the committee will come to order we have before us the attorney general of the united states and perhaps for the last time in the one hundred tenth session his responsibility is that of enforcing our federal criminal laws protecting voting rights protecting us against foreign and domestic terrorism for enforcing the any just laws the bankruptcy laws then the electoral pr laws and the immigration laws as well as representing the government in civil cases first and perhaps most important believe we've not seen enough cooperation concerning voting rights the regular meetings on voting rights but i thought what happened between the judiciary staff bipartisan in nature and the department of justice that have not happened  and not been affected as we sit here today probably a hundred days before the election we don't know specifically how our government will respond to the practices that made the elections of two thousand and two thousand and four so problematical and so controversial how we will respond to deceptive electioneering practices now this this is the highest order of responsibility between the department of justice and the judiciary committee because we're going to be responsible not just the outgoing attorney general and the department of justice but the house judiciary committee is going to be held accountable for what we did or didn't do china to make sure that many of the deceptive electioneering practices are stopped and not just punished after the fact but that we do something about it preemptively how can we ensure voting machines are fairly allocated how monitors will be deployed how we will respond to voter caging schemes and avoid some of the terrible mishaps of two thousand in two thousand and four in addition to the serious problems in those elections we seen numerous other voting problems the proven troubling redistricting plans in texas and georgia this committee and everyone on it has responsibility for these two thousand and eight elections we have a hearing on voter rights and two thousand and eight election tomorrow and the department of justice to this moment doesn't have anybody committed to coming to that hearing now we've been trying to get key members of the bush administration before us they refused to harriet miers and josh bolton have refused to cooperate in the contempt proceedings and why because the department of justice publicly has said they're not going to enforce a subpoena against these two the president's lawyer and the president's chief of staff this department department of justice continues to validate the unprecedented concept of total immunity for high ranking officials for example karl rove last they argued that nine grand jury statements given to federal prosecutors were somehow privileged when it came to congress we've been waiting months and months to obtain critical documents relating to the selective prosecution obstruction of justice the secret of oil see opinions advocating expansive theories of presidential power that strike at the very core of our constitutional freedom with less than a hundred or so days remaining before the election and six months before the administration ins this delay is unacceptable and i am sorry to say that the attorney general has continued the unfortunate tradition of refusing to appoint a single special prosecutor for any of the evidences of misconduct that would require the department of justice to bring in outside counsel every member of this committee wants the attorney general and this department to perform its mission fully and it's more important than ever before with the we're getting smaller the global considerations the military actions that still go on and i hope that we are going to be able to conclude our relationship mr attorney general in a way that we  a lot of information and i'm hoping that they will lay the groundwork for us to begin to accomplish as much of this  possible recognize the ranking member lamar smith for his thank you mr chairman attorney only casey thank you for appearing before the committee for the second time perhaps for the last time in this administration to discuss the important work of the department of justice we appreciate your doing so and mr chairman there are many important subjects the committee could focus on in its oversight efforts today for example we could make this a very productive hearing by having this committee take immediate action to address a b s corpus concerns following the supreme court's recent ruling in bush on monday the attorney general allen line the significant problems of law enforcement officials now say as a result of that ruling it is now the responsibility of this committee to act its decision the supreme court opened a pandora's box and the attorney general has made it clear that only congress can close that lead by acting clear rules regarding the detention of known terrorist order the government to release terrorist there are more than two hundred detainees remaining at guantanamo bay and many of them wish to kill as many innocent americans as possible that this committee fails to act sensitive intelligence on terrorist may be disclosed and terrorists will know better how to detect and conceal future plots and if this committee fails to act known foreign terrorists will be able to form shop for the most favorable places to bring their claims both in the federal district courts and in the court of appeals for the d c circuit in a way even domestic american criminals cannot the attorney general has told us what common sense tells us we must commit ourselves to the development of a legislative proposal that provides clear guidance on the detention of known terrorist we must act we must act responsibly and we must act quickly another area where congress can assist the department is in protecting america's children from sexual predators and cyber criminals nameless faceless criminals use the world wide web as their virtual hunting ground trials exploitation child pornography and cyberbullying are just a few of the twenty first century crimes threatening our children today a simple step congress can take to enhance our crime fighting efforts to require the retention of certain subscriber records by internet providers this committee must pursue this and other innovations if we have any hope of keeping pace with crime in the cyber age one of the areas where there already is bipartisan agreement is in confronting and deterring criminal activity in the arena of intellectual property theft we should help advance the legislative efforts of this committee including the prior ties ng and organization for intellectual property act of two thousand and eight which passed the house overwhelmingly in may to enhance enforcement efforts also i am pleased with the department's recent work to support d h s s immigration enforcement efforts by increasing prosecutions in available prison bed space for too many years legal immigrants knew that they faced absolutely no penalty if they were apprehended along the southern border other than a quick bus ride back across that border they had every reason to try to enter again and again until they eventually succeeded as ninety percent of them did the justice department's operation streamline for the first time has put an end to this revolving door we have too much at stake to shy away from enforcing the law and ensuring that individuals entering the u s legally the attorney general i appreciate the time is dedication to the men and women of the justice department and let forward together to working together with you  department of justice has been a practicing attorney a federal prosecutor a member of the firm of patterson at all a trial judge since nineteen eighty eight and was appointed by president reagan as a trial judge for eighteen years six of those as chief judge of the district he retired in two thousand and six was called back by president bush confirmed as attorney general in the fall of two thousand and seven we have your statement and it will be an entirely put in the record in its entirety and all the members will have an opportunity to add their own opening statements to welcome you here thank you conyers ranking member smith and members of the committee i thank you for the opportunity to testify here today since i appeared before this committee almost six months ago i've become even better acquainted with the talented and dedicated professionals of the justice department and what the work that they do and i've come to appreciate that much more deeply their service to our nation i've now been attorney general for slightly more than eight months during that time there have been moments of disagreement with members of the can city as there always will be there are policy initiatives that the department supports that some members are grossly opposing policy initiatives that some of you support that the department of poses there are also situations where the interests of the executive branch of the legislature are intention this is not some people have suggested evidence of a broken or a flawed political system it's part of the genius of the design of our constitution which robust separation of powers although these tensions will never disappear there are many areas of agreement in which we can work together on behalf of our common clients the american people i'd like to outline briefly two areas that i will focus on during the six months remaining in this administration first with the first post two thousand and one transition looming we must take every step to ensure that custody and responsibility for our nation's security is transferred smoothly to a new set of caretakers that means putting national security measures on a sound institutional footing so the next attorney general and the new administration will have in place what they need to continue to assure the nation safety two weeks ago congress took a vital step in passing the fires and then went back to two thousand and eight bipartisan legislation that will give our intelligence professionals critical long term authorities to monitor foreign intelligence targets located overseas earlier this week i called upon congress to take another step by passing legislation to address the questions about the cheney's unresolved by the supreme court's recent decision into a matter and versus bush congress and the executive branch on a far better position on the courts to create practical procedures and rules to govern the hay vs hearings required by the supreme court procedures and rules that would both give the detainees what they are d what process they are due and accommodate the grave national security concerns involved in my speech earlier this week i outlined six principles that should guide such legislation and i look forward to working with you and your colleagues on both sides of aisle and in both houses of congress to address these important issues promptly second as everyone knows the election season is upon us although state and local governments have primary responsibility for administerin elections the justice department must make every effort to help assure that the elections run as smoothly as possible and equally important that the american people have confidence in the electoral process the department will maintain a significant presence throughout the election season throughout outreach and monitoring we will work closely with civil rights groups and state and local officials to identify and solve problems we will publicize telephone numbers and web sites through which people can bring potential issues to our attention and on election day we will deploy hundreds of observers and monitors around the country these steps will supplement our ongoing efforts both to enforce laws including the voting rights act designed to guarantee access of all americans to the ballot and to enforce laws including those prohibiting voter fraud and campaign finance abuse intended to safeguard the integrity of the voting process all these efforts are essential in ensuring that elections reflect the will of the people and in maintaining the confidence of all americans in our system of government in all of this will be driven by what the law and the fact require and only by that in fact i've said many times both to members of the public and to department employees that we must pursue all of our cases in that manner i have also said many times that we must hire our career people without regard for improper political consideration and i have acted and i will continue to act to ensure that those words are translated into reality i am well aware of the allegations that politics has played an inappropriate role of the justice department too many of those allegations were borne out in a recent report by the department's offices of the inspector general and professional responsibility on hiring for the honors program and for the summer law intern program even before i became attorney general last fall however the justice department had taken many significant steps to remedy the problems that existed i have since taken several additional steps and we will continue to take any and all steps that are warranted it  is absolutely crucial that the american people have complete confidence in the propriety of what we do and i will work to make certain that they can have such confidence to the chairman and members of the committee i thank you for the opportunity to make these remarks and i look forward to answering your  thank you very much thank you sure recognizes to begin the questioning the chairman of the subcommittee on the constitution during the new york i'm sorry this is him and i i don't mean to raise a matter that's not of my business by have been the first one is when when you last appeared before this committee sir you stated that you could not or divest a geisha into interrogation practices that had been authorized by us the opinions because it would not be fair to infer any possibility of criminal intent t someone was following and i will see legal opinion but it's now clear that one of the detainees i was debated for example was interrogated for months in the spring and summer of two thousand and two before the first i will see opinion the issue that we know  of the august first two thousand and two legal memo by john was was issued and attorney general ashcroft testified last week that he did not recall providing legal advice on interrogation methods at that time and did not require with anyone else department provided such advice now given the uncertainty about whether any legal advice had been provided before the these interrogations have you or any one of the department vesa give the legality of the interrogation methods used before the august first  issued i have not investigated that myself i think part of that question involves whether the methods employed were consistent with that memo or not and i don't know whether they were where they were not where do you think someone should take a look at that i think a look at that that may very well be taken or have been taken i'm not specifically aware of that as i said here can you let us know i will take a look thank you now one other thing the committee has issued a subpoena for all unclassified o s c opinions on issues of national security and presidential power that have not previously been released department is refused to provide these unclassified opinions to the congress can you tell us why we can't get those unclassified opinions without getting into any particular opinions or two there are two considerations that relate the opinions one has to do with classification went out on classified opinions oh well see opinions are there because somebody has come to the department for advice they come to the department for advice before they act part of the deliberative part of maintaining a deliberative process is being able to assure them that they can come to the department ask for advice and get it without but the but that excuse me but that's in effect a claim of executive privilege that's not the executive privilege not really the executive privilege it is a deliberate of privilege if you wish to call it that is different from zero serving a new privilege other than executive privilege not asserting a new privilege on explaining that deliberative process is part of what you may call executive privilege what i think is actually something separate but in any event is one of the kinds of information that's protect the inquiry on the outside and for good reason whatever the whatever the good reason and i want to debate the reason but it is not pretty if it's not protected against a subpoena by executive privilege what is the legal authority for not giving it to congress  believe that we are authorized to keep in confidence requests for advice and out the advice that we give as counsel as part of a deliber privilege as part of a century an attorney client relationship and for other good sound reasons that i'm sure you can understand why i want people to