaking disposal tool and related
techniques developed by an ATF agent, for which the U.S. Patent Office
issued a patent. The tool and instruction on its application to
disposal operations is given to every bomb technician attending the
course.
A follow up course entitled HME-Identification, Process and
Disposal, furthers the bomb technicians' knowledge and confidence in
the identification, processing, handling and disposal of some of the
most dangerous explosives materials they will come in contact with,
Homemade Explosives (HME). The HME course is attended by public safety
bomb technicians as well as military Explosives Ordnance Disposal (EOD)
personnel, stressing interoperability of personnel from both groups at
scenes such as the Boston Marathon bombings.
These are but two of the courses at NCETR that naturally complement
the training delivered at the FBI's Hazardous Devices School, the
school house for bomb technician certification and other advanced
training.
NCETR also provides training to military partners on a frequent
basis. Through a long partnership and a full time liaison position with
the Department of Defense (DOD), ATF delivers the HME-IPD course to a
mixed class of public safety and military bomb technicians. NCETR
program personnel have also developed HME-related and advanced Post-
Blast investigation courses in support of requests by U.S. military
command staff to support the NATO Centers of Excellence in Spain and
Slovakia.
ATF is the only U.S. Government (USG) agency with fire and arson
investigation as part of its core mission, and the sole USG agency with
Special Agents qualified to testify as expert witnesses as to fire
origin and cause, through the Certified Fire Investigator training
program managed by NCETR. The programs that support that mission are
now located at NCETR, including integrating ATF's fire investigation
and arson enforcement operational and training programs, and support to
the field through the National Response Teams, Certified Fire
Investigators, and bomber and arsonist Profilers.
Operationally, NCETR oversees the National Response Team, which
responds to major bombings and explosions, IED incidents, as well as
fire and arson incidents that require resources beyond the capabilities
of State and local partner agencies. NCETR also oversees the combined
Certified Explosives Specialist and Explosive Enforcement Officer
program, ATF's subject matter experts for criminal investigations of
matters related to explosions, bombings, explosives, IEDs and related
activity. Not only does NCETR manage the training of these personnel,
but it also coordinates the operational responses of personnel from
across the country to large incidents anywhere in the U.S., and to
locations outside the U.S. on request from foreign partners through the
U.S. State Department. Well over 90 percent of the criminal acts
involving explosions, explosives and bombings are non-terrorism related
and ATF has responsibility for investigation of these incidents, as
well as the origin and cause investigation of accidental explosions.
The Explosives Research and Development Division (ERDD) at NCETR
also supports ATF's role in the national security framework through a
number of projects and ongoing and developing partnerships. ERDD is
near completion in development of a $2.2 million project to develop a
homemade explosive synthesis capability/laboratory on Corkern Range.
These range modifications include two portable explosives synthesis
buildings, an extensive instrumentation capability, an explosive
storage magazine, and hazardous materials storage. The research and
testing that will be carried out on ATF's Corkern Range will support a
wide range of government projects in support of the Nation's C-IED
strategy, as well as ATF's explosives enforcement and regulatory
missions.
ATF also has the sole responsibility for the regulation of the
explosives industry, which is supported by NCETR training efforts. ATF
Industry Operations Investigators (IOIs) attend Advanced Explosives
Training for Investigators (AETI) at NCETR, focusing on the procedures
required for completing the safe execution of inspections of Federal
explosives licensee premises, as required by the Safe Explosives Act of
2002.
ig access to doj documents
Question. Do you believe that the Inspector General should have to
seek your approval to access grand jury documents relevant to ongoing
investigations?
Lead-in information from original document.--
I am very concerned about the issues that have been raised by
the Inspector General. Congress has been clear, as has this
Committee, that the Inspector General must have unfettered
access to any and all documents necessary to carry out his
duties.
Answer. The Department's leadership appreciates the importance of
access to information, including information subject to statutory
disclosure restrictions, to the Office of the Inspector General's
(``OIG'') ability to perform its oversight function and complete its
investigations and reviews effectively. However, where there are legal
restrictions on what the Department can do with certain sensitive
information, the Department is obligated to ensure that any
distribution of the information is consistent with those congressional
directives. The Department takes its obligation to abide by these legal
requirements very seriously.
Section 6(a)(1) of the Inspector General Act of 1978 appropriately
provides the Inspector General with broad access to the records in the
Department. See 5 U.S.C. App. 3, Sec. 6(a)(1). However, Congress also
has enacted strict limits on the disclosure and dissemination of
certain categories of sensitive information. For instance, in Federal
Rule of Criminal Procedure 6(e), Congress codified the venerable
tradition of grand jury secrecy by barring an ``attorney for the
Government'' and other enumerated persons from disclosing ``a matter
occurring before the grand jury.'' Fed. R. Crim. P. 6(e)(2)(B).
Similarly, in the Federal Wiretap Act, Congress expressly made it a
crime to disclose information intercepted on a wiretap ``[e]xcept as
otherwise specifically provided in this chapter,'' and delineated the
narrow conditions under which investigative and law enforcement
officers might intercept, use, or disclose wiretap information. See 18
U.S.C. Sec. Sec. 2511(1); 2516; 2517 (Title III).
The interaction between the general access provision in the
Inspector General Act and Congress's specific statutory directives
regarding the handling of sensitive information, such as Rule 6(e) and
Title III, presents an unsettled and potentially complex legal
question. As such, when questions regarding OIG's access to such
materials arose in 2011 in connection with two OIG reviews, the
Department sought to identify avenues within the relevant statutes that
would permit disclosure of the requested materials to the Inspector
General.
First, in connection with the material witness review, the
Department concluded that Rule 6(e)(3)(D) authorized an attorney for
the Government to disclose responsive grand jury information involving
foreign intelligence to the OIG. The Department determined that the
Inspector General was a Federal law enforcement official authorized to
receive access to grand jury information involving foreign intelligence
under this provision, and the disclosure would assist her in connection
with the performance of her law enforcement duties, given that the
material witness review involved allegations of misconduct by law
enforcement agents that potentially reflected a violation of criminal
law. Likewise, the Department concluded that section 2517(1) permitted
the Federal Bureau of Investigation to disclose Title III wiretap
information to the OIG in connection with the material witness review
because OIG agents are ``investigative officers'' entitled to receive
wiretap information in connection with their law enforcement duties.
Again, since the material witness review involved allegations of
misconduct by law enforcement agents that potentially reflected a
violation of criminal law, this OIG review fulfilled the statutory
requirement that disclosure be in connection with law enforcement
duties.
With respect to the review of Operation Fast & Furious and related
investigations, the Department concluded that Federal Rule of Criminal
Procedure Rule 6(e)(3)(A)(ii) authorized the Attorney General, an
``attorney for the Government,'' to disclose grand jury information to
Government personnel in the OIG as necessary to the performance of the
Attorney General's duty to enforce Federal criminal law, including his
supervisory responsibilities over the Department's programs, policies,
and practices related to the enforcement of Federal criminal law.
The Department is unaware of any specific materials that the OIG
believed necessary to its reviews, but to which the OIG was not granted
access. However, in light of the Inspector General's continued interest
of in addressing the legal issues implicated by the competing
congressional directives in section 6(a)(1) of the Inspector General
Act and other statutes limiting the disclosure and dissemination of
particular categories of sensitive information, the Department has
requested formal Office of Legal Counsel (OLC) guidance. As we have
informed the Department's OIG, if the outcome of the OLC's legal review
does not assure the OIG of the access it needs to carry out its
mission, the Department intends to work with that office to develop
appropriate legislative remedies.
Question. What law or laws, in your view, prohibit the Inspector
General from obtaining access to documents directly relevant to ongoing
audits or investigations?
Answer. It is not the case that statutes restricting the disclosure
of sensitive information necessarily ``prohibit'' the OIG from
obtaining access to documents. As we explained in response to the
previous question, the Department has found ways to disclose the
requested information to the OIG pursuant to exceptions to the
statutory prohibitions. Examples of statutes that we have had occasion
to consider in the context of OIG requests include the restrictions
contained in Federal Rule of Criminal Procedure 6(e) (grand jury
information); the Federal Wiretap Act, Title III of the Omnibus Crime
Control and Safe Streets Act of 1968 (information obtained by wiretap);
and section 1681u(f) of the Fair Credit Reporting Act (financial
information obtained from credit agencies by FBI national security
letters). The Department has not conducted a comprehensive survey of
all statutes that might potentially restrict the disclosure of
sensitive information in a manner that would raise a significant legal
question about whether those statutory provisions limit the Inspector
General's access to the covered information.
Question. If it is your view that there are specific laws that
prohibit the Inspector General from having access to documents directly
relevant to ongoing audits or investigations, what are the relevant
sections within those laws granting you, the Attorney General, the
authority to preempt those prohibitions?
Answer. As just described, statutory provisions restricting the
disclosure of certain categories of information generally contain
exceptions that might allow the OIG access to protected information in
connection with investigations and audits. Some of these exceptions are
premised on a determination by the Attorney General or another attorney
responsible for conducting or supervising the prosecution of violations
of Federal criminal law. Where the statute provides an exception to the
general bar on disclosure that is premised on a determination by the
Attorney General or another attorney for the Government, such a
determination would be a prerequisite to the Inspector General gaining
access to statutorily protected information under that provision. A
determination by the Attorney General or another qualifying attorney
authorizing the OIG to access the information, however, does not
``preempt'' a statutory bar on disclosure; rather, the determination
that disclosure to the OIG is appropriate is simply an application of
the terms of an exception Congress set out in the relevant statute. The
Department is unaware of any specific materials that the OIG believed
necessary to its reviews, but to which the OIG was not granted access.
