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UNITED STATES DEPARTMENT OF JUSTICE

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

JUNE 6, 2001

Serial No. 37

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary

(II)

COMMITTEE ON THE JUDICIARY

F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman

HENRY J. HYDE, Illinois

GEORGE W. GEKAS, Pennsylvania

HOWARD COBLE, North Carolina

LAMAR SMITH, Texas

ELTON GALLEGLY, California

BOB GOODLATTE, Virginia

STEVE CHABOT, Ohio

BOB BARR, Georgia

WILLIAM L. JENKINS, Tennessee

ASA HUTCHINSON, Arkansas

CHRIS CANNON, Utah

LINDSEY O. GRAHAM, South Carolina

SPENCER BACHUS, Alabama

JOE SCARBOROUGH, Florida

JOHN N. HOSTETTLER, Indiana

MARK GREEN, Wisconsin

RIC KELLER, Florida

DARRELL E. ISSA, California

MELISSA A. HART, Pennsylvania

JEFF FLAKE, Arizona

JOHN CONYERS, JR., MICHIGAN

BARNEY FRANK, Massachusetts

HOWARD L. BERMAN, California

RICK BOUCHER, Virginia

JERROLD NADLER, New York

ROBERT C. SCOTT, Virginia

MELVIN L. WATT, North Carolina

ZOE LOFGREN, California

SHEILA JACKSON LEE, Texas

MAXINE WATERS, California

MARTIN T. MEEHAN, Massachusetts

WILLIAM D. DELAHUNT, Massachusetts

ROBERT WEXLER, Florida

TAMMY BALDWIN, Wisconsin

ANTHONY D. WEINER, New York

ADAM B. SCHIFF, California

PHILIP G. KIKO, Chief of Staff-General Counsel

JULIAN EPSTEIN, Minority Staff Director/Chief Counsel

(III)

C O N T E N T S

JUNE 6, 2001

OPENING STATEMENT

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress

From the State of Wisconsin, and Chairman, Committee on the Judiciary ... 1

WITNESSES

The Honorable John Ashcroft, Attorney General of the United States

Oral Testimony ..................................................................................................... 4

Prepared Statement ............................................................................................. 32

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

The Honorable John Ashcroft, Attorney General of the United States

Department of Justice 2002 FTE by Agency ..................................................... 6

Department of Justice 2002 Budget Authority by Agency ............................... 7

Department of Justice Budget Authority 1993–2002 ........................................ 8

Department of Justice Authorized Positions 1993–2002 .................................. 9

Department of Justice Grant Programs—Budget Authority 1993–2002 ......... 10

Department of Justice less Grant Programs—Authorized Positions 1993–

2002 ................................................................................................................... 11

FY2002 Budget Request Highlights ................................................................... 12

The Honorable Bob Barr, a Representative in Congress From the State of

Georgia

Letter dated May 17, 2001, from the Attorney General setting forth his

views on the application of the second amendment to citizens of the

United States .................................................................................................... 60

The Honorable Chris Cannon, a Representative in Congress From the State

of Utah

Amicus brief of the Department of Justice and the FCC Intermedia v.

BellSouth ........................................................................................................... 71

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress

From the State of Wisconsin

Letter dated February 15th to the Attorney General relative to a report

on the Federal criminal obscenity statutes and the response dated May

3rd from Cheryl L. Walter, Acting Assistant Attorney ................................. 110

The Honorable Spencer Bachus, a Representative in Congress From the State

of Alabama

Response to question on Sandoval decision ....................................................... 117

APPENDIX

STATEMENTS SUBMITTED FOR THE RECORD

The Honorable John Conyers, Jr., a Representative in Congress From the

State of Michigan ................................................................................................. 169

MATERIAL SUBMITTED FOR THE RECORD

Post-Hearing Questions and Answers .................................................................... 170

(1)

UNITED STATES DEPARTMENT OF JUSTICE

WEDNESDAY, JUNE 6, 2001

HOUSE OF REPRESENTATIVES,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The Committee met, pursuant to call, at 2 p.m., in Room 2141,

Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr.

(Chairman of the Committee) presiding.

Chairman SENSENBRENNER. The Committee will be in order.

Today, the Committee will conduct an oversight hearing on the

United States Department of Justice.

Recently, our Crime, Immigration and Claims, and Commercial

and Administrative Law Subcommittees held similar hearings focusing on the Justice Department’s budget request for 2002. Today’s hearing will build upon the Subcommittee hearings and open

our first dialogue with our new Attorney General, John Ashcroft.

I am pleased that many of the President’s initiatives are contained in his proposed budget for the Justice Department. Some of

those include new funding for the Immigration and Naturalization

Service to help secure our borders, new funding for the FBI to combat terrorism and cybercrime, and new funding for the DEA to improve its efforts to fight the scourge of drugs and violence.

Notwithstanding these priorities, I support the administration’s

decision to take a breather from the hefty budget increases that the

Department has received in the last decade. The DOJ’s budget has dramatically increased from $11 billion in fiscal year 1993 to more

than $21 billion this year. It is not clear that the Department’s

management resources have been able to keep up with the explosive funding increases. It is my intention to conduct vigorous oversight of the Department to ensure that the funds are properly

spent, that individuals responsible for managing the Department

and its programs achieve appropriate, measurable results and that

the Department’s mission is not impeded by outdated or inadequate technology.

I am concerned that the Department, which is a respected and

revered institution, has lost its way. Like the slugger who has lost

his swing, I think it is time for this new administration to focus

upon fundamentals. If the Department can’t get the basics right,

the American people will inevitably lose confidence in it, one of our

most trusted institutions.

Though the FBI may be the most capable law enforcement on the

planet, recent disclosures about troubles at the FBI have raised serious concerns. The McVeigh debacle, the Hanssen spy case, and

corruption in the Boston office and other issues indicate that there

2

are numerous personnel, management, and systems challenges that

face the Bureau.

It is time to focus on fundamentals at the FBI and today we will

ask how these fundamentals will be improved.

I want to make it clear that I respect and admire the men and

women of the FBI. Most of them are the cream of the crop, and this

Nation is safer because they are on the job. The FBI has had many

great successes, but its recent failures beg for reform. The Congress

and the administration should directly address these issues to

make the greatest investigative agency in the world even better.

Our focus should not be on the FBI alone. One of the most dysfunctional agencies in all of government is the Immigration and

Naturalization Service. They are often slow, ineffective, and wasteful. One can’t digest all the Inspector General and General Accounting Office reports on the problems that plague the INS.

This Nation is challenged by the flood of illegal immigrants and

we don’t properly serve legal immigrants. Too often the INS is part

of the problem, and hopefully we will start to hear about the solutions.

Speaking of fundamentals, I am concerned that while we have

drastically increased spending on some dubious grant programs

over the last decade, we have neglected some basic Federal law enforcement assets and resources. For example, the FBI can’t even

send e-mail across the street to folks at Main Justice.

We are told that some attorneys at the Justice Department are

working on old 286 and 386 computers that crash almost as much

as they’re up and running. Many DOJ computers still use 28.8

Baud modems to connect to various DOJ databases. Often our Federal law enforcement officers are using less sophisticated equipment than the modern-day criminal. It’s time to address these deficiencies and to bring important assets into the 21st century.

I am also concerned about the Criminal Division. It has become

a policy and managerial body and is no longer a cutting-edge litigation division. This administration must make a decision, is the

Criminal Division going to be a bureaucratic, paper-shuffling shop,

or will it focus on hard-nose litigation prosecutions. If the former,

we should cut staff and ship them out into the field where they’re

needed.

These are some of the many issues Attorney General Ashcroft

and his new team must make. It is a daunting and criminal—excuse me, a daunting and critical task.

We wish you all the best and we look forward to working with

you to ensure that the Justice Department and all of its components reach their full potential. The American people deserve no

less.

And I now yield to the gentleman from Michigan, Mr. Conyers,

for his opening statement.

Mr. CONYERS. Thank you, Chairman Sensenbrenner.

Good afternoon, Attorney General Ashcroft. I want to thank you

for being here today, and for the outreach that you have undertaken this year. I personally appreciate your consistent efforts to

maintain a dialogue with Democrats.

Now, in the most respectful terms possible, I must tell you that

at this early stage of your tenure some of the actions of the DepartVerDate 11-MAY-2000 17:09 Nov 01, 2001 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 G:\WORK\FULL\060601\72980.000 HJUD2 PsN: HJUD2
3

ment have been very troubling to me and run counter to your confirmation hearing representations that you would enforce the law

and run a Department free from politics.

First of all, I hope—and I’ve mentioned this to you before at the

Department of Justice—I hope you can find it in your heart and,

if you need to, to pray over your relationship with Ronnie White.

I have been very troubled with that relationship, and I hope that

you will keep reexamining it.

Elected officials, like everyone else in this country, deserve to be

tried in the courts and not in the press; and I am sorry to say that

when it comes to Senator Robert Torricelli, your Justice Department has been leaking like Niagara Falls. This public flogging of

that Senator appears to have increased considerably within the 48

hours of Senator Jeffords’ party switch and creating—and created

an impression, true or false, that this White House and the Justice

Department intended to use the criminal processes to perhaps retake the United States Senate.

Now, there’s one way that you can help relieve that impression,

or misimpression, and that is to follow the precedent established by

your predecessor, the Republican Attorney General Dick

Thornburgh in the first Bush administration. When the Department leaked damaging information and innuendo on a Member of

this House, he conducted a thorough investigation and, using polygraph examinations, ultimately discovered the source of these leaks

and relieved that person of those duties.

Now, this becomes especially important, given the fact that you

have previously commented on the Torricelli matter in an earlier

fund-raising letter of yours, using the unfortunate word ‘‘corruption’’ in connection with that Senator, that you sent out last year.

Anything less than a duplication of the Thornburgh investigation

will simply reinforce the perception, true or false, that the Department is using the criminal justice system to politicize in an area

that it has absolutely no business doing it.

And so I call on you today to conduct such an independent investigation, and hope that you would address these matters as you

choose in your comments this afternoon.

I’m also extremely troubled by a letter that you wrote to James

J. Baker of the National Rifle Association, and in that letter you

indicated that you believe in an individual, as opposed to a collective, right to bear arms. And in doing so, you appear to breathe life

into a Texas judge’s extreme and activist and lonely ruling that the

Brady laws prohibition on wife beaters having guns is unconstitutional under the second amendment.

We need to know whether this means that you believe the Brady

Act and assault weapons bans are unconstitutional and whether

the Department will now take that position in the Texas Emerson

case.

I’m finally troubled by the daily prayer sessions that you lead at

your Federal public office, not the ones that we, as Members, when

we have breakfast with you, engage in a prayer that you lead with

us, but I’m talking about the ones that are open, that you invite

everybody in the Department to come in and join you at; and I

wonder whether you have the sensitivity to understand what this

may be doing.

4

I’m glad that you pray. I do, too. But the way you conduct your

prayer sessions in your office creates an atmosphere where people

feel that they may be ostracized if they don’t participate. Where

there’s an unspoken rule that compatibility with their boss depends

on their participating in his faith, this could, sir, create lots of

problems and lots of confusion among the thousands of people that

work for you at the Department of Justice.

Can’t you see how some people would feel, as a result, that they

might have to choose between their job and faith?

In your confirmation hearings you said, quote, ‘‘The Attorney

General must lead a professional, nonpartisan, Justice Department

that is uncompromisingly fair, defined by integrity and dedicated

to upholding the rule of law.’’ Well, I can only hope today that we

can discuss to what extent these actions I have described live up

to those ideals.

And I thank you, Mr. Chairman.

Chairman SENSENBRENNER. General Ashcroft, would you please

rise to take the oath.

[witness sworn.]

Chairman SENSENBRENNER. Without objection, the Attorney General’s full statement will be included in the record.

And, General Ashcroft, please proceed as you will.

TESTIMONY OF THE HONORABLE JOHN ASHCROFT,

ATTORNEY GENERAL

Attorney General ASHCROFT. Mr. Chairman, I want to thank you.

It is both an honor and a privilege to appear before you and before

this Committee to discuss the programs and activities of the Justice Department. As a former Member of the Judiciary Committee

in the other House, I always am pleased to see authorizers seeking

to be a part of and establishing the purposes for which the Department is authorized.

It’s been over 20 years since the last comprehensive authorization for the Department of Justice was enacted. To put that in perspective, 20 years ago I was Attorney General of the State of Missouri. Today, I’m Attorney General of the United States. I appreciate your efforts. Progress can take time, but it is possible; and I’m

grateful for your energy and your purpose here.

The responsibility for the United States system of justice is nothing less than the responsibility for freedom. And to carry the

weight of such a responsibility is a rare privilege in the history of

human affairs. The United States Department of Justice today is

dedicated to a single proposition: the energetic enforcement of the

rule of law, including protecting the civil rights of all Americans.

Over the past several weeks, I have had the privilege of meeting

informally over coffee and orange juice with many of you to listen

to your concerns, to discuss advancing the course of justice. So far,

I think I’ve met with about half of you, and I look forward to meeting with the remaining Members in the next several weeks. I’ve

been pleased to find that many of the priorities that you have expressed are very closely related to the priorities which I believe

this administration is pursuing.

We share a respect for the rule of law and the defense of people

and property that the rule of law demands. And we share a respect

5

for the enforcement of civil rights and the cultivation of human potential that such respect permits.

As Attorney General, I have had no higher priority than protecting the civil rights of all Americans. When racial unrest erupted in Cincinnati last month, the Department of Justice responded

immediately, working with the mayor and other community leaders

to help restore calm, calm on the streets of Cincinnati and elsewhere. Our message, echoed in everything that we do at the Department, is that government judging its citizens on the basis of

their race is wrong and must not stand.

The President has asked me to assess the extent and nature of

one form of discrimination, racial profiling, and to report back to

him with my recommendations. To make good on our commitment

to improve the just and equal administration of our Nation’s laws,

our 2002 budget increases funding for civil rights enforcement to

over $100 million.

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Attorney General ASHCROFT But dollars tell only a small part of

the story, because voting rights are also a critical civil right. We’ve

sent monitors to elections in St. Louis and Federal observers to

Cicero, Illinois, to ensure that the right vote—the right to vote,

pardon me—and to preserve the integrity of the voting process,

those objectives are guarded.

Just yesterday, we dispatched six observers to monitor municipal

elections in Mississippi under the Voting Rights Act. In addition,

we carefully are monitoring both State and Federal election reform

initiatives. We’re working to help small businesses better accommodate persons with disabilities under the President’s New Freedom

initiative, and we are stepping up prosecution of those who traffic

in human beings, those who would not only traffic in them but exploit them for their labor, particularly those who bring the approximately 50,000 women and children into the United States each

year.

Another issue that has frequently come up in my conversations

with many of you is immigration reform. The President’s budget requests an additional $240 million to beef up INS enforcement activity and to help local prosecutors. The administration will also propose splitting the mission of the INS in two, with separate chains

of command reporting to a single policy official. I support splitting

the agency in two as a way to draw a bright line between the need

to deter illegal immigration and the ability to assure the millions

of legal immigrants and new citizens the smooth and orderly service they deserve. I look forward to working with Members of this

Committee as this proposal is advanced.

Looking ahead, the priorities of the Justice Department will continue to be dictated by our commitment to first principles. Gun violence, violence against women, and drug crime all threaten to deny

the most fundamental right of our citizens, the right to personal

safety.

There is no question that we need a renewed commitment to the

vigorous enforcement of existing laws addressing gun violence. The

recent incidents in our schools highlight the need for the collaboration among Federal, State, and local law enforcement agencies to

combat juvenile gun violence. We have already taken steps to accomplish this by devoting increased resources to prosecutions, developing these collaborative approaches, and by working to ensure

that child safety locks are available for every handgun in America.

And to those who despair of fighting to reduce illegal drug use,

I have a very simple message today: I don’t share the pessimism.

The Department of Justice is committed to a vigorous, sustained effort to reduce drug abuse. Our kids are too important for us to accept defeat when it comes to drugs.

Finally, I’d like to say a word about a critical need that underlies

all of these efforts protecting and promoting the integrity of our

system of justice. As you know, Attorney General Reno undertook

a review last year of the Clinton administration’s enforcement of

the Federal death penalty. Her review of nearly 700 capital cases

found that there is no evidence of any racial or ethnic bias in the

Justice Department’s decision-making process in Federal death

penalty cases.

30

Since my arrival at the Department, we have undertaken an additional study of the administration of the Federal death penalty.

We conducted an analysis of the original 700 cases and approximately 250 additional capital cases that were never submitted to

Attorney General Reno’s original review. Looking at these 950

cases, we evaluated Federal enforcement policies and practices to

determine whether there was any evidence of bias in the system

and what types of capital cases fell within Federal jurisdiction.