come forward i want them to act with i understand their reasoning i do not agree and i would ask you to provide to this committee the legal authority i do not agree that there is any privilege other than executive privilege the executive privilege must be claimed by the president that the president is not the client of the attorney general is a client of his own counsel but the government is the american people the client of the department of justice i do not see any grounds for withholding the subpoenas let me go on i just ask you to provide the committee with the legal basis for this rate we know that they knew there was a twenty percent error rate which means they knew that one out of every five people prevented from voting would be legitimate what is his apartment doing to oversee to make sure that states cannot do that again that the those that are being prepared do not disenfranchise many legally eligible voters very broadly and then very narrowly the department has been working with state and local authorities to make sure that they conform with the requirements of all federal voting laws and that they conduct their activities in a responsible way that said there is always available and we are making certain of this the alternative for everyone who feels that he or she has been improperly denied the right to vote challenge in trying to exercise the right to vote to nonetheless cast a provisional ballot and we're making certain that people are aware of that we're doing outreach to civil rights groups to make certain that people are aware of that because that is as it were a failsafe against the kind of practice that you just described and i don't know whether it happened i don't know what the source of that is but assuming that it happened that's the ultimate failsafe we have been in communication with state and local authorities and we have an extensive training program for our own people to make sure that doesn't happen again if in fact that happened and address some of the questions raised by that case sooner rather than later my question is do you feel that it is urgent that congress act quickly to address some of the questions raised by that i do feel that  issued a statement after the speech that i gave urging the legislation i do feel that it's urgent i outlined reasons in the twenty or twenty five minute speech why it was urgent and urge that essentially six principles inform any legislation but i was not drafting legislation what i was urging was that congress step up and do it what are some of the unintended consequences of that rulin without getting into the principles but just what are the risks involved if congress does the ultimate risk is because the ultimate decision finder has to be able to direct relief the ultimate risk is that one of these folks could be released in the united states and that is something that we think has to be prevented secondly there is a matter of national security much of the evidence against the people at guantanamo both those charged with war crimes and those who were simply holding because they are detainees comes from classified information we need to protect how that information is used who has access to it and who doesn't third there are as i said some of them are going to be put on trial for war crimes and we have to make sure that proceedings are not used as a way of delaying the onset of military commission trials any more than a united states defendant charged with a crime has a right to file a habeas proceeding before a trial no u s defendant has that right we don't think folks should be given that right we think that congress should reaffirm that we are in fact involved in an armed conflict and if there is a right to detain enemy detainees there is a separate question of whether those people are guilty of war crimes or not that's a whole separate thing but detention is an absolute and it's something that there has to be firm authority for we think there is but we think it wouldn't hurt to reaffirm that congress i think should establish sensible streamlined procedures that strike a reasonable balance between the detainees rights to information and to present a case which the court said he had to have as well as practicality in the world practical appeared numerous times in the supreme court decision but they they stopped far short of articulating the exact procedure that should apply  finally we asked the congress make sure that detainees could not pursue remedies other than a b s corpus as it stands now they have kind of a two track system they have the the combatant status review tribunals and review of those in the d c circuit and then they have the a b s petitions we think in view of the requirement of habeas that the system that appeal to the d c circuit should be cut off completely and simply rely on a b s proceedings that are properly cabin in the way that i've suggested that's a rough outline thank you mr trigger let me go back to your first two points the first was that some of these individuals might be released as i understand it there are some known terrorists that are now being held at guantanamo bay are you saying if we don't act expeditiously that some of those terrorists might be released there is always that possibility i mean we have  so far obviously it hasn't happened and so far i don't want to i want to commend the district court for the problem and or a steps that it's taken including having by and large one judge will not entirely there  one or two other judges who are going ahead but one judge principally organizing things procedurally so that they proceed in an orderly way but if somebody decides that they want to bring somebody here either to testify on his own or in somebody else's proceeding there are additional rights that that person has simply by virtue of landing on american soil and recall that these are all aliens none of them has a right to be here we don't want that to happen in and then have the outcome of a b s petition be that somebody has to be released and if he's on american soil or gets released here that we think would be the worst outcome and we're trying to avoid that we think it can be avoided with legislation thank you  first in reference to the housing crisis it appears to me that with the billions of dollars that's been lost somebody has made a lot of money to a large extent in my opinion through criminal fraud  and we're going to try to get a briefing from the justice department on this detail because you just say a quick word about whether or not in your view crimes were committed that helped perpetuate the crisis that we're in without wishing to convict anybody before trial we have so far charge more than four hundred defendants in connection with the mortgage crisis that you mentioned ranging up the scale from the people who are overvaluing houses the people who are over assessing houses the banks that are purposely closing their eyes to that the the rating agencies to two promoters of the hedge fund who are charged with the centrally criminally overlooking the fact that the paper they were selling the public was worthless there are forty two separate f b i task forces devoted to fighting that problem but it's a problem that runs the gamut that i tried to describe we've got over four hundred defendants charged so far and the investigation is certainly by no means closed its in its infancy pace another issue where there are several bills pending dealing with the problem of what i've introduced a proactive approach to try to keep young people out of trouble to begin with other legislation sensually in my judgment a way for young people to join a gang mess justice web site under the category of what works many approaches seem to be consistent with the you have promised act that i've introduced we don't have time now but could you provide  writing any analysis you may have done on what works and what doesn't work and how we ought to be addressing this and any analysis or help you might have to do as we evaluate the different approaches i think what works is a comprehensive approach there is no one particular solution what we try to do is to focus our efforts along with state and local governments along with other agencies in both in forstmann that is and we use the task force approach to enforcement and we also use wesen seed program and other community outreach programs i was just present  at a privately funded competition essay competition that was competed in by more than one hundred twenty thousand youngsters on the subject of community violence we're active in that we help fund that  so we believe firmly that this requires a comprehensive approach in the end we are principally a law enforcement organization but we do recognize the need for a comprehensive approach we favor that we do  appropriation to deal with what we believe to be a crisis in personnel in prisons the prison industry program federal prison industry program has been widely supported by virtually all federal prison industry federal prison personnel could you explain why the department of justice hasn't been more aggressive in promoting the program in congress opposing everett's to weaken the program and if you could say something about the staffing levels generally because there is some concern that the staffing levels are so low now that our prison guards may be in danger i think i'm not supposed to explore express relief at a supplemental that's an excess of what was originally requested but privately in the privacy of this room i'm satisfied that there was a supplemental particularly with respect to the which took a major  t in connection with the budget and i'm glad i'm gratified to see that with regard to prison industries that's an important program not simply for the people who are in prison but rather as a way of controlling the population as you know those jobs are not only good training they're valued by the prisoners themselves and they are an excellent control mechanism because loss of a job like that for infractions and f violence is a big risk so giving that privilege of access to such a program and denial of it is a helpful way to control people in prison it's not just for the good of you said of the cr it's for the good of the guards it's for the good of future victims who will not become future victims as a result of the fact that people learn valuable skills in that program when i was a judge i was a proponent of that program i still  am because of staffing level we think that we've got the situation under control but it's barely under control the prison population recently has changed and it hasn't changed for the better people are getting more violent they are not responsive to even two warning gunshots that are fired when they when they when they start riots and so forth and we've had an in an uptick in violence so far it's been under control but a couple of weeks ago i went out to attend the funeral of a guard was killed out in california with a shank young man who had served two tours in iraq come out of the navy was building a career for himself he was too weak short of a twenty third birthday the tragic situation that's the first time in a dozen years that a guard has been killed but i wanted to be the last time and i think we need to make greater efforts in that area the fact is that the professionals in the bureau of prisons do an amazing job in the way they control those violent populations with a very small group of people if you go into one of those institutions it's remarkable how small the ratio is as between guards and prisoners but we need to do more in that area and we need to stop the kinds of incidents that i mentioned we're concerned about howard coble ranking member of intellectual property committee chairman general good to have you on the hill with his degrees right member from texas commented all intellectual property and i want to direct your attention to that issue general as you know this committee long sought to work with the department to scripted the ability of law enforcement to deter investigate and prosecute adelaide surely it all natural property related crime problem though overwhelmingly passed in the house earlier this year the mail prioritizing resources and organization for the lecture property some years ago a department witness stated to this committee that there are known links between crime and organized crime and even terrorists in general can you comment today on what evidence can be produced to lake pay related crimes with terrorist facing on an international level more and more organized crime and these folks will sell absolutely everything they can for as much as they can one of the most valuable things that this country has is intellectual property it's the engine that drives our economy and there are foreign governments that are intent on getting into that intellectual property and there are foreign non government in the form of terrorist organizations that are interested in getting into that intellectual property so that they can exploit it not only for its inherent worth but also for its commercial work i will provide in writing further specific instances of that but the fact is that everything from phoney shoes and handbags on up has been offered for sale by people who are completely indiscriminate in who gets the proceeds as long as they make money along the way and that has included people who are involved in or suspected of terrorist activity and if you could present additional details would be appreciative to you but i will do that general area this year president bush signed the second chance  in the law this legislation had broad support it i believe is a new approach to an all but alarming problem that is prison overcrowding have you had an opportunity to review or to be briefed on this legislation and i'm sorry go well i do you agree with me that it is a good first step addressing the skyrocketing problem of were set up as a protective nonviolent offenders i agree that it's a good first step the recidivism rate in federal prisons is a good deal lower than the recidivism rate overall in prisons largely because we concern ourselves before people are released with putting them in programs that train them for release and with follow up afterwards and the second chance act is an important part of that we hope to lower the recidivism rate still further and we think that that kind of legislation and that kind of outlook is a good way toward toward solving the kind of problem that that member scott pointed out it pointed out before that we're we should be working on prevention prevention and both hands  rather than simply on unfortunate enforcement an important part that's what we do principally but we can't lose sight of the fact that when prevention opportunities present themselves as they do in that legislation we have to follow up on and i do believe that prison overcrowding may be cells not only of the facilities that we have but also of rented space in state and local institutions and in some private institutions that run prisons if you will or detention facilities on a private basis when they are reviewed and approved for standards so far we've been able to hold up and do that but so far is so far we want to make sure that we've got enough resources to continue to do it like  office was forwarded a letter which the north carolina state bureau of investigation received from state lawmakers requesting an investigation into a row  persons detained in various countries including the united states to oversee torture site we consulted with south deal office and the department of justice and at this time we do not have people are sent abroad we receive assurances from foreign governments that they will not be abused that said i am not familiar with either the case or the program that you referred to as you point out this correspondence goes back to two thousand and six which is essentially two years before i got here the concern i have is that i asked the f b i director to give me all the information we've got one paragraph about it and i still don't know anything more unfortunately when we got the response a number of months later we don't know anything very little more than than i had told him i mean i told him that there was a referral  because we believe there will be a voting pattern that will be substantially different than there has historically been and one of the concerns we have is that  process without standing in line for hours only and the short answer your question is yes we anticipate a much higher turnout this year because of increased enrollment this year as you point out and we're doing what we can we have to keep in as we do that that this effort is organized principally by state and local governments but we need to make sure that they realize and understand that where there is increased enrollment they know it and that they're doing what they can to get the facilities that they need to handle increased enrollment and handily increased turnout if in fact there is increased