Question. You mentioned that you have never denied the Inspector
General's request to access documents. However, if that situation were
to arise, what recourse would the Inspector General have, in your view,
to appeal or challenge that decision?
Answer. As stated above, the Department is committed to continuing
to ensure that, consistent with applicable legal requirements, the OIG
has access to all of the information it believes necessary to complete
its reviews. Indeed, the Department is unaware of any specific
materials that the OIG believed necessary to its reviews, but to which
the OIG was not granted access. The Department has requested a formal
opinion from OLC to address the legal issues implicated by the
competing congressional directives in section 6(a)(1) of the Inspector
General Act and other statutes limiting the disclosure and
dissemination of particular categories of sensitive information. This
request is pending. If the outcome of the OLC's legal review does not
assure the OIG of the access it needs to carry out its mission, the
Department intends to work with that office to develop legislative
remedies. In the meantime, if the Inspector General were dissatisfied
with the access to statutorily protected information the Department
afforded him, he could ask the Attorney General to reconsider any
determination made regarding the application of a statutory exception.
Question. Since there has never been an official ruling by the
Office of General Counsel at the Department of Justice regarding access
to documents by the Inspector General, would you be willing to see an
official ruling from the General Counsel on these matters? If so, when
could we expect you to do so?
Answer. As stated above, the Department has requested a formal
opinion from OLC to address the legal issues implicated by the
competing congressional directives in section 6(a)(1) of the Inspector
General Act and other statutes limiting the disclosure and
dissemination of particular categories of sensitive information. This
request is pending.
______
Questions Submitted by Senator Lamar Alexander
meth in tennessee
Question. Given that the methamphetamine epidemic is one of the
most urgent drug problems facing our Nation, especially in rural
communities with limited resources, why isn't the Department doing more
to expand the Clandestine Drug Laboratory Cleanup Program?
Answer. Tennessee has been participating in the Drug Enforcement
Administration's (DEA's) Authorized Central Storage (ACS or
``Container'') Program since July 2011. DEA receives funding for the
Clandestine Drug Laboratory Cleanup Program from the Community Oriented
Policing Services (COPS) program to assist State and local law
enforcement with clandestine methamphetamine lab cleanups and training.
After a shutdown of the cleanup program in February 2011 due to lack of
funding, COPS funding was restored to restart the program in fiscal
year 2012. Since that time DEA aggressively worked to expand the
Container Program. There are currently 18 States with signed Letters of
Agreement (LOA) with DEA for Container Programs with two more expected
to be added by fiscal year 2016:
--At the end of fiscal year 2011, there were six States with
operational container programs (Illinois, Indiana, Alabama,
Kentucky, Oklahoma, and Tennessee).
--In fiscal year 2012, seven additional States (Arkansas, Michigan,
Virginia, Ohio, North Carolina, Mississippi, and Florida) were
operational.
--In fiscal year 2013, Kansas, New York, and Pennsylvania signed
Letters of Agreement, which are expected to become operational
in fiscal year 2014.
--In 2014, two States (Georgia and Iowa) were added and became
operational.
Because of the expansion of the Container Program, DEA has been
able to keep program costs down. This has allowed DEA to fulfill meth
lab cleanup and training requests from the States participating in the
Container Program, as well as fund on-site cleanups in the lower volume
States that do not have high enough demand to sustain a Container
Program economically. The Container Program has resulted in significant
cost savings in States that have operational Container Programs (a
contractor cleanup averages $2,730, while a container cleanup averages
$306). In fiscal year 2013, DEA funded a total of 7,891 lab cleanups.
Included in the total are the pickup and disposal of 7,099 labs through
220 Container Program pickups from the 10 States participating in the
program, and 792 State and local cleanups DEA administered during the
same time period. In fiscal year 2014, DEA funded a total of 8,213 lab
cleanups. Included in the total are the pickup and disposal of 7,880
labs through 248 Container Program pickups from the 16 States
participating in the program, and 333 State and local cleanups DEA
administered during the same time period. While Kansas, New York and
Pennsylvania have signed LOA's, they are not yet operational.
At the clandestine lab training facility, DEA trains Federal,
State, local, and foreign law enforcement officials on the latest
techniques in clandestine laboratory detection, enforcement, and
safety. In fiscal year 2013, DEA provided clan lab training to 1,696
State and local law enforcement officers. In fiscal year 2014, DEA has
provided clan lab training to 1,484 State and local law enforcement
officers. Overall, DEA trained 39,932 law enforcement officers in
fiscal year 2014. In addition to State and Local Clandestine Laboratory
Certification Training, DEA also provided Site Safety Training,
Tactical Training, and the FBI's National Improvised Explosive
Familiarization Training course, which was also attended by the
National Guard.
Question. Last year Congress provided $7.5 million for a
competitive grant program for State Anti-Methamphetamine Task Forces.
When will the Department allow States to apply for these funds? What
criteria will the Department use to evaluate proposals from States?
Answer. The fiscal year 2014 COPS Anti-Methamphetamine Program
(CAMP) was designed to advance public safety through providing funds to
investigate illicit activities related to the manufacture and
distribution of methamphetamine. Funds awarded in this program shall be
used for investigative purposes to locate or investigate illicit
activities, including precursor diversion, laboratories, or
methamphetamine traffickers through State and local collaboration. The
COPS Office received 19 eligible applications and made 10 awards
totaling approximately $6 million.
Funding Provisions:
--Fiscal year 2014 CAMP grants provided funding for 24 months to
State law enforcement agencies for equipment, overtime and
other approved personnel costs for law enforcement officers
assigned to the investigation of methamphetamine production and
trafficking.
--Funding awarded to State law enforcement agencies may be used to
support law enforcement personnel costs for allied agencies'
officers participating in a State anti-methamphetamine task
force.
--The COPS Office has identified an ``up to $1 million'' cap on award
amounts.
Eligibility:
--The fiscal year 2014 COPS Anti-Methamphetamine Program was a
targeted competitive solicitation which will focus on funding
State law enforcement agencies (note: this does not include DC,
tribal agencies or the territories) with identified meth
problems, as indicated through the following sources:
--Meth lab seizures data
--Precursor chemicals seizures data
--Meth-related arrests data
--Drug arrests for Meth
--State law enforcement agencies eligible to apply include, but are
not limited to the following:
--State AG's Offices
--State Bureaus of Investigation
--State Park Police
--State Police Agencies
doj efforts to fight counterfeit drugs
Question. What steps have you taken to meet that requirement? What
challenges does the Department face prosecuting these cases, and does
the Department need increased resources or authorities to improve law
enforcement efforts against counterfeit drugs?
Lead-in information from original document.--
Drug counterfeiting is a serious public health threat. Nearly
40 percent of the drugs Americans take are made abroad, and
about 80 percent of the active pharmaceutical ingredients used
in our drugs are manufactured overseas. The Department and U.S.
Attorney offices across the country play a critical role in
fighting counterfeit drugs by investigating and prosecuting
illegal counterfeiting activity. For example, last year three
individuals were indicted in the Middle District of Tennessee
for obtaining prescription drugs from ``street collectors'' in
New York and Miami and selling them as if they had been
obtained from the wholesale distribution market. Also last
year, 11 people were indicted for illegal importation and
distribution of counterfeit drugs from Turkey, India, and
Switzerland. Law enforcement agencies face substantial
challenges investigating and prosecuting these often complex,
global crime operations. The operations are often located
abroad and scattered in several countries. Law enforcement
needs assistance from foreign regulators and foreign law
enforcement officials to obtain information and gather
evidence, which those countries are often unable or unwilling
to provide.
The 2012 Food and Drug Administration Safety and Innovation
Act (FDASIA) directed the Attorney General to give a higher
priority to the prosecution of cases involving counterfeit
drugs.
Answer. The Department has taken a number of steps to meet the
requirement of the 2012 Food and Drug Administration Safety and
Innovation Act (FDASIA).
In combatting counterfeit drugs, the Department of Justice holds
the primary responsibility for the enforcement of intellectual property
rights. The enforcement of such rights is vital in ensuring the safety
and efficacy of the drugs that Americans take every day. Formed in
2010, the Department of Justice Task Force on Intellectual Property
monitors and coordinates overall intellectual property enforcement
efforts at the Department and ensures that it continues to remain a
priority. It is chaired by the Deputy Attorney General. Under the
leadership of the Intellectual Property Task Force, the FBI, and
Justice Department components including the Criminal, Civil and
Antitrust Divisions and the Bureau of Justice Affairs have worked to
improve the protection of intellectual property, both in the U.S. and
abroad. Upon the release of the administration's 2013 Joint Strategic
Plan on Intellectual Property Enforcement (JSP), the Attorney General,
in a posting on the Department of Justice Web site, stated, ``the
Department and its partners stand poised to take these critical efforts
to a new level.'' The posting is available at, http://
blogs.justice.gov/main/archives/3017. The Department's core role within
the JSP includes forging law enforcement partnerships, dedicating grant
funding to these partners, and increased enforcement against
counterfeit drug trafficking organizations.
Through the Office of Justice Programs' Intellectual Property
Enforcement Program, the Bureau of Justice Assistance (BJA) funds State
and local projects that emphasize collaboration and coordination with
all relevant enforcement organizations, including prosecutors,
multijurisdictional task forces, and appropriate Federal agencies
(e.g., local Federal Bureau of Investigation offices and U.S.