Later today, the Department will be releasing our full analysis

of the Department of Justice’s enforcement of the death penalty

over the past several years. Our conclusion is, as the Reno study

concluded, that there is no evidence of racial bias in the administration of the Federal death penalty.

The Reno study concluded and our analysis has confirmed that

black and Hispanic defendants were less likely at each stage of the

Department’s review process to be subjected to the death penalty

than white defendants. In other words, United States attorneys

recommend the death penalty in smaller proportions in the submitted cases involving black or Hispanic defendants than in those

involving white defendants.

The Attorney General’s Capital Case Review Committee likewise

recommended the death penalty in smaller proportions of the submitted cases involving black or Hispanic defendants than in those

cases involving white defendants. And the Attorney General made

the decision to seek the death penalty—because ultimately these

decisions are made by the Attorney General—the Attorney General

made the decision to seek the death penalty in smaller proportions

of the submitted cases involving black or Hispanic defendants than

in those cases involving white defendants. In the cases considered

by Attorney General Reno, she decided to seek the death penalty

for 38 percent of the white defendants, 25 percent of the black defendants, and 20 percent of the Hispanic defendants.

The finding that the death penalty was sought at lower rates for

black and Hispanic defendants than for white defendants held true

both in interracial cases involving defendants and victims of the

same race and ethnicity and in intraracial cases involving defendants and victims of different races or ethnicities.

The full details of this study will be available later today.

In addition to looking at statistics regarding race, today’s study

also examines and explains why the Federal Government’s interests in punishing certain types of murders, such as those committed by drug kingpins, Federal prisoners or terrorists, result in

a pool of criminal defendants being charged and tried in the Federal system. It is this category of murders that you and Congress

have identified as being grievous enough to warrant the death sentence, and it is the Department’s responsibility to protect those

Federal interests as expressed in the law enacted by Congress,

signed by the President.

I’m also announcing today some important revisions to the Department’s death penalty protocols. Attorney General Reno instituted a series of protocols designed to ensure consistency in the

treatment of death-eligible cases, and I have operated under the

same protocols since I became the Attorney General.

31

Under these protocols, in all cases charged as death-eligible

cases, the relevant United States attorney makes a recommendation to the Department. The case is then reviewed by a Committee

of career attorneys who seek input from both the U.S. attorney and

defense counsel. The Committee evaluates the facts of the case, the

Federal interest in the case, the likelihood of success, and the aggravating and mitigating factors that Congress has identified as

relevant in such cases. The Committee then makes a recommendation to the Attorney General.

The case is then reviewed by attorneys in the Department’s office, in the Attorney General’s office, and then by the Attorney

General.

The advantage of this approach is that a uniform, equal process

governs, and ultimately one person reviews all cases nationally to

ensure a consistent treatment based on the alleged conduct of the

defendants, not other factors.

As I have already noted, both Ms. Reno’s study and our own

studies have concluded that there is no evidence of racial bias in

the Department’s treatment of minorities in this system. We did

note a slight statistical disparity in the treatment of plea agreements. This is the one component of the process that is not subject

to subsequent review under the current protocols. A plea agreement can be entered into at the local level without a superintending review or analysis or evaluation at the Department of

Justice.

I am announcing today that in order to have greater consistency

in all aspects of the application of the Federal death penalty, I am

changing the protocols to require prior approval by the Attorney

General before a capital charge may be dropped in the context of

a plea agreement. I am also directing United States attorneys to

report all potential death-eligible cases to the Department so that

our data will be more complete.

In addition, to conserve the expenditure of both government and

defense resources, I am simplifying the procedure for reviewing

cases in which the U.S. attorney is not recommending the death

penalty. This will allow more attention to be given to cases where

the death penalty is being pursued. It is my hope and expectation

that this new protocol will strengthen our ability to fairly and impartially administer the Federal death penalty.

I am pleased with the studies that the Department has done. Attorneys in both the last administration and in this one have

worked hard evaluating these cases and have come to the conclusion that there is no racial basis in the way we are administering

the death penalty in the Federal system. I am confident that, like

my predecessor, Ms. Reno, this is the appropriate conclusion.

I also share her view that there is no question about the guilt

of any of the 21 individuals currently on death row in the Federal

system. They have committed grievous crimes that the people of

America, through you their elected representatives, have determined warrant the death penalty. It is my responsibility to enforce

those laws and to administer that penalty.

Still, public confidence is an essential component of the administration of justice. Accordingly, in order to ensure public confidence

and guarantee that our future efforts in the enforcement of the

32

Federal death penalty are consistent with the high standards of

fairness that are required in charging, trying, and sentencing those

accused of Federal death-eligible murders, I am directing today

that the National Institute of Justice initiate a study of how death

penalty cases are brought into the Federal system. I’m also directing the National Institute of Justice to study the effectiveness of

Federal, State, and local law enforcement in the investigation and

prosecution of murder in America and whether there is sufficient

accountability for murder, the most heinous of crimes. By understanding more about past practices in these areas, we may have an

opportunity to improve our performance in the future.

And finally, the demands placed upon our Federal Bureau of Investigation have grown dramatically in response to the sophistication and globalization of crime. At the same time, legitimate concerns have been raised with regard to the management and administration of justice at the FBI.

Two weeks ago in testimony before an Appropriations Subcommittee of this House, FBI Director Louis Freeh announced a series of reforms to improve FBI recordkeeping and document management. These reforms are a necessary step in preserving the people’s trust in our system of justice. We cannot and I will not allow

our FBI’s reputation or the reputation of any of our law enforcement institutions to be tarnished.

It is the responsibility of all of us to see that equal and impartial

justice applies to all Americans; and this is a responsibility that I

take seriously, and it’s an honor each day to serve the Nation in

respect to this objective.

Mr. Chairman, I thank you for this opportunity and I look forward to responding to the questions of the Members of this Committee.

[The prepared statement of Attorney General Ashcroft follows:]

PREPARED STATEMENT OF THE HONORABLE JOHN ASHCROFT

Mr. Chairman, thank you. It’s both an honor and a privilege to be here today to

discuss the programs and activities of the Department of Justice.

As a former Judiciary Committee member myself, I’m always pleased to see the

authorizers seeking to assert themselves. It’s been over twenty years since the last

comprehensive authorization for the Department of Justice was enacted. To put that

in perspective: twenty years ago I was attorney general of the state of Missouri.

Today I’m Attorney General of the United States. Progress can take time, but it is

possible.

I commend you for your work here today. The responsibility for the United States

system of justice is nothing less than the responsibility for freedom. And to carry

the weight of such a responsibility is a rare privilege in the history of human affairs.

Of course, the weight of my responsibilities is giving me a good workout these

days. I have inherited a department with 125,000 employees who I am meeting oneby-one, an alphabet sea of acronyms I am slowly coming to decipher, and a law enforcement mandate that is both humbling and inspiring.

The United States Department of Justice today is dedicated to a single proposition

in carrying out this mandate: the energetic enforcement of the rule of law, including

protecting the civil rights of all Americans.

Over the past several weeks I have had the privilege of meeting informally over

coffee and orange juice with many of you to listen to your concerns and to discuss

advancing the cause of justice. To date, I think I’ve met with about half of you, and

I look forward to visiting with the remaining members in the next several weeks.

I’ve been pleased to find that the priorities that you’ve expressed to me closely reflect my own priorities.

33

We share a respect for the rule of law and the defense of people and property that

it requires. And we share a respect for the enforcement of civil rights and the cultivation of human potential that such respect permits.

As Attorney General, I have no higher priority than protecting the civil rights of

all Americans. When racial unrest erupted in Cincinnati last month, the Department of Justice responded immediately, working with the mayor and other community leaders to help restore calm. On the streets of Cincinnati and elsewhere, our

message—echoed in everything that we do at the Department—is that government

judging its citizens on the basis of their race is wrong and must not stand.

The President has asked me to assess the extent and nature of one such form of

discrimination—racial profiling—and to report back to him with my recommendations. To make good on our commitment to improve the just and equal administration of our nation’s laws, our 2002 budget increases funding for our Civil Rights Di- vision to nearly $101 million—an increase over FY 2001 of 9.7 percent.

But dollars tell only a small part of the story. Because voting rights are also a

critical civil right, we’ve sent monitors to elections in St. Louis, Missouri, and federal observers to Cicero, Illinois, to ensure the right to vote and to preserve the integrity of the voting process. Just yesterday we dispatched six observers to monitor

municipal elections in Mississippi under the Voting Rights Act. In addition, we are

carefully monitoring both state and federal electoral reform initiatives.

We’re working to help small businesses better accommodate persons with disabilities under the President’s New Freedom initiative. And we are stepping up prosecution of those who traffic in human beings to exploit them for their labor, particularly

those who bring the approximately 50,000 women and children into the United

States each year.

Another issue that has frequently come up in my conversations with many of you

is immigration reform. The President’s budget requests an additional $240 million

to beef up INS enforcement activity and to help local prosecutors.

The Administration will also propose splitting the mission of the INS in two, with

separate chains of command reporting to a single policy official. I support this proposal as a way to draw a bright line between the need to deter illegal immigration

and to assure the millions of legal immigrants and new citizens the smooth and orderly service they deserve. I look forward to working with members of this committee as this proposal is advanced.

Looking ahead, the priorities of the Department of Justice will continue to be dictated by our commitment to first principles. Gun violence, violence against women,

and drug crime all threaten to deny the most fundamental right of our citizens: the

right to personal safety.

There is no question that we need a renewed commitment to the vigorous enforcement of existing laws addressing gun crime. The recent gun violence in our schools

highlights the need for collaboration among federal, state and local law enforcement

agencies to combat juvenile gun crime. We’ve already taken steps to accomplish this

by devoting increased resources to prosecutions, developing these collaborative approaches, and by working to ensure that child safety locks are available for every

handgun in America.

And to those who despair of fighting to reduce illegal drug use, I have a very simple message today: I don’t share your pessimism. The Department of Justice is committed to a vigorous, sustained effort to reduce drug abuse. Our children are too important for us to accept defeat when it comes to drugs.

Finally, I’d like to say a word about a critical need that underlies all of these efforts: protecting and promoting the integrity of our system of justice.

The demands placed on our Federal Bureau of Investigation have grown dramatically in response to the sophistication and globalization of crime. At the same time,

legitimate concerns have been raised with regard to the management and administration of justice at the FBI. Two weeks ago, in testimony before an Appropriations

Subcommittee of this House, FBI Director Louis Freeh announced a series of reforms to improve FBI record keeping and document management.

These reforms are a necessary step in preserving the people’s trust in our system

of justice. We cannot—and I will not—allow our FBI’s reputation—or the reputation

of any of our law enforcement institutions—to be tarnished. It is the responsibility

of all of us to see that equal and impartial justice applies to all Americans. And

this is a responsibility that I take seriously, and seek to honor each day of my service to this nation.

Mr. Chairman, thank you. I look forward to responding to your questions.

Chairman SENSENBRENNER. Thank you very much, General.

Before we beginning the questioning of the Attorney General, I

would like to make several housekeeping announcements. By my

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count, we have 145 minutes worth of questions if all of the Members present at this hearing utilize their full 5 minutes. The Attorney General has another engagement a little bit after 5 o’clock this

afternoon, and dividing the time that is available into when the Attorney General has to leave will require the Chair to strictly enforce the 5-minute rule. So everybody on both sides of the aisle

should be on notice that when the red light goes on, we have to

move on in order to allow everybody who is here to ask some questions.

Secondly, as the Attorney General has mentioned in his statement, it has been over 20 years since the Department of Justice

has been authorized by law. That is clearly unacceptable, and the

Committee will consider an authorization bill soon. This bill will

largely address budgetary, administrative, and management issues.

A draft bill has been circulated to the minority and to the Department, and there has already been one bipartisan staff meeting on

this legislation and there undoubtedly will be more.

To facilitate the Committee’s understanding of the Department’s

needs, we will be submitting questions for the record in two groups.

I would request that all Members on both sides of the aisle submit

to Mr. John Mautz, who is seated to my right, questions regarding

the budgetary, administrative, and management issues no later

than the close of business tomorrow, Thursday, June 7, 2001. We

will ask the Department to expedite its responses to those questions so that the Committee may have the benefit of the answers

prior to the markup on the authorization bill.

All other questions should be submitted to Mr. Mautz no later

than the close of business, Monday, June 11, 2001. I appreciate all

Members’ attention to this request. Questions submitted after

these deadlines will not be presented to the Department nor included in the record.

This relatively quick time line is necessitated by the fact that we

wish to be able to mark up an authorization bill and get this Committee’s oar in the water before the Appropriations Committee decides to do this work for us. So I would hope that the Members

would cooperate with the time deadlines.

And now I’ll begin the questions by yielding myself 5 minutes.

General Ashcroft, I am delighted to hear of the administration’s

once-again report that we do intend to receive legislation reorganizing the Immigration and Naturalization Service and that there

will be a budget increase of approximately $240 million to the INS,

largely channeled toward better enforcement of our borders, which

is something I support. However, I am concerned that the service

function, or the paperwork function, in processing the petitions

filed by those wishing to comply with our laws will be treated as

a stepchild in terms of the budget for this reorganized agency.

I have two questions. First, when can we expect to get the legislation splitting the INS in two; and second, what does the administration propose to do so that the INS has enough money to professionally and speedily deal with the petitions that it receives from

those people who seek legalized status?

Attorney General ASHCROFT. I am not able to tell you an exact

date upon which we would be prepared with a proposal. As a matter of fact, I think it would be appropriate for us to confer together

35

about a proposal. The expertise of the Members of this Committee,

particularly some that have invested themselves thoroughly over

the course of decades in evaluating this, is an important component

of a plan.

The President has clearly recognized the need to separate the

functions, because I think there is a sense that those who are legitimately in the country and are awaiting process and the change

of their status are frequently at the end of a very long line. That’s

simply one of the problems. So I can pledge to work closely with

you.

We are hoping to have a new Director of the INS, whom we

would like to involve in helping report the participation of the

Agency in the development of the proposal for reform; and we are

eager that his nomination be made complete and that his confirmation place him in a position to assist us with this understanding.

You know, the President has stated targets about moving the time

for processing cases downward, because he understands the very

serious dislocations in the lives of individuals; but I cannot give

you a specific date upon which we would provide legislation. We

would like to do that in conjunction with those of you that have expertise here.

Chairman SENSENBRENNER. What about the budget question?

Will there be an appropriate increase in the resources for the service end of the reorganized INS, as well as in the enforcement end?

I think you would find support on both sides of the aisle for more

money for both.

Attorney General ASHCROFT. Well, the backlog is a major priority

for the administration. We need to welcome immigrants with something other than a big line, and this requires $100 million in funding for the year, fiscal year 2002, with similar funding devoted to

the effort in the years, fiscal years 2003 through 2006. In fiscal year 2002 a program enhancement of $45 million is re- quested. This request, combined with the $35 million in base funding and $20 million in fees, would provide INS with the first installment of the 5-year $500 million initiative to obtain a universal

6-month processing standard for immigration applicants and petitions.

Frankly, that’s a very ambitious aspiration, but it’s the kind of

aspiration that we ought to have. We have people who are simply

being displaced in their lives unduly because of the delays now. So

the funding request is made in the budget submission, and I believe it is important to have the separation in the agencies so that,

as a matter of fact, we don’t have an inordinate devotion of resources to enforcement and an inadequate devotion of resources to

service.

Chairman SENSENBRENNER. My time has expired.

The gentleman from Michigan, Mr. Conyers.

Mr. CONYERS. Thank you, Mr. Chairman.

I am very sorry that you couldn’t have sent up the death penalty

study before you decided to come here and announce it. Not one

Democrat on this Committee has seen or heard anything about it.

So this unilateral presentation, which doesn’t include any data on

State death penalty matters, where most of the executions take

place—and incidentally, I remind you that there is a constitutional

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question that the Department of Justice has affirmed—instructed

us years ago, and so this unilateral presentation means nothing to

me, nothing till we see it. It’s an unfair way to present a matter

as serious as the death penalty.

Now, I hope that you can think about your relationship with

Ronnie White. That’s a Department of Justice matter that the Attorney General is responsible for.

Now my next question to you is, have you or any member of your

staff ever discussed Senator Torricelli’s case with anyone employed

by the White House, a Republican Senator, a Republican Congressman or his or her staff, or any employee of the Republican National

Committee?

Attorney General ASHCROFT. Congressman, shortly after I became Attorney General of the United States, I recused myself from

any involvement in the Torricelli matter. The reasons for that I

think are pretty well understood. I served with the Senator in the

United States Senate, and as a result, I don’t have any responsibility as it relates to that matter.