turnout that's what we're doing and we're trying to do everything we can including to make information available not only to the state and local governments but to particular groups with an interest in making sure that people turn out so that they know what the rules on and know what they can and can't do and police their local state and local groups and make us aware of when there are shortcomings that's a kind of a two way street thank you mr chairman my time has expired i yield back the senior ranking a senior member of  various forms of background checks name checks and so on and so forth and there is a backlog can you tell us how the f b i has addressed the backlog in the name check or other background checks they're addressing the backlog in the one way you can address it which is by throwing more personnel at it and they have i think gotten it down way down i believe it's down to something like ninety one hundred twenty days i'm not precisely sure but i think it is i know  it is way below what it was before but we recognize that that was a problem we're addressing it and we understand it and they understand it more people wanted to make sure that they did a background check is there currently a  background that includes this includes past criminal back to this may be a little bit more difficult but you know and recent months and actually recent years has been a lot of discussion about comprehensive immigration reform some of us think that's code word for amnesty but in the event that that should take place and depending on who you talk with i think most reasonable people would say this could account for about twenty million  people is it logistically possible to do a background check on that many people now well you know i mean it's it's logistically possible i suppose over an extended period of time but if you throw twenty million more people into the system it's going to stagger the system yes i think i think that was probably rhetorical question in any event one other question i have relating to immigration we have in fact i met with the former attorney general in a previous administration several years ago and was discussing the issue of sponsorship of illegal aliens when you have an immigrant coming in the country and they have a sponsor they sign a statement of economic responsibility or financial responsibility do you view that that commitment document they signed as a legal and binding contract or as a moral commitment i believe that is binding i think if somebody says i'm going to be financially responsible to somebody with that means is going to be financially responsible somebody that's that's what i understand it to me would you be kind enough to perhaps in the near future have your staff give us some type of a recap of how many folks have actually been prosecuted for not not stepping up not in not taking that responsibility and whether or not we're actually pursuing it i could give you examples in my own district about people that are in the seven figures that bring someone here that  within six months a parent or a brother or whoever they brought here is on federal benefits getting hearing aids it costs over five thousand dollars and nothing is done about it so in any event i just like to know if in fact with all the other things that your department is challenge with whether or not this is an issue that's taken seriously in fairness i think this is in some part a responsibility of the h s which has as you know immigration control but let me find out course one when i had this discussion before we didn't have a yes to we do not know i understand like there's been a sundering of responsibility to a certain extent here let me find out you've got heart of a part of it they've got some questions really about our policies on prosecution of misdemeanor immigration measures and how that is impacting the other prosecution priorities of the government would receive information a few weeks ago in a subcommittee hearing with the u s attorneys that in the southwest border region there had been a very substantial tens of thousands of increases in misdemeanor prosecutions for immigration violations and a nearly forty percent decrease in prosecution of organized crime to me that seem like not a good tradeoff in terms of the standards so i'm wondering track and i know that the department doesn't always agree with track has told us that fifty eight percent of all prosecutions in april of this year w for immigration related matters with only thirteen percent for drug trafficking and and that fifty eight percent of all criminal prosecutions is mostly for misdemeanor misdemeanor immigration crimes can you address this i can dress it in this way yes we've had an increase in misdemeanor prosecutions the strategy across the border is a very strategy it is not one size fits all part of that strategy involves and in the districts where we found an increase in prosecution we have also found a decrease in infiltration that isn't in the decrease in the number of illegals coming across the border that to me suggests a relationship i don't by any means buy into the idea of a trade off as between immigration prosecutions  prosecutions i agree but if i if i can mr attorney general that the statistics we got were from the department and the what they told us is that there was had been an increase i mean ano substantial increase and it was accompanied at the same time by a tremendous decrease in organized crime prosecutions and i have heard from local prosecutors that da agents are now turning to local police on for some of their drug prosecutions because they can't get warrants through the u s attorney's office is taking six months which for drug prosecution is is isn't work because the u s attorney's offices are so busy with prosecution of nannies and busboys that they can't get to court in a timely fashion to get these warrants in the fight against these drug cartels that's what local prosecutors are telling me can you address that  fairness i think it's it's a mistake to say we are not prosecuting drug dealers and we are prosecuting managers busboys some of the smaller drug cases are prosecuted in state and local courts however we do prosecute drug cases even low level drug cases where it appears that people are bringing drugs in in relatively small amounts are putting those together with other amounts and essentially packaging them up for a larger shipment so we try to prosecute the more serious drug cases as well as the immigration cases to keep the numbers now and they can a problem that i think we all recognize which is unlawful immigration well i appreciate your philosophy i don't think the statistics in your department back up that philosophy let me talk to you about the the federal circuit courts because they i've been in touch as you know immigration appeals are the single largest number of cases  in the circuits the second and ninth circuit that's forty percent of their overall docket is immigration appeals and these circuits have actually organized to say you know we need to do something about this i mean  they really believe and i think they're right that the caseload expansion at the circuit courts is a result of the streamlining procedures that former ten twenty general ashcroft implemented in two thousand and two which basically eliminated  any effective meaningful review for immigration appeals which just shoved it up to the circuits what are you doing or planning to do to relieve this burden on the circuits we are trying to organize the way in  which immigration appeals are handled and it's my understanding for example that in the second circuit which is the one that i come from they have organized the docket of immigration cases in such a way that some of them are handle sensitive to it that the committee that the circuits have organized has indicated to me that the answer is not with the circuits the answer is to look at what caused this shift to the circuits it is because if you've got bad cases they're going to be heard somewhere somebody is going to be killed because they're asylum appeal iran is lee denied they're not going to just pass on that because it's too serious and so if you don't have a meaningful   regarding delta airlines and its announcement to merge with northwest airlines mergers within the airline industry are treated with a great deal of speculation because of the impact that such a move has on consumers particularly now with rising fuel prices in terms of limited flights an increase fares and in addition the economic toll that it can have on cities and regions in terms of their ability to bring businesses and development into an area my question to you is how is the department examining the merger and what factors are you examining and when do you expect a decision on that merger in the short answer your question is carefully and division has been addressing that merger in particular in a very sensitive way they've got their own economists on staff who weigh the economic effect of the merger as against the economic effect of having companies continue in business neither of which can survive alone and so what they try to do is to balance the one against the other and see whether the merger promotes competition and hance is the health of the surviving entity or the combined entity and serves consumers better that those are the those the elements that they consider and they consider them carefully and there they understand that this is an excellent matter they're working hard on it i meet with them regularly  since it is a hard matter they want to make sure they get it right the first time thank you and related to the delta merger members of the ohio delegation sent a letter to you last month and to the attorney assistant attorney general for any trust  last week expressing concerns with d h l decision to enter into a contract with united parcel service that agreement would allow you p s one of principal competitors to provide delivery services in north america to make a long story short the implementation of this agreement could impact ohioans who are employed by companies already providing the services for d h l as well as consumers nationwide who are purchasers of these delivery services understanding the implications that this agreement has for the state of ohio and in fact for the nation my question is how will the department of justice treat this agreement and what factors  would your office be examining to ensure that the market remains competitive and consumers are protected and i would assume your answer is somewhat similar to the first but there it is it's very similar to the first i think we would consider obviously what alternatives are to be something that they consider that includes jobs but the first that i've heard of it i think was yesterday when the letter came to light attention i've not reviewed that particular one with the any trust but i have no doubt that they are giving that the kind of consideration that they are giving to the rough a large that you've referred to which i have discussed with them thanks very much and finally on june twenty fifth so just about a month ago the us supreme court struck down a louisiana state law authorizing the death penalty for child rape cases in overturning the death sentence the court examined the eighth amendment under its evolving standards of decency standard specifically focusing on national trends relating to the death penalty in child rape cases the court claim that there is a national consensus against the death penalty for child rape cases in my  opinion nothing could be further from the truth in fact congress two years ago authorized the death penalty for child rapists under the uniform code of military justice and in two thousand and seven president bush issued executive order one three four four seven codified in this provision in the two thousand and eight manual for courts martial just yesterday the state of louisiana filed a petition for rehearing in the case and i have introduced a constitutional amendment along with a number of my colleagues retailer lamar smith tom feeney and others that would clearly state that the death penalty for child  rape is not cruel and unusual punishment and i'd be very pleased to hear any input you could give us on that well first of all the fact that that was in the uniform code of military justice is something that we missed and i regret that and i take some but frankly very little consolation in the fact that all nine spring court justices missed it and all of their clerks missed it and the parties missed it that was pointed out by somebody with military law who found out later on the fact that the louisiana that leaves us in a position of not being able to petition independently the fact that louisiana has petitioned gives us the opportunity to join in on a petition to my knowledge the decision about whether to join it or not has not yet been made but is under consideration that's what i know about that ok thank you very much an urge you to join that because i think it's unconscionable that those that commit perhaps one of the most despicable acts possible a child can't get the ultimate penalty because of a five to four vote in the u s supreme court i think that should be reversed as quickly as possible thanks very much the distinguished gentleman from texas member it is an important time that we spend with you mr attorney general on our oversight duties and for hoping that the word that i use does not suggest that there is no work of the department of justice but let me just say there's a certain order call that you brought to the department of justice and we applaud you i do for i hope the hard work that is going on there you've heard the many concerns of my colleagues and i'm going to add to them and try to speak a s quickly as i can to try to frame the concerns that i have this is the role of the department just as i think is the arm of justice for the nation and i note that the f y o nine budget on civil rights of one hundred twenty three million dollars sounds like a lot but it's less than a dollar per american and i believe all americans deserve the right to civil liberties so let me quickly put some things on the record i want to express  concern and i know overlapping jurisdictions on the random ice raids that generated the arrest of american citizens because their last name happened to be in many instances in texas hispanic a broken watch list process i want to come in an individual who is a medical doctor who has been trying to become a citizen since two thousand and four and it is now two thousand and eight and we believe that the  well we know that it is a question of the watch list verification another individual that had a sex change is a functioning working individual abiding by the law than trying to become a citizen since twelve o three thousand and eight to ask what investigation of the f b i watch list and its progress you might want to comment briefly but don't put this in the records basically deals with the likes of congressman john lewis but also drew griffin of c n n who came on the watch list after an shortly i also want to put into the record february seventh two thousand and eight a letter dealing with the amman's in the minneapolis st paul airport as to why these the mons were removed arrested and detained i understand they have a finding of of incidences under the criminal laws of this nation that have shown that we need improvement mr general i've mentioned that the oversight of the long arm of the government can bring about light at the end of the tunnel jena six i refer you to the sean bell case i refer you to the recent tasering of a black man and when winfield louisiana and then to harris county where we have found that there have been one hundred one deaths from january two thousand and one to december two thousand and six  we just had the additional loss of a missile veda who died in the jail from a infected knee having begged for medical treatment and having not received it i'm going to put into the record  a seventh two thousand and seven letter that i gave given to you previously as unanimous consent without objection sword february seventh two thousand and eight letter regarding the district attorney in harris county and i briefly read to you this person the laser repeatedly sent racist and sexual e mails in his actions and the cases which he prosecuted we asked simply for this to be reviewed by on one the bases a prosecutorial misconduct an abuse of a rights violations and the proclivity to remove black jurors we got a letter back from department of justice indicating that that was not something that you would review and i thought that had to do with civil rights so i would ask mr attorney  general one what is the what is the amount of money and stamp and counsel that you are utilizing to help purge out the bad apples in the nation's criminal justice system as it relates to the violation of civil rights of americans and to what are we doing with respect to the