Attorneys' Offices) in the enforcement of Intellectual Property (IP)
laws. Specifically in the area of counterfeit drugs, the Bureau of
Justice Assistance administered a grant in fiscal year 2014, for
Protecting Public Health, Safety, and the Economy from Counterfeit
Goods and Product Piracy. This funding provided national support for
and to improve the capacity of State, local, and tribal criminal
justice systems to address intellectual property criminal enforcement.
BJA also offered funding for National Training and Technical Assistance
for the Intellectual Property Enforcement Program. Additionally, the
National Crime Prevention Council (NCPC), supported by BJA, developed a
research-based public outreach campaign to educate the public on IP
crimes in general, particularly about the health and safety risks that
result from IP crime.
The Department, through the U.S. Attorneys' Offices (USAOs), the
Computer Crime & Intellectual Property Section (CCIPS) in the Criminal
Division and the Consumer Protection Branch (CPB) in the Civil
Division, has continued to prioritize and pursue investigations and
prosecutions in every priority area identified by the Department of
Justice Task Force on Intellectual Property (``IP Task Force'' or
``IPTF''), including cases involving health and safety, trade secret
theft and economic espionage, large-scale online piracy and
counterfeiting, and links to organized criminal enterprises. The JSP
details ongoing enforcement initiatives, including the Federal Bureau
of Investigation Intellectual Property Program, and is located at,
http://www.whitehouse.gov/sites/default/files/omb/IPEC/2013-us-ipec-
joint-strategic-plan.pdf.
The passage of the 2012 Food and Drug Administration Safety and
Innovation Act provided the Department with enhanced penalties under
Title 18 for trafficking in counterfeit drugs. The cases below
illustrate recent action taken by the Department to hold those
accountable for distributing misbranded, unapproved, adulterated, or
counterfeit drugs.
--On February 20, 2014, Ricky Lee Campbell, of Sacramento,
California, pleaded guilty to conspiracy to traffic in
counterfeit pharmaceuticals. The U.S. Attorney's Office for the
Eastern District of California successfully prosecuted Campbell
and his co-defendant, Susan Yvonne Eversoll. The defendants
offered Viagra and Cialis for sale using CraigsList,
Pennysaver, and via text message blasts. Searches of Campbell
and Eversoll's residences produced more than 6,000 counterfeit
tablets of Viagra and Cialis. Eversoll pleaded guilty to the
conspiracy in December 2013, and was sentenced on March 6,
2014, to 18 months in prison. Campbell was sentenced on May 8,
2014 to a term of 41 months imprisonment, to be followed by 16
months of supervised release.
--The United States Attorney's Office for the Eastern District of
Missouri announced on January 16, 2014, that two Turkish
nationals were charged with obtaining unapproved, misbranded,
adulterated and counterfeit cancer treatment prescription drugs
from Turkey and other foreign countries and smuggling the drugs
into the United States, including three shipments sent from
Turkey to Chesterfield, Missouri. According to court filings,
the defendants were employees of a Turkish prescription drug
wholesaler. They used shipping labels that concealed the
illegal nature of the prescription drug shipments, including
customs declarations falsely describing the contents as
``gifts'' or ``documents'' or ``product sample'' with no or low
declared monetary values.
--In January, 2014, the Southern District of Texas and the Criminal
Division successfully prosecuted a defendant for conspiracy to
import counterfeit and misbranded drugs. A total of 3,200
counterfeit Viagra and 4,000 counterfeit Cialis pills were sent
from China to the defendant's home. Although the pills looked
authentic, when tested, law enforcement determined that the
counterfeit Viagra had less active pharmaceutical ingredient
than was stated on the packaging, and the counterfeit Cialis
did not contain any of the brand's active pharmaceutical
ingredients.
--The Criminal Division successfully prosecuted defendant Grisel
Azcuy in the Eastern District of New York on December 10, 2013,
for conspiracy to traffic in counterfeit goods and distribute
misbranded drugs in violation of 18 U.S.C. Section 371 and
conspiracy to distribute and possess with intent to distribute
pharmaceutical drugs that included oxycodone, hydrocodone,
alprazolam and diazepam in violation of 21 U.S.C Sections 846
and 841.
--The U.S. Attorney's Office for the Southern District of California
announced on September 12, 2013, that defendant Martin Paul
Bean III was sentenced to serve 24 months in custody for his
role in a scheme to sell unapproved foreign oncology drugs to
doctors in the United States. Bean had pleaded guilty to
conspiracy to commit a number of Federal offenses, including
wire fraud, mail fraud, selling unapproved drugs, selling
misbranded drugs, and importing merchandise contrary to law. In
pleading guilty, Bean admitted that between February 24, 2005
and October 30, 2011, he operated a business (GlobalRx Store)
from his residence in Florida and unlawfully sold over $7
million of prescription oncology drugs to doctors throughout
the United States. Bean ordered unapproved drugs from foreign
sources, including sources in Turkey, India, and Pakistan, and
sold them to doctors within the United States at substantially
discounted prices.
--The U.S. Attorney's Office for the Eastern District of Pennsylvania
announced, on September 11, 2013, that Naman Bader of
Philadelphia received a 12-month prison sentenced for smuggling
and illegally distributing more than 2 million prescription
pills, such as Xanax, Valium, phentermine, Ativan, Klonopin,
Ambien, and their generic equivalents, valued at approximately
$10,310,406. Additionally, approximately 25,000 counterfeit
Viagra and Cialis pills were seized in international mail
parcels during the course of the investigation. Bader's co-
conspirator, Rehan Shah, was sentenced on December 5, 2012, to
15 months in prison.
--The U.S Attorney's Office for the Southern District of Texas and
the Criminal Division announced on August 6, 2013 the arrests
of two individuals, Jamal Khattab, of Katy, Texas, and Fayez
Al-Jabri, of Chicago, for allegedly conspiring to traffic in
counterfeit and misbranded medicine, specifically Viagra. The
indictment charged Khattab with one count of conspiracy, one
count of smuggling goods into the United States, two counts of
trafficking in counterfeit goods, two counts of trafficking in
misbranded drugs and two counts of trafficking in counterfeit
drugs. Al-Jabri was charged with one count of trafficking in
counterfeit goods, one count of trafficking in misbranded drugs
and one count of trafficking in counterfeit drugs. Jamal
Khattab was sentenced on August 15, 2014 to a term of 21 months
incarceration, 1 year of supervised release, and payment of
$7,000 in restitution, plus a $300 special assessment. Fayez
Al-Jabri was sentenced on July 17, 2014 to a term of 41 months
incarceration, 3 years of supervised release, and payment of
$15,066.92 in restitution.
--On June 27, 2013, the U.S. Attorney's Office for the District of
Colorado obtained, and the U.S. Food and Drug Administration
(FDA), executed seizure warrants for 1,677 Web sites that were
illegally selling counterfeit or misbranded drugs that
purported to be brand name pharmaceuticals. This enforcement
action was coordinated as part of as part of International
Internet Week of Action, and in conjunction with Interpol's
Operation Pangea VI. Many of the sites falsely claimed to be
hosted in Canada, while others falsely claimed to be affiliated
with major U.S. pharmacy retailers by using the names of those
retailers in the domain names. Drugs purchased from the sites
provided did not have FDA approval and did not have Canadian
origins. The Web sites offered medications to treat, among
other things, conditions related to diabetes, schizophrenia,
pain and inflammation.
--On April 18, 2013, the U.S. Attorney's Office for the Northern
District of Illinois announced the indictment of a pharmacist
on 15 counts of violating the FD&C Act and FDASIA for obtaining
counterfeit Viagra and Cialis from China and illegally
dispensing the bogus medications at his pharmacy.
--The U.S. Attorney's Office for the Central District of California
successfully prosecuted Edward Alarcon for a plot in which he
possessed, and had the intent to distribute for profit, more
than 2,000 Chinese-made counterfeit and misbranded Viagra
pills. After a 3-day jury trial in January 2013, Alarcon was
convicted on two counts of trafficking in counterfeit OxyContin
and Cialis. The evidence presented at trial showed that Alarcon
had purchased the bogus OxyContin from Bo Jiang, a Chinese
national and the alleged head of a counterfeit drug ring.
Alarcon had offered to sell counterfeit Cialis, Viagra and
Levitra on Craigslist. The district court judge sentenced the
defendant to 15 months in Federal prison on April 4, 2013. In a
related case, Francis Ortiz Gonzalez, who worked as a
``dropshipper'' for Jiang in the United States, was sentenced
in January 2014 to 2 years in Federal prison and ordered to pay
$324,530 in restitution for trafficking counterfeit
pharmaceuticals.
You have asked about challenges the Department faces in prosecuting
these cases involving counterfeit drugs, including resource challenges.
In March 2011, the U.S. Intellectual Property Enforcement
Coordinator publically released a White Paper on Intellectual Property
Enforcement Legislative Recommendations and it is accessible at, http:/
/www.whitehouse.gov/sites/default/files/ip_white_paper.pdf. In this
White Paper, the administration recommended six legislative changes to
improve U.S. enforcement efforts involving pharmaceuticals, including
counterfeit drugs:
1. Require importers and manufacturers to notify the FDA and other
relevant agencies when they discover counterfeit drugs or medical
devices, including the known potential health risks associated with
those products;
2. Extend the Ryan Haight Act's definition of ``valid
prescription'' (and its telemedicine exemption) under the Federal Food,
Drug, and Cosmetic Act (FFDCA) to drugs that do not contain controlled
substances;
3. Adopt a track-and-trace system for pharmaceuticals and related
products;
4. Provide for civil and criminal forfeiture under the FFDCA,
particularly for counterfeit drug offenses;
5. Increase the statutory maximums for drug offenses under the
FFDCA, particularly for counterfeit drug offenses; and
6. Recommend that the U.S. Sentencing Commission increase the U.S.
Sentencing Guideline range for intellectual property offenses that risk
death and serious bodily injury, and for those offenses involving
counterfeit drugs (even when those offenses do not present that risk).