The matter is undertaken and conducted by a U.S. attorney who

is a holdover from the previous administration, and any inquiries

regarding that matter and any decisions regarding that matter will

have to be reached and made by——

Mr. CONYERS. Mr. Attorney General, can you answer this question yes or no?

Attorney General ASHCROFT. Have I ever mentioned the

Torricelli matter to anyone else? Yes. I just mentioned it to you

here in the Committee; and obviously I’ve mentioned it to people

when I was a Member of the Senate when the item—items have

come up.

Mr. CONYERS. Now, did you remember me asking you if you had

any contact with anybody in the White House about this matter,

or your staff having any contact with anyone in the White House

about the matter?

Attorney General ASHCROFT. I do remember you asking me that.

Mr. CONYERS. And what is your response?

Attorney General ASHCROFT. I don’t know.

Mr. CONYERS. You don’t know. Can you find out?

Attorney General ASHCROFT. I don’t know whether I can find out.

Mr. CONYERS. You don’t know whether you can find out.

Attorney General ASHCROFT. That’s correct, sir. You’ve asked.

Mr. CONYERS. Okay. That’s fine. That’s all I need to know.

Now, this is the May 27th New York Post article, ‘‘Torch is

Toast, Feds, We have enough evidence to indict New Jersey Senator Torricelli,’’ dated Sunday, May 27, 2001. Now, it quotes a Justice Department investigator saying, ‘‘We’re going to indict him

soon.’’

This appears, Mr. Attorney General, to violate rule 6(e) of the

Federal Rules of Criminal Procedure. Are you aware of that?

Attorney General ASHCROFT. Am I aware of rule 6(e)?

Mr. CONYERS. And will there be an investigation about this matter?

Attorney General ASHCROFT. I will direct any requests for anything related to the—to the matters you have indicated to those in

the Justice Department whose responsibility it is to address these,

37

in light of my recusal which took place shortly after I became Attorney General.

Mr. CONYERS. Boy, oh, boy.

Chairman SENSENBRENNER. The gentleman’s time has expired.

The gentleman from Illinois, Mr. Hyde.

Mr. HYDE. Thank you, Mr. Chairman. I have no questions. I just

want to congratulate General Ashcroft on becoming Attorney General and for your very prudent selection of staff that I see behind

you. Thank you.

Chairman SENSENBRENNER. Well, I may quarrel with that since

that was mostly the staff that I inherited.

The gentleman from California, Mr. Issa.

Mr. ISSA. Thank you, Mr. Chairman.

And thank you, General Ashcroft, for being here. As a former

Senator and in my own role as somebody who once aspired to that,

I assure you I will not take you through the confirmation process

a second time today.

The question I have really centers around much of what your

presentation was, but maybe a different angle on it. The whole

question of racial profiling, I think, is something that you have

spearheaded from day one, and I know the President has shown a

keen interest in really working on significant reform; and I want

to thank you both for that. But I want to lead you down a little

different avenue than you may already be going down, and that

has to do directly with my territory and with some life experiences

that I’ve had and that others around me have had.

As you know, it is appropriate for the Border Patrol to have some

leeway in their process; but excluding the border activities at the

border, it would seem that it is unacceptable to use racial profiling

to decide whom to stop among citizens and noncitizens alike here

in America, and I have two examples for you here today.

First of all, as you may know, I am an Arab American, so this

one hits very close to home. February 12, 1997, a report that came

from the White House, signed by the President, that is often called

‘‘the Gore report’’; and it specifically is titled ‘‘Airline Safety′′—actually, ‘‘Commission on Aviation Safety and Security′′—as I say,

known as the Gore report, and it seems to have been the catalyst

for this first event.

A certain individual, whose name Nabil Shurafa, S-H-U-R-A-FA, 18-year-old high school student going from—on a Northwest Airlines flight from Cincinnati to conduct a rowing—high school rowing national event, was pulled off, removed from the flight, his bags

searched and the only answer he was ever given, this was an

American, son of a physician, on a domestic flight, was that he fit

a profile.

This isn’t an isolated incident.

The next example is probably more directly related to my district. My district has two checkpoints, each approximately 70 miles

inland from the U.S.-Mexico border along two major freeways, the

I-5 and the I-15. This carries millions of passengers per year. These

checkpoints, although constitutional, and have operated for many,

many years are now routinely used in the process of racial

profiling.

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This wouldn’t be brought home as clearly as it has been if I myself hadn’t been stopped and if both my Hispanic district manager

and my Asian district manager didn’t find themselves more routinely stopped than others. They’re stopped because they fit a profile, a profile that does coincide with many of the most common illegal entrants to our country, but also coincides with much of the demographics of southern California and many of the people whom

I have worked with for years and who have worked for me and my

company.

I know the President has asked you—has sent a directive to

begin checking on racial profiling in the Departments of Treasury,

Interior, and Justice and I would hope that that report would be

the beginning of your investigation into ways to enforce our laws,

including border-related laws, but at the same time respect that

once someone is here, citizen or not, and is well inside our borders,

they should enjoy the same constitutional rights of not being unreasonably detained simply because they fit a given name or given

color of their skin.

And I would like to leave the remainder of the time for you to

comment on any part of my question, because I think you deserve

that opportunity.

Attorney General ASHCROFT. Well, first of all, I thank you for

bringing this matter to the attention of not just the Justice Department.

For the American people, the checkpoints that are interior to the

country do play a key role as a second line of defense and a deterrent to illegal immigration. But, you know, my view is that we

need to find ways to avoid profiling, period, racial profiling. And

some people might say, well, it’s tougher to enforce the law.

Well, it may be tougher to enforce the law, but we have got to

respect people for who they are and what they are, not for their

ethnic identity; and I believe that it’s wrong to racially profile as

basis for law enforcement. We will do what we ought to do and

what is necessary to address the issue.

Part of the studying that we’re doing now is to study what’s happening in the Federal community. And, you know, the President

has asked us and asked you to be involved in developing the right

information about what’s happening in the non-Federal community.

But we take care of the Federal community items first, and we will

work hard to do that. We need to both in a racially neutral environment for enforcing our laws, immigration and otherwise.

Chairman SENSENBRENNER. The gentleman’s time has expired.

Mr. CONYERS. Mr. Chairman, can Mr. Frank go?

Chairman SENSENBRENNER. The gentleman from Florida Mr.

Wexler.

Mr. WEXLER. I would be happy to—okay.

Mr. Attorney General, I too want to welcome you to the Committee, and first, I would like to express my sincere appreciation

to you and the manner in which you have exercised your responsibility with respect to the McVeigh case. I think for this, the delay

and the confusion has created an enormous, tortuous degree of tension with respect to the families, but I think your conduct of the

case in a cautious but forthright manner to achieve the finality of

justice with respect to McVeigh is greatly appreciated by an overVerDate 11-MAY-2000 17:09 Nov 01, 2001 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6601 G:\WORK\FULL\060601\72980.000 HJUD2 PsN: HJUD2
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whelming number of Americans, even though they may ultimately

have questions about the death penalty itself.

If I could ask my question, however, on a different matter, I am

privileged to represent Palm Beach and Broward Counties in the

State of Florida. This week, through the final draft document, as

it has been reported in the Washington Post and other news organizations, the United States Commission on Civil Rights has concluded, at least in that draft final document, that the conduct of

the Florida 2000 presidential election was marked by, and I quote,

‘‘injustice, ineptitude, and inefficiency.’’ and I think the statistic

that stands out that should quantify for all Americans the extent

of that injustice and ineptitude is the fact that 54 percent of the

votes, 54 percent of the votes that were rejected during the Florida

presidential election were cast by African American voters, even

though African American voters only account for 11 percent of the

votes in Florida.

So 54 percent of the discarded votes were African Americans,

even though they are only 11 percent of the voting population.

It’s my understanding that the Commission chairperson, Mary

Frances Berry, will ask you, as the Attorney General, to investigate

whether the obstacles encountered by minority voters in the Florida 2000 presidential election constituted a violation of their 1965

Federal Voting Rights Act; and I was wondering if you could commit to the Committee today on what actions you will take to follow

the investigation of the United States Commission on Civil Rights.

Attorney General ASHCROFT. Well, first of all, let me say that I

think the right to vote is at the very core of who we are as a nation

and as a people, and it is a right that inures to every American.

And it’s a matter of great concern to me and the Department of

Justice that we provide every assistance to making sure that right

is realizable by each citizen.

There were a number of allegations that were delivered to the

Department of Justice at another time. And I believe it is public

information that we have, and I hope I am not stating the wrong

number. I am under oath so I’m trying to speak carefully. I think

we have 12 investigations that remain open at this time, so that

we are in the process of responding to allegations about the last

election.

I will be very pleased to get a copy of the report when it is released and to evaluate it, and I will pledge that the Department

of Justice will cooperate to seek to enforce the law and to assess

compliance with the law in accordance with its responsibilities to

enforce the law and to require compliance with the law.

Mr. WEXLER. Is the Department investigating the process in

which hundreds, actually thousands, of people were purged from

the voter registration lists in Florida?

Attorney General ASHCROFT. I’m not at liberty to define the nature of the investigations of the 12 investigations that are under

way.

Mr. WEXLER. Well, would you agree that in general—in general,

then, that if there were allegations that people in any State were

inappropriately purged from the voting registration rolls before a

Federal election, and that then the United States Commission on

Civil Rights found that to be a problem, that that should be an

40

area in which a United States Attorney General should investigate?

Attorney General ASHCROFT. That would be a matter of great

concern to me, and violating the law in that respect would certainly

be a basis for and should prompt an Attorney General to look into

it.

Mr. WEXLER. Thank you very much.

Chairman SENSENBRENNER. The gentleman’s time has expired.

The gentleman from Florida, Mr. Keller.

Mr. KELLER. Good afternoon, General Ashcroft. I too am from

Florida. I think the election came out okay myself.

Let me begin by just saying that in my view, my humble opinion,

I think you are about the single most qualified person ever to hold

the position of Attorney General in our history, and I very much

appreciate your willingness to take on this challenging job, first;

and second, to come here before this Committee and subject yourself to tough questions from folks much like me. So I appreciate

your hard work.

The first question has to do with cable television in Federal prisons. Currently, Federal prisoners, including violent criminals like

Timothy McVeigh, enjoy perks like cable TV and HBO. The taxpayer money pays for the basic cable portion, and the prisoners can

team money that pays for the HBO Showtime portion. The source

of this is the Federal Bureau of Prisons own Web site, bop.gov.

I personally believe that this is a waste of taxpayer dollars, and

I’ve filed a bill called the No Frills Prison Act to stop it.

My question to you is, would you review the Federal Bureau of

Prisons rules and regulations on this matter to determine if using

money for cable TV for these Federal prisoners is an efficient use

of taxpayer dollars?

Attorney General ASHCROFT. Well, I thank you for your question,

and I’m sensitive to the—to the issues you raise.

I would always be willing to review the expenditures of the Bureau of Prisons with a view toward assessing whether or not they

achieve the objectives that we want to achieve in our prison system; and as a result, that would be true about whether or not we

have the right opportunities for information and, quote, ‘‘entertainment.’’ I don’t think of our prisons as entertainment centers, and

appreciate your remarks.

Mr. KELLER. The second area I want to chat with you about, my

final area, has to do with civil lawsuits brought by the Department

of Justice against major employers such as Microsoft, Wal-Mart.

A few days ago, May 25th, the New York Times reported that the

United States Government brought a landmark lawsuit against

Wal-Mart, and essentially what happened is, Wal-Mart is a retailer

that sells exercise equipment—doesn’t have anything to do with

making it or manufacturing it or designing it—and evidently the

equipment was somehow defective, and the U.S. Consumer Product

Safety Commission, through the Department of Justice, filed this

landmark suit saying even the retailer, this major employer, should

pay, as a result of these injuries, certain fines.

I’m concerned about this type of suit in light of the fact the Department of Justice complains they don’t even have the money to

enforce criminal laws and, yeah, now they’re bringing suits against

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major employers that provide hundreds of thousands of jobs. I

talked to the Wal-Mart folks, and they said they found out about

this through the press conference. They weren’t even told about

this before they heard it from a reporter.

So my first question is, in the future, what policy, if any, will you

establish to ensure that at least defendants find out about lawsuits

from the Department of Justice rather than from a news reporter?

Attorney General ASHCROFT. I thank you for bringing this matter

into the arena of discussion. I find it—what we want to do in the

Justice Department is to help provide a context for justice in the

culture, and we need to help people avoid injuries. But I think we

need to cooperate whenever we can to do that, and to the extent

possible I think it’s important for us to indicate to companies that

we are displeased in some measure with their performance as it

would relate to the legal requirements they have and to do so in

a way which allows them to be responsive. So I would look forward

to providing information to individuals in advance of their finding

out about matters like this from the news industry.

Mr. KELLER. Well, this is kind of a precedence-setting suit by the

press release put out by the government. This is the first time,

they brag, they have ever sued a retailer who didn’t have anything

to do with the manufacture of the product. And I’m wondering

what process, if any, will you follow to ensure that these type of

precedent-setting lawsuits against businesses are given the proper

level of review and approval within the Justice Department before

they’re filed.

Attorney General ASHCROFT. Well, I just have to indicate to you

that the review of lawsuits filed by the Justice Department normally takes place under the direction and leadership of the Assistant Attorneys General who are appointed by an administration,

and to date we have some of those confirmed and in place by the

United States Senate. And, regrettably, there are still a number of

areas in our Department that are not supervised by such individuals confirmed by the Senate as a result of Presidential appointment.

Chairman SENSENBRENNER. The gentleman’s time has expired.

The gentleman from Massachusetts, Mr. Frank.

Mr. FRANK. General, one of the most important things Bill Clinton did for human rights was to reverse a 40-year-old policy that

said if you were gay or lesbian you could not get a security clearance. He issued an executive order that changed that. And I—you

and I have had a chance to discuss this some before, but I did

think it was important to make it clear publicly.

When you testified at the confirmation hearing you said that you

were unfamiliar with that particular issue, and you then did clarify. I would like to ask you to do this now, because it’s very important for all the people—security clearance doesn’t just apply to people who work in the Federal agencies that deal with security but

for private sector companies that work with them. We’ve had a history of people being subjected to very intrusive questions.

And I should note I’ve checked with the intelligence people, we

have no cases that I’m aware of where people betrayed the country

because they were gay or lesbian. Indeed, as I have reviewed the

major cases of espionage, the people who committed it were all hetVerDate 11-MAY-2000 17:09 Nov 01, 2001 Jkt 000000 PO 00000 Frm 00045 Fmt 6633 Sfmt 6601 G:\WORK\FULL\060601\72980.000 HJUD2 PsN: HJUD2
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erosexual. I draw no inferences about heterosexuals based on that,

I want to assure people, but I just mention that as a fact.

So I would ask you, could you now reaffirm that the policy of the

United States Government will continue to be that sexual orientation will not be a reason for denying someone a security clearance?

Attorney General ASHCROFT. Congressman Frank, during my

confirmation hearings I did say as Attorney General I would not

make sexual orientation a matter to be considered in hiring or firing and that I would continue the policy of the previous administration regarding the sexual orientation of all employees and potential employees; and I confirm that.

The Department of Justice, the FBI, and every other component

of the Department does not now discriminate on the basis of race,

color, religion, sex, national origin, disability or sexual orientation.

The sexual orientation of a candidate for employment is not a condition upon which weight is given in the Department of Justice or

in any of its components.

Mr. FRANK. Thank you, General, but I’m not quite persuaded to

apply for a position. But I am glad to hear that.

I would like to make it explicit, though, that that also includes

security clearance, because security clearance does cover not just

simply employees of the Federal Government but people who would

be the employee of an architectural or engineering or other firm

dealing with DOE or DOD. So is that part of the policy also being

continued?

Attorney General ASHCROFT. There has been no change in policy.

I have ordered none and have no intention of ordering any.

Mr. FRANK. So the sexual orientation will not be a reason, absent

some other complicating factor, to deny a security clearance.

Attorney General ASHCROFT. The policy remains unchanged, and

I have no intention and will not change it.

Mr. FRANK. That is the policy. A ‘‘yes’’ would make a lot of

people—— Attorney General ASHCROFT. Yes.

Mr. FRANK. Thank you, General.

The next question has to do with immigration. You inherit a policy that’s more, I think, the fault of the Congress of the United

States than anybody else, but I hope we could collaborate in changing it. We have people who are in prison, in effect for the rest of

their lives, because we cannot deport them to a country that will

accept them. That is, there are people, some of whom committed

minor crimes, some of whom—and I was discussing these yesterday

with my colleague from Florida, Mr. Diaz-Balart. Some of the

marielitos who are fleeing the oppression of Castro because of some

problem cannot be sent back to Cuba, face lifetime imprisonment.