national security investigations of individuals who sometimes seem to be target because of racial ethnic special sexual gender or otherwise and i appreciate your answer i cannot be numerate for you now a specific amount of money being devoted to the problem that you raise the fact is that we devote our resources to across the board to civil rights problems and we've had a phenomenal success rate criminal prosecutions are up the level of our success in appellate cases is up the number of voting rights cases that we've brought is we bring title seven cases to achieve the maximum amount of impact we're doing this across the board with respect to the i think with the harris county jail situation that you and the district attorney's office which your offer the office indicated that they couldn't respond if there is criminal evidence comes to hand that wants a prosecution of that this journey was civil rights or civil rights who by the way is no longer in that position and he is now an ex the and it sounds like he deserves to be an ex we will we will pursue that but with regard to the harris county jail investigation that is ongoing it's bound to be a long term thing because it involves revisiting the facility evaluating all of its treatment medical care food space and the like and it's likely to take quite some period of time but there's an active inquiry into the conditions in harris county and that's due in no small part to the fact that you are involved in that and have offered us both advice and leads in that and although you're you've been somewhat critical i can't do anything but say that i'm grateful for the fact that you're involved in just simply say the district attorney's office particularly the history of that office but i think the question for the justice part of the pattern in practice and i would as a respectfully mr general that that be looked again circumstances overwhelmed the pfizer law and basically invited the congress to deal with that issue it took us a year and a half to do that during which time i think we lost the value of valuable opportunities for intelligence now you have come before us to refer to the recent supreme court case dealing with unlawful enemy combatants and this new right they have behaviors corpus a right that had never been seen before in the history of the united states but nonetheless one that in the involving sense of wisdom the u s supreme court has found one of the questions that had to be answered was whether a federal court will be able to order that enemy combatants detained at guantanamo bay be released the united states then went on to say the supreme court stated that a federal  must be able to order at least the conditional release of a detainee who successfully challenges his detention but what does it mean to order the release of a foreign national captured abroad and detained at a secure united states military base in cuba will the courts be able to order the government to bring detainees into the united states or release them here rather than transferring them to another nation and you further indicated that the court has invited the congress to act on that and so i wish you would go a little bit further than you did in your opening statement about the urgency of the matter for congress to address this and the seriousness of the questions that you asked here because it seems to me those are unsettled questions whether the courts would be able to order the government to bring detainees to the united states and release them here clearly that has not been decided yet i believe the court is inviting the congress to outline the parameters of that and i would suggest make it impossible for that to happen the court has left that matter open and the fact it has said that at the end of the day it must be open to a decision maker to direct release now the fact is that all of these people every single one of them are aliens captured abroad in essentially battle conditions who have absolutely no right to be here and there's no good reason to have a court bring somebody here for purposes of release and release into our communities people who could pose a significant danger  we want that particular possibility cut off we don't want to have to face it we shouldn't have to face it and if people are brought here for hearings or brought here as witnesses  they can simply by coming here acquire rights that they did not have abroad you'll recall that there was an extraordinary effort to keep haitians from coming here to keep people in the mariel boatlift from coming here when they were released from cuba and for a very good reason and that is if they set foot on american soil there are matters that hour at issue that were not at issue beforehand we don't think they should be put in you also mentioned in your speech the question of whether or not american military people on the battlefield would be subject to coming to a hearing whether or not their testimony would be required the kind of evidence keeping that would be required under normal circumstances and how that applies to the battlefield i presume you're suggesting that congress ought to deal with that issue as well i am the court left it open  this was to be approached in a practical way courts don't have the ability to gather facts on their own congress has that ability courts don't have the collective expertise that congress has or that the that legislation courts don't have it congress in the executive does and if anyone should step into this it's congress with the assistance of the executive and that's what we will as we hope to do as i understand we have over two hundred people held currently at guantanamo this is ongoing in other words out down from seven seventy five but this is ongoing requiring congress to act sooner rather than later correct the skate one of the another another thing the spring board said is that this process had to go ahead quickly and it is going add quickly and the quicker it goes ahead the more likely it coms that there may be inconsistent results reached  and and situations created that could be stopped with intelligent legislation intelligent legislation can do two things it can both speed up the process by assuring consistency and it can assure that undesirable results are avo i hope you have an assumed facts not in evidence that is that we're capable of producing intelligent legislation i think i think i think i think they want evidence congress acted very quickly to pass the protect america act and acted very quickly to bring to an act the authorized authorization of the use of military force it acts quickly when it puts its collective mind i don't want to sit here and preach i mean that's not that's not what i'm here for but  and is a member of three subcommittees on judiciary thank you very much mr chairman i appreciate the fact that you are you're always making available to us the heads of our agencies and departments that are gating complaints of civil rights violations the voting rights act better housing title nine enforcing discrimination complaints for those who are disabled and of course age discrimination is one of the areas that you have responsibility for i would like to know what do you know about the problem of  discrimination complaint but then your own department if we're to have confidence that you can do the work that is mandated by law i want to know why you continue to m what are you doing to recruit and outreach to help cure the disparity you have twelve thousand agents less than five percent of them are african american does this problem cause  i agents yes my experience has been through direct observation that f b i is engaged in significant outreach and that more and more f b i is being recruited recruited from within the african american to have the numbers i don't have the numbers i get for i would appreciate that you have discrimination complaints how many are pending in the department i don't know the precise number that are pending this one i'm familiar with that's in litigation i can't really comment on but my sense is that my sense is different from yours i e that there is not a large number of them let me go back and check i know of one case that's in litigation  when you talk about recruitment could you describe your outreach and recruitment efforts we go to universities we go to schools we evaluate applications on the merits  we make it well known that we're looking for talented people do you feel you have a problem we can always do more do you have a problem we can always do more are you satisfied that aside from the kind of generic answer of you could always do more that you don't have that many if you don't have that many complaints they're not that serious and you don't need to take any special initiatives if you can always do more what more are you do i'm never satisfied i'm not in the business of being satisfied i'm in the business of looking for ways to recruit talented people from all communities we've been doing that i'm going to get you the numbers on the f b i and if you have any particular cases i'm happy to let you know i would like to as chairman if we can make a request from this committee to get a list of all of the discrimination complaints and the status of those complaints so that we can decide and i could impose upon you mr chairman to see if we need to do a hearing about the nature within the civil rights  there are complaints or within the department within the department discrimination complaints from agents african american agents from women against the department and your discriminatory practices there in the department somewhat broaden the target but whatever is requested if we can provide it will provide you with the general of the year because i would i would be willing don't know in depth the problem that exists i'm not i'm not taking refuge behind the fact that i'm new i'm going to take a look at it and it may provide a subject for discussion in a meeting that i'm going to have mr chairman i'm being asked to  after this or by him with an excuse for not knowing the information that i've asked him today so whatever the reason is we need that information and i thank you and i yield back the balance of my time  of agriculture and distinguished member of the committee well thank you mr chairman thank you for holding this hearing in attorney general casey welcome we are very pleased to have you here and i also want to thank you for your commitment to protecting our elections process by aggressively prosecuting voter fraud cases and i wonder how your efforts are going and do you agree that it's crucial that we ensure that u s citizens votes are not diluted by those authorized to vote including illegal aliens i think it's crucial that we  it i think that one way in which we have helped assure is if you're in that proper identification is required before somebody can vote and obviously when when  evidence presented itself that people here on lawfully they are apprehended and porter well thank you and recent experience under indiana's voter id law seems to show that such laws do not diminish voter turn out on the contrary they can actually increase voter turnout as was recently reported voter turnout among democrats improved slightly last year in indiana despite a new law requiring voters to show photo identification at the polls jeffrey a professor at the university of missouri compared the two thousand and six midterm elections the first since indiana's law was enacted to the two thousand and two midterm elections and said voter turnout increased about two percentage points he said the increase was consistent across counties with the highest percentage of mcgrath so do you think that this increased turnout could be explained by the fact that securing voter id laws gives illegal voters the security of knowing that their vote will count and it will not be diluted i'm not technically trained i want to speculate on a possible relationship i think all that study shows is that you don't cut down the number of voters simply by requiring that people have to show id when there's a cause and effect relationship is for people who are much more school statistics and sociology and i agree section six forty two of the illegal immigration reform and immigrant responsibility act of one thousand nine hundred six by our state and local governments from restricting their law enforcement officers from communicating with the department of homeland security about the immigration status of individuals despite this law many sanctuary cities continue to prohibit law enforcement from checking the immigration status of criminal aliens that they encounter results can be tragic there have been many reported cases where the immigration status of criminal aliens was not checked because of sanctuary policies and they were released back into society to murder american citizens what steps are you taking to enforce section six forty two and  stop cities from using sanctuary policies we are trying to police unlawful aliens in this country and we're doing our best to conduct controlled operations along with the department of homeland security when we find them located in a particular place that said i've sat on prior occasions that i can understand the dilemma posed when present a unattractive victim pool of people who want to know that they won't file complaints and there's a balance to be struck here but we're certainly alive to the need for enforcement and we engage in that activity and of that you face could be enhanced if you had the cooperation of communities rather than some communities refusing to cooperate with the department of homeland security or the justice department in enforcing our criminal l thank you attorney general in april of this year you announced the allocation of additional resources for prosecuting felony and misdemeanor immigration related violations such as human trafficking and drug smuggling with seven million dollars provided to hire sixty four assistant u s attorneys and thirty five support staff assigned to the southwest border u s attorney's offices which prosecute the majority of the country's felony immigration cases for fiscal year two thousand and nine that apartment is requesting another eight point four million to add another fifty attorneys along the border with these increased resources will you be placing increased emphasis on the prosecution of misdemeanor and felony immigration cases we will be able to address this problem is we have been addressing it in a flexible sort of way including increased prosecution which as i said has led to reduced infiltration we have more prosecutions less infiltration in each of the districts across the border we don't use the same precisely the same approach in each of the districts across the border it's not one size fits all because one side doesn't fit all one size doesn't fit all there are places where there are greater numbers numbers that if fully prosecuted would overwhelm the system because it simply are not judges lawyers bed space and marshals but we try to address each problem and each district to meet that district's needs well thank you i agree with that assessment i think americans are starting florida member intellectual property subcommittee thank you very much mr chairman thank you mr attorney general for appearing before us i am hopeful that you mr attorney general can somehow explain to this committee and to the american people how this administration affectively nullified the constitutional power of congress to investigate actions of the executive branch and how this administration has effectively rendered meaningless our power to subpoena executive branch witnesses unfortunately your actions thus far have enabled this a president this president to assert this unprecedented of executive privilege claims and the outright refusal of the ministration officials to come before congress i would like to specifically discuss with the interview vice president cheney  with the f b i regarding the cia leak investigation and a demonstration of just how far you have stretched the definition of executive privilege you declared that those would seem to have zero relation to any official white house business or federal policy these are transcripts of f b i investigators interviewing vice president cheney nothing more nothing less so my question respectfully mr attorney general does your justice department consider all f b i investigators to be part of the white  by your logic is there any way evil way that the white house couldn't be investigated with out triggering executive privilege  conversation with about with the vice president those conversations concerned conversations that he had internally with respect to matters that were at the heart of the notion of executive privilege conversations relating to whether the president was accurate or inaccurate in his comments in the state of the union and related matters that was the subject of those of those of those three o two the fact that they had those