S. HRG. 111–403 

NOMINATION OF ERIC H. HOLDER, JR., NOMINEE 

TO BE ATTORNEY GENERAL OF THE UNITED 

STATES 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

JANUARY 15 & 16, 2009 

Serial No. J–111–2 

Printed for the use of the Committee on the Judiciary 

( 

NOMINATION OF ERIC H. HOLDER, JR., NOMINEE TO BE ATTORNEY 

GENERAL OF THE UNITED STATES 

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

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56–197 PDF 2010

S. HRG. 111–403 

NOMINATION OF ERIC H. HOLDER, JR., NOMINEE 

TO BE ATTORNEY GENERAL OF THE UNITED 

STATES 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

JANUARY 15 & 16, 2009 

Serial No. J–111–2 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

RON WYDEN, Oregon 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

(III) 

C O N T E N T S 

Thursday, January 15, 2009 & Friday, Junuary 16, 2009 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland, Prepared statement ................................................................................................... 409 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont 

January 15, 2009 Opening statement ............................................................. 1 

January 15, 2009 Prepared statement ........................................................... 489 

January 16, 2009 Opening statement ............................................................. 199 

January 16, 2009 Prepared statement ........................................................... 491 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania: 

January 15, 2009 Opening statement ............................................................. 3 

January 15, 2009 Prepared statement ........................................................... 599 

January 16, 2009 Opening statement ............................................................. 200 

PRESENTERS 

Norton, Hon. Eleanor Holmes, a Delegate in Congress from the District 

of Columbia Presenting Eric H. Holder, Jr., Nominee to be Attorney General of the United States ..................................................................................... 10 

Warner, Hon. John W., former U.S. Senator from the State of Virginia Presenting Eric H. Holder, Jr., Nominee to be Attorney General of the United 

States .................................................................................................................... 6 

STATEMENT OF THE NOMINEE 

Holder, Eric H., Jr., Nominee to be Attorney General of the United States ...... 12 

Questionnaire .................................................................................................... 16 

WITNESSES 

Canterbury, Chuck, National President, National Fraternal Order of Police .... 205 

Conner, Joseph F., Glen Rock, New Jersey ........................................................... 211 

Freeh, Louis, J., former Director, Federal Bureau of Investigation .................... 201 

Hahn, Richard S., Hahn & Company, former FBI Special Agent, Seal Beach, 

California .............................................................................................................. 215 

Halbrook, Stephen P. Attorney at Law, Fairfax, Virginia ................................... 218 

Payton, John, President and Director Counsel, NAACP Legal Defense and 

Educational Fund, Inc ......................................................................................... 207 

Townsend, Frances M. Fragos, former Homeland Security Adviser to President George W. Bush ........................................................................................... 209 

QUESTIONS AND ANSWERS 

Responses of Joseph Connor to questions submitted by Senator Specter .......... 229 

Responses of Richard Hahn to questions submitted by Senator Specter ............ 232 

Responses of Frances Fragos Townsend to questions submitted by Senator 

Specter .................................................................................................................. 236 

Responses of Eric H. Holder Jr. to questions submitted by Senator Coburn ..... 238 

Responses of Eric H. Holder Jr. to questions submitted by Senator Cornyn ..... 249 

Responses of Eric H. Holder Jr. to questions submitted by Senator Feingold ... 257 

Responses of Eric H. Holder Jr. to questions submitted by Senator Graham .... 263 

Responses of Eric H. Holder Jr. to questions submitted by Senator Grassley ... 265 

Page

IV 

Responses of Eric H. Holder Jr.,. to questions submitted by Senator Hatch ..... 308 

Responses of Eric H. Holder Jr. to questions submitted by Senator Kohl ......... 312 

Responses of Eric H. Holder Jr. to questions submitted by Senator Kyl ............ 314 

Responses of Eric H. Holder Jr. to questions submitted by Senator Specter 

on behalf of Senator Martinez ............................................................................. 321 

Responses of Eric H. Holder Jr. to questions submitted by Senator Sessions ... 323 

Responses of Eric H. Holder Jr. to questions submitted by Senator Specter ..... 331 

Responses of Eric H. Holder Jr. to questions submitted by Senator Whitehouse ..................................................................................................................... 365 

SUBMISSION FOR THE RECORD 

Adler, J., National President, Federal Law Enforcement Officers Association, 

Lewisberry, Pennsylvania, letter ........................................................................ 366 

Aguayo, Samuel M., M.D., Staff Physician, Atlanta Veterans Affairs Medical 

Center, former Professor and Chairman, Department of Medicine, and Associate Dean for Veterans Affairs, Morehouse School of Medicine, letter .......... 369 

Allen, Ernie, President & CEO, National Center for Missing & Exploited 

Children, Alexandria, Virginia, letter ................................................................ 372 

American Federation of Labor and Congress of Industrial Organizations, William Samuel, Director, Government Affairs Department, Washington, DC, 

letter ...................................................................................................................... 373 

American-Arab Anti-Discrimination Committee, Kareem Shora, J.D., LLM, 

Washington, DC, letter ........................................................................................ 374 

Anti-Defamation League, Glen S. Lewy, National Chair, and Abraham H. 

Foxman, National Director, New York, New York, letter ................................ 376 

Asian American Justice Center, Karen K. Narasaki, President and Executive 

Director, Washington, D.C., letter ...................................................................... 378 

Bar Association of the District of Columbia, Ralph P. Albrecht, President, 

and James G. Flood, President-Elect, Washington, DC, joint letter ................ 379 

Barr, Hon. Bob, a former Representatives in Congress from the State of 

Georgia, letter ....................................................................................................... 381 

Barr, William P., former General Counsel, Verizon Corp. and former Attorney 

General of the United States; Manus M. Cooney, President, The TCH 

Group, former Chief Counsel, Senate Judiciary Committee; Makan 

Delrahim, Brownstein Hyatt & Farber Schreck, LLP, former Staff Director 

Senate Judiciary Committee and former Deputy Assistant Attorney General 

of the United States; Joseph E. DiGenova, DiGenova & Toensing, former 

United States Attorney for the District of Columbia; Stuart M. Gerson, 

Epstein Becker & Green, P.C., former Acting Attorney General and Assistant Attorney General of the United States; Michael J. Madigan, Orrick, 

Herrington & Sutcliffe LLP, former Federal Prosecutor and Chief Counsel, 

Senate Special Investigation, Committee on Governmental Affairs; Michael 

O’Neill, George Mason University, former Chief Counsel and Staff Director, 

Senate Committee on the Judiciary, former Commissioner, United States 

Sentencing Commission, George J. Terwilliger III, White & Case, former 

United States Attorney for the District of Vermont, former Deputy Attorney 

General of the United States; Victoria Toensing, DiGenova & Toensing, 

former Deputy Assistant Attorney General of the United States and Chief 

Counsel, Senate Intelligence Committee; and Charles R. Work, McDermott 

Will & Emery, former Federal Prosecutor and former President, District 

of Columbia Bar, joint letter ............................................................................... 384 

Brady Campaign to Prevent Violence and Survivors, Jennifer Bishop, The 

Brady Campaign to Prevent Gun Violence, Washington, DC, statement ....... 387 

Break the Cycle; Family Violence Prevention Fund; National Alliance to 

End Sexual Violence; National Congress of American Indians Task Force 

on Violence Against Native Women; National Latino Alliance for the Elimination Of Domestic violence; National Network to End Domestic Violence; 

National Network to End Domestic Violence; National Organization of Sisters of Color Ending Sexual Assault; Pennsylvania Coalition Against Rape; 

Sacred Circle, January 5, 2009 letter ................................................................. 388 

Bryant, Dan, Senior Vice President, Global Public Policy and Government 

Affairs, Pepsi Co, former Assistant Attorney General, Office of Legal Policy, 

and Office of Legislative Affairs, and Chris Wray, Partner, King Spalding, 

former Assistant Attorney General Criminal Division, joint letter ................. 390 

Burlingame, Debra, Co-founder, 9/11 Families for a Safe & Strong America, 

statement .............................................................................................................. 391 

Page

V 

Burton, Dan, a Representatives in Congress from the State of Indiana, letter . 396 

Cabral, Sam A., International President, International Union of Police Associations AFL–CIO, Alexandria, Virginia, letter ................................................. 400 