That seems to me, of all the things we, the United States Government, do, one of the least justifiable. Could you agree that we

should be working together to find a way to release from lifetime

detention people who have never committed a crime that remotely

justifies that degree of detention and are in prison in large part

simply because there is no country that can take them back?

Attorney General ASHCROFT. I can, and I’m grateful for your sensitivity to this. I think it’s something that shocks the conscience of

individuals. There are about 3,000 long-term detainees in INS, if

43

I’m not mistaken. I hope I have the numbers right. A little less

than 400 of them have committed no offense.

Now, there is a process for INS to evaluate them in terms of

whether they would stay in touch with INS if they were released.

There is a release process. But, very frankly, no pun intended, Congressman Frank, I would welcome the opportunity to work on this.

Mr. FRANK. Thank you. I will hope to work with you.

Last point. You won’t have time to answer, but the Justice Department through the FBI was forced to admit that an agent of

this government, an FBI agent, misled a Federal court in a way

that led to the harsh incarceration of Wen Ho Lee. Now that’s acknowledged, that an FBI agent gave false testimony. We don’t

know whether it was his fault or somebody else that misled him.

I twice spoke to Mr. Freeh and was disappointed, frankly, to get

a kind of runaround.

There needs to be some accountability for this explicit and acknowledged misrepresentation regarding Wen Ho Lee. The FBI is

in total control of the facts. It happened well over a year ago, and

I hope that you will direct the FBI to deal with this because it is,

in fact, very important.

Attorney General ASHCROFT. Thank you.

Chairman SENSENBRENNER. The gentleman from Texas, Mr.

Smith.

Mr. SMITH. Thank you, Mr. Chairman.

Mr. Attorney General, I’d like to use my first question to try to

dispel a myth and it is this: To the best of your knowledge, isn’t

it true that a nonviolent first-time drug offender who has been apprehended with a very small quantity of drugs simply never goes

to prison? The myth is that a lot of people are in prison today who

are first-time offenders with small quantities.

Attorney General ASHCROFT. I tend to, while under oath, hesitate

to make sweeping generalizations that they never go to prison. So

I would say it would be rare, at least in a lot of jurisdictions, for

the first offender in these settings to do prison time.

Mr. SMITH. So it could be rare. It would be the exception.

Attorney General ASHCROFT. Including the Federal system.

Mr. SMITH. Thank you.

Mr. Attorney General, the last administration made little or no

effort to prosecute distributors of obscene materials. In fact, I’m not

aware of a single case that was prosecuted. Does your Department

and is this administration going to have a different record from the

last administration?

Attorney General ASHCROFT. Well, I would indicate to you that

I believe that the laws of this country are to be enforced. One of—

my confirmation has been mentioned on several occasions here

today. And one of the things, the commitments that I was asked

to make in my confirmation hearing was would I enforce the laws

of the land. I committed to do that. I think it’s an honor and a

privilege to do that. I would expect to do that in regard to those

laws and other laws, because I don’t believe it’s the job of the Attorney General to pick and choose.

Mr. SMITH. Well, since the last administration had virtually no

record, would you expect to have a better record?

Attorney General ASHCROFT. I would hope.

44

Mr. SMITH. My next question goes to what we might refer to as

a Federal Project Exile. Would you support a law that Congress

would draft that would mandate jail time for anyone convicted of

a crime who used a weapon or possessed a weapon during the commission of that crime?

Attorney General ASHCROFT. Well, as you well know, the Project

Exile was based on the enforcement of a Federal law that had

those kinds of provisions in it. Whether it would be exactly the

same as another proposed law to carry toward those objectives, obviously it would remain to the details. But it’s my belief that when

the Federal Government cooperates with State and local authorities to focus on gun crime that we can reduce violent gun crime

substantially in our culture.

The President has announced a Safe Neighborhoods program

which is designed to encourage U.S. attorneys in the Justice Department to work with local authorities to first partner with them

and then to plan strategically to isolate areas where there’s lots of

gun crime and to find ways between the enforcement agencies— State, Federal and local—to prosecute gun crime and to make sure

that there is real time done and, thirdly, to communicate through

the community that this is the policy so that it becomes understood

by the various elements, including the criminal element, that if you

do the crime, you’re going to do time.

I think that’s effective, and I support that concept. The President’s allocating substantial resources to it in terms of the next

budget, and we need to reduce violent gun crime in the culture.

The freedom to be free from injury in one’s person as a result of

the use of guns by criminals is a major freedom that is to be protected by the Justice Department.

Mr. SMITH. Mr. Ashcroft, I have two more questions. One is that

you mentioned a while ago there was no racial bias in the Federal

death penalty cases. I am just curious, what is the explanation for

the higher percentage of whites who are convicted versus minorities?

Attorney General ASHCROFT. Well, the entirety of the report will

be available. The statistical analysis is substantial. These were

carefully done studies undertaken both by this administration in

terms of the last 250 cases, the previous 700 cases were the subject

of an analysis and report undertaken by the last administration.

Mr. SMITH. The point again is that there is no bias one way or

the other, to the best of your knowledge.

Attorney General ASHCROFT. In terms of charging death-eligible

crimes, it appears that more frequently whites are charged than

blacks in asking for the death penalty. In those death-eligible

crimes, it appears that whites are charged more than blacks or

Hispanics; and it also appears that this is true whether the crime

is white on black or black on black or black on white. So that there

is a substantial basis for confidence that at the Federal level—and

Congressman Conyers pointed out that this study does not purport

to address the State level where most of the prosecutions for deatheligible crimes take place, but at the Federal level there is an absence of any evidence of bias or racial discrimination.

Mr. SMITH. Thank you for your answers.

Chairman SENSENBRENNER. The gentleman’s time has expired.

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The gentlewoman from Wisconsin, Ms. Baldwin.

Ms. BALDWIN. Thank you, Mr. Chairman.

To keep within the Chairman’s strict enforcement within the 5-

minute rule, I would ask unanimous consent to be able to submit

follow-up questions for answer.

Chairman SENSENBRENNER. Without objection, pursuant to the

deadline announced at the beginning of the questioning.

Ms. BALDWIN. General, my question is in regard to mergers and

consolidation in agriculture, something that is of great concern to

me and the constituents I represent.

Last session former Indiana Congressman Ed Pease and I asked

former Judiciary Committee Chairman Hyde for a hearing on this

issue, and it was a very informative hearing and something that

I hope we will continue to look at in this Committee. But, as you

know, more and more segments of agriculture are facing increased

market concentration.

For example, according to the University of Missouri, which annually reports on these matters, four corporations control approximately 80 percent of the beef packing market. Farmers in all commodities are increasingly finding that they can sell their product

to only a few companies, which drastically reduces a farmer’s market power.

As you know, a farmer’s produce is unique. Food is a human necessity, and most farmers can’t withhold products from the market

in an attempt to increase demand and price for their commodity.

Their products have a limited shelf life without processing.

In many sectors, farmers are dependent on processors to add

value to their product. In these instances farmers cannot sell directly to their retailers. They can’t cut out the middlemen because

their commodity must be processed to have worth to the ultimate

consumer. Because the farmer is dependent on the processor and

because agribusiness has become so consolidated, farmers are now

at the mercy of agribusiness to give them a fair price, and they

have nowhere else to go.

General, I know that you are concerned about this issue also.

The U.S. introduced the Fair Play for Family Farms in the Senate

last year, and one of the provisions of your bill would have added

a new position of Assistant Attorney General for Agricultural Competition within the Department of Justice who would have been responsible for agriculture-related antitrust matters.

My questions are, do you still feel that the Department of Justice

needs such a position created to be able to adequately enforce agriculture antitrust matters? If not, why not? And, on a related note,

I would be interested in your opinions on what additional authority

the Department of Justice needs to assist in their oversight of

the—assist the Department of Agriculture in their oversight of the

Packers and Stockyards Act.

Attorney General ASHCROFT. I thank you very much for the question. It reflects a series of concerns that I was accustomed to articulating when I served in my prior incarnation on the other side

of the Capitol, and in many respects it emphasizes the need for a

perspective on the part of the Department of Justice that looks upstream to producers as well downstream to consumers when we

come to the point of agricultural mergers.

46

I think there is a responsibility to do so and I have spoken to

those who are responsible and in charge of the Antitrust Division

in the Department of Justice to indicate and to confirm with them

that I want upstream analysis as well as downstream projections

so that producers are adequately regarded in any proposed mergers

or acquisitions that could consolidate further the industry.

We have, pending Senate confirmation, a new Antitrust Division

Chief and I can commit to you that I will make clear to the Antitrust Division Chief who is to take charge that I expect that to be

a part of his considerations. Those who are running the Antitrust

Division now have committed to me that that is a part of their consideration. So that each person in the Division that evaluates

mergers and acquisitions is evaluating with that in mind.

I should add that there is a person that I maintain, as designated in the Department, to look at those aspects of agriculturally related mergers and acquisitions, and his name is Mr. Doug

Ross. His specific responsibility is the—is to develop this awareness

and maintain and help the Division understand the need for upstream as well as downstream analysis when it comes to mergers

and acquisitions in agribusiness.

My time is up, but let me just say one other thing. I’m eager to

participate with the Department of Agriculture in terms of making

sure that the Packers and Stockyards Act is adequately enforced.

Some of the governmental reporting in recent times has indicated

that there hasn’t been the kind of complete and vigorous enforcement of that Act which might otherwise relieve some of the distress

for America’s farmers.

Chairman SENSENBRENNER. The time of the gentlewoman has expired.

The gentleman from Ohio, Mr. Chabot.

Mr. CHABOT. Thank you, Mr. Chairman; and thank you, Mr. Attorney General, for appearing before us this afternoon.

As you mentioned in your opening statement and as we’ve had

an opportunity to discuss recently, there has been some very unfortunate racial unrest in my district in my hometown of Cincinnati,

and the entire community has been deeply troubled by these

events. As you know, some national media reports have suggested

that the problems stem from the Cincinnati police being involved

in the deaths of 15 African American suspects since 1995. However,

they generally fail to mention that the vast majority of these incidents involved suspects wielding weapons and threatening police.

According to a story written by Derek Deplege in the May 20th

edition of the Cincinnati Inquirer, six of the suspects were armed

with guns, another took an officer’s gun away and shot another officer, one was armed with a knife, one wielded a brick and charged

the police with the brick, another threatened a police officer—in

fact, took a swing at the police officer’s head with a board containing protruding nails, and two other incidents involved suspects

in cars, one of which tragically dragged a Cincinnati police officer

to his death less than a year ago. It was back in September of last

year. And I raise this issue because I’m hopeful that the Justice

Department will proceed in a fair and open-minded manner, carefully reviewing the facts in each of the cases while conducting the

investigation in a cooperative manner.

47

I recognize that you made a commitment to this cooperative approach back on May 7th of this year, just about a month ago, when

you issued a statement announcing that the Justice Department

had opened a pattern of practice investigation of the Cincinnati Police Department and that the Justice Department will provide Cincinnati with expert technical assistance on how to best reform their

policing practices. You said the Justice Department’s focus will be

on assisting the City to solve its problems and rebuild trust among

citizens of Cincinnati and that the Justice Department will work

cooperatively with the City to institute policing reforms as quickly

as possible.

An official in the Justice Department Civil Rights Division was

quoted in the Cincinnati Inquirer saying, ‘‘We are trying to create

a new emphasis on cooperation.’’ And went on to say that ‘‘I think

cooperation is a much better way to proceed rather than an adversarial way.’’

From what I know and from what I’ve read about the pattern of

practice investigations conducted by the Justice Department’s Civil

Rights Division under the previous administration, such as the investigations into Pittsburgh and Steubenville and Columbus, Ohio,

those police departments, those investigations were conducted in a

more adversarial manner. So your stated approach is something

new.

Now, I have several questions. How does the Civil Rights Division intend to implement these changes? And will the Division notify the City and the Cincinnati Police Department of its findings

as the case proceeds during the investigative process? Will the City

be given a chance to voluntarily make changes to its policies without being bound by a consent decree?

And additionally in your opening statement you had said that

protecting the civil rights of all Americans is a priority and referred to your Department’s actions in Cincinnati.

First, I want to state that I strongly agree with you, as I know

all the people in Cincinnati do, that protecting civil rights should

be a top priority; and no citizen should be judged on the basis of

their race. I’d like you to clarify, however, one point. You did not

mean to imply, did you, that you or the Justice Department have

reached any conclusion in this matter or that you’ve determined

that anybody’s civil rights have been violated or that you believe

it’s the policy of the City of Cincinnati to judge people based upon

their race?

I’d appreciate your response; and, again, I really do appreciate

you being here this afternoon, Mr. Attorney General.

Attorney General ASHCROFT. I thank you.

When we investigate, we have a responsibility to investigate fairly without preconceived notions. And our intention is to try and do

everything we can to provide what’s necessary for good communities to operate, and that’s a basis of trust between the law enforcement community and the citizens. And we can’t do that if we

go in with preconceived notions or prejudice about guilt or innocence or other kinds of prejudgments. So I want to assure you that

I’ll do everything I can to make sure that we conduct the business

of the Department of Justice in a way which is based on facts and

48

circumstances and the truth, and I thank you for your commitment

to that.

Let me just indicate quickly that fixing the blame is one thing

you can do. I think that’s a responsibility from time to time for the

Justice Department. But fixing the problem is what we really all

ought to be about, and I think we can do that if we cooperate. And

one of the things I want to instruct for the Division is that when

we come to a problem, instead of stacking it up to be revealed later

at the end of 2 years in a report, we say let’s talk about this problem and see how it can be remediated immediately, and let’s work

as quickly and thoroughly as we can to solve problems.

I would hope that Cincinnati becomes a model. This is a dream,

an aspiration for restoring trust between the citizens of the community and those who are responsible for the community. It would

be a wonderful way for us to begin our effort together.

Chairman SENSENBRENNER. The gentleman’s time has expired.

The gentleman from California, Mr. Berman.

Mr. BERMAN. Thank you.

Mr. Attorney General, the President has said during the campaign that, while he was opposed to a blanket amnesty, he had a

very positive view of legal immigration and understood many of the

specific situations that occur and essentially staked out a position

different than some in his party had taken over the past 5 years

on key legislative efforts. Since he has become President, since

you’ve become Attorney General, relatively little attention has been

paid to four or five actions that you have taken which I think deserve our appreciation and heartfelt thanks and I think are consistent with the tone the President set on some of these issues.

He extended temporary protective status for Salvadorans. He

provided it as a result of the earthquakes in January and February. He extended for Hondurans and Nicaraguans temporary

protected status as a result of their failure to yet recover from

Hurricaine Mitch back in 1998. He has indicated his support for an

up-to-1-year extension in 245(i), the provision that would allow people who have either overstayed their visas or entered illegally but

who were being petitioned for by family members or employers to

adjust their status within this country, a very sensible and appropriate position and, as you indicated in your testimony in response

to Chairman Sensenbrenner’s question, supporting a reorganization

of INS which separates enforcement for services but by reporting

to one key staff person, both sides, ensures that services—helps to

ensure that services don’t get short shrift in all of this.

There are some other issues coming up that I think are consistent with being opposed to a blanket amnesty but make some

sense. I want to throw those out for your consideration.

We have kids in this country, many of them who came here at

the age of 3 or 5 or 8 or 10 or 12 not because of their own decision

but because of their parents’ decision. As a result of provisions in

the 1996 law and other provisions, these people have gone to school

and, in many cases, they have performed excellently. They’re valedictorians of classes. They’re straight A students. They could qualify for any of our major public or private universities. But they are

ineligible even if a State wants to provide them with in-State tuition to pay that tuition. They are forced to pay many times more

49

than that, frequently losing their chance of public education or ineligible to compete on merit, not based on some quota but just for

merit for any of the Federal scholarship programs they applied for.

Mr. Cannon and I and Ms. Roybal-Allard have a bill to deal with

this issue. I ask you to take a look at that.

We have a really absurd cap that limits the number of assylees

that can adjust to legal status. These are people who have been

found to have a well-founded fear of persecution, are in this country lawfully, not asserting a specious claim or even asserting a

claim. They have already been determined—adjudicated to be legal

assylees in this country, but they cannot adjust their status to permanent resident status because we have a quota of 10,000 a year.

That makes no sense. They’re in this country. They are here lawfully. They are determined to be here lawfully. This cap makes no

sense, and I think it should be eliminated.

Third, in many sectors of the economy, we have to realize—you

take agriculture. Probably anywhere from 50 to 80 percent of the

people who toil in some of the most difficult jobs in America today,

harvesting, planting, cultivating our perishable fruit and vegetables, are undocumented. We have created some concepts and gotten

bipartisan support for concepts involving earned adjustment where

people who have done certain kinds of work and who pledge to continue it have the possibility at the end of the day based on that

work performance to adjust their status.