conversations happen to be recorded in three zero dues doesn't change the protection of afforded to them that's our view and i think that principle  is not my invention it's nicely illustrated in a pair of cases involving the next and tapes where an objection based on executive privilege was seen in response to a congressional subpoena or as an objection based on executive privilege was not sustained in response to a demand subpoena by a prosecutor those two cases could not stand side by side were it not for there being that distinction are you asserting that the f b i did not inquire with the vice president with respect to his role in the outing of a covert cia agent i'm not going to disclose the substance of the f b i as inquiries beyond saying that the subject of those inquiries involve core executive privilege concerns which the president invoked if the vice president of the united states did in fact participate in the outing of a covert cia agent is it your position that that involves the for actions of the vice president i should point out that your question embodies a counterfactual assumption because the prosecutor in that case closed that case by saying that no further investigation will this what is your definition of internal white house deliberations what advice was what qualified me what qualifies for executive privilege deliberations between the president and those immediately around him and the gathering of information by him for the purpose of making decisions so in discussion with the vice president with f b i agents under that definition would only qualified to the extent he is talking about conversations that the president had is that correct conversations that were had within the executive generally for the purpose of advising the president but clearly you tell me otherwise whether or not the vice president participated in a scheme to out a cia agent would that be covered by executive privilege the vice president's participation yes or no was the subject and was the subject of inquiry by a prosecutor who understood in that it was no is it doesn't qualify for executive privilege in the gentleman from florida thank you mr chairman thank you general new casey for being here today we very much appreciate it i'm going to ask you about two subject areas i'm over here first i want to ask you about the media shield issues and second touch on violent crime with respect to media shield issue i read your testimony today i know that you and the bush administration have expressed concerns about the media shield bill i worked very closely with the authors of this legislation to come up with a fair compromise language that helped to win overwhelming bipartisan support on this judiciary committee and the full house since the sensible exceptions that we've come up with such as not allowing reporters to withhold information that could prevent crime terrorism or harm national security hasn't been enough to satisfy the bush administration enough to support the media shield bill i'm curious myself about what it would take to have a bill that would be acceptable so my question to you is is there any version of the federal media shield bill that you would find acceptable enough to recommend to president bush that he not veto it with great respect there's nothing that i have seen in the media field as presented that would allow for the protection of classified information for the sufficient protection of the security of this country in my view the media shield bill in the large is a solution in search of a problem we have a procedure in place for the protection of of subpoenas against reporters  united states attorneys are not free simply to do that without the permission of the attorney general we've had less than two dozen cases in which such subpoenas have issued since one thousand nine hundred three mr attorney general i would submit to you that there is language in there that specifically deals with the leaking of classified national security information there is in fact a higher standard for prosecuting a leak case and there is any other case in that statute and it would provide not protection for reporters it would provide protection for leakers right we're aware that the ranking members of the intelligence committee along with the chairman of the intelligence committee republicans and democrats along with the leaders republican and democrat of the armed services committee felt that that language dealing with the national security protections was sufficient enough that it justified them voting for i don't know what they felt or didn't feel i know what's in the bill and what's in the bill for example requires a showing that classified information was properly classified and that the person who leaked it had authorized possession of it if somebody wants to leak classified information it is child's play for that person to take that information give it to somebody who is not authorized to league it and then the investigation ends let's focus on what we can agree on because i don't want to quarrel with you but i'm trying to resolve this issue that's what's in the bill but we can agree that three hundred ninety eight house members voted for it i think we can agree that both senator obama and senator mccain said they would sign the bill and i think we could agree that one of those two men is going to be the next present united states and so you would agree with all three of those facts i would agree with all of those facts and i would also agree that ten angels swearing on bibles that that bill was harmless would not change the provisions that are in it so back to my original questions if you've got less than six months on the clock here with the in the bush administration will you commit today to sitting down with our congressional leaders to try to fashion a compromise relating to these national security issues that would ultimately result in you being able to recommend that the president sign the bill or in the alternative is there no bill that you would recommend being signed i'm in the same position as a socialist candidate for president in eugene he said i'll talk to anybody will talk to me i will sit down with anybody who wants sit down have a serious conversation about what can be done and what can't be done but first we need to talk about what's there and what's there is not acceptable all right for the reasons i've started to explore and be happy to continue to explain and if there is language that's acceptable to you that provides the  protections for national security would you be able to position to recommend it if anybody can come up with language that's acceptable that protects national security that allows allows us to  information when the serious when there is serious indication of an impending crime then yes ok my time is about to expire on the crime issues let me just make a statement give a chance to respond on the positive front gentleman casey i have seen  very good results in my area of orlando florida arising out of the a t f violent crime impact team and i have seen very positive results as a result of seven hundred seventy four cops added to the streets of central florida through the cops program can you give me your thoughts as we wrap up on the a t f violent in crime violent crime impact teams and the cops program the v s i t is the violent crime impact teams are part of but not the entirety of the anti gang structure strategy that we pursued a t f has been suppressed in handling i think more gun cases than we've ever handled before they are part but not the entirety of the strategy we try to do targeted grants using not only our own facilities our own capabilities but targeting grants at state and local entities that can work with us so as to maximize the resources that we can bring to bear  and the cops program any thoughts compromise one of many programs that can be worthwhile but was never meant to be perpetual point was to get police on the streets have some effect and then encourage state and local communities many of them have to step forward and fund the increased forces that they have which are effective thank you wish we had more time to follow that last one up but my time is expired thank you for being here and thank you mr attorney general for being here today good morning there are a number of different areas that i question that i have and i'm going to try to get through them as quickly as i can first off in response to questioning before the senate committee on july ninth about the allegations of selective prosecution of alabama governor don siegelman you stated that there are and i'm quoting you here various avenues open for exploring those allegations including having testimony on the  subject given your assertion about the ability of congress to investigate the siegelman matter through testimony i'm wondering do you support karl rove's decision to ignore a congressional subpoena on july tenth and refuse to testify about his role in the siegelman matter and other matters regarding the politicization of the justice department as i understand it mr rove acted at the request of the president in response to an invocation of executive privilege he has offered to meet with staff he has offered to discuss the matter not under oath or to be subject to a transcript and my understanding from prior court law and i would expect an attorney general to know this as well that if the white house wishes to invoke a claim of executive action the question of whether an immediate advisor to the president has to appear at all when a proper claim is made of executive privilege is a matter that i believe actively before  attorney's office in alabama for example in the siegelman matter not conversations with the president himself i have a hard time seeing exactly how the claim of executive privilege can be asserted if it was an advice that was given to the president or direct conversations with the president but you know apparently we disagree on that on that matter on the issue of non prosecution and deferred prosecution agreements out of the forty known corporate monitors that have been appointed into further non prosecution agreements since two thousand at least thirty were government officials and twenty three were former problem government officials at the time they were previous government officials or or twenty three were former prosecutors as i'm sure you're aware u s attorney chris christie gave a multimillion dollar no bid contract monitoring contract to john ashcroft who was his former spearing are wondering if you believe that all qualified individuals should have the opportunity to serve as a corporate monitor in an open and competitive bidding process or do you favor the selection of corporate monitors with no transparency and no accountability with all due respect enacted were put into place in march of two thousand and eight after consultation with united states attorneys a set of guidelines relating to the appointment of corporate monitors that assures precisely the  transparency that i think you advocated and it goes from the start of the process to the conclusion of the process my ending is and right lines were issued on the eve before hearing that we were holding on that very issue i think that there was probably a strategic reason for trying to get them done before the hearing and was i was unaware i was unaware of the hearing and furthermore the rabbis have been criticized for lacking sufficient detail to really give any to be of any significant use either to federal prosecutors or t corporations that are in why don't we always want to we await the experience that we have using the guidelines and find out whether they work well so far we've not seen any instance of an open and fair and transparent process by which monitors are selected it seems to be pretty much at the discretion of one person within the within the department of justice it is not what happens here what's required under the guidelines with regard to when you get to the point of  money that comes to fund a somebody who serves in that position is paid not by the public but by the corporation we understand but there are still questions that monitor owes a duty is it to the government is it to the people is it to the corporate monitor that's not been spelled out in those guidelines unless unless something's been revised since march that monitor owes a duty as a duty to the duty that he undertakes to act in a fair open  i would just say this because my time has expired we would love to get additional information regarding the use of non prosecution and deferred prosecution agreements we look forward to that because so far we've not received all the information that we requested regarding those agreements and i and we've written to you on several occasions to ask you to provide that information so if you're saying here today that we should evaluate the cases and see whether the guidelines are working or not we can only do that if we receive the information from your office and with that i will y committee will come to order a chair recognizes the distinguished gentleman from california darrell i said who serves on the intellectual property committee constitution committee appear based on an assertion by the president of executive privilege what useful purpose would it serve if he came here when the questions are likely to be specifically related to items he's prohibited from telling from telling us other than to be a dog and pony show can you name a useful reason for us to have karl rove here comes and i i don't want to get in the middle of a controversy between one congressman as to what good  ld or wouldn't be served i know that the president's media advisers are subject to his claims of of privilege and not withstanding their own desire or ability to discuss issues if they're told they ought not to get into matters that relate to their conversations with him or his ability to gather information they can generally in your past experience if you want to get to the truth don't you usually try to get a written statement sworn around sworn through requests for production and so it isn't that a generally more effective way to do it and isn't that what you would normally recommend  the efficiency of any body that they they try to get the answers in writing rather than schedule people if the questions are known and the answers are unknown i guess i again i don't want get in the middle of a intramural dispute here there are various ways of gathering information people use written there are good tories that use live testimony and not demeaning the value of live testimony but there are many ways as you point out well and in general i didn't plan on asking these questions  asking mr luskin who represents karl rove whether or not he would answer some very specific questions related to the prosecution of governor donald siegelman and and then the dispensed with at least questions and answers that do not assert executive privilege general you were unable to fully answer questions related to the current relationship of media leaks and how they affect national security earlier i'd like to give you an opportunity to do it but i'd like you to do it if you would also by commenting to in your opinion both before and after you were  effects of organizations like the new york times and so on leaking the most sensitive information have been as to the ability of us to conduct the war on terror and as to potential prosecution  so i want you to fully answer how you feel we would because you're saying to us show me a bill that i would i would sign i'm saying to you i fully agree that the leaks of classified information serving no purpose other than to take the most sequestered information in some cases information that even some members of the intelligence committee haven't received and divulge them has hurt this country but i'd like you to go from that and if you will tell us what we need to do in lichtblau and the other people who leak national secrets but i understand that you wouldn't you know they ultimately get even by writing your obituary so you have to be very careful and i'm from a family of long livers with  newspapers but when i went to when a statute and an obligation to disclose by the government that electronic eavesdropping is going on can be tripped even without an attempt to get at confidential information such as where somebody who is under legitimate pfizer surveillance or under title three surveillance makes a call to a reporter and that triggers an obligation to notify the reporter that he or she has been overheard on a wiretap and then stops the government from using the fruits of that wiretap that statute is seriously misconceived i don't think that was the intention of the people who drafted the statute but the law of unintended consequences operates just as much as the laws intended consequences and sometimes in a lot more deadly fashion and that's one one of many fashions in which you can operate under this bill in addition there are numerous