Calhoun, S. Brady, Northwest Florida Daily New, December 5, 2008 article .... 402 

Campbell, Stanley V., Jr., Chief Executive Officer, Business Intel Solutions, 

Washington, DC, letter ........................................................................................ 404 

Canterbury, Chuck, National President, National Fraternal Order of Police, 

Washington, DC, statement ................................................................................ 405 

Cognetti, Sal, Jr., Foley, Cognetti, Comerford, Cimini & Cummins, Law Office, Scranton, Pennsylvania, letter .................................................................... 412 

Coleman, William T., Jr., Senior Partner and Senior Counselor, O’Melveny 

& Myers LLP, Washington, DC, letter ............................................................... 414 

Comey, James B., McLean, Virginia, letter ........................................................... 415 

Congressional Black Caucus, Barbara Lee, Chairwoman, Washington, DC, 

letter ...................................................................................................................... 416 

Connor, Joseph F., Glen Rock, New Jersey, statement and letter ...................... 419 

Connors, Edward, President, Institute for Law and Justice, Alexandria, Virginia, letter and attachment ............................................................................... 424 

Constitutional Accountability Center, Doug Kendall, President, Washington, 

DC, letter .............................................................................................................. 427 

Dees, Morris, Founder and Chief Trial Counsel, Southern Poverty Law Center, Montgomery, Alabama, letter ...................................................................... 429 

Elofson, Matt, October 6, 2008, article .................................................................. 431 

English, Sharon J., Homicide Victim Survivor, Crime Victim Services Advocate, Sacramento, California, letter .................................................................... 432 

FBI, Director, Memorandum to Mr. Esposito ........................................................ 433 

Floyd, Craig W., Chairman and Chief Executive Officer, National Law Enforcement Officers Memorial Fund, Inc., Washington, DC, letter ................... 435 

Fortun ̃ o, Luis G., Governor, San Juan, Puerto Rico, letter .................................. 436 

Freeh, Louis J., former Director, Federal Bureau of Investigation, statement 

and letter .............................................................................................................. 438 

Gaboury, Mario Thomas, J.D., Ph.D., Professor and Chair of Criminal Justice, 

University of New Haven, West Haven, Connecticut, letter ............................ 442 

Gelder, Barbara Van, former Assistant United States Attorney, Washington, 

DC, letter .............................................................................................................. 443 

Gerstell, Glenn S., former Chairman, District of Columbia Water and Sewer 

Authority, Washington, DC, letter ...................................................................... 445 

Hahn, Richard S., R. Hahn & Company, Seal Beach, California, and Former 

FBI Special Agent ................................................................................................ 447 

Halbrook, Stephen P., Fairfax, Virginia, statement ............................................. 453 

Hills, Carla A., Hills & Company, International Consultants, Washington, 

DC., letter ............................................................................................................. 458 

Hispanic National Bar Association, Ramona E. Romero, Esq., National President, Washington, DC., letter ............................................................................. 459 

Hoar, General Joseph, USMC; Vice Admiral Lee F. Gunn, USN; Lt. General 

Charles Otstott, USA; Major General Paul D. Eaton, USA; Rear Admiral 

John D. Hutson, USN; Major General William L. Nash, USA; Brigadier 

General James P. Cullen, USA; Brigadier General, David R. Irvine, USA; 

Brigadier General Murray G. Sagsveen; and Brigadier General Steven N. 

Xenakis, USA, joint letter ................................................................................... 461 

Holder, Eric H., Jr., Covington & Burling LLP, Washington, DC., letter .......... 463 

Holder, Eric H., Jr., Nominee to be Attorney General of the United, statement ...................................................................................................................... 465 

Hutchinson, Asa, Asa Hutchinson Law Group, Washington, D.C., letter ........... 469 

Illinois Victims, Jennifer Bishop-Jenkins, Founder, Northfield Illinois, letter .. 471 

International Association of Chiefs of Police, Russell B. Laine, President, 

Alexandria, Virginia, letter ................................................................................. 472 

International Organization for Victim Assistance, Marlene A. Young, Ph.D., 

J.D., President, Newberg, Oregon, letter ........................................................... 473 

Judicial Watch, Thomas Fitton, President, Washington, DC., letter .................. 474 

Justice Solutions, NPO, David Beatty, Executive Director, Washington, D.C., 

letter ...................................................................................................................... 477 

Kassa, Jonathan, Executive Director, Security On Campus, Inc., King of 

Prussia, Pennsylvania, letter .............................................................................. 478 

La Bella, Charles G., La Bella & McNamara, LLP, San Diego, California, 

letter ...................................................................................................................... 479 

Lamm, Carolyn B., White & Case, Washington, DC., letter ................................ 481 

Page

VI 

Leadership Conference on Civil Rights, Wade Henderson, President and CEO, 

Nancy Zirkin, Executive Vice President, Washington, DC, letter ................... 483 

Leadership Conference on Civil Rights; Alliance for Justice; American Federation of Labor and Congress of Industrial Organizations; American for 

Democratic Action, Inc.; Asian American Justice Center; Center for Inquiry; 

Feminist Majority; Human Rights Campaign; Judge David L. Bazelon Center for Mental Health Law; Lawyers’ Committee for Civil Rights Under 

Law; National Abortion Federation; National Association for the Advancement of Colored People; NAACP Legal Defense & Educational Fund, Inc.; 

National Council of Jewish Women; National Council of La Raza; National 

Fair Housing Alliance; National Health Law Program; National Partnership 

for Women & Families; National Organization for Women; National Urban 

League; People for the American Way; Planned Parenthood Federation 

of America, joint letter ......................................................................................... 486 

Leary, Mary Lou, National Center for Victims of Crime, Washington, DC., 

letter ...................................................................................................................... 492 

Lee, Sheila Jackson, a Representatives in Congress from the State of Texas, 

letter ...................................................................................................................... 493 

Levey, Dan, President, Parents of Murdered Children, Inc., Cincinnati, Ohio, 

letter ...................................................................................................................... 496 

MADD, J.T. Griffin, Vice President of Public Policy, Irving, Texas, letter ......... 498 

Major Cities Chiefs Association, Chief R. Gil Kerlikowske, President, Columbia, Maryland, letter ............................................................................................ 500 

McNulty, Paul J., former Deputy Attorney General and United States Attorney, Washington, D.C., letter .............................................................................. 501 

Mexican American Legal Defense and Educational Fund, John Trasvina, 

President and General Counsel, Los Angeles, California, letter ...................... 502 

Moore, Brian P., Spring Hill, Florida, letter ......................................................... 504 

Morford, Craig S., Dublin, Ohio, letter .................................................................. 508 

National African American Drug Policy Coalition Inc., Arthur L. Burnett, 

Sr., National Executive Director, Washington, DC, letter ................................ 510 

National Asian Pacific American Bar Association, Andre T. Hahn, Sr., President, Tina Matsuoka, Executive Director, and John C. Yang, Co-Chair, 

Judiciary Committee, Washington, DC, joint letter .......................................... 512 

National Association for the Advancement of Colored People, Benjamin T. 

Jealous, President & CEO, Julian Bond, Chairman, Baltimore, Maryland, 

letter ...................................................................................................................... 514 

National Association for the Advancement of Colored People, Hilary O. 

Shelton, Vice President for Advocacy/Director Washington Bureau, Washington, DC, letter ................................................................................................. 516 

National Association of Assistant United States Attorneys, Richard Delonis, 

National President, Lake Ridge, Virginia, letter ............................................... 517 

Page

VII 

National Association of Attorneys General, Tom Miller, Attorney General 

of Iowa; Patrick Lynch, Attorney general of Rhode Island; Dustin B. 