You’re involved with the binational commission that is looking at

some of these migration issues. I hope that that commission doesn’t

ignore the status of some of these workers in this country who are

paying taxes and doing essential work. I think there is a chance

in many of these areas to continue what you have already started,

working on a bipartisan basis that I think really is in the country’s

interest and has great humanitarian, compelling appeal; and I’d be

interested in either long-term reactions or if you have any off the

top of your head to some of these issues.

Chairman SENSENBRENNER. On that happy note, the time of the

gentleman has expired.

The gentleman from North Carolina, Mr. Coble.

Mr. COBLE. Thank you, Mr. Chairman.

Mr. Attorney General, for the record your prayer life does not

bother me. I think whether the people embrace or reject prayer

services may be subject to interpretation. If there was some sort of

intimidation or coercion surrounding that, it would be a different

story, but I can’t believe that that’s the case.

It was said earlier that the Justice Department is leaking like

Niagara Falls. I guess that the good news is that the Justice Department is leaking, not gushing like Niagara Falls. If there is in

fact a leak down there, Mr. Attorney General, I’m confident that

you will terminate it before it reaches the gushing threshold.

The Chairman commented about the FBI’s possibly having had

its armor tarnished. I still think it’s a first-rate outfit, first-rate organization. I am bothered, Mr. Attorney General, that it has become very bureaucratic. If you can make that organization a little

less bureaucratic on your watch, I would be appreciative. I think

others would.

50

Now permit me to direct attention to our Subcommittee on

Courts, the Internet and Intellectual Property. Can you update the

Committee on the extent to which prosecution of intellectual property crimes is becoming a greater priority for the Department of

Justice?

Attorney General ASHCROFT. Well, Congressman, I thank you for

both your comments and your question.

We have recently welcomed to the Criminal Division a newly confirmed—just last week—director of that Division. Crime has developed new dimensions as a result of the Internet and as a result of

the data processing and data transmission, and I can say to you

that we take very seriously piracy and theft and the invasion of

privacy and a whole variety of issues that are related to the advent

of the capacity of individuals to utilize the computer both in industry and personally.

Given the fact that much of America’s strength in the world

economy is a result of our being the developer and promoter of

most of the valuable software, we cannot allow the assets that are

held electronically to be pirated or infringed. So we will make a priority the cybercrime issues, and additional resources have been requested in next year’s budget for that. And that’s not just in this

administration submission to the FBI but in regard to the Commerce Department as well, because they are also concerned about

the protection of this area of commerce in which the United States

holds a preeminent position.

Mr. COBLE. Well, I’m glad to hear you say that, Mr. Attorney

General. Because the intellectual property community, as you just

pointed out, is a significant contributor to the commercial wheel

turning in this country. And, as you also implied, the provisions of

the net act gives you all additional pegs upon which to hang your

hat in pursuing cyberpirates. I hope that you all are utilizing that

justice, and I feel confident that you are.

Good to have you with us, Mr. Attorney General.

In the interest of time, Mr. Chairman, I yield back.

Chairman SENSENBRENNER. The gentleman from Massachusetts,

Mr. Meehan.

Mr. MEEHAN. Thank you, General. Welcome to the Committee.

The Chairman had referenced in his opening remarks that we’re

reading about developments of the Timothy McVeigh case. I think

that that case is giving many in America pause to think about the

FBI’s reliability.

But for those of us who are in Massachusetts, picking up morning papers and reading bombshells about the FBI’s practices is unfortunately nothing new. We’ve been treated to an ongoing, multiyear expose of relationships between certain Boston FBI agents

and drug-pedaling, murderous gangsters. The gangsters gave the

agents some information about rival criminal enterprises and, in

return, the agents protected gangsters every step of the way, blocking other law enforcement investigators and investigations into

their ongoing crime spree and even letting the gangsters know who

was ratting them out to law enforcement officials. The gangsters

then would take matters from there.

The FBI’s credibility wasn’t merely damaged in this instance; it

was broken. And the only way to restore that credibility is for the

51

truth to get out and for those who committed and tolerated crimes

to be held accountable. It seems to me without accountability there

can be no credibility.

Now, the Government Reform Committee has already held one

hearing on a narrow piece of this controversy; and Chairman Burton is now moving to expand that inquiry. Yesterday, he sent a letter to you requesting a variety of records in unredacted form, including information about the top echelon program, personnel

records for former FBI agent John Connelly, the FBI Office of Professional Responsibility reports on agents’ relationships with

Whitey Bulger and Steven Flemming; and the request was for all

this information to be provided by June 19th.

How do you intend to respond to this document request? In other

words, do you anticipate full compliance, partial compliance, or no

compliance? And has the letter been forwarded to the special Justice Task Force created to investigate the handling of the Whitey

Bulger, Steven Flemming case? And, if so, have you provided any

instructions or guidance to the task force in terms of a response?

Attorney General ASHCROFT. Well, first of all, this is a very serious matter; and whenever law enforcement officials are involved in

ways that discredit law enforcement and undermine the enforcement of the law, it’s to be taken seriously. We have a Justice Task

Force that’s comprised of Federal prosecutors and FBI investigators

from outside of Massachusetts which is focusing on possible law enforcement corruption relating to the handling of informants in the

Boston area. The task force has been conducting this investigation

for almost 21⁄2 years now; and one of the informants recently pleaded guilty to multiple felony counts, including obstruction of justice,

extortion and money laundering. The ongoing task force investigation has resulted in indictments of additional individuals, including

a former FBI agent. That’s what you’ve made reference to.

Our provision of exculpatory records contributed to the State

court relief afforded to some other individuals whose names I’m not

mentioning but I think you probably know them. And while the Department responded to oversight requests for information regarding

one individual in the 1965 murder of Edward Deegan, we have requested that other oversight inquiries regarding these matters be

deferred in order to avoid inadvertent interference with the task

force investigation.

Let me just say this, that I’m eager to comply with requests; and

to the extent that we do not interfere with the responsibility to correct these problems and to prosecute the violations, we’ll work to

find a way to comply with those requests for information.

Mr. MEEHAN. So will it be partial compliance? You’re not clear

yet whether or not you’ll be able to—the June 19th deadline in particular. I understand the ramifications of an ongoing criminal investigation.

Attorney General ASHCROFT. I guess what I have to say to you,

while I’m not an expert in this particular case, I will instruct the

Department to cooperate to the extent that they don’t interfere

with our law enforcement responsibility. And if that can be pretty

thorough, fine. If it has to be redacted, fine. Maybe not so fine, but

it has to be that way. And there may be areas where we simply

have to say we have to defer.

52

Mr. MEEHAN. I think generally—generally because the American

people—if this is an isolated incident, I think we’re going to have

to look to expand to see whether or not there is a culture we need

to look at. Obviously, we look at the guidelines. Congressmen

Delahunt, Frank and I have requested this Committee look at a

hearing on guidelines as well.

Chairman SENSENBRENNER. The gentleman’s time has expired.

Mr. Gekas.

Mr. GEKAS. I thank the Chair.

General, the newspapers, particularly the Washington Post of recent date and also some TV coverage, has focused on the other

death row case, not the McVeigh case but the one there which the

drug kingpin has been convicted and properly sentenced and a date

of execution set for him. These newspaper articles, quoting the various moratorium groups, et cetera, and defense attorneys for him,

I suppose, all were maintaining that the studies that were promised have not been fulfilled and there’s great question about disparity of treatment and so forth.

I believe you’ve answered all of those questions in the testimony

that you’ve given today, and I’ve reviewed your written testimony,

and there should be no doubt that the studies, both the one initiated by the Clinton administration and yours, confirm that the

process for Federal death penalty has been fairly—has been well

proportioned.

The question I have now, in view of the fact that the studies

have confirmed the position that we all wanted to see happen in

the application of the death penalty on the Federal level, has there

been any movement to set that execution back even further than

the first postponement?

Attorney General ASHCROFT. No.

Mr. GEKAS. So that is scheduled for when?

Attorney General ASHCROFT. It’s June the 19th.

Mr. GEKAS. The newspaper accounts also indicated that the individual involved wrote a letter to the President asking for commutation. Have you been consulting with the President, giving him your

recommendations and the data that might be needed for his consideration?

Attorney General ASHCROFT. I’m happy to consult with you here.

I will make my consultations with the President and not in the

Committee, if possible.

Mr. GEKAS. I’m just saying, have you consulted. I’m not asking

what the nature of it was.

Attorney General ASHCROFT. You know, Garza claims that he’s

the victim of ethnic and geographic disparity and—even though

he’s clearly guilty of these crimes. And it must be noted that the

Southern District of Texas, where he was prosecuted, only submitted cases involving five defendants to the Department’s capital

case review procedure before 1995; and all of these defendants

were Hispanic. But the District recommended against seeking the

death penalty for any of those.

The Attorney General accepted the U.S. attorney’s representation

not to seek the death penalty in those cases but Garza. So he’s not

a part of a situation where there’s an automatic effort for Hispanics. He’s an individual who I think seven of his eight victims

53

were Hispanic. And if I’m not mistaken, the—he was tried in a context by his peers. So there is no reason that I know of to defer his

execution.

Mr. GEKAS. Thank you. That confirms the Congress’s initiative

several years ago to make a special case out of the drug kingpins

who would murder and direct the killing of others in the furtherance of their criminal enterprises. I thank you for your response to

that.

One other question and that has to do with what policy may

have been established thus far in your administration on the use

of so-called secret evidence or classified information in the proceedings before immigration authorities. Is there a sense of what

you might be recommending there? Because our Committee is

going to have to grapple with that sooner or later again.

Attorney General ASHCROFT. Frankly, the President of the

United States has expressed his discomfort with this aspect of

American immigration, and we have not to date during this administration used such evidence. I think it is an issue worth our working together on and would welcome discussion about how we manage the responsibilities of effectively enforcing our laws and also

protecting the rights and respecting individuals in their own rights.

Mr. GEKAS. I thank the General, and I return the balance of my

non-time.

Chairman SENSENBRENNER. And that’s what it is.

The gentleman from Virginia, Mr. Scott.

Mr. SCOTT. Thank you.

General Ashcroft, we’ve been talking about the racial profiling.

The reason the people have the belief that they shouldn’t be

profiled is found in the Constitution, the unreasonable search and

seizure provision. Usually, that provision is enforced by the exclusionary rule. If you’ve had an unreasonable search or seizure,

whatever evidence that is gained as a result of that can’t be used

at trial and that eliminates the incentive that police have to collect

illegal evidence. Although a guilty person might occasionally go

free, innocent people aren’t subjected to the indignity of these illegal searches.

I guess my question is, if we’re serious about prohibiting racial

profiling, it seems to me that the traditional way of enforcing that

provision of the Constitution ought to be used. That is, to prohibit

the use at trial of any evidence obtained after a profile stop. What

are your feelings about using the exclusionary rule to put an end

to racial profiling?

Attorney General ASHCROFT. Well, obviously, I believe racial

profiling is wrong; and I think we ought to do what we can to

eradicate it. We’re in the process of doing that in the Federal Government and assessing where we are. I was pleased to have Congressman Issa’s approach on that. I would be willing to discuss the

idea. Frankly, that’s the first suggestion that I’ve——

Rather than announce a conclusion on it, I’ll confer with the Justice Department individuals in that respect. I think that’s as far as

I want to go right now on that.

Mr. SCOTT. We’ve talked about the McVeigh case for a little

while. It seems to me that there were mountains of material that

54

did not get turned over as the court had ordered it to be turned

over. Are you satisfied that Mr. McVeigh got a fair trial?

Attorney General ASHCROFT. I am satisfied; and let me clarify to

some degree, if I can.

The eligible universe of documents was almost infinite. There

were hundreds of thousands of documents that could be arguably

required to be turned over. And when I learned that there were

3,000 so-called documents, I said, we cannot expect people in 4

days to digest these and make appeals or what have you.

So we put out a universal order to sweep the offices to collect any

documents and to provide those to the defense. They were provided

to the defense, and we looked at them first. The defense came up

with documents that they said could possibly have any relevance.

They could only name nine of them. You know, we had things like

people writing letters in saying that if you’ll give me a billion bucks

and if you’ll release my boyfriend from prison and arrange for me

to meet with some royalty in Europe I’ll tell you who’s responsible

for the bombing. Or people who sent in folders of newspaper clippings. Those were among the documents.

So the defense found only nine documents, and it alleged those

in a submission to the court, the Federal court. And we looked at

those nine submissions and every fact in those nine documents was

a fact that was disclosed in other documents that had previously

been provided.

Mr. SCOTT. Were they entitled to these documents?

Attorney General ASHCROFT. They were entitled to the documents pursuant to the agreement at trial that all documents——

Mr. SCOTT. And they were not turned over.

Attorney General ASHCROFT. These documents were not there at

the time of the trial. And——

Mr. SCOTT. Well, then—well, I think you’ve answered the question.

Let me ask you one quick question if I can. If a person is fully

qualified to be a drug counselor, should he be entitled as a matter

of law to apply for that federally funded job without being discriminated against because of his religion?

Attorney General ASHCROFT. Depends on who the employer is.

The Congress exempted in the most recent reauthorization of

SAMHSA certain religious groups in the faith-based community

who participate under the provisions of the SAMHSA law religious

groups from their involvement in title VII. And so I think—I’m giving you my best legal judgment here, and I think that’s probably

what you were driving toward.

Chairman SENSENBRENNER. The gentleman’s time has expired.

The gentleman from Arizona, Mr. Flake.

Mr. FLAKE. Thank you, Mr. Chairman.

Thank you, General Ashcroft. I want to commend you for getting

to Arizona so early in your tenure. There are a lot of issues, as you

know, there. I was just outside speaking to one of the ranchers,

Dan Bell from southern Arizona, who ranches on the border who

mentioned that they have as many as 300 illegal immigrants come

on their ranch every week. So, as you know, it’s a large problem

there.

55

Another issue that points up a lack of communication sometimes

between the INS and local law enforcement agencies is the fact

that sometimes potential criminal aliens are deported before

charges can be brought or fully explored and the process go on. I

know that some of those issues have been resolved. Can you comment on efforts by the Department of Justice to actually remedy

that situation?

Attorney General ASHCROFT. This administration is very sensitive to the safety of the communities and to the safety of the border area; and, frankly, we are interested in the safety of all individuals at the border. We were distressed immeasurably at the deaths

of over a dozen individuals near Yuma a very short time ago, but

we are also very concerned about law enforcement. We feel that

when the Congress enacts and expresses the will of the people and

it’s signed by the President and law, it is to be respected and it is

to be enforced.

The responsibilities for safety and security in law enforcement

are not just Federal in the border area, they are—it is a combination joint responsibility between the communities, the States and

the Federal Government. And the President of the United States

included, for example, to reflect his keen understanding of the additional burden of those counties that are border counties, he proposed in his budget this year an additional $50 million to assist

local prosecutors at the border so that the team effort that we have

that respects the rights and the integrity and security of individuals can include an aggressive law enforcement effort by both

State, local and Federal officials.

So, with that in mind, I think this administration is committed

to safety, not just the border safety initiative itself, which is designed to make sure that we treat people with respect and, as our

first priority, secure their safety, but also that we have the right

law enforcement impact in border communities.

Mr. FLAKE. You mentioned the deaths last week. It was 17 or 18

now, I believe, illegal immigrants perished in the desert trying to

cross in 110 degrees. We’re hearing reports now that the Mexican

government actually has a program, a $2 million program, to distribute survival kits. Can you comment on that? Do you know anything about that? Is that overblown? It is that they issue survival

kits to people attempting to cross the border. Has that come on

your radar screen?

Attorney General ASHCROFT. It has. Many of us are torn and a

good number of American citizens are torn to see the human misery that comes with people who enter the desert unprepared. But

I personally think it’s not the right thing to do to have survival kits

distributed to people in anticipation of their effort to cross the border illegally.

I have expressed that opinion to the individuals in the government of Mexico, and it’s my understanding that they have not embraced the program. This issue is one that is current. I noticed

CNN last night had a substantial bit of programming on it, and it’s

a matter of deep concern. But we don’t think solving this problem

is—we don’t think the problem is susceptible to solution by equipping people who would illegally come across the border.

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Mr. FLAKE. I commend you for having the U.S.-Mexico Migration

Working Group, and I hope that issues like this are dealt with in

that context and that we move toward solutions like Congressman

Berman and Senator Graham and others are talking about with

the guest worker program.

Attorney General ASHCROFT. Frankly, I think we’ve been able to

make some progress, and we would look forward to your suggestions and advice in making the border a community which is safe

and secure.