The Department recognizes recent congressional action, but also
reiterates the need for implementation of the other recommendations
noted in this White Paper. For example, many online pharmacies sell
prescription drugs that are not controlled substances under Federal
law. Non-controlled prescription drugs are regulated under the FFDCA
and require a valid prescription, but the FFDCA does not define what
constitutes a valid prescription. Currently, States have different
definitions of what constitutes a valid prescription. Internet
pharmacies typically operate across State lines. The pharmacy may be in
one State (or overseas), the doctor who issues the prescription may be
in another State, and the customer may be located in a third State. In
such cases, it is not clear which State law applies. Extending the Ryan
Haight Act's definition of ``valid prescription'' to non-controlled
prescription drugs would help standardize what constitutes a valid
prescription. A Federal definition of what constitutes a ``valid
prescription'' for non-controlled prescription drugs would also provide
clarity in Internet pharmacy investigations where there is a question
as to whether the drugs are being dispensed pursuant to a valid
prescription.
Prosecuting foreign Internet pharmacies for dispensing controlled
and non-controlled prescription drugs under FFDCA presents some unique
challenges for the Department of Justice. The Government Accountability
Office (GAO) noted in a report released in July 2013 the substantial
challenges in the criminal investigation of rogue Internet pharmacy
operators, include the increasingly complex nature of the criminal
organizations and the difficulties in pursuing investigations and
prosecutions of conduct that occur mainly overseas and often span
several foreign countries. For example, the Department may have
difficulties prosecuting an offender because of the lack of an
extradition treaty between the foreign country and the United States.
The report is available at http://www.gao.gov/assets/660/655751.pdf and
further details these challenges.
Question. What has the Department and its current intellectual
property law enforcement coordinators done to help stop the tide of
counterfeit and unsafe pharmaceuticals from hitting our shores? Are
there any recent joint operations with our partners in Asia that have
been successful? What are the greatest challenges that you see in
countries like China and India?
Lead-in information from original document.--
The Department of Justice currently funds 22 positions
focusing on intellectual property crime and has requested
funding for an additional 11 positions, including two
International Computer Hacking and Intellectual Property
Coordinators (ICHIPs).
Answer. As detailed in the Department's Prioritizing Resources and
Organization for Intellectual Property (PRO IP) Act Annual Report for
fiscal year 2013, the Department has prioritized cases involving public
health and safety, including prosecuting the importers and distributors
of counterfeit and sub-standard medicines. These cases may fall under
the prohibition against trafficking in counterfeit goods (18 U.S.C.
Sec. 2320) or the Federal Food, Drug and Cosmetic Act (21 U.S.C.
Sec. Sec. 351, 352).
By working closely with investigative agencies and the National IPR
Coordination Center, the Department has successfully prosecuted
numerous cases involving counterfeit pharmaceuticals imported from
overseas. Some recent examples include:
--In January 2014, two Turkish nationals were charged in the Eastern
District of Missouri with obtaining unapproved, misbranded,
adulterated, and counterfeit cancer treatment and prescription
drugs from Turkey and other foreign countries and smuggling the
drugs into the United States.
--In January 2014, a Texas resident pleaded guilty to conspiring to
import and attempting to traffic counterfeit drugs. The
counterfeit pharmaceuticals, which either did not contain any
active ingredient or contained an insufficient amount of the
active ingredient, were sent to the defendant's home in Texas
from China in open foil blister packs without packaging or
labels.
--In December 2013, a Chicago resident pleaded guilty to conspiring
to traffic and trafficking in counterfeit and misbranded
pharmaceuticals. The defendant smuggled the counterfeit drugs
from China into the United States in bulk for later
distribution in smaller quantities. As part of the
investigation, an undercover agent successfully infiltrated the
counterfeit pharmaceutical trafficking organization and
received approximately 17,000 counterfeit and misbranded Viagra
tablets over a two-and-a-half year period.
--In April 2013, an Illinois resident was charged with trafficking in
counterfeit drugs, violating the Federal Food, Drug, and
Cosmetic Act in connection with illegally obtaining drugs from
China and dispensing them at his pharmacy.
--In January 2013, a Puerto Rican man was sentenced to 2 years in
prison for being a key member of an organization that
distributed large quantities of Chinese-made, counterfeit
pharmaceuticals across the United States. The defendant worked
as a ``dropshipper'' for the counterfeit drug ring allegedly
headed by a Chinese national whose last known residence was in
New Zealand. The purported head of the drug ring was arrested
by New Zealand law enforcement pursuant to a provisional arrest
warrant, but he fled shortly after being released on bond and
remains a fugitive. In a related case, in April 2013, a
California resident was sentenced to 15 months in prison for
his role in a scheme to distribute the Chinese-made counterfeit
pharmaceuticals. He purchased the drugs from the alleged head
of the counterfeit drug ring and offered to sell them on
craigslist.
--In October 2012, a New Zealand physician was sentenced to 18 months
in prison after pleading guilty to three counts of trafficking
in counterfeit pharmaceuticals. The investigation into the
defendant's illicit activities began in 2006 after Customs and
Border Protection intercepted a parcel shipped from China
containing counterfeit drugs, and the defendant was identified
as the sender. The defendant was originally indicted in
December 2007, but remained at large until March 2012 when he
was arrested at San Francisco International Airport flying into
the United States from Hong Kong.
--In September 2012, a Puerto Rican distributor of counterfeit
pharmaceuticals was sentenced to 21 months in prison. The
pharmaceuticals were exported from China into Puerto Rico,
where the defendant re-shipped the drugs into other U.S.
locations, including to undercover agents in Houston.
--In July 2012, a California man was sentenced to 1 year and a day in
prison after pleading guilty to trafficking in counterfeit
pharmaceuticals. The defendant admitted that he imported these
products into the United States from China and India and then
sold the pills on craigslist.
In addition to seizing counterfeit and misbranded drugs and
prosecuting the distributors, the Department has seized websites used
to facilitate distribution of illegal sales of pharmaceuticals:
--In June 2013, the U.S. Attorney's Office for the District of
Colorado and the Food and Drug Administration seized 1,600
domain names associated with Web sites selling counterfeit or
misbranded drugs as a part of INTERPOL's Operation Pangea VI,
an international week of action targeting the online sale of
counterfeit and illicit medicines.
--In October 2012, in Operation Bitter Pill, Homeland Security
Investigations in coordination with the Department of Justice
seized 686 Web sites illegally selling counterfeit
pharmaceuticals. The operation was part of INTERPOL's Operation
Pangea V.
The Department also works closely with the State Department to
provide training in effective law enforcement techniques to reduce the
trade in illicit pharmaceuticals into developing countries. The sale of
counterfeit medicines in developing countries can simultaneously
destroy the market for legitimate products and have devastating health
consequences on the local population. As part of a multi-year series of
programs to build IP enforcement capacity, the Department, working with
the World Customs Organization, was able to support a 23-nation effort
to seize counterfeit medicines across the African continent which
resulted in the seizure of more than 550 million doses of counterfeit
medicine during a 10-day period in April 2013.
In addition to our efforts to increase awareness and enforcement in
consumer countries, we continue to develop cooperative law enforcement
mechanisms to pursue a range of IP offenses in source countries,
including the ongoing effort to reach the producers of counterfeit and
substandard pharmaceuticals.
--The U.S.-China Joint Liaison Group's Intellectual Property Criminal
Enforcement (JLG IP) working group provides a forum to discuss
ways to improve law enforcement cooperation and coordination on
intellectual property matters, including counterfeit
pharmaceuticals, and to exchange information and coordinate
enforcement activities. The JLG IP working group is co-chaired
by China's Ministry of Public Security and DOJ's Criminal
Division. The JLG IP working group coordinates with U.S. law
enforcement officials in China to facilitate the exchange of
evidence.
--In May 2013, the Department of Justice hosted the third
Intellectual Property Crime Enforcement Network (IPCEN)
conference in Bangkok, Thailand. Sixty intellectual property
crime investigators and prosecutors from the 10 members of the
Association of South East Asian Nations (ASEAN), as well as
South Korea and China, attended. The IPCEN conference is
designed to help prosecutors and investigators in the region
develop a network of IP enforcement authorities and foster
bilateral and regional cooperation in IP cases, including
counterfeit pharmaceutical cases.
There are no recent examples of joint operations with our partners
in Asia that are public at this time. However, we have seen a
substantial increase in the willingness of law enforcement officials in
some producer nations to cooperate in the disruption of counterfeit
pharmaceutical manufacturing facilities, and we are looking for
opportunities to develop joint operations through the IPCEN and JLG.
In India we have been challenged by the lack of a central law
enforcement authority with jurisdiction over counterfeit and
substandard pharmaceutical investigations, making a coordinated
approach to enforcement difficult. Additionally, larger issues relating
to patent enforcement and access to medicines in India often limit
political will and overshadow efforts at cooperative action against
counterfeit pharmaceuticals.