McDaniel, Attorney General of Arkansas; John W. Suthers, Attorney General of Colorado; Richard S. Gebelein, Acting Attorney General of Delaware; 

Thurbert E. Baker, Attorney General of Georgia; Mark J. Bennett, Attorney 

General of Hawaii; Lisa Madigan, Attorney General of Illinois; Steve Six, 

Attorney General of Kansas; Jon Bruning, Attorney General of Nebraska; 

Terry Goddard, Attorney General of Arizona; Edmund G. Brown, Jr., Attorney General of California; Richard Blumenthal, Attorney General of Connecticut, Bill McCollum, Attorney General of Florida; Alicia G. Limtiaco, 

Attorney General of Guam; Lawrence Wasden, Attorney General of Idaho; 

Stephen Carter, Attorney General of Indiana; Jack Conway, Attorney General of Kentucky; James D. ‘‘Buddy’’ Caldwell, Attorney General of Louisiana; Douglas F. Gansler, Attorney General of Maryland; Lori Swanson, 

Attorney General of Minnesota; Mike McGrath, Attorney General of Montana, Gary King, Attorney General of New Mexico; Roy Cooper, Attorney 

General of North Carolina; Larry Long, Attorney General of South Dakota; 

Mark Shurtleff, Attorney General of Utah; Rob McKenna, Attorney General 

of Washington; Bruce A. Salzburg, Attorney General of Wyoming; Janet 

T. Mills, Attorney General of Maine; Martha Coakley, Attorney General 

of Massachusetts; Jim Hood, Attorney General of Mississippi; Catherine 

Cortez Masto, Attorney General of Nevada; Andrew Cuomo, Attorney General of New York; W.A. Drew Edmondson, Attorney General of Oklahoma; 

Robert E. Cooper, Jr., Attorney General of Tennessee; William H. Sorrell, 

Attorney General of Vermont; Darrell V. McGraw, Jr., Attorney General 

of West Virginia; Washington, DC, joint letter .................................................. 518 

National Association of Blacks in Criminal Justice, Robert L. Matthews, 

President, Fayetteville, Georgia, letter .............................................................. 521 

National Association of Drug Court Professionals, West Huddleston, Chief 

Executive Officer, Alexandria, Virginia, letter .................................................. 523 

National Association of Police Organizations, Inc., William J. Johnson, Executive Director, Alexandria, Virginia, letter .......................................................... 524 

National Bar Association Region II, Nadine C. Johnson, Director, Bronx, 

New York, joint letter .......................................................................................... 525 

National Bar Association, Rodney G. Moore, President, Atlanta, Georgia, letter .......................................................................................................................... 529 

National Black Prosecutors Association, Carmen M. Lineberger, President, 

Chicago, Illinois, letter ......................................................................................... 533 

National Crime Prevention Council, Alfonso E. Lenhardt, President and CEO, 

Arlington, Virginia, letter .................................................................................... 535 

National Crime Victims Research and Treatment Center, Dean G. Kilpatrick, 

Ph.D., Director, Distinguished University Professor, Medical University of 

South Carolina, Charleston, South Carolina, letter .......................................... 537 

National Criminal Justice Association, David Steingraber, President, and 

Cabell Cropper, Executive Director, Washington, DC., letter .......................... 538 

National District Attorneys Association, Joseph I. Cassilly, President, Alexandria, Virginia, letter ............................................................................................. 539 

National District Attorneys Association, Joseph I. Cassilly, President, State’s 

Attorney, Harford County, Maryland; Christopher D. Chiles, PresidentElect Prosecuting Attorney, Cabell County, West Virginia, Sandee Meyer, 

Member, Executive Director Prosecuting Attorney Assn, Idaho, Robert P. 

McCulloch, Member, Prosecuting Attorney, St. Louis County, Missouri; Jan 

Scully, Member, District Attorney, Sacramento, Sacramento, California, Michael Wright, Member, Prosecuting Attorney, Warren Conint; James P. 

Fox, Chair, District Attorney, San Mateo County, California; James M. 

Reams, Treasurer, County Attorney, Rockingham County, New Hampshire; 

John Gill, Member, District Attorney General’s Office, Knoxville, Tennessee; Joshua K. Marquis, Member, District Attorney Clatsop County, 

Oregon; Luis Valentin, Member County Prosecutor, Monmouth County, 

New Jersey, joint letter ....................................................................................... 540 

National Fraternal Order of Police, Chuck Canterbury, National President, 

Washington, DC, letter ........................................................................................ 542 

National Leadership Council for Crime Victim Justice, Sharon J. English, 

Council Coordinator and Spokesperson, Washington, DC., letter ................... 544 

National Narcotic Officers’ Associations Coalition, Ronald E. Brooks, President, West Covina, California, letter .................................................................. 545 

Page

VIII 

National Network to End Domestice Violence, Sue Else, President, Washington, DC, letter ................................................................................................. 546 

National Network to End Violence Against Immigrant Women, Leslye E. 

Orloff, Director, Washington, DC, letter ............................................................ 547 

National Organization for Victim Assistance, A. Robert Denton, President, 

Alexandria, Virginia, letter ................................................................................. 550 

National Organization of Black Law Enforcement Executives, Jessie Lee, 

Executive Director, and Joseph A. McMillan, National President, Alexandria, Virginia, letter ............................................................................................. 551 

National Organization of Victims of Juvenile Lifers, Jennifer Bishop, Secretary, Washington, DC, letter ........................................................................... 553 

National Partnership for Women & Families, Debra L. Ness, President, 

Washington, DC, letter ........................................................................................ 554 

National Rifle Association, Wayne LaPierre, Executive Vice President, Chris 

W. Cox, Executive Director, Fairfax, Virginia, joint letter ............................... 556 

National Sheriffs’ Association, Sheriff David A. Goad, President, and Aaron 

D. Kennard, Executive Director, Alexandria, Virginia, letter .......................... 559 

National Troopers Coalition, Dennis Hallion, Chairman, Washington, DC., 

letter ...................................................................................................................... 561 

National Women’s Law Center, Nancy Duff Campbell, Co-President, and 

Marcia D. Greenberger, Co-President, Washington, DC, joint letter .............. 562 

New York Times, January 16, 2009, article .......................................................... 565 

Noble, Ronald, Director General of Interpol, statement ....................................... 567 

Olson, Theodore B., Gibson, Lawyer, Dunn & Crutcher LLP, Washington, 

DC, letter .............................................................................................................. 568 

Partners-of-Color of District of Columbia Area Lawyers, Washington, DC, 

joint letter ............................................................................................................. 570 

Payton, John, President and Director-Counsel of the NAACP Legal Defense 

& Educational Fund, Inc., New York, New York, statement ........................... 576 

People for the American Way, Kathryn Kolbert, President, and Tanya Clay 

House, Director, Public Policy, Washington, DC, joint letter ........................... 580 

Police Executive Research Forum, Chuck Wexler, Executive Director, Washington, D.C., letter ............................................................................................... 582 

Pratt, Larry, Executive Director, Gun Owners of America, Springfield, Virginia, letter ........................................................................................................... 584 

Reilly, Brian, Washington, Times, December 14, 1994, article ........................... 586 

Rogers, David, Executive Director, Partnership for Safety and Justice, Portland, Oregon, letter .............................................................................................. 588 

Roper, Roberta, Chairperson and Founder, and Russell P. Butler, Executive 

Director, Maryland Crime Victims’ Resource Center, Inc., Upper Marlboro, 

Maryland, letter ................................................................................................... 589 

Sarcone, John P., Polk County Attorney, Des Moines, Iowa, letter .................... 590 

Seigle, Thomas R., Executive Vice President, Public Safety Group, Appriss, 

Louisville, Kentucky, letter ................................................................................. 592 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama, letter ............... 593 

Seymour, Anne, National Victim Advocate, Washington, D.C., letter ................ 595 

Shestack, Jerome, former President, Martha Barnett, former President, Dennis Archer, former President, Robert Grey, former President, and Michael 

Greco, former President, American Bar Association, joint letter ..................... 596 

Silva, Robert, Mayor, on behalf of the City of Mendota, Mendota, California, 

letter ...................................................................................................................... 597 

Spillett, Roxanne, President and CEO, Boys & Girls Clubs of America, Atlanta, Georgia, letter ............................................................................................ 601 

Page

IX 

State Attorneys General, Chief Legal Officers, following States and Territories, Tom Miller, Attorney General of Iowa; Patrick Lynch, Attorney 

General of Rhode Island; Dustin B. McDaniel, Attorney general of Arkansas; John W. Suthers, Attorney General of Colorado; Bill McCollum, Attorney General of Florida; Mark J. Bennett, Attorney General of Hawaii; 

Lisa Madigan, Attorney General of Illinois; Steve Six, Attorney General 

of Kansas; James D. ‘‘Buddy’’ Caldwell, Attorney General of Louisiana; 

Jon Bruning, Attorney General of Nebraska; Terry Goddard, Attorney General of Arizona; Edmund G. Brown, Jr., Attorney General of California; 