Mr. FLAKE. Thank you, Mr. Chairman.

Chairman SENSENBRENNER. The gentleman from California, Mr.

Schiff.

Mr. SCHIFF. Mr. Attorney General, as a former Assistant U.S. attorney I have a great regard for the Department and want to join

and welcome you here today.

I want to ask you, I think there is a great probability that during

the course of your tenure there may very well be a change in membership of the U.S. Supreme Court. You committed here today and

in your confirmation proceedings to enforce the laws of the land,

and I want to ask you about a couple in particular in the event the

membership of the Court changes.

If there is an effort, legislatively or otherwise, that is direct, unequivocal and on its face designed to overturn Roe v. Wade with a

new Court, can we count on you and the Justice Department to unequivocally oppose that effort and defend Roe v. Wade?

Attorney General ASHCROFT. I don’t understand the question.

You say if there is legislation?

Mr. SCHIFF. In other words, if we have a new membership of the

Court and some view it as an opportunity to get the new Supreme

Court to revisit Roe v. Wade, perhaps to overturn it, can we count

on the Justice Department to defend Roe v. Wade and encourage

and urge the new Court to follow the Roe v. Wade precedent?

Attorney General ASHCROFT. Well, I consider Roe v. Wade to be

settled law. And I will not try to forecast individual cases and how

I would argue and what legal strategy would exist in individual

cases. That’s not something that is important for me to do. But Roe

v. Wade is the law of the land, and I respect it and will enforce

the law as it is.

Mr. SCHIFF. I’m not asking you to comment on a case that may

arguably be in opposition to Roe v. Wade, but where there was a

direct and unequivocal effort to overturn the case we can count on

you to defend it, even with a new Court.

Attorney General ASHCROFT. I would say to the Court that I consider Roe v. Wade to be settled law.

Mr. SCHIFF. Similarly, on the issue of guns, Mr. Attorney General, if there is an effort either with this Court or a subsequent

Court to either strike down portions of the Brady law or in the

event that the McCain legislation to close the gun show loopholes

passes, can we count on the Justice Department to argue that the

Brady law and the closing of the gun show loopholes are consistent

with the second amendment?

Attorney General ASHCROFT. The answer to that is yes. I will defend the enactments of the United States Congress as signed by

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the President, and this President is in favor of closing the gun

show loophole, so this administration is on record of doing that.

Mr. SCHIFF. One of the bills that I hope will pass this session is

a campaign finance reform measure. I wanted to get your thoughts

on that. Should McCain-Feingold pass in the same form that it has

currently passed out of the U.S. Senate, can we expect the Justice

Department to vigorously fight to make sure that it withstands any

attack under the first amendment or any other challenge?

Attorney General ASHCROFT. I consider it my responsibility to defend the enactments of the United States Congress and would expect to do so unless there were a blatant part of a measure which

was clearly unconstitutional which would place me in

countervention with my oath to defend the Constitution.

Mr. SCHIFF. In your personal view, would a ban on soft money

be consistent with the first amendment?

Attorney General ASHCROFT. I’m not prepared to make a complete response to that now, but I would expect it to be. I don’t think

that it’s not.

Mr. SCHIFF. Finally, Mr. Attorney General, I wanted to encourage you, in follow-up on, I think, Mr. Gekas’ question with respect

to the secret evidence rule. I had the unfortunate distinction when

I was in the U.S. attorneys Office of prosecuting the first FBI agent

accused of espionage, Richard Miller. In that case we successfully

used the Classified Information Procedures Act, which I thought

was a good balance between the imperatives of a prosecution, the

need to protect classified data, and also the ability to give the defense opportunity to defend itself. And I would encourage you, Mr.

Attorney General, to consider using a CIPA-like process to repeal

the secret evidence rule but put in place a mechanism that I think

will protect the public safety and, at the same time, observe the

constitutional rights of anyone detained.

Attorney General ASHCROFT. Well, I want to thank you for your

sensitivity to those issues.

We recognize those issues as being very difficult issues that the

tender intersection between the need for national security and the

rights that individuals have, and we would welcome the opportunity to help decide and to participate in your deliberations. I believe, ultimately, the Congress will make the decision, but we

would like to work with you in that respect, if possible.

Mr. SCHIFF. Thank you very much for your appearance, Mr. Attorney General.

Chairman SENSENBRENNER. The gentleman’s time has expired.

The gentleman from Georgia, Mr. Barr.

Mr. BARR. I would like to echo the thoughts of many of our colleagues and thank you for your appearance here and take this opportunity on the record, Mr. Attorney General, to congratulate you

for taking on this service as our Nation’s Attorney General.

Attorney General ASHCROFT. Thank you.

Mr. BARR. I would like to also echo the sentiments expressed by

former Chairman Hyde on commending you on the fine selection of

many of your staff—actually, all of your staff. But many of your

staff came from the Judiciary Committee, and you have acted most

wise, even though it has decimated our ranks over here. But we do

appreciate that and appreciate working with them.

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You’re a very patient man, a true gentlemen to sit there earlier

in the face of what I consider one of the vilest attacks I’ve ever witnessed on a witness simply coming before this Committee and answering questions. In the space of about 15 minutes you were

blasted for handling a case involving a sitting United States Senator from which you’ve recused yourself.

You were blasted for replying to a letter from a bona fide organization requesting the Department’s views on one portion of the Bill

of Rights. And your letter back to them simply said that that portion of the Bill of Rights, it happened to be the second amendment,

as with other parts of the Bill of Rights by definition and practice

and history indeed do confer rights and reflect rights of individuals.

You were blasted for praying.

And then, when you in your later comments indicated to this

Committee that you had undertaken in the face of some evidence

and some criticism regarding the application of the death penalty

by the Federal Government that you had undertaken some, I think,

very important initiatives to look into this and change some of the

procedures, you were blasted for that.

Obviously, you would have been blasted for anything you would

have said there; and you’re very much of a gentlemens’ gentleman

for just sort of sitting there and taking that sort of treatment. I

commend you for that.

Mr. BARR. With regard to the death penalty and in light of the

two pending Federal death penalty cases that have been in the

news much lately, that of Mr. Garza and Mr. McVeigh, in light of

the fact that the court today with jurisdiction over Mr. McVeigh’s

case ordered that no further delays as far as that judge was concerned would be granted, which I believe also reflects the position

of the Department of Justice; is that correct?

Attorney General ASHCROFT. That’s correct, we do not believe

that any further delay in justice is warranted. We think that a

delay in justice would be a denial of justice.

Mr. BARR. And in light of the impending execution of Mr. Garza,

after which you’ve indicated today the position of the Department

of Justice is that that execution also should move forward as scheduled, do you see any reason at this time to consider what has been

termed a moratorium on death penalty cases?

Attorney General ASHCROFT. Frankly having conducted the very

thorough study; that is, a sequential study to the very thorough

study conducted by my predecessor Ms. Reno, she studied 700

cases and we studied an additional 250 cases, neither she nor I as

Attorney General on the basis of those studies could find a reason

for a moratorium. There is no indication that in the Federal death

penalty system there is any prejudice on the basis of race or bias

on the basis of race. The only information is that slightly more frequently among whites is the death penalty sought than it is among

either blacks or Hispanics, and on another note of principle, I

would say that this Congress and previous Congresses have established a clear policy for the United States, that there are certain

acts so heinous in their character that they deserve the death penalty, and for me to somehow seek to displace this valued judgment

in the law established by the Congress, signed by the President,

the expression of the will of the American people would be, I think,

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inappropriate. I think there is no reason for us to have a moratorium in the Federal system on the death penalty and the judgments that we’ve reached on the studies affirm that. We are going

to study additionally whether or not murder is appropriately understood in the culture and is punished, and as it should be because there is some suggestion that there is an inadequate regard

and that life has become less protected than it ought to be.

Mr. BARR. Thank you. I’d like to ask unanimous consent, Mr.

Chairman, to include in the record a letter dated May 17, 2001

from the Attorney General, referred to earlier, setting forth his

views on the application of the second amendment to citizens of the

United States.

Chairman SENSENBRENNER. Without objection, so ordered.

Gentlewoman from California, Ms. Lofgren.

[The information referred to follows:]

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Ms. LOFGREN. Thank you, Mr. Chairman. General Ashcroft, I appreciate your being here today and I am sure there are many

things that you and I don’t see eye to eye on but I want to ask you

a question about something that is nonideological, and that is the

management of the Immigration and Naturalization Service. We all

spend a lot of time on that. I just want to make a couple of brief

references to letters I’ve just recently received about this.

One is from the program director for Catholic Charities in Santa

Clara County about the Nicaraguan Adjustment in the Central

American Relief Act. He says the asylum office in San Francisco is

simply not scheduling NACAR interviews. They contacted the asylum office. They say it’s third priority. It’s really a consequence

of——

Attorney General ASHCROFT. I am having trouble hearing you.

Pardon me for interrupting you.

Ms. LOFGREN. I’ll try and speak closer to the microphone. Essentially the San Francisco office is having simply no NACAR interviews. Many of these clients have been waiting for 10 years to legalize their status, and there’s no—apparently no plans to make

progress on the backlog, and I want to do just a few quick snippets

out of 10 pages of a letter that I’d like to make a part of the record

just to give you a flavor for what it’s like.

Friday, March 9, 2001, my son-in-law and I set out early for the

San Jose INS office. We arrived at 5:10 a.m. And were shocked by

what we saw. The line to get in at 7 a.m. was already stretched

the entire length of the building along the walls of the inner courtyard through the parking lot and out to the street. The first person

in the line had been there since 6 p.m. Thursday night. By midnight there were many people camping out in line. By the time we

were in line at 5 a.m., there were many families with children and

quite a few pregnant women. This is an inexcusable remedy to ensure getting in the next day. It was absolutely barbaric.

We finally left the San Jose INS office at 1:45 p.m. What should

have taken no longer than 5 minutes or should have been handled

via the mail took 8 hours and 45 minutes of sheer hell. Having to

deal with it in person in the San Jose INS office is emotionally

draining, mentally abusive and physically exhausting, and this person also feels she’s been financially victimized.

In my office, we’re dealing with most cases that were filed in

1999, 21⁄2 to 3 years to process routine matters, and my question

is, I realize, this is not just of your making. This is a problem of

long standing, but the question is, with regard to service, why have

areas with significant backlogs; that is, backlogs in excess of 6

months, not received more staffing to address the backlogs and how

long will it take the INS to process benefits with the same level

of efficiency as the Social Security Administration?

Attorney General ASHCROFT. That’s a very good question and I

don’t have a very good answer. I can’t tell you how long it’s going

to take. I am appointing a person of excellent credentials and outstanding quality. I am not appointing, I am recommending to the

President, who I believe is nominating that person and I shouldn’t

suggest it’s my appointment. And I think we have a chance but

we’re going to have to work together. It stuns me to think about

people starting to line up at 6 o’clock at night. The public safety

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considerations for people who have to stay out all night are substantial and that’s unacceptable and we will do—you know, the

President and I have already detailed in this hearing the President’s budget request for additional personnel, about $100 million

a year for the next 5 years running to move us to a 6-month interval instead of a multiyear interval, but I can’t tell you exactly when

that will happen.

I wish I could assure you, but I cannot. I can assure you that

we will impress upon the new director the urgency and will work

aggressively with this Committee for reform in this respect.

Ms. LOFGREN. General Ashcroft, one final question. I mentioned

2 weeks ago when you were gracious enough to meet us for breakfast, the Unaccompanied Alien Child Protection Act, which I have

introduced along with Congressman Cannon here in the House and

Senator Feinstein and Senator Chafee in the Senate, would allow

children who are unaccompanied who are seeking asylum to be

treated as children are treated when they’re abandoned or alone instead of incarcerated in juvenile halls or in some cases even with

adult prisoners. You had not had a chance to look at that bill when

we met 2 weeks ago. I am wondering if you have had a chance to

review it and if you know whether or not you can support it.

Attorney General ASHCROFT. I am not prepared to indicate support except I am prepared to say this is a problem, and I think I

addressed another question earlier. This is a problem that we must

address, not just children but people who are detained who haven’t

committed crimes or detained for long periods of time are an embarrassment to our system of justice and freedom, and I would like

to find ways to resolve this, particularly for innocent children.

Chairman SENSENBRENNER. The gentlewoman’s time has expired. The gentleman from Indiana, Mr. Hostettler.

Mr. HOSTETTLER. Thank you, Mr. Chairman. Attorney General

Ashcroft, let me welcome you today. Initially, as was mentioned

earlier, many of us were intrigued by a story in the Washington

Post that seemed to be critical of you for having a Bible study in

the Department of Justice. I believe such activity is well within the

first amendment and was actually encouraged by our Founding Fathers. I can just imagine how apoplectic the writers at the Washington Post would have been had they had to report on John Quincy Adams’ activities as a Senator whenever he attended services

both in the Capitol and the U.S. Treasury. In fact I hold a weekly

Bible study in my office and would be happy to have you over any

time.

I also want to quickly reiterate what Mr. Smith said regarding

enforcement of obscenity cases. The previous administration was

grossly negligent in this area, and I hope you will work to change

this. My main concern today is over enforcement of the Freedom

of Access to Clinics’ Entrances Act, or FACE Act. As you are aware,

this Act was passed by Congress and signed by former President

Clinton in response to what its supporters claimed to be a national

conspiracy of violence. I have serious concerns over the effect of the

FACE Act and the enforcement steps taken by the previous administration.

First, it seems to me that FACE had some free speech concerns

and that as a viewpoint is discriminatory. The motive element reVerDate 11-MAY-2000 17:09 Nov 01, 2001 Jkt 000000 PO 00000 Frm 00068 Fmt 6633 Sfmt 6601 G:\WORK\FULL\060601\72980.000 HJUD2 PsN: HJUD2
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quiring that the pro-life protesters are there because of the abortion nature of the clinic I believe singles out one viewpoint. In addition, I also think the act unnecessarily groups together violent actors and peaceful protestors seeking to express their opposition to

the practice of abortion on demand.

I am aware, Mr. Attorney General, you have been repeatedly condemned for your life affirming views. I understand, however, as

you do, that the FACE Act went through the proper constitutional

procedures and was signed into law. I also understand that the

statutory language gives the Attorney General some responsibilities. The FACE Act makes for a tough balance considering the

passionate views about the life issue and the fundamental freedom

of speech.

Although FACE certainly allows for justice involvement in prosecution, I think there would be prudential limitations the Department takes into consideration when State and local officials have

the resources to enforce FACE and the Justice Department’s resources might be better allocated elsewhere. For example, I have

some concerns about turning low level misdemeanor offenses into

cases for Federal prosecution. Similarly, I think it is a problem

when simple leafleting is prosecuted as a Federal offense. This

seems particularly poignant given the previous administration’s

lack of enforcement of, say, Federal obscenity laws.

In this regard, Mr. Attorney General, have you in your relatively

new capacity had an opportunity to reevaluate the previous administration’s approach to FACE enforcement and to develop a policy

of your own?

Attorney General ASHCROFT. Thank you, Congressman. First of

all, I take very seriously violence at abortion clinics and in any

other settings, and I am currently very much interested in the extradition of one individual now held by French authorities who allegedly murdered an abortion doctor and I have been active in pursuing that. So I take it very seriously and I think the law has to

be enforced.

If my recollection serves me well, we have had about maybe a

dozen enforcement actions a year, so that the FACE Act does not

consume a substantial enforcement responsibility of the overall

load of enforcement in the Justice Department. This is not because

we do not enforce the law with the kind of energy or vigor that

would be required. It is just that there aren’t that many circumstances. So I guess I would indicate that, as you have, that the

FACE Act was passed with the kind of sensitivity to the process

that it deserves. It deserves to be enforced and respected. It’s a responsibility of the Attorney General to enforce it. I have pledged

to enforce the law thoroughly and completely, but it is clear if you

look at the data that the number of complaints is not overwhelming and does not consume a substantial portion of the Justice Department’s resources.

Mr. HOSTETTLER. I yield back the balance of my time.

Chairman SENSENBRENNER. Gentleman from New York, Mr.

Nadler.

Mr. NADLER. Thank you, Mr. Chairman. Mr. Attorney General,

I welcome you also, also welcome you to this Committee. Let me

start by simply observing and following up on Ms. Lofgren’s quesVerDate 11-MAY-2000 17:09 Nov 01, 2001 Jkt 000000 PO 00000 Frm 00069 Fmt 6633 Sfmt 6601 G:\WORK\FULL\060601\72980.000 HJUD2 PsN: HJUD2
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tions that in New York it takes 18 months to get an interview for

citizenship with major problems for the applicants in the intervening period. They can’t leave the country to visit an ailing parent, for example, without getting put back at the end of the line

and other problems. At one time this took 2 weeks. I hope you will

in terms of assignment of staffing and appropriations relieve this

problem in the New York area, which is not unique in the country

but it’s 18 months in New York and that’s frankly not good.