crimes that are not included within the list of crimes that that are are subject to the exception for being able to get it sources  for exam for example child abuse is not one of the crimes that are listed so that somebody could do an interview with a child abuser and be able to claim privilege and finally there is no way compel a reporter even when a balance a struck as between the public interest in disclosure against the interest in keeping information private which is a it's apples and oranges put before somebody who has no other standard there's no way ultimately to compel a reporter to disclose reporter is just as free as he or she is now to say i'm not going to disclose i'd rather take a contempt citation there's no requirement for example that the information be put in the custody of the court and the matter then adjudicated with the information to be disclosed thereafter reporter retains the information that just as free as they are now not to disclose it it also creates a possible lack of uniformity given the fact that this is a jump ball for however hundreds of many judges there are was under current standard uniformity is achieved by having these matters go up for the just krugman and having them decided in you know in goes to the the forty five detainees who are currently at guantanamo who have been cleared for release by the department of defense he's talking about the leaders no i'm talking about forty five including the weavers forty five detainees home the department of defense has cleared for release who are still being detained at guantanamo  and if there are five forty five and i take you at well let me say i'm just at that forty five a list was given to the judge hogan on this past monday but i know that this accurate the fact remains that we are not allowed to release people unless we can find countries that are willing to take them with the assurance that they will not be abused and i understand and i get when they get to that and i understand that and the state department has been making heroic efforts at placing people and it has been thus far fairly successful it's the least that's been sweated down from seven hundred seventy five to something in the neighborhood of two hundred sixty so there's two hundred seventy five individuals who have been cleared for release you indicated that you indicated that you would object to having those individuals or any individual repeat created to the united  ok let me again go to the issue because the reasons why they have been cleared for release do not necessarily go to what havoc they could cause if they came here they go to a whole lot of other things other countries where they could create havoc i know  other countries where they could not where they could not create havoc correct another whereas of an inductor nettles are aligned to have ect that havoc will be limited by geographical but it doesn't necessarily mean that those people were picked up by mistake or that they have ceased to be dangerous at all but it simply did not mean there isn't willing to read all of them if they're still dangerous the department of defense is willing to release them under controlled conditions if they can be ideas if we should release them and they are still dangerous we are doing a disservice to those of our allies that would be willing to accept them but having said that i want to get to the issue of assurances  that you did not believe that it warranted the appointment of a special prosecutor think you left out a phrase well if you mean the phrase i left out at this time at this time well thank you irwin interpreted to that there could have been and i'm not suggesting that's the case factually but there could have been an intent and these are his words in intent to render to syria rather than canada because there was a knowledge or a likelihood of torture if that doesn't in my judgment the need for a special prosecutor i can't imagine what would but having said that i looked at having looked at your your letter are you prepared after your review pursuant to our letter that there was sufficient assurances from syria that warrant to the the sending of the rendition of mr how raw to syria as opposed to canada not certain i understand the question realize really not you say are you prepared assuming that i believe that there was sufficient assurances i'm a very to do what you are you prepared to say that they were sufficient assurances on the pot of individuals in the government that emanated from syria to meet the standards of the convention against torture and our own domestic legislation to rend iran to syria rather see the there can't there can't be any change in the nature of what assurances we receive things happened one was either assurances were received or not and they were received in a particular way or not but there was i believe  classified briefing to all three or available to all three authors of that letter well it was it was available i did not attend the classified briefing because i didn't want to be in a position to inadvertently discuss it in a in a public venue but i presume that assurances that would be relied on by the united states government would be of such a nature that they would come from high ranking officials in the united states government particularly from a nation that's been described by the president as a practitioner of torture  they were provided i mean i don't want to get into classified information either and so i want assurances were received by united states government that's all i'm prepared  joint i mean he was a he was a joint canadian syrian national i understand sending him to canada could have posed a danger to this country sending him to syria was safer provided that we got the assurances and it's my understanding that we did surveillance act and you played an instrumental role in achieving a legislative accomplishment that i believe contributes greatly to our national security as you might suspect since we debated it in one of the nation's largest newspapers i wan focus my attention on an issue on which we disagree h r twenty one zero two the free flow of information act now you've commented about it earlier and i want to take the opportunity to raise some issues and pursue  of question but i do so with great respect this legislation was introduced about three years ago by myself and my democrat colleagues congressman rick boucher you've made your position very clear in this testimony today and other public statements that your written testimony today says that the bill quote would endanger national security by making it nearly impossible for us to investigate leaks of even the most sensitive national security  information very wary of that that kind of a strong pronouncement may be somewhat jarring to a committee that very strongly endorsed this legislation and  a congress that voted three hundred ninety eight to twenty one on october sixteenth two thousand and seven to endorse this bill and i want to point out for the record that to attorney general that this was supported by the republican and the democratic leadership it was also supported by the ranking members of the intelligence committee of the armed services committee and the chairman of those committees and i think it was supported precisely because we did endeavor to deal thought fully and carefully with precisely the issue that seems to be the focal point of your objection namely concerns about national security and as you're aware in the legislation we in the house version of the bill we only provided a qualified privilege for journalists and made national security the leading reason for which the shield could be pierced our legislation permits compel disclosure to prevent or identify the perpetrator of an act of terrorism against the united states to prevent significant unspecified harm to national security and you made reference to child abuse exception not being included in the bill i think that would probably include by inference in the bodily harm exception in our bill but i know the senate includes child abuse in their legislation and i'm open to it it also allows compel disclosure of sources in cases that involve the unauthorized disclosure of properly classified information that cause or will cause significant or articula harm to national security i think the inclusion of that very careful structure that does it at a point call upon our judicial branch to exercise discretion balancing the our interest in national security with our interest in preserving the liberties upon which is nation was founded seems to be a focal point of your concern but i i want to begin by by assuring you general that that as the congress tried to fulfill its role in in addressing both our national security as well as preserving what we're trying to secure that we did so in a way that made actually virtually invited congress to develop a federal media shield statute saying the congress had quote the freedom to determine whether a statutory newsman's privilege is necessary and desirable in the fashion standards and rules as narrow as broad as deemed necessary i guess my question would be with a little latitude from the chairman to give you a chance to respond is you made a comment today that of ten angels swearing swearing on bibles wouldn't change your mind no the number of subpoenas issued for non source information and also since two thousand and one at least nineteen additional journalists have been subpoenaed by both federal and special prosecutors and you yourself know the department of justice guidelines do not apply to civil litigants or special prosecutors i would say with respect this is not a solution in search of a problem this is a constitutional statutory response to a rising erosion of our first amendment freedom of the press  and let me make one last point if i may at the chairman's indulgence i must express some disappointment in the fact that in my three years as a working legislator on this issue most of the time you were not in your present role and so i don't direct this to you as you speak about the need for language i don't believe the justice department has ever offered any language to this committee relative to what would be an acceptable version of a federal media shield stache you know some of my question to you would be recognizing that as you said in your testimony the administration has quote a constitutional responsibility to safeguard classified information  and i know you recognize the administration also has a constitutional responsibility to protect the constitution and the first amendment freedom of the press can we anticipate as the senate may well be taking this bill up in the coming days  may we anticipate a more constructive engagement from the justice department in fashioning this legislation in a way that meets both our the interests of our liberty and our security or or should we continue to anticipate as legislators what i would characterize as the strident opposition of the justice department to creating the statutory newsman's privilege that the supreme court acknowledged could be created thirty six years points first of all i'm not questioning anybody's good faith in the drafting of this legislation congressman's or anybody else but i think it's possible to have a disagreement good faith let's focus two of the points that you mentioned one that was slightly alighted which was showing that the information was properly classified that raises a host of problems that we're talking about procedur we're talking about substantively does that require the government to come in and disclose yet more classified information to show that the classified information was properly classified a closely related problem is the showing that the danger exceeds the value of disclosure passing for a minute the fact that that is a complete imponderable totally imponderable that would require the government to come in and basically make a bad problem worse by articulating precisely how threatened disclosure could cause yet more harm i don't think that's a solution now as i said i won't talk to anybody who will talk to me but we have in place a system that closely restricts the ability to subpoena reporters and the ability to subpoena source information i think that system has proved that equipped i'm willing to talk to anybody who thinks it hasn't but what i'm not willing to do is take steps that will essentially do more to protect leakers then it does to protect journalists thank you general i thank the chairman for his indulgence the chair recognize steve cohen of tennessee who serves on the commercial an administrative law subcommittee as well as intellectual property thank you mr chairman and general i appreciate your taking this position and improving the image of the justice department and the nation's eyes and i appreciate your looking into the issue we talked about during the break with the football stadium in memphis which which i will thank you thank you  university of michigan has i think about the same number of seats as we do but they have one hundred thousand people per game we have about twenty five thousand and that's somehow to be factored and hard to see that there's less interest in your team than there isn't even the mission yes we have emphasized academics yes please paul miner an attorney from mississippi is in prison now and we've discussed his case and there's some thought that he might have been politics might have influenced  prosecution without getting into the basis of the facts and then other been allegations of prosecutions in other cases mr minor has an appeal which i think the office of professional responsibility is looking into but at the present time he's he's seeking a release temporary released pending his appeal because his wife is dying of cancer and she may be i believe in her final months i would just like to ask you for an assurance that you will personally review the matter and and make sure that if within the parameters that are possible you could take into consideration the facts of that were led to his conviction and the particular situation with his wife well  don't know precisely i know the opi has humane release program that relates to the illnesses of prisoners i don't know whether they have a humane release program that relates to relatives of prisoners or how close he is to the release date i can try to make inquiry as to what the precise situation is thank you if you would i think he's nowhere near the early stage and i think possibly a review of the policy says of some my spouse is dying there have been there have been situations in which people have been taken from custody to for visitation purposes and so on no want to get too far out ahead of the curve but i've encountered that as a district judge and find out what the policies really pretty high now i'm not i'm not familiar with with the crime statistics in the founding of the republic that today i believe that what that that that was something of a m not you have programs that i think are excellent concerning projects safe neighborhood and you mention that you will be offering regional training throughout the united states what is the process by which the city of memphis tennessee ninety gresham district could participate in one of those regional opportunities we generally have location look out of these essentially compete based on a showing of needs and showing their ability to use the resources along with with federal authorities i know there is a ten site program relating to the gangs and if i can find at my notes i can find out whether whether memphis is one of those locations and i don't think it is from your notes but i executive privilege extended to him can you go a little further with that of mr addington was here and said that mr vice president cheney was not in the executive or the legislative he was in some basically a barn attached to the legislative branch where do you see him floating and why would he not have executive privilege it's my own belief that the vice president is a member of the executive branch i know that there has been a discussion about where his office is located and lots of sort of abstract debate about that the vice president is obviously one of the closest advisers to the president and he is a close advisor to the president within the executive branch attorney general thank you so much for being here and i want to compliment you today for handling such a host of issues and i just kind of jotted them down today they've tested you on old speculators and mortgage lenders te spies illegal immigration espionage airline mergers torture and you've done just a remarkable job trying to marshal all that also know that you have a lot on your plate in terms of having to deal with all these issues around the country and from time to time you have to allocate your resources and one of the issues that came up today was gangs and we've got about eight hundred fifty thousand criminal gang members depending on what statistic you look at across