Richard Blumenthal, Attorney General of Connecticut; Thurbert E. Baker, 

Attorney General of Georgia; Lawrence Wasden, Attorney General of Idaho; 

Stephen Carter, Attorney General of Indiana; Jack Conway, Attorney General of Kentucky; Janet T. Mills, Attorney General of Maine; Douglas 

F. Gansler; Attorney General of Maryland; Jim Hood, Attorney General 

of Mississippi; Catherine Cortez Masto, Attorney General of Nevada; Andrew Cuomo, Attorney General of New York; W. A. Drew Edmondson, 

Attorney General of Oklahoma; Robert E. Cooper, Jr., Attorney General 

of Tennessee; William H. Sorrell, Attorney General of Vermont; Darrell 

V. McGraw, Jr., Attorney General of West Virginia; Martha Coakley, Attorney General of Massachusetts; Mike McGrath, Attorney General of Montana; Gary King, Attorney General of New Mexico; Roy Cooper, Attorney 

General of North Carolina; Larry Long, Attorney General of South Dakota; 

Mark Shurtleff, Attorney General of Utah; Rob McKenna, Attorney General 

of Washington; and Bruce A. Salzburg, Attorney General of Wyoming, 

joint letter ............................................................................................................. 603 

Tandy, Karen P., Senior Vice President, Public Affairs & Communications, 

Motorola, Schaumburg, Illinois, letter ............................................................... 606 

Thompson, Larry D., Senior Vice President, Government Affairs, Pepsico, 

Purchase, New York, letter ................................................................................. 607 

Townsend, Frances Fragos, former Homeland Security and Counter Terrorism 

Advisor to President George W. Bush, Washington, D.C., statement ............. 609 

Trentadue, Jesse C., Salt Lake City, Utah, letter ................................................ 611 

United States Conference of Mayors, Tom Cochran, CEO and Executive Director, Washington, DC., letter ................................................................................ 615 

Velleco, John, Director of Federal Affairs, Gun Owners of America, Springfield, Virginia, statement ..................................................................................... 616 

Vickers, Marcia E., Contributing Editor, Fortune Magazine, New York, New 

York, letter ............................................................................................................ 618 

Wainstein, Kenneth L., Washington, DC, letter ................................................... 621 

Walsh, John, Host, America’s Most Wanted, Washington, D.C., letter .............. 623 

Washington, Bar Association, Ronald C. Jessamy, President, Washington, 

DC, letter .............................................................................................................. 625 

Wicklund, Carl, Executive Director, American Probation and Parole Association, Lexington, Kentucky, letter ........................................................................ 627 

Williams, Wesley S., Jr., and Karen Hastie Williams, Washington, DC, joint 

letter ...................................................................................................................... 628 

Woodson, Robert L. Sr., President, Center for Neighborhood Enterprise, 

Washington, DC, letter ........................................................................................ 629 

Young Lawyers Section of the Bar Association, District of Columbia, David 

E. Hawkins, Chair, Washington, DC., letter ..................................................... 630 

(1) 

CONFIRMATION HEARING OF ERIC H. HOLDER JR., NOMINEE TO BE ATTORNEY GENERAL OF THE UNITED STATES 

THURSDAY, JANUARY 15, 2009 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 9:30 a.m., in room 

SR–325, Russell Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Kohl, Feinstein, Feingold, Schumer, 

Durbin, Cardin, Whitehouse, Specter, Hatch, Grassley, Kyl, Sessions, Graham, Cornyn, Brownback, and Coburn. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. Before we start, just so that everybody understands, we are in the historic Senate Caucus Room. 

Normally, we would have been in a different room, but there are 

a number of these hearings going on, and there are certainly more 

people than we normally see in the hearings. 

Lately, there seem to be a number of demonstrations in hearings. 

I just want everybody to understand the ground rules. I want everybody to be able to watch this hearing. I want them to be able 

to watch it comfortably. If people stand up and block the view of 

those behind them, I will direct the officers to remove the people 

who are blocking the view. 

Now, I take this position whether people are standing up in demonstration of a position for or against what I might hold or for or 

against what Senator Specter might hold or any other Senator. I 

am sure that is not going to be necessary. I am sure everybody is 

going to show the appropriate amount of decorum. But that is what 

we expect, and that is what we will have. So, with that, I welcome 

everybody here. 

The election of Barack Obama and Joe Biden and the Presidentelect’s selection of Eric Holder Jr. to be Attorney General of the 

United States provide a historic opportunity for the country to 

move past the partisanship of the past decades. We can make a 

real difference if we come together to solve the Nation’s problems 

and protect against serious threats and meet the challenges of our 

times. 

Let us honor the wishes of the American people who in November broke through debilitating divisions to join together in record 

2 

numbers. Let us acknowledge that our inspirational new Presidentelect has moved forward promptly to assemble an extraordinarily 

well-qualified and diverse group of Cabinet officers and advisers. 

And let us move away from any kind of partisanship to serve the 

common good. 

It was seven score and four years ago that this Nation answered 

the fundamental question President Lincoln posed in his Gettysburg Address and the world learned that liberty, equality, and democracy could serve as the foundation for this great and united Nation. 

We Americans have cause and occasion to reflect during the next 

several days about our great country. The inauguration of our new 

President is Tuesday; Monday is the holiday the country has set 

aside to celebrate and rededicate ourselves to the cause of freedom 

and equality. Today is the anniversary of the birthday of the extraordinary man for whom that holiday is named. With this hearing, we take another step up the path toward the time Dr. King 

foresaw: when people are judged by the content of their character. 

Eric Holder has the character to serve as the Attorney General of 

the United States of America. He passes any fair confirmation 

standard. His record of public service has earned him strong support from law enforcement organizations, civil rights groups, victims’ rights advocates, former members of the administration of 

President Reagan, the President who first nominated him as a 

judge, and from those of President Bush, and many others. 

This week, the Justice Department’s Inspector General released 

a report about the shameful political interference in the Civil 

Rights Division of the Justice Department during the past few 

years. America’s diversity when drawn together is a source of our 

Nation’s strength and resilience. Americans have to be able to trust 

their Justice Department. That trust can never be squandered or 

taken for granted. We need leaders who are prepared to take up 

the oars of a Justice Department whose dedicated law enforcement 

professionals have been misused and demoralized. Eric Holder is 

just such a leader. 

Before the November election, I co-authored an article with my 

friend, the Ranking Member in which we wrote: ‘‘The Attorney 

General’s duty is to uphold the Constitution and the rule of law, 

not to circumvent them. The President and the American people 

are best served by an Attorney General who gives sound advice and 

takes responsible action, rather than one who develops legalistic 

loopholes to serve the partisan ends of a particular administration.’’ 

We wrote that article addressed to both John McCain and Barack 

Obama. We wrote it before we knew who was going to be President. We wrote it so that the next President might adhere to our 

advice, and I have every confidence that Eric Holder is the person 

we described. 

The career professionals and those of us who have worked for 

years with the career professionals at the Justice Department, 

most of them we have no idea what their political background is. 

We just know how good they are. But they reacted with delight 

when Eric Holder was designated by President-elect Obama because they, too, know him well. They know him from his 12 years 

as an anti-corruption prosecutor at the Public Integrity Section, 

3 

from his time as the U.S. Attorney for the District of Columbia, 

from his tenure as a judge, and from his service as the Deputy Attorney General. And I would hope that we would have a prompt 

confirmation so he can restore morale and purpose throughout the 

Justice Department. 

It is important that the Justice Department have its senior leadership in place without delay. The Attorney General is the top law 

enforcement officer in the country; he is a key member of the national security team. We have seen billions of dollars devoted to 

bailouts in the last few months. We need to ensure that those resources are not diverted by fraud or deceit. We need the Justice 

Department to be at its best. 

I have been encouraged by the initial reaction of many Republicans, including some serving on this Committee, when Mr. Holder’s name was reported as the likely nominee and when he was 

designated by the President-elect. I commended their bipartisanship, as I do one of the best friends I have ever had in the Senate, 

Senator John Warner, who will introduce Mr. Holder to the Committee. 

The responsibilities of the Attorney General of the United States 

are too important to have this appointment delayed by partisan 

bickering. We have known and worked with Mr. Holder for more 

than 20 years. We knew him when he was nominated by President 

Reagan and we confirmed him; we knew him when he was nominated by President Clinton and we confirmed him—three times 

confirmed by the Senate to important positions. His record of public service, his integrity, his experience, and his commitment to the 

rule of law merit our respect. 