Second, let me ask—I have three questions. I hope your answers

will be brief because there are three of them. First, I just today received notice of a decision by the Department of Justice yesterday

that the Department has declined to prosecute a local police officer

in New York who encircled one of my constituents, Mr. Gideon

Bush, and shot him to death even though he was holding only a

small hammer at the time and was clearly an emotionally disturbed person. As you may know, the Borough Park community in

Brooklyn which I represent is extremely agitated over this sudden

and somewhat surprising decision.

The last time I had a meeting on this subject at the Department,

the meeting was with former Deputy Attorney General Eric Holder,

who assured me there would be a careful investigation of this matter. I’m a little troubled that this administration seems to have

handled the question very quickly.

Have you personally reviewed this matter and can you elaborate

on the Department’s reasoning on this question or could you assure

us that it will look further into it?

Attorney General ASHCROFT. I have not personally reviewed this

case or the evidence of it. The matter was handled by the U.S. attorney from the district. Obviously this is the U.S. attorney whose

responsibilities have been in existence for a number of years. And

the U.S. attorney came to the conclusion and recommended that

the investigation be closed. That’s the entirety of my understanding

of the case. We left the case exactly in the posture with the same

personnel, without direction, that Mr. Holder had when he was

Acting Attorney General during the first interval of the Bush administration and during his previous time as the Deputy.

Mr. NADLER. Well, I would hope that it would be possible perhaps to schedule a meeting with some of your people so that maybe

the Department would not leave it in the same position as the previous administration, because I don’t think they handled it very

well. So I hope maybe we could be exploring that further.

Attorney General ASHCROFT. We’ll be glad to speak with you in

regard to the matter.

Mr. NADLER. Thank you. I also want to ask a different question.

I was somewhat surprised to hear you comment in response to Mr.

Scott’s question that a federally funded program might be able legally to discriminate on the basis of race or sex or whatever depending on who the employer was. Now, I question the constitutionality of that and I would also point out that at a recent hearing, at a May 23rd hearing on the issue of charitable choice, which

is what you were referring to, the witness from a teenage counseling program, often touted by the President as an example of his

ideal faith-based program, stated that while some Jewish participants in the program remained Jews, others became what he

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termed completed Jews, which from a Jewish point of view is an

offensive term because it implies that someone who adheres to the

Jewish religion is not complete, that the Jewish religion is not complete.

Do you think it’s appropriate to use taxpayer money to convert

Jews into completed Jews or to advocate converting from one religion to another, which obviously is what this group does, and how

do you avoid this problem if the substance abuse program uses a

religious model for the basis for its cure?

Attorney General ASHCROFT. First of all, I do not believe that

government resources should be used for proselytizing or evangelizing or otherwise achieving religious purposes. The purpose for

which government resources should be used should be secular purposes and governmental purposes. When the Congress in enacting

the charitable choice provisions in the 1996 welfare reform law provided a basis for allowing faith-based organizations to participate,

the Congress specified that no such funds could be used for those

purposes and, secondly, specified that in the event anyone is offended by receiving services from such an organization they have

a right to get them in another setting.

Mr. NADLER. I don’t want to interrupt you, but I do have one

other question. I assume then this was an abuse of the program

and you will look into it?

Chairman SENSENBRENNER. The gentleman’s time has expired.

The gentleman from Utah, Mr. Cannon.

Mr. CANNON. Thank you, Mr. Chairman. Mr. Attorney General,

let me just express first of all the great pleasure that I have with

you serving in that—in your capacity and as a man of integrity, intelligence and grace, and I appreciate your forthright and clear testimony thus far today.

You may be aware—if you’re not, the issues are technical

enough. We can skip over them—but we are in a spasm of conflict

in Congress over how to encourage the promulgation of broadband,

and one of the issues that has been poignant has been the scope

of antitrust as to broadband. In March of this year, the Justice Department together with the Federal Communications Commission

filed a joint amicus curiae brief in the 11th Circuit in the case of

Intermediate Communications v. Bell South.

The amicus brief was a joint DOJ and FCC commentary on the

court’s holding in an earlier case in the 7th Circuit which was

Goldwasser v. Ameritech. The Justice Department’s amicus brief

argued that Goldwasser and its progeny are clearly in error. This

Committee is now wrestling with what to do about the Goldwasser

decision. I applaud your Department and Chairman Powell at the

FCC for setting the record straight that the antitrust laws of the

United States continue to apply to telecommunications providers

operating under the Telecommunications Act of 1996.

The Department of Justice is also to be commended for recognizing the explicit antitrust savings clause that this Committee

and the Congress included in the 1996 Telecom Act. For the benefit

of the Members of this Committee, would you please summarize

the Department’s position on the Goldwasser decision and the way

that decision has been interpreted by the regional Bell operating

companies in subsequent litigation?

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Attorney General ASHCROFT. Thank you very much. In asking

the question, I think you’ve defined the position of the Department

relatively clearly. I would just reiterate the fact that in the enactment of the 1996 telecommunications reform measures, the Congress expressed its will and intent with very substantial clarity

with a savings clause indicating that the antitrust prerogatives

that were in order for the enforcement authorities would remain in

place. When the Courts of Appeals indicated that this was, or at

least wrote an opinion which was interpreted to say this was no

longer the case, we felt it very important that the Department

again reiterate what the Congress had explicitly in our judgment

made clear in the 1996 act, and that remains the position of the

Department of Justice.

Mr. CANNON. I take it you personally also believe that, like I do,

the Department of Justice should continue to play its historic role;

that is, an active role, in monitoring and prosecuting anticompetitive, exclusionary or monopolistic behavior in the telecommunications industry and do you need any additional tools to pursue

such violations that are occurring?

Attorney General ASHCROFT. Well, the responsibility of the Justice Department is to carry out and effect the will of the Congress

as expressed in the law and it’s pretty clear to me as I read the

law, and I happen to have been a participant in the policy making

instead of policy implementing aspect of government when the law

was passed, that that’s the will of the Congress, and we will do our

best to serve America well by safeguarding the competitive environment which you’ve described. I happen to think it’s a good policy to have that kind of safeguard for competition.

Mr. CANNON. Since we’re considering this in the very near future, we’d appreciate any ideas that you might have about what

kind of tools, what kind of clarification you would like to have from

Congress.

General, during the campaign last year then candidate Bush

spoke of reforming the use of secret evidence and addressing racial

profiling. Congressman Issa spoke to this a bit, but can you give

us a bit of a status report of where the Department is on those two

issues?

Attorney General ASHCROFT. Well, secret evidence is a matter of

concern to this administration because it involves a very tender

balance between the need to enforce the law and the rights of individuals who are standing before the law and, frankly, where secret

evidence has not been used during this administration, but this administration is eager to work with the Members of this Committee

who are concerned about this question to reach an outcome which

is satisfactory, that respects these counter balanced objectives of

the culture.

I have forgotten the other part of the question.

Mr. CANNON. Racial profiling.

Attorney General ASHCROFT. Well, we’re very active in conducting a Federal study and would be very pleased to try—and

we’re trying to put in place the kinds of things that would stop the

Federal Government’s utilization. We want the right training. We

want the right kind of discipline. We want the right kind of detection measures and the right kind of remediation measures because

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racial profiling doesn’t belong in the Federal Government’s operational arsenal.

Chairman SENSENBRENNER. The gentleman’s time has expired.

The gentleman from New York, Mr. Weiner.

Mr. WEINER. Thank you, Mr. Chairman. Mr. Attorney General,

a couple of weeks ago I introduced a bill to reauthorize the COPS

program for an additional 6 years at $1.15 billion a year. During

your Senate term you cosponsored reauthorization of this bipartisan effort to keep the COPS program alive. I appreciate your support of the COPS program, but I’ll admit I’m concerned and a bit

confused about your recent statements about the program.

In the public record of your Senate confirmation hearing from

January of this year, you were asked by Senator Biden if the COPS

office will receive strong commitment from the Bush administration. I would like to read you a quote of your response in the form

of a written response to Senator Biden.

‘‘President Bush has pledged to maintain the current level of

funding for the COPS program but has also pledged to increase the

flexibility of the program so State and local authorities can determine where the money can best be spent.’’

Are you disappointed that your boss broke this promise?

Attorney General ASHCROFT. Well, I believe that the COPS program is funded so that no person, on the program and provided as

a part of the program, is being deleted. It is important that when

we start a program we finish a program, and the program was designed, however, to give communities a 3-year exposure to additional police resources and at the conclusion of that time allow individual communities to make a decision about whether to persist.

So that the additional funding has now been moved into two areas,

a more flexible area, giving localities a greater flexibility in the deployment of resources to meet their law enforcement needs and,

secondly, into an area that would emphasize the school security

issues.

Mr. WEINER. Mr. Attorney General, let me clarify the record.

Under the Bush budget funding COPS is reduced, I repeat is reduced, from $1.37 billion in fiscal year 2001 to $855 million a year,

$182 million cut, despite the President’s pledge that you brought

to the United States Senate. At the same time the universal hiring

program, which is the main COPS program for hiring new community police, is eliminated. How the elimination of the crux of the

program increases flexibility is a mystery to me. So while you’re

saying to State and local authorities they will have more flexibility,

where more COPS money will be spent, one place it isn’t going to

be spent is on cops, and that is the main objection.

In addition, the COPS More program, which provides funds to

acquire technology and hire civilians to free up cops from behind

the desk and put them out on the street, has been stopped after

the second year of what was purported to be a 3-year program, another option, another area of flexibility that has been eliminated.

As a point of fact, President Bush not only didn’t increase the

funding, he reduced it; didn’t increase flexibility, he eliminated

flexibility. How do you respond to that given the fact that you testified before the Senate that both things would not be true?

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Attorney General ASHCROFT. My testimony to the Senate indicated what I thought would be the case and I believe that the

President has submitted a budget which is an acceptable budget

that will allow communities to meet their—assist communities in

meeting their law enforcement needs.

Mr. WEINER. Attorney General, are you familiar with the Jonathan Pollard case? The case of Jonathan Pollard was someone who

was convicted of spying on behalf of Israel. He’s serving a life sentence despite the fact that a plea bargain had been struck saying

that the Justice Department would not ask for a life sentence.

One of the reasons that sentence was imposed, Casper Weinberger, Secretary of Defense at the time, introduced a memo at the

last moment and he asked for a life sentence to be imposed. That

memorandum is now important to the efforts of Mr. Pollard to

grant a new hearing on his sentencing. The Department of Justice

has refused to turn that over to the attorneys or to me for that

matter. And that was, I think, a mistaken policy. Would you agree

to turn over the information so that Mr. Pollard’s lawyer can pursue his rights under the law?

Attorney General ASHCROFT. I will be happy to confer with the

Department about reasons, whether or not they should turn over

the memo, and what the legal policy is on it.

Mr. WEINER. I appreciate that. If I can interrupt you, is there

any reason why I can’t have a reviewing of it?

Attorney General ASHCROFT. I don’t know.

Mr. WEINER. All right. If you can let me know that as well.

Thank you, Mr. Chairman.

Mr. CANNON. Mr. Chairman, I’d ask unanimous consent that immediately following my questions of the IG or the Attorney General

that the amicus brief of the Department of Justice and the FCC,

Intermedia v. Bell South, be included in the record.

Chairman SENSENBRENNER. Without objection, so ordered. Gentleman from Virginia, Mr. Goodlatte.

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Mr. GOODLATTE. Thank you, Mr. Chairman. General Ashcroft,

welcome to the Committee. We are delighted to have you here. We

appreciate your taking all this time to address such a wide range

of issues, and I also want to thank you and commend you for your

outreach to the Congress as a whole, something that you are particularly well suited to do but on two occasions I have had the opportunity to be in your office, one to individually speak with you

at length on issues of concern to the Committee and to myself and

the other occasion a bipartisan meeting that you initiated, which

not only I think helped to promote a dialogue between the executive branch and the Congress but also helped to promote some discussion right here in the Committee on—I think we found some

common ground on some issues that we may well be able to address and I haven’t seen that kind of outreach during my time in

the Congress. So I thank you. I do have a couple of issues I’d like

to ask you about.

First, I was pleased to hear that you intend to enforce the obscenity laws already on the books. The failure of the previous administration to enforce those laws has led to a proliferation of obscenity both on-line and off, and I am particularly concerned about

the safety of our children on the Internet, where they’re subjected

to child pornography and solicitation in a massive way, and I’d like

to know to what extent the Justice Department will use its resources to assist State and local law enforcement in combatting

this cyber attack on our Nation’s children.

Attorney General ASHCROFT. I thank you for the question. I am

concerned about obscenity and I’m concerned about obscenity as it

relates to our children. The electronic data transmission revolution

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has revolutionized certain kinds of criminal activity, and the technology involved in it makes it much more difficult for limited law

enforcement agencies like small county prosecutors and frequently

local enforcement operations to operate as effectively as they might

otherwise if the digital universe were not involved.

We pride ourselves on cooperating to enforce laws with State and

local authorities, but particularly in areas where the Federal Government has the kind of technology and technological awareness

related to cyber crime and its many manifestations in different

areas, we try to be especially accommodating to local law enforcement, to assist them, and I would think that would be an objective

of ours in this respect.

Mr. GOODLATTE. Thank you, General Ashcroft. The second question I have relates to on-line piracy, the theft in either the sale or

in many cases the wholesale giving away of valuable copyrighted

material on the Internet. A few years ago I introduced legislation

which passed the Congress and was signed into law called the NET

Act, or No Electronic Theft Act, which gave the Justice Department

considerably greater law enforcement tools to combat this serious

growing problem of protecting valuable intellectual property on the

Internet, and so far there has been very little action, I think there’s

just been a handful of prosecutions in this area, and I wonder if

the Justice Department and you could commit to a greater, beefed

up effort to enforce that law and combat the multibillion dollar

theft of valuable intellectual property on the Internet.

Attorney General ASHCROFT. Well, frankly, as you know, the

NET Act assists the Department by addressing a new form of

crime, large scale distribution of pirated software and copyrighted

materials over the Internet where the infringer does not act out of

a pure profit motive. Sometimes these infringers are just with a

mischievous, but malicious intent giving away the property of other

people. And we are interested in making sure that we do what we

can to curtail that and we launched a joint intellectual property enforcement initiative in the Department over a year ago and I would

expect that initiative to begin to bear fruit.

Uniquely, the United States of America is the source of much of

the really valued intellectual property that is important around the

world and if it becomes available without cost as a result of privacy

or without compensation to those who create it, we will simply destroy the capacity for this culture to generate and continue to be

the generators of the leading edge in technology and information

processing.

Chairman SENSENBRENNER. The gentleman’s time has expired.

On the subject of enforcement of the Federal criminal obscenity

statutes, at this point I would like to ask unanimous consent to insert into the record a letter which I wrote on February 15th to the

Attorney General relative to a report on the statute and the response dated May 3rd from Cheryl L. Walter, Acting Assistant Attorney General to my letter, and without objection, they are included.

Then we have the gentleman from Massachusetts, Mr. Delahunt.

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Mr. DELAHUNT. Welcome, General. An individual by the name of

Emanuel Constant headed a paramilitary group in Haiti called

FRAP in the early nineties. That group clearly was involved in numerous massacres and killings of civilians, with the approval of the

military government then in power. He has come—he later came

to the United States where he still resides. And I don’t know if

you’re familiar with this particular case, but he has been described

as a gross violator of human rights. Last year, a Haitian court

found him guilty of a particular massacre and Haiti has requested

his extradition. And according to news reports, the INS was ready

to deport him. However, because of government intervention, he

still is free here in the United States. Apparently he was a CIA

asset.

Are you familiar with this case and if you are could you clarify

what the situation is for us?

Attorney General ASHCROFT. I am not familiar with this case.

Mr. DELAHUNT. Fine. I’d like to at some point in time if you or

a deputy could have a discussion with me on it, I and I know other

Members in Congress have a profound interest in this matter.

Attorney General ASHCROFT. Well, may I just comment that extradition is very important. It’s important to the United States.

We’re seeking to extradite people all the time. We need other Nations to cooperate with us and it seems to me that the last thing

we would want to become is a refuge for people who had violated

the rights of others in a barbaric way and——

Mr. DELAHUNT. I respect that sentiment, Mr. Attorney General,

and I also concur with your opening statement about public confidence in the integrity of the justice system is essential, and I am

sure you’re aware, and much discussion today has focused on the

application of the death penalty in terms of the Federal judicial

system. Well, even the Supreme Court has indicated that there is

a Federal constitutional interest in the application of the death

penalty in State courts, and I would suggest that we have a real

crisis in confidence of the implementation of the death penalty in

State courts.