In China, law enforcement officials recognize the growing threat of
counterfeit pharmaceuticals to the Chinese population and take well-
publicized actions to cut down on domestic IP crime. Chinese officials
have shown an increasing willingness to work with U.S. law enforcement
and rights holders to ensure the legitimacy of pharmaceuticals in the
supply chain, using the Joint Liaison Group as a coordination
mechanism. However, the sheer volume of production in China of
counterfeit pharmaceuticals and other IP-infringing goods continues to
make enforcement a challenge.
______
Questions Submitted by Senator Lisa Murkowski
fairness in disclosure of evidence act
Question. Suppose I were to ask the Department to provide a
drafting service, get a bit introspective about what might be
acceptable bearing in mind the comments in the Judiciary hearing last
year and send me a bill that is worth moving forward on. Would you do
this for me?
Lead-in information from original document.--
Last year I introduced the Fairness in Disclosure of Evidence
Act with the intention of ensuring that the obligation to
disclose exculpatory evidence to Federal defendants in
accordance with the Brady ruling was uniformly applied across
the districts. The bill was endorsed by a wide variety of
organizations across the ideological spectrum from the American
Civil Liberties Union to the American Bar Association to the
U.S. Chamber of Commerce. Suffice it to say, prosecution
interests were not as enamored with the bill. When the bill
went to hearing in the Judiciary Committee last year there was
widespread support within the Department for taking Brady
obligations seriously and there was a promising colloquy with
Senator Leahy and others about open file discovery. At the end
of the day my bill was unacceptable to the department but the
department failed to express the parameters of a bill that
would be acceptable. This issue is very very important to me
and I intend to pursue it. I would like to find common ground
with the Justice Department. So rather than me continuing to
draft bills that are unacceptable--[continued above as the
start of the question]
Answer. The Department of Justice firmly believes that rather than
seeking legislative solutions, the American people are better served by
the steps the Department already has taken--and will continue to take--
since the time of the Stevens prosecution. Through improved policies,
increased training, and the appointment of new Department experts on
the topic of discovery obligations, the Department's prosecutors have
at their disposal an array of resources to assist them in meeting their
discovery obligations. In addition to supervisory attorneys, this
includes: discovery coordinators in each U.S. Attorney's Office or
Department component; the Professional Responsibility Advisory Office;
online resources; a full-time National Criminal Discovery Coordinator
in the Office of the Deputy Attorney General; and experienced attorneys
throughout the Department.
attorney misconduct
Question. In advance of the next round of reporting from the GAO,
let me ask are you satisfied with the attorney misconduct program
within the department? Are there any changes you would like to see
implemented? I understand that the Department has long resisted
permitting the Inspector General to inquire into issues of attorney
misconduct. Senator Lee, I and others think this is shortsighted. The
Inspector General is intended to be an independent figure with the
power to inquire into all goings on within the Department furthering
the public interest of integrity and efficiency. Is there any good
reason that the Department should oppose S. 2127 which would remove
Inspector General Act impediments pertaining to attorney misconduct?
Lead-in information from original document.--
I would like to speak with you about the issue of attorney
misconduct within the department. USA Today did a series on
attorney misconduct, the Project on Government Oversight
recently issued a report attorney misconduct and I have the GAO
working on a study mandated by this subcommittee on the same
subject that will be available later this year. We hear that
attorney misconduct is seriously addressed but looking back at
the discipline meted out on the Stevens prosecutors one might
question whether the discipline is severe at all. And the POGO
report indicates that rarely if ever are disciplined
prosecutors referred to their State bars.
Answer. The Department takes all misconduct allegations with the
utmost seriousness. The Department's Office of Professional
Responsibility (``OPR'') has been recognized consistently as a strong,
independent entity within the Department that has a long,
distinguished, and strong history of investigating allegations of
attorney misconduct and recommending appropriate punishment. OPR has a
unique expertise and has well-developed policies, procedures, and an
analytical framework to guide its work. Importantly, OPR, unlike the
Office of the Inspector General (OIG), has a singular focus on
investigating attorney misconduct.
While the Administration does not yet have an official position on
S. 2127, similar bills have been introduced a number of times in the
past; none have proceeded, and for good reasons. Previous efforts to
unnecessarily expand the jurisdiction of the OIG have failed, in part,
because expanding their jurisdiction would not create a better attorney
discipline system, but instead would create an inconsistent and
inefficient system while eroding accountability.
As with S. 2127, previous efforts at expanding the OIG's
jurisdiction have sought to effectively cede OPR's current jurisdiction
to the OIG on all matters, allowing the OIG to handle certain attorney
misconduct investigations of its choosing, while OPR handles the
remainder. This concurrent jurisdiction undoubtedly would lead to
inconsistent results without addressing any of your concerns.
When Congress created an Inspector General (IG) for the Department
of Justice in 1988, the Department strongly insisted upon recognition
of the special character of Department attorneys' exercise of authority
to investigate, litigate and give legal advice. Since its creation in
1975, OPR has developed unique expertise in applying the complex legal
and ethical standards applicable to Department attorneys conducting
investigations, litigating cases, and providing legal advice. OPR has
developed unique investigative policies and procedures, as well as an
analytical framework that together ensure the application of fair and
consistent findings with regard to matters of professional misconduct.
OPR is staffed with experienced attorneys, including former attorneys
from the OIG, as well as attorneys who worked in private practice, have
experience with the national Innocence Project, and have experience
with attorney ethics investigations.
For these reasons, Congress specifically carved out of the IG's
jurisdiction the authority to investigate allegations relating to an
attorney's authority to investigate, litigate, and provide legal
advice; and required that such allegations continue to be referred to
OPR. Since 1988, the OIG has raised periodically its claim that it
should be empowered to investigate matters falling within OPR's
jurisdiction. Each time the issue has been raised, Congress has wisely
refrained from altering the carefully considered limitation on the IG's
authority.
In its nearly 40 years' existence, OPR has been called upon to
investigate allegations of misconduct against high-ranking DOJ
officials, including the Attorney General and the Deputy Attorney
General. OPR in fact acts independently and without interference from
senior Department leadership. Since its inception, OPR has been led by
a Counsel who is a career Senior Executive Service Department employee,
who remains unchanged with successive Attorneys General and
presidential administrations. No serious allegation has ever been
raised that any Attorney General or Deputy Attorney General has
interfered with any OPR investigation.
Although the OIG for many years has claimed a need to increase its
own jurisdiction, the OIG points to no instance in which Department
senior leadership interfered with an OPR investigation; nor does the
OIG point to a single OPR investigation that failed to appropriately
hold accountable Department leaders or other Department attorneys. OPR
has not hesitated to investigate senior Department leadership at the
highest levels in the past where appropriate, and to find misconduct by
Department attorneys when the evidence supported such findings. In any
event, if the OIG wishes to take over an investigation that falls
within the jurisdiction of OPR, the OIG may make such a request to the
Deputy Attorney General.
Moreover, your concerns about the Stevens case would not have been
addressed had the attorney misconduct investigation been handled by the
OIG. As I understand it, your principal objection to the Department's
handling of the Stevens attorney misconduct investigation is your
belief that the punishment was insufficient. Had the OIG handled the
investigation, the perceived problem of insufficient punishment would
not have been rectified. OPR conducted a full and thorough
investigation and determined in a detailed, 672-page report that two
attorneys engaged in professional misconduct and that a third exercised
poor judgment. OPR's findings were shared with Judge Sullivan, who
presided over the Stevens matter and with Congress.
As a result of OPR's findings, the Department imposed significant
periods of suspensions without pay to the attorneys who were found to
have engaged in professional misconduct. As is the right of any civil
servant under similar circumstances, the attorneys appealed the imposed
discipline to the Merit Systems Protection Board (MSPB); an
administrative judge for the MSPB vacated the suspensions based on a
finding of harmful procedural error when the original disciplinary
proposing official was replaced. The Department appealed that decision
to the full Board, believing that the replacement of the proposing
official was proper. The full board affirmed the initial decision,
finding similar harmful procedural error. Regardless of whether OPR or
the OIG investigated this incident of attorney misconduct, there is no
reason to believe the MSPB outcome would have been any different. OPR
has the authority to investigate allegations of misconduct, but does
not have the authority to impose discipline. Likewise, the OIG would
have had no such authority. Rather, the OIG would only have authority
to report its findings and conclusions to the Attorney General and the
Deputy Attorney General; the Department, under longstanding civil
service rules, would retain authority to impose discipline. But just as
is the case under the present system, any attorney--like all Federal
Government workers--would retain the right to appeal a suspension of
more than 14 days to the MSPB.
With respect to concerns about referrals of attorney misconduct to
State bars, OPR's long-standing policy and practice in all
investigations is also to review the State bar rules that govern each
individual attorney who is under investigation, and to assess whether
there has been a violation of those specific State bar rules. If the
Department determines that the conduct violates an applicable State bar
rule, OPR refers the matter to the relevant State bar and provides
information about its finding. OPR routinely makes such referrals.
Another reason OIG's jurisdiction to include attorney misconduct is
neither warranted or appropriate is that having two entities
responsible for attorney misconduct investigations would necessarily
lead to inconsistent application of the often complex rules and
standards governing attorney conduct and would leave Department
attorneys uncertain as to the extent of their obligations. This
uncertainty, in turn, would reduce accountability because of the lack
of clear direction and opaque expectations regarding attorney conduct.
This will inevitably create a dysfunctional system in which similarly-
situated Department attorneys will be treated differently for
essentially similar conduct. It would be grossly unfair to subject
attorneys to disparate treatment based on which investigative entity
takes jurisdiction; decreased accountability would be the predictable
result.