We need an Attorney General, as Robert Jackson said 68 years 

ago, ‘‘who serves the law and not factional purposes, and who approaches his task with humility.’’ That is the kind of man Eric 

Holder is, the kind of prosecutor Eric Holder always was, and the 

kind of Attorney General he will be. The next Attorney General 

will understand our moral and legal obligation to protect the fundamental rights of all Americans and to respect the human rights 

of all people. 

This is part of the change we need and the change the American 

people voted for. When he designated Mr. Holder, President-elect 

Obama said: ‘‘Let me be clear. The Attorney General serves the 

American people. And I have every expectation that Eric will protect our people, uphold the public trust, and adhere to our Constitution.’’ The next President understands the role of the Attorney 

General of the United States. And I have no doubt that Mr. Holder 

understands what is required of the Attorney General. His experience and the lessons he has learned will serve him and the American people well. 

Senator Specter. 

STATEMENT OF HON. ARLEN SPECTER, A UNITED STATES 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman. 

Next to the President of the United States, there is no Federal 

officer more important than the Attorney General. The Attorney 

General is different from any other Cabinet officer because Cabinet 

4 

officers ordinarily carry out the policies of the President. But the 

Attorney General has an independent duty to the people and to uphold the rule of law. 

The Constitution calls for the United States Senate to advise and 

consent, and I agree with the Chairman about the necessity to help 

President-elect Obama tackle the problems of enormous difficulties 

which this Nation faces. There is provided in the Constitution separation of power and checks nd balances, so that it is the duty of 

the United States Senate to exercise its responsibilities and to 

make an appropriate inquiry. 

Independence is a very important item. Harry Daugherty was Attorney General during the Teapot Dome scandal, so I mention Attorney General Daugherty because, in coming in, I took a look at 

the long list of hearings, proceedings which have been held in this 

room. One of them was Teapot Dome. Another was the sinking of 

the Lusitania, the McClellan Committee, Iran-contra, many, many 

hearings. 

There has been a question raised as to whether the issues which 

I have posed for Mr. Holder are political in nature. I have not hesitated to oppose prominent members of my own party, asking pointed questions, which is the constitutional responsibility of a Senator 

in making an independent judgment and voting against them when 

I thought it was warranted. And one of those hearings was held 

right here in this room. 

Almost every major newspaper in the country has commented 

about the importance of questioning Mr. Holder. And as I said on 

the floor, I have an open mind. But I think there are important 

questions to be asked and important questions to be answered. 

The editorials have commented about the need for the questioning of Mr. Holder based upon some of the factors in his background. There is no doubt he comes with an excellent resume, but 

there are questions nonetheless. So say the New York Times, the 

Washington Post, the Wall Street Journal, the Philadelphia Inquirer, the Rocky Mountain News, and many other newspapers 

across the country. 

The basic issue of national security is perhaps the Attorney General’s most important responsibility: to protect the American people. And I think we need to know how Mr. Holder is going to approach that job. What does he think about the PATRIOT Act? 

What does he think about the interrogation techniques? 

There is a big difference between what is faced by those who are 

following the Army Field Manual compared to what the FBI does 

compared to what the CIA does. There are very different lines of 

questioning. And I saw that in the 104th Congress when I chaired 

the Intelligence Committee. I voted against waterboarding. It is 

torture. And I took the lead on the Senate floor in fighting for habeas corpus. And I opposed President Bush’s signing statements. 

So I have no hesitancy to stand up on those issues. 

But there is a very important question of balance, and we want 

to find out how Mr. Holder is going to approach those issues. We 

have major issues of violent crime in this country. Career criminals 

have to be treated one way. I want to know what he has in mind 

about realistic rehabilitation to try to take first offenders, and especially juveniles, out of the recidivist crime cycle. We have to know 

5 

where he stands on antitrust. We need to know what he will do on 

the prosecution of white-collar crime. 

There has been a spate of fines which look heavy on their surface—a million dollars—but contrasted with the billions involved in 

the fraud, it is insufficient. I want to know how tough he is going 

to be along that line, especially with what we have seen with corporate fraud leading to the tremendous financial problems this 

country has today. 

At the same time, there has to be a balance of right to counsel. 

Mr. Holder authored in 1999 the memorandum which provides that 

the Department of Justice will go easy on a corporation if they will 

cooperate where individual constitutional privileges are involved. 

That is a matter which has to be inquired into, where he stands 

under the antitrust laws. All of these matters I think are appropriate for inquiry, and I look forward to an opportunity to discuss 

them with the nominee. 

One additional comment, and I want to read this because I want 

to get it right. I ordinarily do not read, but I will on this. ‘‘Aside 

from the substance of Mr. Holder’s qualifications, there is a serious 

issue on Senators’ minority rights and the inadequacy of our opportunity for preparation.’’ On this I speak for the Republican Senatorial Caucus. Ordinarily, I speak only for myself, but today I speak 

for the caucus. 

In light of Mr. Holder’s extensive record—and we looked at some 

86 boxes at one stage—there has been insufficient time for the examination of those records. On the Roberts and Alito confirmations, 

the Minority was consulted and accorded the time they requested 

on scheduling. That was not done here. The Chairman declined to 

co-sign a letter requesting records from the Clinton Library. With 

only my signature representing 40-plus Republican Senators, my 

request was treated as any other citizen’s request under the Freedom of Information Act, and the records have not been obtained. 

Where the Minority previously had a dozen witnesses under similar circumstances, we got three. When two witnesses—Ms. Mary Jo 

White and Mr. Roger Adams—refused to appear, our requests for 

subpoenas were denied. 

Realizing the public’s understandable disdain for Washington’s 

political bickering, we have sought to temper these objections, and 

I retain a cordial relationship with the Chairman, with whom I 

have worked very closely for many years, but feel constrained to recite them here briefly for the record. 

I thank the Chair. 

Chairman LEAHY. Well, I thank my good friend from Pennsylvania. I would note that I think the last hearing for Attorney General Mukasey was—I think we did it in 4 weeks. I do recall the 

Deputy Republican Leader being critical it took 4 weeks, and he 

said something about 3 weeks should have been enough. I believe 

we had a recess of some sort in between there. We did it in 4 

weeks. They said that was not really fast enough. This has been— 

Mr. Holder was—we were told by the Obama team in November 

that he was going to be the nominee. We had November and December, and now we are into January. I did postpone it by an extra 

week from the time. I did say at the time that made it—it went 

6 

several weeks beyond what the Republican Leader had said it 

should take for an Attorney General. 

Now, this is not a lifetime position either, unlike the lifetime positions of our Supreme Court Justices. But be that as it may, I 

think adequate time has been given. Certainly, questions—I understand what the distinguished Ranking Member has said about his 

opposition to waterboarding. As we know, Attorney General 

Mukasey would not declare that as being torture. Every Republican 

voted for him nonetheless. But that is why you ask the questions, 

and we will have the questions. 

One of the first people to introduce is a distinguished colleague, 

John Warner. He is the former senior Senator from Virginia. He 

served here for 30 years. I consider it my privilege to have served 

all those 30 years with him. We have traveled together around the 

world. We have worked together. We have done so many significant 

pieces of bipartisan legislation together. He set the tone and tenor 

of what it should be. I have referred to him over the years as ‘‘my 

Senator when I am away from home’’ and spending time in a home 

in Virginia. I consider him a Senator’s Senator. 

Senator Warner, please go ahead. 

PRESENTATION OF ERIC H. HOLDER, JR., NOMINEE TO BE ATTORNEY GENERAL OF THE UNITED STATES, BY HON. JOHN 

WARNER, FORMER UNITED STATES SENATOR FROM THE 

STATE OF VIRGINIA 

Senator WARNER. Thank you, Mr. Chairman and distinguished 

Ranking Member, and to each of my colleagues. I am deeply humbled by this opportunity to appear this morning and participate in 

what I regard, and I think you regard, as one of the most solemn 

responsibilities of the United States Senate: fulfilling our constitutional responsibility of advise and consent. 

I have been privileged through these 30 years in the United 

States Senate to know each of you and to work with each of you 

and to form my own opinion that each of you will fairly and objectively and conscientiously approach this solemn duty of advise and 

consent for this historic nomination of Eric Holder to be the chief 

law enforcement officer of our Nation, the Attorney General of the 

United States of America. 