the country obviously we have to allocate resources especially from the federal level in dealing with gang violence one of the ups probably in crime today might be gangs if we had any that were that we're looking at this to to six we've had come before our committee so far is that if we looked at the most violent criminal gang in the country today it probably would still be in this thirteen is that fair assessment they're pretty close and part of the problem is that they seem to be in it oddly for the violence not entirely for the for the money right and that's and one of the things that's been bad is not only have they done the violent act but they tend to give a copycat effect to so many other gangs to try to catch up to them the other statistic we've had on him is thirteen for example has been that with testimony we've had as much as seventy five to eighty five percent of the members could be here illegally and part of those gangs i don't ask you to master those statistics today but but that's at least what we had presented to our committee and i assume it's kind of a ballpark it would not surprise me and my question then is if we have the most violent come again one that's kind of been a pattern and copied the other gangs information your office has on one how those individuals go from crossing the border to joining those gangs number two if there are any prevention programs out there that have a proven record not just a anecdotal a proven record of stopping those individuals from joining the gangs because at least what i've seen is that prevention programs might work in other areas but if you're coming in here illegally those programs aren't reaching that seventy five eighty five percent but perhaps you have some that you can suggest obviously we want to allocate our dollars for the best the final thing though is is there evidence that going after the gang networks does have an impact on reducing the gang violence because we're trying obviously to allocate our resources at the best possible way just like you're trying to do i think there is i just i was down  from el salvador where that gang from which that gang of supervised and which cooperated in in the round up and and in the intelligence so we find that when we cooperate not only with state and locals who are at that press conference as well but also with our international partners specifically in the case of them as thirteen mexico honduras el salvador guatemala which is where a lot of the long we find we're going to have a much greater effect and when you do that we believe had some testimony before the committee that the subsequent gang violence does reduce down after you've taken some of those networks that is that fair to say it is definitely fair to say and we expect it to drop in that particular location as well good and general just leave you with this not for today but if anybody in your staff has any programs that have been shown to work for the people coming in  questions before we recess for four votes and that is adam schiff former assistant united states attorney from california who serves distinction on the intellectual property arizona but i had the opportunity during remarks to read your speech at the american enterprise institute on principles and dealing with one ton of detainees and would like to help in a couple of points that you made in your speech  first of all i want to mention that i made several several efforts with your predecessor and his predecessor to get the administration and congress working together to set detainees policy and i appreciate your outreach to the congress and encouragement that the congress set these rules rather than have the courts decide i think that makes a great deal of sense and would help us avoid a patchwork of court decisions that take up a lot of time and don't bring us any closer to a good result but two  questions i have is is the first is that you make a point i think in your conclusion that people at guantanamo you take issue with the idea that people should be charged or released and i think the issue  that raises is if you don't charge people guantanamo and if there's a category people who are not charged and yet not released what is their status how do you define what legal rights should attach to a group that has not been charged with a crime and yet you are going should not be released one of the arguments that i've been making with d o j for some years now i introduced a bill in two thousand and two to it adopt the  the uniform code of military justice to be used at guantanamo couldn't we establish a baseline offense of being an unlawful enemy combatant such that there would be something that everyone could be  charged at if there's evidence to support it so you don't have this conundrum of having people who are not charged and yet not released i guess we could the people who are detained there as far as i know uniformly are people who were who fit the classic definition of an unlawful combatant that is they were not fighting in uniform they were not carrying their weapons openly they did not target only military targets but rather targeted civilians and were not bound by the laws of war so yes we could establish such a regime but the fact is that we detained thousands upon thousands of prisoners of war who were legitimate detainees during world war two not one of them not one of them was permitted to file a b s petition they were all being held for the duration notwithstanding that they've done nothing other than white in the in the list i understand that but there's a problem there of course you also point  this is a war of a different caliber which may go on indefinitely and as you point out there may never be a bt to a victory over terrorism day and the fact that these questions are difficult doesn't mean they're going to go away and i think that we need to grapple with them i would just encourage the department to consider a situation where people are charged i think let me i want to give you more time on that but i want to throw my second question to so one the court should be prohibited from releasing people in the united states understand the or not is not just being released that's been brought to the united states for testimony or court proceedings that pre supposes guantanamo doesn't close we have two presidential candidates both who have said one ton of us should close would it be wise for us to enact a law that says you can't bring people to the u s for court proceedings if in fact candidates for the presidency intend to close guantanamo i think they both and i have i'm not reporting to the expert on all of their pronouncements which is at times very from one another both responsibly means just that well i sort of agree with that but but that doesn't ultimately answer the question of what do you do with the people in guantanamo if you've established a law that says you can't bring them for legal process the united states i think you have  one of the things i was going to say before is you have an ongoing obligation an ongoing ability to assess the dangerousness of each particular person you've got but all of them are aliens who were caught abroad under circumstances in which they were in combat without the u s troops or those with whom we fight or we're supporting those who are in combat with us troops of the gentleman's time has i think that your committee stands in re  or testing testing one two three four testing one two three four office there was a description of a procedure where within the group or division that said up to do an analysis for things maybe protected or privileged it your understanding how that process works if there's something that might come out privileged are protected in order to keep from telling the rest of the evidence do you have a firewall capacity there we do have i mean th happens frequently in cases where certain information not to be walled off from other lawyers working on a case that's not uncommon i don't know of any particular division within the department of justice devoted to that but i it wouldn't surprise me that in a particular in his dissent henceforth as today's opinion makes a nerving like clear how to handle enemy prisoners in this war will ultimately allow with the branch that knows least about the national security concerns that the subject entails and then of course to justice roberts in the case did that the detainees treatment act military tribunal hearings followed by article three review looks a lot like the procedure the hamdi case blessed if nothing else it's playing from the design of the congress the president and this nation's military leaders have made a good faith effort to follow our president the court however will not take yes for an answer and again in justice scalia's dissent he said quoting again in short the decision is devastating the game of bait and switch that today's opinion plays upon the nation's commander in chief will make war harder on us it will almost certainly cause more americans to be killed that consequence would be tolerable if necessary to preserve a time honored legal princip to our national or constitutional republic but is this court's like the management of abandonment of such a principle that produces the decision today there were many of us that believed that based on the ha i decision and the down decision in two thousand and six that congress had acted in good faith we had done as the supreme court directed i had serious concerns about the executive branch being able to formulate what middle of tire military tribunals would be used i had concerns about that as an executive branch function but once congress did it it certainly seemed to be in line with what the court had previously ruled and so it appears to me just like the justice scalia said we have a branch the judiciary the supreme court that really wants to end involve itself in both the executive and legislative effort here and so i don't know if we'll have a chance to take this up and discuss it put forth legislation before the end of the year and no time short but i do have a bill here that i intend to file in the next few days that will basically provide for the transport of the enemy combatants detained at guantanamo bay cuba to washington d c where the chief justice  a timeline so i'll try to move both of them in expeditious fashion the first one has to deal with a matter that mr sanchez raised with you and that i raised with you in our phone call yesterday the siegelman prosecution of the state of alabama as you know there have been a number of questions about possible political influence in the prosecution i want to touch on something that is not going to publicly though in any other form and this is the context for it as you perhaps know there were e mails that surface after the trial after the conviction which suggested that various jurors two in particular had engaged in misconduct that there had been deliberations outside of the jury room that they had consulted the enter net and done research on gays and various other conduct that i think you as a former judge certainly characterize as improper over a period of time for a number of months there were motions filed with the an interrupt you but i there were a series of hearings back and forth and a series of arguments back and forth on whether or not there ought to be some kind of evidentiary hearing the government took the position that evidentiary hearing had to be very limited nature and this went on for a number of months in july of this year the chief of the appellate section of the criminal division of the apartment of justice missed ambler notified defense counsel that she had just learned that while the district judge judge fuller was considering some of the various motions a new trial in the motions to reconsider for a new trial that the district judge should had an ex parte say communication with the u s marshal service and finest and the facts correctly the u s marshals service had been instructed by the u s attorney's office to conduct its own investigation of the authenticity of the e mails the u s marshals service reached the conclusion that the e mails were not ballot and apparently share that conclusion with the district judge while some of the motions to reconsider were going on saying would there have been any circumstance in which you would have allowed yourself to have a communication with a branch of the government the u s marshals service of an ex parte ne sure while you were considering a motion we just take a step back you were kind enough to point out that letter yesterday and i appreciate that i read the letter i read it the fact somewhat differently what happened was the co workers got copies of the letters that were already before the judge they turned them over to the jury over the marshals the marshal to know what to do with them turned over the fuller that the postal inspectors were investigating the receipt of e mails and they concluded that the purported e mails were not authentic the marshals who spoke to chief judge fuller of advise us that the chief judge did not solicit this report so i understand it was a procedural sequence and there were multiple motions to reconsider but they all touched on the underlying question of these e mails so i ask again when you were a u s district judge would there have been any instance in which you have allowed your which you would have allowed yourself to have an ex parte communication with the branch of the government while the motion was going on there were times when i got exported communications from branches of the government for good and proper reasons i don't know what the what role those copies of e mails played in the larger matter that's under review by o p r so i can't i'm going to get a report from a p r at some point about this whole matter i may be called the very subject of these hearings was whether or not the e mails were authentic and whether or not they influence the jurors you can get and caribbean without getting to and for a so it was a very much at issue whether or not the e mails were authentic and what troubles me is the notion that the government asked the marshal service who then asked the postal inspectors to conduct an investigation of their authenticity didn't share that fact with defense counsel shared wit enormously heavy presumption against undermining the validity of the jury verdict all kinds of things have been shown of that or testified to about what jurors did or didn't do during deliberations that have not resulted in the nexus of caution disclosed and ultimately it was at the letter makes apparent it was the justice department that was well the concern again would be this two years well i'm sorry one year one year after this expired a communication one year and three months after they expired a communication paralyzed the marshal service disclose it to the government which what right is the obvious question of where the marshal service is just close to all that they know to the government ambler has made representations that she knows to be accurate but it would raise the obvious question as to whether mr hamel or the department have conducted any investigation to determine whether or representations on page two of this letter a complete because frankly it appears that the marshal service may not have told mr mueller the relevant facts to very recently i don't know when they told the relevant facts but doesn't appear to me there's any more for the marshal service to have known since this appears to have been a singular incident but it trouble you if the mark that the marshal service didn't immediately disclose to the justice department that they had had contacts with j fuller marshals as is obvious from this are not lawyers it might have been disclosed at all to judge fuller have disclosed that to defense counsel i'm not going to get into whether how dreadful or behaved because i don't know the full circumstances under which they were disclosed what effect if any what the bases was of his ruling or when it was rendered and all of this is going to be the subject of a report in the last last question are we confident that the prosecution did not have any communications with judge fuller about the marshal service investigation all i can say is i see nothing in this letter to suggest that whether they did or didn't may have emerged from other facts that i don't know that may be part of the opi or our investigations of the department ask them i think that i want to await the o p o report before i make judgments about who knew what when and disclose want to who but we have a chance to see the results of the l p r report absolutely absolutely if there's a funny in this comment you see the report itself but as i understand it and i learned this only recently congress was itself the complainant in that case and the complaint is always  mckay for his very astute testimony here today and i have had that same observation the previous time you were before this committee general and so i'd