There have been recent studies; for example, there’s a Columbia

University study that indicates that 70 percent of the death penalty cases in the State courts contain serious reversible error. A

good conservative Republican from Illinois, Governor Ryan, because

of what has occurred in Illinois, did impose a moratorium until he

could thoroughly sort out what occurred in his particular jurisdiction.

Myself and Representative LaHood and about 200 Members of

Congress, and I would suggest that this is a bipartisan effort, have

filed legislation which we feel would address this particular unacceptable situation and it’s called the Innocence Protection Act. I

don’t know whether you’ve had an opportunity to review it, but

what it does do is that it mandates DNA testing in certain cases

and, more importantly, incentivizes the States to provide adequate

legal services to defendants. I would welcome a comment if you

have any.

Attorney General ASHCROFT. Well, first of all, I commend you for

caring about the accuracy of the judicial system. I don’t think

there’s anyone who will thoughtfully say that we shouldn’t elevate

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the accuracy and integrity of the conclusions we reach. And I’m interested in trying to provide the leadership and capacity to do that

across the system and I commend those in the Congress who seek

those objectives without commenting on the specifics of their legislation.

Mr. DELAHUNT. I would like to work with you, and I know I

speak for other Members, with you in terms of drafting this legislation because I really think it’s important if the American people are

going to continue to have confidence in our justice system.

Chairman SENSENBRENNER. The gentleman from Alabama, Mr.

Bachus.

Mr. BACHUS. Thank you, Mr. Chairman. Thank you, Attorney

General Ashcroft. First, I want to join with several other Members

who have complimented you on the breakfasts you’ve held, inviting

Members of both parties to sit down together with you and have

a dialogue, and I think that is very helpful and something I find

refreshing. The University of California Berkeley uses SAT scores

in their admissions process. Fire Departments use physical

strength tests, minimum physical strength tests, to choose firefighters because those firefighters must carry people from burning

buildings. States like New Jersey have approved a site for a cement

plant which happened to be in a minority community. New York

City wanted to increase their fares in their subway system and

their bus system. NCAA has established certain academic requirements for their athletes.

All those practices or procedures have been attacked in court, not

because they discriminate or there was any intent to discriminate,

but because they had a disparate impact or disproportional impact

on a certain class of citizens. There’s been a recent decision I know

you’re aware of in the Supreme Court, the Sandoval decision, about

disparate impact, in which that question was addressed, and my

question to you is this: First of all, are you familiar with Attorney

General Reno’s order of July 14, 1994, dealing with disparate impact?

Attorney General ASHCROFT. I cannot say that I am.

Mr. BACHUS. Okay. In that memorandum she asked all heads of

departments and agencies to provide Federal financial assistance to

ensure that the disparate impact provisions are fully utilized, and

she went on to say where Federal funding programs have disproportionate effects those policies and practices must be eliminated unless they’re shown to be necessary to the program’s operation and there is no less discriminatory alternative.

The problem with that directive, as I see it now, is that it flies

in the face of the Supreme Court’s decision in the Sandoval case.

So my question to you is, what will the Justice Department—in

light of the Sandoval decision what will be you all’s position on disparate impact cases?

Attorney General ASHCROFT. Well, Congressman, I have to tell

you that I’ll have to look at the policy as expressed in the memo,

did you say June 14 of——

Mr. BACHUS. Of 1994.

Attorney General ASHCROFT [continuing]. Of 1994 and review it

in conjunction with the Supreme Court’s decision. I wish I were

conversant enough with both of those settings and I had the ability

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to detail for you the approach that I would take, but I would like

to do that in a considered and measured fashion and get back to

you.

Mr. BACHUS. Sure, I appreciate that. I have no further questions.

If you would like to comment and if you wish to do it in a more

reasoned, considered manner at a later time I would respect that,

but would you comment on the Sandoval decision?

Attorney General ASHCROFT. I think rather than take a running

leap at that here without having a recent assessment of it, it would

be better for me to restrain myself.

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Mr. BACHUS. Thank you. I want to close just by saying that I

have tremendous respect for you.

Attorney General ASHCROFT. Thank you.

Mr. BACHUS. I actually wish that, as the gentleman from Massachusetts called you Senator Ashcroft, I wish we could continue to

call you Senator Ashcroft. We might not have some tactical problems.

Chairman SENSENBRENNER. If the gentleman will yield, once a

Senator always a Senator.

Mr. BACHUS. That’s right. I wish he was still an active Senator.

Attorney General ASHCROFT. I suppose that would be true unless

someone graduated to the House afterward.

Chairman SENSENBRENNER. That would be a very wise person.

The gentlewoman from Texas, Ms. Jackson Lee.

Ms. JACKSON LEE. Thank you very much, Mr. Chairman, and

thank you, General Ashcroft. As you well know, I’m one of two

Members of this body that presented her views at your confirmation hearing. And I hope that you realize that the position was on

principle, disagreement over a number of issues, but let me thank

you for the quick response that I have secured or obtained on some

issues which I’m going to discuss today in terms of you and your

staff returning at least a call to give me further information, and

I believe that what we’re doing today is both unique and important,

providing a hearing so that we can for the first time in 20 years

have an authorization bill, which I think is crucial. If there’s a tool

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for democracy and justice in the United States it—certainly one

great aspect of it is the Department of Justice.

So I would like to raise some questions out of great concern to

me. Briefly, I would like to say you have heard a number of inquiries regarding the INS. It seems that the Committee, Subcommittee

I serve on, is quite popular and what I would offer to say to you

is I believe the President in his campaigning really captured where

I think we need to go and I hope that you will review his remarks,

and that is that we need two entities that are well financed but we

need a singular head or someone who will be responsible for the

agency. And I have met Mr. Ziglar and I can’t pretend to appoint

him, but I believe he is a grounded individual that will give good

leadership.

I hope that you will look at the legislation that I am offering,

H.R. 1562, Immigration and Accountability Restructuring Act— H.R. 1562, we’ll provide your staff with it—that analyzes the INS,

provides the support for the law enforcement, but also recognizes

the problems that so many Members have talked about, which is

denying the quick access to legalization for those who desire so.

The other aspect of the immigration work that I hope that you

will work with us on is this whole issue of unaccompanied immigrant children, we know a very well renowned story and we won’t

focus on that. We’ll focus on the thousands of children who come

and we have no basis of dealing with them. I hope you will look

at my legislation on that, the Unaccompanied Immigrant Children

Due Process Act of 2001, and I know that I can get a response back

from your staff so I’m not necessarily asking for one on that point.

Moving on, I would like to raise some issues that are of crucial

concern to me, and I have some letters. I hope my comments do not

diminish my respect for the men and women in blue, but police

brutality is real. Racial profiling is real. I have a case in Harris

County, with the Harris County Sheriff’s Department, and I will

give to you today the letters that are evidence of or, if you will, allegations of discriminatory practices. It’s a case that came through

the EEOC. There were allegations of African American deputies

being referred to as monkeys, a Confederate flag in a sheriff’s parking lot, a lot of allegations. This came under the clock of the previous administration, but the Civil Rights Section has it now.

I need, we need an expedited review of this in order to help clean

up a department that can afford to be cleaned up. We have done

it in the Houston Police Department. We’ve had some tragedies recently. We’ve lost some deputies, and I offer my deepest sympathy,

but the issue is for us to be able to respect law enforcement, we

must have law enforcement that respects us.

So I will ask for a response on that, but let me conclude on some

other remarks.

Police brutality is the fact that Tommy Thomas in Cincinnati is

dead and 15 black men were killed. Police brutality is the fact that

Amadou Diablo as well was shot in New York, and I’d like to be

able to hear from you probably in writing what you will be doing

that matches racial profiling with the issue of police brutality and

I think that is very important.

Let me move on now to the Federal Bureau of Investigation because, as I said, these are questions that I hope will be answered.

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The FBI, the Hanssen case, the Wen Ho Lee and the McVeigh case,

I frankly believe that, while certainly a respecter of the FBI, that

we have a problem. It is broken. The McVeigh case is a definite

and definitive result of whatever the problems were in their investigatory practices. I would like a status report of the Inspector General’s efforts, and I would like to hear from you as well, Mr. Attorney General, on your practices or your attempts to work on those

issues.

Chairman SENSENBRENNER. The time of the gentlewoman has expired.

Ms. JACKSON LEE. I will submit other questions in the record,

and I thank you so very much. Sorry for the fact that it was a series of questions, but I thought it was important to get these issues

on the record.

Chairman SENSENBRENNER. Let me remind the Attorney General

and the folks from Justice that he has brought with him that the

responses should be directed to the Committee for inclusion in the

record.

And finally, last and certainly not least, the gentleman from

North Carolina, Mr. Watt.

Mr. WATT. Thank you, Mr. Chairman, and I thank the Attorney

General for being with us this afternoon and also thank him for his

hospitality when we had the occasion to visit him in his office for

the breakfast meeting that we had there and for his comments,

particularly, about sporting events. So I want to join my colleagues

on the other side in complimenting the quality of the staff members

that you got from the Judiciary Committee. I know all of them are

fine lawyers.

But I also want to express some concern that justice and the appearance of justice can often be impacted by the appearance of diversity and I notice behind you you’ve got a lot of staff people, certainly good gender diversity. I’m wondering how you’re coming on

the other kinds of diversity, racial diversity in particular, what

progress are you making on putting together your staff in a racially

diverse way?

Attorney General ASHCROFT. Well, I thank you for that question.

I feel honored that so many individuals of outstanding talent have

agreed to join me in my administration. I am grateful that the Senate of the United States has recently confirmed Larry Thompson to

be the Deputy Attorney General.

Mr. WATT. Has he started?

Attorney General ASHCROFT. He has started. He is on the job,

and rather than sit behind me, he’s running the Department while

I’m here.

Mr. WATT. That’s good.

Attorney General ASHCROFT. Charles James, another African

American, is slated to be the head of the Civil—pardon me, the

Antitrust Division.

Mr. WATT. Without asking you to go through every one of them,

maybe we could just get some profile information submitted to the

Committee for the record, otherwise.

Attorney General ASHCROFT. I just think we will have the most

diverse Justice Department, including its leadership, that has ever

visited the Justice Department and, frankly, I just don’t particuVerDate 11-MAY-2000 17:09 Nov 01, 2001 Jkt 000000 PO 00000 Frm 00169 Fmt 6633 Sfmt 6601 G:\WORK\FULL\060601\72980.000 HJUD2 PsN: HJUD2
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larly like to characterize it that way. I like to characterize it as the

most talented. These are individuals of outstanding capacity.

Mr. WATT. Those things are not mutually exclusively and I certainly agree with you. When we met recently, I expressed to you

some concerns about the charitable choice provisions, and one of

the concerns I expressed about legislation was the prospect of mixing government money and church funds and the prospect of allowing proselytization and my concern that somewhere down the road

there will be an onset of indictments about the use of Federal

funds in some of these programs. If you find that there is overt

proselytizing going on, do you think it would be difficult to divide

the religious and the secular in evaluating the prospect of prosecuting somebody for improper use of Federal funds in these faithbased initiatives as they are being proposed?

Attorney General ASHCROFT. I want to say, I believe that this is

an important issue and it’s one that was very carefully considered

when this legislation was crafted, carefully debated. And there are

some groups whose evangelization efforts are so intertwined with

any remedial efforts that they would probably be ineligible to use

or participate in the faith-based operations. The safeguards of the

laws are such that——

Mr. WATT. Would you prosecute those people if they improperly

used Federal funds?

Attorney General ASHCROFT. We would take whatever actions

were appropriate to restore to the Federal Government and to secure for the Federal Government compliance with the law.

Chairman SENSENBRENNER. The gentleman’s time has expired.

Mr. WATT. Thank you, Mr. Chairman.

Chairman SENSENBRENNER. Mr. Attorney General, after 3 hours

it’s over. Let me thank you on behalf of the Committee. I have been

on this Committee for over 22 years. I have seen a large number

of Attorneys General come and go, but none of them have been before this Committee for as long a period of time and discussing as

substantive a response as you have, and I think the Committee

wants to thank you for that and this certainly has been much different testimony than previous Attorneys General have conducted

in both Democratic and Republican administrations.

Let me point out that by my count there are 28 Members of the

Committee that asked you questions. You didn’t have any preparation on what was on our mind. This was probably worse than appearing on Regis Philbin’s show on Who Wants To Be a Millionaire,

because nobody knows what he’s going to ask and you really

weren’t able to call up and get a lifeline in case you were stumped

on them.

So I think that this has been very useful in terms of our being

able to put together an authorization bill to give advice perhaps a

little bit more powerful in nature to the appropriators than they

have gotten before.

Now I have one further question, Mr. Attorney General. Was this

as bad as you feared?

Attorney General ASHCROFT. Well, I think this is constructive

and I want to thank the Committee.

I will be very honest. This is not the kind of day that you say,

oh, boy, I get to go and answer questions for 3 hours. Anybody who

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comes here and tells you that will lie to you about other things, but

I have a deep respect for the Congress of the United States and it

establishes the policy which is to be carried out and it establishes

it in conjunction with the President, and I think a good interchange

is important.

I hope that it’s important for you to hear my responses and I

know it’s very important for me to hear your concerns, and I hear

them very clearly when I sit here in this position, maybe even more

clearly than when I hear about them when I am down in the Justice Department.

So I think this is very valuable for what I learn, and I hope that

it’s a way that we can promote our ability to speak with each other

and I certainly want to make my responses both in content and in

character responses that promote communication which will provide a basis upon which we can elevate the level of service that we

accord to the American people, because we’re in the service industry of making sure that the American people are served and that

their freedoms are guarded.

Chairman SENSENBRENNER. And we feel the same way, and

there being no further business before the Committee, the Committee stands adjourned.

[Whereupon, at 5 p.m., the Committee was adjourned.]

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A P P E N D I X

STATEMENTS SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN

At the outset, I want to thank the Attorney General for being here today and for

the outreach he has undertaken this year. I appreciate the Attorney General’s consistent efforts to maintain a dialogue with Democrats.

Mr. Attorney General, in the most respectful terms possible, I must tell you that

at this early stage of your tenure that some actions of the Department have been

very troubling to me and run counter to your confirmation hearing representations

that you would enforce the law and run a Department free from politics.

Elected officials, like everyone in this country, deserve to be tried in the courts

not smeared in the press. Sadly, when it comes to Senator Robert Torricelli, your

Justice Department has been leaking like Niagara Falls.

This public flogging of Torricelli appears to have increased considerably within 48

hours of Senator Jeffords’ party switch, creating an impression, true or false, that

this White House and the Justice Department intends to use the criminal justice

processes to retake the Senate.

There is one way you can help relieve that impression—that is to follow the precedent established by your predecessor, Republican Attorney General Dick

Thornburgh in the first Bush Administration. When the Department leaked damaging information and innuendo on a member of Congress from the other party, he

conducted a thorough investigation, using polygraph examinations, which ultimately

discovered the source and relieved him of his duties.

This becomes especially important given the fact that you commented on the

Torricelli matter in a fundraising letter, using the unfortunate word ‘‘corruption,’’

that you sent out last year. Anything less than a duplication of the Thornburgh investigation will simply reinforce the perception, true or false, that the Department’s

is using the criminal justice system to re-take the Senate.

So I call on you today to conduct such an independent investigation, and would

like you to address whether you will in your remarks.

I am also extremely troubled by a letter you wrote to James Jay Baker of the National Rifle Association. In this letter, you indicated that you believed in an individual, as opposed to collective, right to bear arms. In doing so, you appeared to

breathe life into a Texas Judge’s extreme and activist ruling that the Brady Law’s

prohibition on wife beaters having guns is unconstitutional under the Second

Amendment.

We need to know whether this means that you believe the Brady Act and Assault

Weapons Ban are unconstitutional and whether the Department will now take that

position in the Texas Emerson case.

I am also troubled by the daily prayer sessions that you lead at your federal, public office. I’m glad you pray, I do too. But I wonder whether you have the sensitivity

to see the other side. Such prayer sessions in your office can create an atmosphere

where people feel silently ostracized if they don’t participate, where there’s an

unspoken rule that compatibility with their boss depends on their participating in

his faith. Can’t you see how some people would feel as a result that they have to

choose between job and faith?

In your confirmation hearings you said ‘‘The Attorney General must lead a professional, non-partisan Justice Department that is uncompromisingly fair, defined by

integrity and dedicated to upholding the rule of law.’’ I hope today we can discuss

to what extent these actions I have described live up to these ideals.

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Æ