I have known Mr. Holder for a number of years. We both started 

our careers basically as prosecutors, although separated by at least 

20-some-odd years, two decades. And we approached our duties in 

life based upon the foundations that we were taught and learned 

in the role as prosecutors, both here in the Nation’s capital. 

So I have joined this morning out of friendship, but also I weigh 

very heavily coming before the Senate again so soon after my retirement, but I felt that I wanted to be among those all across this 

Nation who are working for a bipartisan approach to support the 

President-elect in facing what I think each of us believes is the 

most complicated and challenging set of issues that ever faced a 

President. 

Behind me sits Eric Holder, and the President-elect has exercised 

his judgment that this is the individual whom he deems best qualified—from the hundreds of thousands of lawyers serving in the 

7 

United States, the best qualified to become the Attorney General 

of the United States. 

I am also privileged to be joined this morning by a very good 

friend, Eleanor Holmes Norton. We have worked together on behalf 

of the Greater Capital Region these many years, and I am privileged to say that we have had some accomplishments through 

these years. 

Quickly, Mr. Chairman, the public record has a complete dossier 

on this nominee, but given that people in every corner of the 

United States today are following this hearing, this very important 

hearing, I would like, with the permission of the Chair and Ranking Member, to briefly summarize how this distinguished American 

got from his home in the greater environment of New York City 

and a household which he proudly classifies as ‘‘middle class’’ to become the nominee for Attorney General of the United States. It is 

truly remarkable. 

Fortunately, the elders in his household, parents and others, put 

great emphasis on education. Consequently, he excelled in public 

schools and then went on and had the good fortune to get his undergraduate degree and his law degree from Columbia University. 

And then rather than go into a top law firm and perhaps a lucrative opportunity, as we say in the trial profession, he ‘‘plunged into 

the cauldron of the courtroom’’ to start his career, arguing case 

after case before the juries and the judges. 

Prosecution is a tough way to enter the profession, but both of 

us chose this course. He was a Federal prosecutor in the Public Integrity Section of the U.S. Department of Justice. There he tried 

many cases and prosecuted successfully widely heralded public corruption cases against officials from both—and I emphasize ‘‘both’’— 

political parties, as recognized by the Chairman and the Ranking 

Member in their opening statements. 

Thereafter, Eric was appointed a D.C. Superior Court judge by 

President Ronald Reagan, recognizing this man’s impartiality and 

his bipartisan approach to the rule of law. We always must come 

back that the rule of law is the fundamental foundation of this 

great Nation of ours. He performed his duties on the bench with 

distinction, won the accolades of both the bench and the bar, and 

then was appointed the United States Attorney for the District of 

Columbia in 1993. 

Having been a member of that office, as I said, two decades before, I wish to point out that the United States Attorney for the 

District of Columbia has a very wide range of jurisdiction, and 

much of it relates to common law crime, unlike other U.S. Attorneys. 

He performed that subject and that responsibility from 1993 to 

1997. From 1997 to 2001, he served as Deputy Attorney General 

of the United States, the critically important number two job at the 

Department of Justice, and there he gained invaluable experience 

for his current nomination and developed a bipartisan reputation 

in making difficult and tough decisions. 

And on that point, I have had an opportunity in preparing for 

this hearing to visit with the nominee, and many, many colleagues 

who have known him and came up through the similar chairs of 

responsibility in the Department of Justice. 

8 

Mr. Chairman, Eric Holder would be the first to say that his career was marked by certain misjudgments. He freely acknowledges 

that. I doubt if there is one of us in this room, particularly those 

of us who have been prosecutors, who have not looked back on our 

careers and recognized that we have made misjudgments. But the 

key to this man is that he learned from those experiences and 

learned in such a way that those misjudgments will not be repeated. 

From 2001 to the present, he practiced law as a partner in the 

prestigious firm here in Washington, D.C., the firm of Covington & 

Burling, for experience in our criminal justice system on the other 

side, namely that of counsel to those who had the misfortune to fall 

afoul of the law. He also represented major companies’ executives 

in a wide variety of complex litigation. That is experience that he 

will find invaluable if confirmed by the Senate in this new position. 

We both readily acknowledge, Eric Holder and I, that we 

achieved our goals in life largely by learning from career public 

servants with whom we had the privilege to serve—the clerks, the 

judges, the Justices at all levels of our courts, our fellow prosecutors, and the vast system of careerists that serve America to provide for the rule of law and the respect we have for the Constitution. 

I humbly acknowledge my gratitude for having received that 

same benefit that he did, because the Department of Justice is 

known perhaps more so than any other Department, save the Department of Defense, for a cadre of careerists who put the rule of 

law and their oath to the Constitution foremost in discharging 

their responsibilities. 

I mentioned that having had that same experience, I had the opportunity in later life when I was privileged to be here in the Senate working in association with my good colleague here, to recognize a judge, a Federal circuit judge in the Nation’s capital for 

whom I served as a law clerk, Judge E. Barrett Prettyman, and 

naming the courthouse for him, and later joining again with my 

colleague to my left to name the next addition to the Federal courthouse for a man named William Bryant. 

Now, William Bryant was a prosecutor, in a sense a career one, 

a defense counsel, and as a young man in the prosecutor’s office, 

I learned more from William Bryant as to how to try a case and 

the vagaries of appearing before the jury and the trial judges than 

from any law professor in my career. 

So that was the way I have acknowledged the careerists. Our distinguished nominee in his opening statement will do likewise. But 

it is essential—and this nominee will do that. It is essential to protect those careerists in the operations and functions they have in 

the Department of Justice from the always present political pressures that exist in every single corner of the Nation’s capital and 

the Government. He will protect them so that they can perform 

their duties. 

He will be the principal adviser to the President, and much has 

been said in the opening statements by both of my distinguished 

colleagues, the Chairman and Ranking Member, about the importance of the rule of law and independence. And I went back and 

read the Congressional Record, Senator Specter, where you delivVerDate Nov 24 2008 12:46 May 12, 2010 Jkt 056197 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56197.TXT SJUD1 PsN: CMORC
9 

ered quite an oration here on the 6th of January this year. And in 

it you said the following: ‘‘The Attorney General is unlike any other 

Cabinet officer whose duty is to carry out the President’s policies. 

The Attorney General has the corollary, independent responsibility’’—I repeat, ‘‘independent responsibility to the people to uphold the rule of law.’’ 

Then joining the distinguished Chairman, you wrote the following, the two of you: ‘‘The Attorney General’s duty is to uphold 

the Constitution and the rule of law, not to circumvent them. The 

President and the American people are best served by an Attorney 

General who gives sound advice and takes responsible action.’’ That 

is the nominee, in my judgment. 

I was so privileged to join so many distinguished lawyers whom 

I have known and served with who have come forth unsolicited, 

largely Republican in background, who have served as Deputy Attorney General, as prosecutors from all over the country, to lend 

our support to this important hearing. I would hope and ask if I 

might put in as a part of the record some of those exceptional letters. 

Chairman LEAHY. Without objection, they will be part of the 

record. 

Senator WARNER. But I would point out, again, my pride to have 

joined with them, most of them having far more distinguished legal 

careers than I have. But it is interesting, Mr. Chairman, as I read 

those letters. They had a common theme in describing this nominee. It was in several of the letters. It was very simple, but very 

profound, and it stated as follows, and I quote them: ‘‘Eric Holder 

is a good man.’’ And that says a lot. 

I would further note that our 41st President, George Herbert 

Walker Bush, in a public appearance on television, when asked 

about the President, he said, ‘‘I wish the new President well.’’ And 

then his son, our current President, likewise has wished this President well. This President has made a choice. This President has 

chosen the individual that is going to come before you momentarily 

in advise and consent. 

It is the gravity of the times that gives rise to the unprecedented 

level of bipartisanship that accompanies all stages of the formation 

of this new administration and this historic inauguration to be held 

next week. 

I thank the Chair. 

Chairman LEAHY. Thank you. Thank you, Senator Warner. You 

and I have sat on the inaugural stand for inaugurations of both 

Democrats and Republicans as President, and I think we have both 

wished whoever, whichever party they were from, wished them 

well. 

Congresswoman Norton, I want to recognize you. You were recently elected by the people of the District of Columbia to your 11th 

consecutive term in the House of Representatives, and please, Congresswoman Norton, go ahead. 