With respect to transparency, the Privacy Act prevents OPR from
releasing personal information about Department employees, except in
limited circumstances, and those same limitations would apply to the
OIG. Accordingly, whether OPR or some other entity undertakes
disciplinary investigations, the same Privacy Act limitations are
applicable. Although the Privacy Act prohibits the release of protected
information, OPR annually discloses a substantial amount of information
about its work and findings. OPR's annual report contains substantive
and statistical information setting forth the complaints it receives
and the numbers of inquiries and investigations it accepts and
resolves. The fiscal year 2012 Annual Report, for example, not only
included summaries of representative inquiries handled by OPR during
the year but also included summaries of nearly every investigation OPR
closed during fiscal year 2012. Future annual reports will do the same.
Beyond that, OPR regularly provides complainants, including defense
attorneys or judges who complain about the conduct of Department
attorneys, information concerning the resolution of their complaint.
Contrary to the suggestion in the POGO report otherwise, where bar
rules are implicated, OPR also shares its misconduct findings and
reports with bar disciplinary authorities.
ted stevens investigation
Question. During last week's hearing with the FBI Director, Mr.
Comey indicated that an FBI Agent whose conduct in the Ted Stevens
investigation came under scrutiny was severely disciplined. But he
didn't explain what severely disciplined meant. One person's severe
discipline might be another's slap on the wrist. Can you shed any light
on whether the individual is still working for the FBI, in what
capacity, and what the discipline was. [If not, insist once again that
the report be filed with the subcommittee so we can determine what went
on].
Answer. In light of the privacy interests implicated here, FBI
would be prepared to brief the Committee on this matter.
______
Questions Submitted by Senator Mark Kirk
gangs
Question. Would a tool like this be useful on a national scale in a
classified or unclassified manner? Do any of our Federal law
enforcement agencies gather this type on information on gangs of
national significance (gang profiles, membership, signs or symbols,
signature crimes, etc.) and share it with their State and local
partners? If this is already being done, what is the manner that the
information is shared?
Lead-in information from original document.--
The Chicago Crime Commission, a non-partisan, not-for-profit
organization, printed The Gang Book in 2012 that details the
leadership, membership, locations and other unique identifying
factors of gangs and their factions in both the city of Chicago
and the suburbs. The Gang Book also published the number and
type of crimes reported as ``gang related.'' This information
is useful for suburban police departments that are experiencing
gang crime for the first time.
Answer. This type of tool is already being used on a national scale
and is very helpful. The National Gang Intelligence Center (NGIC)
operates NGIC Online, which is an information system composed of Web
based tools for researching gang related intelligence and sharing this
information with the largest possible segment of the law enforcement
community. NGIC Online can be accessed by all Law Enforcement Online
(LEO) users, which are comprised of local, State, Federal, tribal, and
correctional law enforcement. NGIC Online has several resources,
including the following: Gang Encyclopedia, Gang Dictionary, General
Intelligence Library, and Officer Safety Alerts. There is also a
mechanism within NGIC Online wherein law enforcement can submit a
request for information to NGIC subject matter experts for support on
gang investigations. NGIC also produces the bi-annual gang report,
which is available to all law enforcement through the NGIC Online
database.
In addition, the Department's Office of Justice Programs' (OJP),
Bureau of Justice Assistance (BJA), administers the Regional
Information Sharing Systems (RISS) Program, which is a federally
funded, locally operated program that provides secure intelligence and
information sharing to law enforcement, prosecutors, corrections, and
probation/parole officers at all levels of government. Although Federal
agencies participate, the focus is information sharing between law
enforcement no matter the size of the agency. In addition to
information sharing services, RISS provides assistance to these
agencies in the areas of investigative support, equipment loans for
investigation and surveillance, court preparation, training, and field
support.
All RISS resources are used by State, local, and tribal agencies on
a daily basis to investigate many types of crimes, especially narcotics
and gangs (which are connected on many occasions). One specific
resource of interest to gang investigators in the RISS program is the
RISSGang system. RISSGang provides a place for officers to share and
provide gang information on a national level to include gang profiles,
tattoos, gang signs and symbols, and types of specific crimes
affiliated with each gang. The gang information is made available
through the RISSGang Web site, which is available to all law
enforcement, and has a bulletin board feature, a searchable database,
secure e-mail, and a method for officers to securely view gang Web
sites without revealing the officers' IP address or identity as a
government official.
Question. Gang activity is increasingly expanding to new forms of
illegal activity including sex trafficking. How is DOJ communicating
and working with State and local law enforcement to combat sex-
trafficking? How is DOJ working with other Federal agencies and our
allies to combatting international sex tourism? What are the biggest
trends in sex trafficking? What areas are seeing increased activity?
Please outline the biggest loopholes within current law that enable sex
traffickers to evade the law enforcement and criminal prosecution.
Answer. Through the FBI's Violent Crimes Against Children Section,
the FBI has established 69 Child Exploitation Task Forces (CETFs)
throughout the country. The FBI partners with nearly 400 local, State,
and Federal law enforcement agencies, with approximately 760 law
enforcement officers to combat the commercial sexual exploitation of
children. This robust effort allows for multi-dimensional investigative
strategies to be employed. The national level intelligence and
investigative resources are layered with the local level intelligence
to develop large enterprise level investigations. In addition to
fostering the sharing of information across law enforcement, the CETFs
facilitate prosecutions within both State and Federal courts of those
who facilitate the commercial sexual exploitation of children. Without
question, because of the partnerships through the FBI CETFs, law
enforcement is able to more fully impact this crime problem without the
limitations of any jurisdictional boundary.
The FBI also operates its Child Sex Tourism Initiative in which FBI
agents assigned to our Legal Attachee offices around the globe
investigate U.S. citizens who travel overseas and engage in illicit
sexual acts with children. These agents work with foreign law
enforcement, non-governmental organizations (NGOs), and various victim
services organizations in order to investigate and prosecute those
engaged in child sex tourism. The Department of Homeland Security, U.S.
Immigration and Customs Enforcement (ICE) also have agents stationed
overseas that investigate child sex tourism and other crimes. The FBI
has regular contact with ICE in order to collaborate on these cases.
Trends related to the domestic child sex trafficking threat are
typically reflected in the methodologies used by pimps to run their
operations. This is reflected in the trend of using non-escort focused
Web sites to post prostitution advertisements. Additionally, pimps are
distancing themselves from their operations by assigning greater
responsibility to associates and ``bottom girls'' (frequently the most
trusted girl under the direction of a pimp). Some special events, such
as the Super Bowl, continue to spur a surge of sex trafficking
operations leading up to and during the event. Training and outreach
efforts have resulted in an increased awareness of domestic child
prostitution. As a result, law enforcement and the public are more
conscious of indicators specific to domestic child sex trafficking,
leading to an increase in reports of suspected trafficking. Domestic
child sex trafficking continues to impact communities across the
Nation.
The Office of Justice Program's (OJP's) National Institute of
Justice (NIJ) regularly consults with a range of State and local
practitioners, including law enforcement, prosecutors, community
organizations and victim service providers, to identify the prominent
trends in human trafficking. These consultations revealed that the
nature of trafficking cases calls into question the assumptions about
who traffickers are, how they become traffickers and what might serve
as the greatest deterrent to their entry into trafficking. In response,
NIJ commissioned a study focused on answering these questions for all
those convicted of trafficking at the Federal level, another examining
the role of gangs in sex trafficking in San Diego, and a third
exploring the role of organized crime in sex trafficking in the United
States (all due to be completed in 2015). Combined with our recently
completed studies of labor trafficking (published in 2013) and the
unlawful commercial sex economy (published in 2014), these studies will
provide a more clear picture of trends in sex trafficking in the United
States.
The Office for Victims of Crime (OVC) and the Bureau of Justice
Assistance (BJA) jointly administer the Enhanced Collaborative Model to
Combat Human Trafficking grant funding program to support anti-
trafficking law enforcement task forces that take a comprehensive
approach to combating all forms of human trafficking--sex trafficking
and labor trafficking of foreign nationals and U.S. citizens (male/
female, adults/minors). The task force model supports partnerships
between local, tribal, State, and Federal law enforcement and victim
service providers to build community capacity to rescue and serve
trafficking victims. In addition to funding these task forces, OVC and
BJA support practitioner-driven, evidence-based training and technical
assistance (TTA) that is responsive to the needs of victim service
organizations, law enforcement, allied professionals, and the
communities they serve.
Over the past several years, BJA and its partner, the Upper Midwest
Community Policing Institute, have developed and delivered nationwide
training for law enforcement, State prosecutors, State judges, and
tribal law enforcement to promote awareness of human trafficking as
well as advanced skills on how to investigate cases of human
trafficking. In fiscal year 2014, BJA posted a solicitation seeking to
continue the delivery of: (1) human trafficking training for
prosecutors--to increase the capacity of State prosecutors to
successfully prosecute perpetrators of trafficking; and (2) advanced
human trafficking training for law enforcement--to increase the
capacity of law enforcement to investigate, identify, and rescue
victims of all forms of human trafficking.
cyber security
Question. I am greatly concerned about the data breach incident at
the end of 2013 that resulted in up to 110 million credit cards numbers
stolen from Target. This is just one of many incident that happened
last year. How does DOJ coordinate with the Secret Service, which has
the lead agency on counterfeit activity, regarding data breaches? Do
you have all of the legal authorities you need to effectively
coordinate with other agencies? If not, is there further congressional
action that will help you better protect the American people?