like to first take up the issue that was listening to the gentleman from california chair of the subdomain as loftier and when she brought up the issue of the caseload in the circuit courts and in particular the second the ninth as i recall and that forty percent of those cases are immigration cases  and i would i would ask you if you are aware and if you would comment on those two particular accords in particular whether they are whether it is a practice for them to grant automatic stays of deportation or removal to any alien who files an appeal could operate under my presumption that it is ok if we operate under my presumption that it isn't in my information that that is the practice to grant the automatic stay what would you expect to be the behavior of the defendants if they got an automatic stay and were allowed to stay in the then that would be the natural process to to utilize that automatic extended period of time to be human nature response and so i ask you a legal question then perhaps and that is that looking at this case load that's here there are two ways to resolve that well among others but one of those two ways would be to put more resources in the courts and the other way would be for congress to address it from a statutory perspective to narrow avenues through which people can appeal would you have any recommendation to the congress on how we might narrow the avenues through which people could appeal i don't know right now i mean i've not thought through that i can't really make a concrete proposal and i know that  conceptual point that you've made us i'll just say that i appreciate that i think it's appropriate that it fits what what we need to be doing as a congress i'd like to go further down that path but when the time that i have i think instead i want to make a point here and ask your comment on this in the non border federal districts the number of illegal aliens being prosecuted for a federal crimes has increased and for example last year more than forty percent of the federal defendants in aliens and when we go to some of the other when you go to some of the internal districts non border districts colorado western district of arkansas middle district of north carolina which may have a border actually brassica all of those had more than twenty five percent of their federal defendants were illegal aliens and and here are two others in this list the northern district of iowa the southern district of iowa so is this  increase is a reflective of a policy of prioritizing prosecution of criminal aliens or is it reflective of the flood of criminal aliens that we have to deal with i think we prosecute people who commit crimes and states prosecute people who commit crimes i know that the facts that you've outlined are something of a drain on our resources because we're obligated to supplement the budgets of those states that have illegal federal aliens among the prison population help them deal with that problem because these people are illegal aliens so we're sympathetic to it and trying to do something about it and you will be aware that in the section six forty two the  illegal immigration reform and immigrant responsibility act of ninety six which was very much put together by mr smith our ranking member there's a prohibition in there for sanctuary cities and prohibits the those cities token we obviously oppose the concept of sanctuary cities and do everything we can well i would point out that there was a triple murder in san francisco and the alleged perpetrator was a criminal alien who had been encountered by local paramount to any kind of sensitivity about who might or might report a crime and in fact i would submit that any analysis of how people will respond with information if that means suspending enforcing the law i don't think that's an appropriate consideration still have the policy of section six forty two that's not being enforced effectively and i'll point out that the way they are getting around it for the record is they prohibit their city employees from gathering information and they've held seminars across the country provided that as a loophole in this statute and i ask it to be a recommendation if we close that loophole ok does that mean it would be i believe it would be and i thank you very much general thank you for your testimony and for submitting yourself to  investigations and their new policy or guidelines that would allow them to take into consideration issues of race religion things like that could you just kind of elaborate on that i think what you're alluding to is reports that there are going to be new attorney general guidelines and speculation about whether they would allow that practice what i will tell you is that the previous guidelines that forbid the predicat investigation simply on somebody's race religion exercise of first amendment rights will remain in place the the preview of the previous guidelines in all respects on that will remain in place the purpose of putting the new guidelines in place is to is to rationalize and organize a process that's really been going on since after september eleventh two thousand and one on the recommendation of at least the nine eleven commission and the silberman robb commission that the f b i addition to being a crimes a crime solving organization become an intelligence gathering organization then ensued essentially two sets of guidelines one on how to open criminal investigations the other on how to predicate national security investigations and at times they were cross cutting the same behavior was described in different ways and would produce different results so what we're going to do is put them in order but the protections i mentioned will remain in place i think the new guidelines will also make it appear that concurrent with the growth in f b i intelligence gathering has been a growth in monitoring both within the f b i and in the national security division of the justice department and oversight so that we can make sure that the f b i is not doing what you suggested the new guidelines would permit well i'm glad to hear you say that the record it's  important i just want to point out those guidelines have not yet been released i'm talking about what kind of input can members of congress have and to what the guidelines might reflect members of congress we briefed on the guy was before they go into effect the guidelines are already in the process of being of being drafted they will be signed by me that is that said there are guidelines they're not statutes and they can be changed when as and if there's reason to change them what i plan to do is get them in final shape review them sign them and then before they are implemented have congress briefed on them show them the congress so that everybody understands what they are and more to the point that you just made what they on let me move along to another question of people to the public because there's really no legal way to get yourself off of that designation and yet it doesn't necessarily mean that you're going to be indicted or or or or anything like that my question is there's a way to sort of get off the list can you speak about your views not not about that case but about in general whether it's appropriate for a u s attorney to publish a list of unindicted coconspirators what value to justice it has s attorneys are required by law any time that a conspiracy charge and in almost every case involving more than one obviously and there were more than one person there is to turn over to the defense a list of unindicted coconspir right that's largely because otherwise they can't use those statements as statements because personally if they turned over the list of course that's why they do it and generally those lists are just as much pleading in a way as as any other pleading in a case and so they become public that's well you know what though i mean if my experience didn't point me in another direction i wouldn't debate the point with you but i happen to know and i've been involved in cases where  coconspirator lists were not maajid only available to the public even if they were made available to the defense and my question for you is you know what i mean i guess here's my basic question what are your views on whether not it's legitimate to put people on a list that you never in doubt calling i mean we have the experience of the trial in this case where you never in a call these people as witnesses you never end up making a claim as to what statements they made could or should have been the subject of a some sort of a process i think we ought to look into that just as people have raised with me the question of whether when it's announced that somebody is under investigation shouldn't there be a way of announcing that they're not it's kind of a another version of the same problem and i agree that it deserves serious consideration but i i understand the need for such less and my experience is that they're drawn carefully and specifically with a view toward a sure in the admissibility of statements well you probably would agree that sometimes that careful practice is not always followed by everybody it's everybody involved in the process is a human being that means mistakes right and so there should be some way to clean up those mistakes i think it bears serious consideration i also want to ask lastly about watch lists what can we do talk to so many people who just get you know what i'll call the hospitality when they go to airports these are people who never did anything wrong who traveled for from some other countries and throughout the united states but sometimes whenever they get to the airport they are the ones who are being searched they are the ones being stopped they're the ones who are missing flights there's one who's been delayed and you know my question is what are you doing to make sure that you're not getting people stopped and hit on these watch lists that really should not be on there what is our cleansing process for that because all acknowledge to you there's a purpose for a watch list are people out there the people in nine eleven they got on a plane and maybe it would be great if they were on a watch list but i think we have over we have gone overboard and we need a way to clean up these lists what do you do about that  i don't know is first of all do you think it's a problem i've seen reports about people being on watch lists because they have names similar to other people who probably belong on the watch list being stopped at airports i know that the airport screening process is not perfect i know that from personal experience when i was district judge and had marshals accompanying me despite the fact that they had guns with them and everybody knew that i was a federal judge i got stopped and i got i was a can the kind of search you describe and how that happened but it happened after more than one that said i think there ought to be a way of making certain that the list is accurate there are a lot of names on the list there are a lot of variations on names so that there are many fewer actual people on the list than there are names but i think you're right that there ought to be a way of assuring that people who don't belong get off well because one thing most attorneys generals that we go through five people who are not supposed to be a list but are we waste time and energy working them over that we it dilutes the impact of the people really we really do need to be to keep an eye on amen to that so i mean what work with you to make sure we do with th ranking member of constitution also a member of the commercial and administrative law committee from arizona to me thank you mr chairman very much and thank you casey for being here i i know that you're tasked with one of the most important jobs in any government which is the administration of justice and protecting the innocent in our society and it is a profound responsibility and i would suggest to you this my own opinion that those who were predecessors to you in the justice department were faced with probably one of the biggest challenges that we've faced in the last century which is th the coincidence of jihad is terrorism and nuclear proliferation and it's a it's a very sobering job indeed indeed and it occurs to me that the evidence that i've seen indicates that most of the time that they  simply seem to be trying to do everything they could to protect the american people within the constraints of the constitution the law and so i'm always a little disheartened that our committee seems to be focused more on trying to paint some of those individuals or with recriminations rather than doing what we can to improve our system so that nine one one of those types of things don't happen again with that in mind i agree with you that congress should step up to its responsibilities related to  the procedures and maybe corpus cases sometimes we leave these decisions to unelected judges to somehow balance those procedures with our national security but after all congress provides for  normal cases you know these procedures we do that all the time and i'm wondering why we should advocate our responsibility to act in these unusual happiest corpus cases when these pose such a serious threat to our well it was the point of of my speech the other day that congress working with the executive was ideally suited to fill in the gaps that were purposely left by the supreme court because it has available to it the kind of knowledge that's needed it's not that judges are incapable of deciding cases the perfectly capable deciding cases simply that they don't have access they can't find facts on their own and only in very limited circumstances can they acquire the expertise by and large they rely on the facts and on the evidence and on the expertise presented to them by the parties which at times is imperfect as it's kind of a helper skelter way of deciding an issue it's inevitable that even in the best of circumstances some of them will come to different conclusions as a result different procedures will be followed and the matter will engender just endless litigation rather than having matt i really inappropriate what is for congress working the with the executive to literally put their heads together and that's a lot of heads with a lot of knowledge expert knowledge and classified knowledge so as to come up with ways to solve these problems so that we have a rational system and we don't get endless delay and and possibly conflicting decisions with with possibly some very serious and unpleasant results  this is someone who some of the law sent in the united states just one day before september eleventh but i'm conservative course that there were no dissenting judges that would have concluded that we're not at war with al qaeda and if this was just a law enforcement matter and unfortunately that that occurs to me that sounds a lot like the old mindset in our country and which in my mind should have been put to rest after september eleventh are you concerned that some of our judges or legislators or people in general that we're starting to forget to the significance and the great nature of the struggle that we face well i'm not going to single out any people or group of people as more or less mindful of the danger  will point out that as of temporal eleven two thousand and one receives into the past there are some people who have come to think of it as kind of a singular event and out there being nothing else out there in a way we are the victims of our own success o own success being that another attack has been prevented there was a newspaper which i will not name that on a recent anniversary of september eleventh two thousand and one said something to the effect that it still creates problems in people's minds to think about september eleventh two thousand and one as if that were markable fact it's not at all remarkable fact and that was not a singular event in the sense that danger is and it hasn't i get reminded of it every morning you know what tell me how can what can we do to ensure that the congress the american people the courts don't forget to the seriousness of the the struggle that we're in and what  if you could name any one thing that we could do in this congress to assist the justice department in helping to protect this country and its people what would be that would be to pass the kind of legislation that i've proposed and as far as not letting people forget that so is a kind of a difficult thing you don't want people to run around scared you want people to live their lives that's what everybody was told after september eleventh but you still don't want people to forget that there are a lot of folks testimony today i'd like to yield to the gentle lady from texas for any materials that she would like to introduce into the record thank you very much  include these items in the record and ask for a response on the full investigation on the on the f b i watch list but i don't the documents that have been introduced will