10 

PRESENTATION OF ERIC H. HOLDER JR., NOMINEE TO BE ATTORNEY GENERAL OF THE UNITED STATES, BY HON. ELEANOR HOLMES NORTON, A DELEGATE IN CONGRESS FROM 

THE DISTRICT OF COLUMBIA 

Ms. NORTON. Thank you very much, Mr. Chairman. 

Unrelated to my own testimony, I have been asked by the Chair 

of the Congressional Black Caucus to request that her letter for the 

caucus in support of Mr. Holder be admitted into the record. 

Chairman LEAHY. Thank you. It will be. Senator Feinstein had 

already sent that letter and asked that it be part of the record. I 

read the letter. It definitely will be part of the record. 

Ms. NORTON. Thank you, Mr. Chairman. 

Mr. Chairman, it is a particular pleasure to appear before you 

this morning with my good friend whom I miss already. The fact 

that John Warner, who enjoys such a sterling reputation in this 

body, has stood for Eric Holder I think speaks volumes about Mr. 

Holder’s experience and character. 

Considering your time restraints, I am going to read my thoughts 

this morning, Mr. Chairman and Ranking Member Specter. I am 

pleased to introduce Eric Holder, a long-time resident of the District of Columbia, but my few words this morning have little in 

common with the predictable introductions by home-State Senators 

and others. I did not know Eric Holder until he competed for the 

post of United States Attorney for the District of Columbia. I came 

to know him in much the same way that you will know him after 

today’s hearing. 

Because the District has the same Federal officials as the States, 

but no Senators, President Bill Clinton granted me the courtesy to 

recommend the U.S. Attorney, District Court judges, and the U.S. 

Marshal. In the District’s two centuries as the Nation’s capital, 

residents had had to live with the decisions of these important Federal officials while having no way to effect their appointments. I 

was determined to vindicate the President’s courtesy by the transparency and the competitiveness of the process and the excellence 

of the candidates recommended. I appointed a commission of distinguished lawyers and other private citizens, named as Chair Pauline Schneider, a past president of the District of Columbia Bar Association, and charged the commission to search widely for candidates and to thoroughly investigate and interview them and send 

me three candidates for each post. I then made my recommendations to the President for each post after doing my own due diligence and interviewing the three candidates. Some may think that 

Washington has more lawyers than people with good sense, but 

lawyers in this town are among the most able in the United States. 

The commission soon heard from some of the best of the lot. 

Eric Holder’s distinguished biography is before you. Without reiterating the many features of the academic and legal background 

that recommend his appointment, what particularly stood out for 

us were the uniformly excellent reports concerning his work in the 

Justice Department’s first Public Integrity Section, his nomination 

by President Ronald Reagan to the D.C. Superior Court, whose appointments, as Article I judges, are made by the President, and the 

high praise for his service there, the outstanding evaluations of his 

extensive and varied criminal and civil trial experience, and his unVerDate Nov 24 2008 12:46 May 12, 2010 Jkt 056197 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56197.TXT SJUD1 PsN: CMORC
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impeachable character and collegiality, as reported by all who had 

worked with Eric Holder. Perhaps the best indication of Eric’s excellence, however, is that in a very competitive pool of the best and 

the brightest, he rose to the top like cream in rich milk. 

Besides demonstrating his own excellence, however, Eric carried 

an unusual burden, of which he was unaware. More than usual, 

the quality of the commission’s recommendations for U.S. Attorney 

and for judges were of path-breaking importance. We knew that 

these appointments were without precedent in the city’s history. 

Even small differences in quality mattered, if the point was not 

only to get the best candidates but to demonstrate that this city 

could do so. 

Eric Holder created a new gold standard for the position of 

United States Attorney for the District of Columbia. The Republican U.S. Attorneys who followed him adopted his innovations, localizing the District part of his jurisdiction by, for example, placing 

Assistant U.S. Attorneys in communities for the very first time 

while simultaneously carrying forward significant Federal prosecutions. Eric wore two very different, high-profile hats at the same 

time with remarkable skill. He more than vindicated the challenge 

he was given and our confidence in him. Eric Holder may be the 

first person to work his way up from career trial attorney in the 

Department of Justice to become the United States Attorney General. Imagine the effect his appointment will have on the demoralized Department of Justice staff. If experience at every level of 

the Department and a record of excelling in everything you have 

ever done matters to this Committee, Eric Holder is unusually well 

qualified to become our Attorney General. I am pleased and proud 

to recommend him to you without reservation. 

Chairman LEAHY. Well, Congresswoman, you and I have served 

together for over 20 years, and I worked closely with you on a number of things, and that is high praise indeed, and I appreciate it. 

Senator WARNER. I know you and the Congresswoman have 

many other places to go. Thank you for taking the time here. We 

will rearrange the dais a little bit and give Mr. Holder a chance. 

Chairman LEAHY. Mr. Holder, will you please stand and raise 

your right hand? Do you affirm or swear that the testimony you 

are about to give before this Committee will be the truth, the whole 

truth, and nothing but the truth, so help you God? 

Mr. HOLDER. I do. 

Chairman LEAHY. Thank you. Please be seated. 

I am never sure whether to address you as Mr. Holder, Judge 

Holder, Deputy Attorney General Holder, but, Mr. Holder, please 

go ahead and give your opening statement. 

First, before you do, though, would you introduce the members— 

before we start the clock, would you introduce the members of your 

family? I have already met them, but so all the members of the 

Committee can see them here. 

Mr. HOLDER. Thank you, Mr. Chairman. Seated behind me, right 

behind me, is my wife, Dr. Sharon Malone. The beautiful woman 

to her left is my mother, Miriam Holder. A series of beautiful 

young women here is my daughter, Maya Holder, Brook Holder. 

My little guy there, that is Eric Holder III, born on the same day 

as my father. He was going to have a different name, but we deVerDate Nov 24 2008 12:46 May 12, 2010 Jkt 056197 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56197.TXT SJUD1 PsN: CMORC
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cided since he was born on my Dad’s birthday, his last birthday, 

that that had to be his name. So he is not named after me. He is 

named after my Dad. 

That is my brother, William Holder; his wife, Debra Holder; my 

niece, Amanda Holder. 

Chairman LEAHY. I thank you all, and I know you have many, 

many friends. I see former FBI Director Louis Freeh, and I see so 

many others. But please, Mr. Holder, go ahead. 

STATEMENT OF ERIC H. HOLDER JR., NOMINEE TO BE 

ATTORNEY GENERAL OF THE UNITED STATES 

Mr. HOLDER. Thank you. Mr. Chairman, Senator Specter, and 

members of the Senate Judiciary Committee: I am deeply honored 

to appear before you today. In 5 days, just a short distance from 

this historic room, the next President of the United States will take 

the oath of office. He will swear to preserve, protect, and defend 

the Constitution of the United States. I have been asked by him 

to serve as Attorney General, the Cabinet officer who is the guardian of that revered document. 

I feel the full weight of this responsibility. If confirmed by the 

Senate, I pledge to you and to my fellow citizens that I will faithfully execute my duties as Attorney General of the United States 

of America. I will do so by adhering to the precepts and the principles of the Constitution, and I will do so in a fair, just, and independent manner. 

This is the fourth time I have come before the Senate for confirmation to a position in law enforcement. I served almost 30 

years as a prosecutor, judge, and senior official within the Department of Justice. President-elect Obama and Vice President-elect 

Biden asked me to assume this responsibility because they know 

I will fight terrorism with every available tool at my disposal and 

reinvigorate the Department’s traditional missions of protecting 

public safety and safeguarding our precious civil rights. 

I accept their trust in me, and with your support I intend to lead 

an agency that is strong, independent, and worthy of the name ‘‘the 

Department of Justice.’’ 

Now, I could not have arrived at this moment without the sacrifice and example of so many others. I begin, of course, by recognizing the support of my family, whom you have just met. My wife, 

Sharon, a respected professional in her own right, has put up with 

a lot over the years because of my demanding work, and she has 

done so with the love and grace that characterizes all that she 

does. Thank you, sweetheart. 

My wife is a tremendously talented physician. But the best examples of her skills and qualities as a person are on display not 

in her doctor’s office but in our home in the form of our three children. They make our lives infinitely richer, and I thank them for 

their love and patience. 