Answer. Consistent with law, the FBI has a very forward-leaning
approach to sharing information and intelligence with our partners,
specifically the U.S. Secret Service (USSS). While the USSS is the lead
agency for traditional counterfeit activity, an intrusion into computer
networks is an altogether separate Federal violation, the investigation
of which is a responsibility shared by both the FBI and USSS, and the
FBI is the lead agency on national security intrusions. As such, the
FBI and the Secret Service have a long history of jointly investigating
computer intrusions, including large-scale data breaches, whether
committed by financially-motivated criminals or other criminal actors.
Over the past 2 years, the FBI has shared national security case
details with the USSS, and both agencies are leading members of the
National Cyber Investigative Joint Task Force, the founding mandate of
which is to serve as the focal point for all government agencies to
coordinate, integrate, and share information related to all domestic
cyber threat investigations. In addition, both agencies engage in
robust, bilateral collaboration at both the headquarters and field
levels to ensure maximum resources are brought to bear against these
criminal cyber threats in the most effective manner possible. Lastly,
both agencies also participate in the International Organized Crime
Intelligence and Operations Center (IOC-2), a forum for member agencies
to meet and more effectively coordinate international criminal
prosecutions--prosecutions which include cyber activities.
The FBI has a variety of means to coordinate with its partner
agencies in the U.S. law enforcement and intelligence communities. To
successfully identify, pursue, and defeat our cyber adversaries, data
collection and sharing among U.S. agencies must continue to evolve.
That evolution requires a constant evaluation of the authorities
governing such coordination including ensuring agency-specific data
sharing restrictions, while often necessary, do not unduly burden that
sharing. Another aspect of that evolution is increasing the speed at
which intelligence is shared. In that vein, the FBI, working with
partners in government and the private sector, will likely turn to
machine-to-machine data sharing, but such enhanced coordination may
require authorities not currently in place. This is an issue actively
being reviewed at the present and will continue to be examined for the
foreseeable future.
Finally, cybersecurity legislation that requires companies to
report intrusion activity to the Government and provides liability
protections for those companies that share with and assist Government
would have a positive impact on the FBI's cyber investigations.
______
Question Submitted by Senator John Boozman
victims of child abuse act
Question. I certainly hope that you will follow up on that
commitment given that while this year funds weren't cut, they were
significantly reduced from the levels that this subcommittee provided
the past 2 years and I would appreciate you reaffirming your support
for CAC's.
Lead-in information from original document.--
For the first time in several years, I am happy that the
administration's budget request did not zero out funds for the
Victims of Child Abuse Act, yet it reduced the funding by $8
million from the fiscal year 2014 enacted level. As you know,
VOCA funds vital programs that ensure that children who have
been victims of abuse receive adequate assistance and care.
Specifically VOCA provides funding to the National Children's
Alliance, local Children's Advocacy Centers, and Regional
Children's Advocacy Centers, among other programs. These
centers are an essential part of communities and are deeply
supported by community leaders, local law enforcement, health
officials and members of the legal establishment.
In a hearing in January of this year, you stated, ``I will be
advocating on behalf of these Children's Advocacy Centers. I
think they are proven to work, and given who they assist, I
think that as we're 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.''
Answer. The Children's Advocacy Center (CAC) Program, funded under
the Victims of Child Abuse Act (VOCA), is considered to be an effective
multidisciplinary model. The CACs represent vital public-private
partnerships. In 2012, more than 286,000 children were served at such
centers, with over 197,000 cases of reported sexual abuse. One of the
primary goals of the CAC Program is to ensure that child abuse victims
are not further traumatized by the systems designed to protect them.
CACs bring together multidisciplinary teams of child abuse
professionals from law enforcement, prosecution, medical, mental
health, child protective services, and victim advocacy agencies to
coordinate the investigation and prosecution of child abuse. This model
has been implemented in more than 850 communities throughout the United
States and in numerous foreign countries.
Research on the effectiveness of CACs indicates positive results
from faster criminal charging decisions, increased prosecution rates,
improved access to medical care, child and caregiver satisfaction and
lower average per-case costs. Research has demonstrated that the
coordinated response efforts also cost $1,000 less per case based on
elimination of duplication of efforts.
______
Questions Submitted to Hon. Michael E. Horowitz
Questions Submitted by Senator Richard C. Shelby
Question. Public trust and confidence are essential to successful
Federal law enforcement efforts. However, the Department has faced
significant issues in recent years that jeopardize that very trust and
confidence. In fact, restoring public confidence, trust and integrity
in the Department has been a top management challenge since 2007.
--Seven years is a long time for any department to struggle with such
a serious management challenge. Has the Department made any
progress and if so, could you share some examples?
--What changes, in your view, would help to restore public trust and
confidence? In other words, what does the Department need to do
to resolve this management challenge?
Answer. We agree that the public's trust and confidence are
essential to successful Federal law enforcement efforts, and that the
Department of Justice (Department) has faced numerous significant
issues in recent years that have jeopardized that support. For example,
our 2007 and 2008 Top Management Challenges report noted the
politicized personnel decisions of Department components had identified
in three of our reviews. In 2010, the Office of Inspector General (OIG)
issued a report concerning allegations that the Federal Bureau of
Investigation (FBI) had targeted certain domestic advocacy groups for
scrutiny based upon their exercise of rights guaranteed under the First
Amendment to the United States Constitution. More recently, our 2012
report on improper hiring practices in the Justice Management Division
(JMD) found problems with nepotism in multiple offices in JMD, marking
the third OIG investigation in the last 8 years involving improper
hiring practices within JMD. Also in 2012, we described significant
issues involving the conduct of both the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF) and the U.S. Attorney's Office for the
District of Arizona in connection with their handling of Operation Fast
and Furious and Related Matters. And in a 2013 report assessing the
enforcement priorities of the Voting Section of the Civil Rights
Division, we identified issues in the handling of a small number of
cases that the OIG believed risked undermining public confidence in the
non-ideological enforcement of the voting rights laws. The review also
revealed several incidents in which ideological polarization fueled
disputes and mistrust that harmed the functioning of the Voting
Section, including numerous examples of harassment and marginalization
of employees and managers due, at least in part, to their perceived
ideological or political beliefs.
Despite the problems we have identified over the past several
years, we also have noted the Department's significant efforts to
restore its reputation for impartiality and excellence since we first
included this issue in our Top Management Challenges report. For
example, following our 2006 report on the FBI's handling of the Brandon
Mayfield case, the FBI Laboratory implemented major reforms that have
strengthened the objectivity and reliability of its latent fingerprint
identifications and have helped restore the FBI Laboratory's reputation
as a leader in this discipline; in response to our 2013 review of its
purchase of promotional items, the U.S. Marshals Service instituted a
new promotional items policy and other internal controls that we
believe will help restore the public's confidence that appropriated
funds will be used in the manner intended by Congress; and following
our 2008 report on politicized hiring, the Civil Rights Division has
taken major steps to improve public confidence that its hiring
practices are fair, transparent, and merit-based.
Nevertheless, significant challenges remain. One especially
important concern that continues to be raised by, among others, Members
of Congress, Federal judges, and public interest groups is the
Department's ability to discipline its attorneys for misconduct. In
December 2013, Chief Judge Alex Kozinski of the U.S. Court of Appeals
for the Ninth Circuit issued a dissenting opinion stating that there
was an ``epidemic of Brady violations'' by Federal and State
prosecutors, and that ``[o]nly judges can put a stop to it.'' In
reaching this conclusion, Chief Judge Kozinski cited a plethora of
Federal and State court decisions finding Brady violations by
prosecutors, and he noted that professional discipline is ``rare.'' In
March 2013, the Project on Government Oversight (POGO) raised similar
concerns about prosecutorial misconduct and the transparency of the
Department's disciplinary decisions, and recommended that the OIG
should be authorized to investigate allegations of misconduct by
Department attorneys rather than the Department's Office of
Professional Responsibility (OPR), which currently has responsibility
for these investigations. As we have repeatedly noted in the past, and
as POGO stated in its recent report, providing the OIG with this
jurisdiction would result in independent oversight of alleged
prosecutorial misconduct, greater transparency over the process, and an
increase in accountability, with the inevitable result being that the
public's trust and confidence in the disciplinary process would
improve. This is particularly true in matters where the lack of
independence and transparency of an OPR review might reasonably call
its conclusions into doubt. For these reasons and others, the OIG
supports the bipartisan Inspector General Empowerment Act of 2014 (S.
2127), introduced by Senator Lee and co-sponsored by Senators Tester,
Grassley, Murkowski, and Coburn, which would amend the Inspector
General Act to allow the OIG to investigate allegations of misconduct
involving Department attorneys.
Question. It is my understanding that the Attorney General has
granted all of your requests to access documents. If that is true, why
are you concerned about the current process for accessing certain
documents and records?
Answer. For any OIG to conduct effective oversight, it must have
complete and timely access to all records in the agency's possession
that the OIG deems relevant to its review. This principle is codified
in Section 6(a) of the Inspector General Act, which authorizes
Inspectors General ``to have access to all records, reports, audits,
reviews, documents, papers, recommendations or other material available
to the applicable establishment which relate to programs and operations
with respect to which that Inspector General has responsibilities under
this Act.'' Refusing, restricting, or delaying an OIG's access to
documents may lead to incomplete, inaccurate, or significantly delayed
findings or recommendations, which in turn may prevent the agency from
correcting serious problems in a timely manner.
We have had multiple instances recently where one or more
Department components have declined to provide the OIG with materials
that were relevant to an ongoing OIG review because of a claim that the
Inspector General Act did not authorize our access to those materials
in light of limitations in other Federal laws. Ultimately, in each
instance, the Attorney General or the Deputy Attorney General issued an
order granting the OIG permission to receive the materials because they
concluded that our ongoing reviews were of assistance to them in
managing the Department. However, there are significant issues with
this process. First, requiring an OIG to receive permission from
Department leadership in order to obtain documents that the OIG has
determined are necessary for its review is inconsistent with an OIG's
independence. Second, authorizing access to relevant records only after
the Attorney General or Deputy Attorney General concludes that the
review would assist them in managing the Department is wholly
inconsistent with the Inspector General Act, which expressly authorizes
an independent Inspector General to determine what reviews are
necessary and should be undertaken. Third, a process that requires the
OIG to elevate certain document requests to the highest levels of the
Department, including in routine audits, results in significant delays
in the timeliness of our work. Indeed, one of our reviews was delayed
for almost a full year because of these issues. And just this year,
another review was delayed approximately 3 months when a component
initially objected to producing certain materials that were highly
relevant to an OIG audit; the OIG obtained access only after
discussions between the Inspector General and the component head
resolved the matter. Moreover, the FBI, which was the component that
objected in 2010 and 2011 to producing certain documents to the OIG,
thereby triggering the involvement of the Attorney General and Deputy
Attorney General, has since put in place a process that requires its
Office of General Counsel to review and produce documents to the OIG in
connection with an audit or review. We did note the FBI Director's
testimony before the Senate Judiciary Committee earlier this week in
which he stated that he has directed his General Counsel to approve the
production of documents to the OIG much faster than in recent years.
This process, which has resulted in delays of our audits and reviews,
is in our view a significant waste of the FBI's limited legal
resources, not to mention of the OIG's, particularly since the Attorney
General has stated that he is going to ensure that we receive all of
the materials that we need for our reviews and audits.
Question. Do you agree that certain laws include a specific process
whereby the Attorney General is responsible for granting or denying
access to specific documents and records? If not, could you detail the
differences in your opinion from that of the Attorney General?
Question. We are not aware of any laws that include a specific
process whereby the Attorney General is responsible for granting or
denying access to specific documents and records. On the contrary,
Section 6 of the Inspector General Act provides OIGs with authorization
to access relevant documents and materials that are already in the
possession of the establishment each oversees. The only exception to
that authorization relevant to the Department of Justice OIG is found
in Section 8E of the Inspector General Act, which authorizes the
Attorney General to prevent the Inspector General from obtaining
certain information in certain circumstances, but only after the
Attorney General has made the necessary determination under Section 8E.
Further, the Attorney General is required to issue a written
explanation of the reasons for his decision to the Inspector General,
which is then provided to Congress within 30 days. These statutory
safeguards serve to underscore the fact that the Inspector General Act
is intended to allow the OIG complete and timely access to the
Department's documents and materials, while providing the Attorney
General carefully circumscribed avenues for withholding information in
exceptional circumstances--and only with prompt and specific
notification to the Inspector General and Congress. We have attached a
memorandum from 2011 that summarizes our views on Sections 6 and 8E of
the Inspector General Act as they relate to the OIG 's access to
certain documents and materials gathered by the FBI.
Question. What, in your view, is the best way to address the
limitation that has been placed on your access to certain documents and
records? Do we need to pass legislation or can the problem be remedied
by the Attorney General? Is it as simple as the Attorney General
requiring the entire Department to allow you unfettered access to the
documents and records necessary to conduct oversight?
Answer. We believe that the Attorney General or Deputy Attorney
General can immediately remedy the problem by finding as a matter of
policy and practice that the OIG is entitled to access all documents in
the Department's possession that are relevant to an OIG review, and by
directing all Department components to comply with such a finding by
providing the OIG with timely access to relevant documents. Such a
directive would obviate the need for additional legislation so long as
it is in place. However, in the absence of such a finding and
directive, given the Department's current process of requiring the OIG
to obtain permission from Department leadership in order to obtain
access to certain records in the Department's possession, we believe
that corrective legislation would be necessary.
Question. The Attorney General stated that the Office of General
Counsel has never ruled on the issue of access to documents and records
by the Inspector General. If the Attorney General does not seek a
formal ruling as I have requested of him, would you be willing to seek
a formal ruling on these matters?
Answer. The OIG does not believe that a formal ruling is necessary
to decide this issue because the Inspector General Act is already clear
in authorizing the OIG to access all documents and materials in the
possession of the Department that are relevant to our reviews.
Moreover, the Department's practice until 2010 had been to provide the
OIG with access to all relevant materials in the Department's
possession.
Nevertheless, if the Attorney General concludes that a legal
opinion is necessary, the OIG does not object to the Department
requesting that its Office of Legal Counsel (OLC) rule on the issue of
OIG access to grand jury, Title III, and Fair Credit Reporting Act
information. However, given the continuing access issues that the OIG
is facing and the impact that those issues have on our independence, it
is critical that such a process move expeditiously and that OLC issue
its opinion promptly. Additionally, we would object if the Department
were to ask OLC for a broad opinion that covered OIG access to
documents beyond the three categories of materials currently in
dispute, or that sought to address access to documents by other Federal
Inspectors General, because of the impact such a broad ruling could
have on those other Federal OIGs and the lengthy process that would
ensue were the OLC to consult those OIGs for their views.
Question. Mr. Horowitz, you have raised concerns about the
distinction the Department makes between the treatment of misconduct by
attorneys acting in their legal capacity and misconduct by other
Department employees. In fact, your office has no authority to
investigate misconduct by attorney's acting in their legal capacity.
That authority has been granted to the Department's Office of
Professional Responsibility.
--Why do you believe that these types of investigations should be the
responsibility of your office rather than the Office of
Professional Responsibility? Are there specific examples of
investigations being called into question because they were
handled by the Office of Professional Responsibility?
Answer. As stated in our response to the first question, we believe
that all Department employees should be held to the same standards of
accountability for misconduct, and we have long questioned the
distinction between the treatment of misconduct by attorneys acting in
their legal capacity and misconduct by other Department employees,
including law enforcement agents. We believe the institutional
independence of the OIG, which is codified in the Inspector General
Act, and which OPR lacks, is critical to the effectiveness of our
misconduct investigations. Moreover, Inspectors General across the
Federal Government have the authority to handle misconduct allegations
against lawyers acting as such within their agencies, and they have
demonstrated that they are fully capable of dealing with such matters.
Additionally, the OIG 's strong record of transparency is vital to
ensuring the Department's accountability, particularly in cases where
the independence or fairness of an internal review might be called into
question. As noted in response to the first question, in recent months,
others have expressed a similar concern, including the independent,
non-partisan Project on Government Oversight (POGO), which issued a
report last month that was critical of OPR's longstanding lack of
transparency and recommended empowering our office to investigate
misconduct by DOJ attorneys. The POGO report identifies specific
examples of OPR investigations--including of the prosecution team in
the case of former Senator Ted Stevens and of Department attorneys Jay
Bybee and John Yoo in the torture memorandum issue--that it believes
have fed skepticism about whether the Department is capable of
investigating misconduct by its attorneys.
Question. Would such a change require a legislative fix or is this
something that can be handled by the Attorney General?
Answer. In 2002, the 21st Century Department of Justice
Appropriations Authorization Act amended Section 8E of the IG Act to
specifically allocate to OPR exclusive jurisdiction over alleged
misconduct by Department attorneys (except OPR attorneys) where the
allegations relate to the exercise of the authority to investigate,
litigate, or provide legal advice (Section 8E(b)(3)). Thus,
notwithstanding a general provision of the IG Act (Section 9(a)(2))
that permits agency heads to transfer functions to the OIG, based on
the specific language in the current law relating to jurisdiction over
attorney professional misconduct allegations, it would appear that the
Attorney General does not have the authority to transfer that function
to the OIG. We therefore believe that legislation, such as the
bipartisan legislation recently introduced by Senator Lee and co-
sponsored by Senators Tester, Grassley, Murkowski, and Coburn, is the
best way to address the issue.
______
Questions Submitted by Senator Patrick J. Leahy
usa patriot act review
Question. On March 17, 2010, I wrote to former Inspector General
Glenn Fine and asked him to complete a number of audits of government
surveillance authorities, including the use of Section 215 orders, pen
register and trap and trace devices, and National Security Letters. On
June 15, 2010, Inspector General Fine responded to my letter,
indicating that a review to examine these provisions would be initiated
by the Office of Inspector General. I understand that these reviews
have commenced, yet, nearly 4 years later, I still have not seen final
reports.
What is the status of these reviews and when can I expect to
receive completed reports from your office?
Answer. We have completed the three reports regarding the above-
mentioned matters and we expect to issue our latest report on the FBI's
use of National Security Letters in the next few weeks. We provided our
report on Section 215 orders and our report on pen register and trap
and trace usage to the FBI on February 28 for a classification review
of FBI information, but still have not received a completed
classification review from the FBI or a date on which it will be
completed. Without completed classification reviews from the FBI and
the non-Department agencies whose information appears in the reports,
we are prohibited from issuing our reports, including to Congress.
SUBCOMMITTEE RECESS
The next hearing will be on Thursday, at 10 a.m., in which
we will take testimony from Secretary Pritzker, the Secretary
of Commerce.
[Whereupon, at 12:05 p.m., Wednesday, April 3, the
subcommittee was recessed, to reconvene at 10 a.m., Thursday,
April 4.]