It wasn’t until I was a parent myself that I truly appreciated all 

that my parents did for me. My father, only 12 years old when he 

came to this country from Barbados, worked hard throughout his 

life to teach my brother and me about the promise of America. He 

and my mother made sure that we never wasted the opportunities 

presented to us, especially an education in the excellent New York 

13 

City public school system. My brother grew up to be a Port Authority police officer and a successful businessman, and I grew up to 

arrive at this humbling moment. I am glad my mother is here to 

see this day, and I know my father would be proud. 

In addition to my family, there are others who have inspired and 

guided me. Sitting here today, the very day that civil rights leader 

Martin Luther King would have celebrated his 80th birthday, I acknowledge the debt that I owe him and the thousands of other 

Americans, black and white, who fought and died to break the back 

of segregation. Dr. King devoted himself to breathing life into our 

Constitution. I feel privileged just to stand in his shadow and hope 

that as Attorney General I can honor his legacy. 

Now, one of those who served on the front lines of the struggle 

for equality was my late sister-in-law, Vivian Malone Jones, who 

integrated the University of Alabama in 1963. In an atmosphere of 

hate almost unimaginable to us today, she and fellow student 

James Hood faced down Governor George Wallace, and in the presence of then-Deputy Attorney General Nicholas Katzenbach, they 

enrolled in that great university. 

The very next day, NAACP leader Medgar Evers was gunned 

down in his driveway in Mississippi. But Vivian never considered 

backing down. She went to class despite the ever present danger, 

later saying simply that she ‘‘decided not to show any fear.’’ She 

never did, throughout her too short life. In a career in public service that began in the Civil Rights Division at the Department of 

Justice and ended as an advocate for environmental justice, she 

showed me the meaning of courage and perseverance. 

Finally, I want to acknowledge the thousands of career employees at the Department of Justice. They have been my teachers, my 

colleagues, and my friends. When I first joined the Department’s 

Public Integrity Section in 1976, they showed me what it meant to 

serve the people. When I was the United States Attorney in the 

District of Columbia, they worked beside me to fight drug crimes, 

drug trafficking, and public corruption. And when I was Deputy Attorney General of the United States, they were my troops in the 

daily battle for justice. 

These career professionals are not only the backbone of the Department of Justice, they are its soul. If I am confirmed as Attorney General, I will listen to them, respect them, and make them 

proud of the vital goals we will pursue together. 

In fact, if I have the honor of becoming Attorney General, I will 

pursue a very specific set of goals: 

First, I will work to strengthen the activities of the Federal Government that protect the American people from terrorism. Nothing 

I do is more important. 

I will use every available tactic to defeat our adversaries, and I 

will do so within the letter and the spirit of the Constitution. Adherence to the rule of law strengthens security by depriving terrorist organizations of their prime recruiting tools. America must 

remain a beacon to the world. We will lead by strength, we will 

lead by wisdom, and we will lead by example. 

Second, I will work to restore the credibility of a Department 

badly shaken by allegations of improper political interference. Law 

enforcement decisions and personnel actions must be untainted by 

14 

partisanship. Under my stewardship, the Department of Justice 

will serve justice, not the fleeting interests of any political party. 

Attorney General Michael Mukasey and Deputy Attorney General Mark Filip have done much to stabilize the Department and 

restore morale. For that, Judges Mukasey and Filip deserve the 

gratitude of the American people, and they have my personal gratitude and thanks. But there is more work to do. 

Third, I will reinvigorate the traditional missions of the Justice 

Department. Without ever relaxing our guard in the fight against 

global terrorism, the Department must also embrace the historic 

role in fighting crime that it has, in protecting civil rights, preserving the environment, and ensuring fairness in the marketplace. 

To that end, the Justice Department must wage an aggressive effort against financial fraud and market manipulation. As taxpayers 

are asked to rescue large segments of our economy, they also have 

a right to demand accountability for wrongdoing that only the Department of Justice can provide. At the same time, we must rededicate ourselves to the fight against violent crime which tears at the 

fabric of our neighborhoods. 

The Justice Department must also defend the civil rights of every 

American. In the last 8 years, vital Federal laws designed to protect rights in the workplace, the housing market, and the voting 

booth have languished. Improper political hiring has undermined 

this important mission. That must change, and I intend to make 

this a priority as Attorney General. 

The Department of Justice must also protect American consumers. We need smart antitrust enforcement to prevent and to 

punish unlawful conduct that hurts markets, excludes competition, 

and harms consumer welfare. The Justice Department should also 

reinvigorate its efforts to protect the public in areas such as food 

and drug safety and consumer product safety. And we must work 

actively with EPA and other agencies to protect our environment. 

In all of this, I hope to establish a full partnership with this 

Committee and with Congress as a whole. The checks and balances 

in our Constitution establish a healthy tension among the three 

branches as each ensures that the others do not overstep their 

boundaries. But too often in recent years, that natural tension has 

expressed itself in unhealthy hostility. 

President-elect Obama and I respect Congress. And we respect 

the Federal judiciary. We will carry out our constitutional duties 

within the framework set forth by the Founders, and with the humility to recognize that congressional oversight and judicial review 

are necessary; they are beneficial attributes of our system and of 

our Government. In particular, I know how much wisdom resides 

in this Committee from your collective decades of service in Government, and I will be sure to draw upon it. 

The years I spent in Government taught me a lot. As a public 

corruption prosecutor, I took on powerful interests to ensure that 

citizens received the honest services of the people who serve them. 

As a judge, I used the awesome power I had to deprive criminals 

of their liberty, a power that weighs heavily on anyone who exercises it. And as a high-ranking official in the Department of Justice, I faced a series of complex, time-sensitive prosecutorial and 

administrative decisions every time I stepped inside the building. 

15 

Now, my decisions were not always perfect. I made mistakes. I 

hope that enough of my decisions were correct to justify the gratifying support that I have received from colleagues in law enforcement in recent weeks. But with the benefit of hindsight, I can see 

my errors clearly, and I can tell you how I have learned from them. 

I can also assure you that I will bring to office the principle that 

has guided my career—that the Department of Justice first and 

foremost represents the people of the United States. Not any one 

President, not any political party, but the people. 

I learned that principle in my first days at the Department, 

when I sent corrupt public officials from both parties to jail. It 

guided my work as U.S. Attorney for the District of Columbia when 

I prosecuted one of the most powerful members of my own party 

at the very time he held in his hands the top legislative initiative 

of my own President. And it guided my service as Deputy Attorney 

General when I recommended independent counsel investigations 

not just of members of the Cabinet, but of the very President who 

appointed me and in whose administration I proudly served. 

None of those calls was easy. But I made them because I believed 

they were the right decisions under the law. If confirmed as Attorney General, I pledge to you that this same principle will guide my 

service and inform every decision that I make. 

I have spent most of my career at the Department of Justice, and 

I cherish it as an institution. Its history, unmatched within the 

Federal Government. If I have the honor of serving as Attorney 

General, I will uphold the trust that you have placed in me. I will 

do so by ensuring that the Department is an instrument of our 

great Constitution, but more than that the servant of the American 

people. 

Thank you very much. 

[The prepared statement of Mr. Holder appears as a sumission 

for the record.] 

[The biographical information of Mr. Eric Holder, Jr., follows.] 

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93 

Chairman LEAHY. Thank you, Mr. Holder. We will have in the 

first round 10 minutes for questions. 

Waterboarding has been recognized to be torture since the time 

of the Spanish Inquisition. The United States had prosecuted 

American soldiers for using this technique early in the last century. 

They prosecuted Japanese soldiers for using it on Americans in 

World War II. But the two most recent nominees to serve as Attorneys General of the United States hedged on the question of 

waterboarding. They would not say that if an American were 

waterboarded by some other government or terrorist anywhere in 

the world whether it would be torture and illegal. They maintained 

that it would depend upon the circumstances. 

Do you agree with me that waterboarding is torture and illegal? 

Mr. HOLDER. If you look at the history of the use of that technique used by the Khmer Rouge, used in the Inquisition, used by 

the Japanese and prosecuted by us as war crimes—we prosecuted 

our own soldiers for using it in Vietnam—I agree with you, Mr. 

Chairman, waterboarding is torture. 

Chairman LEAHY. Do you believe that other world leaders would 

have the authority to authorize the torture of United States citizens if they deemed it necessary for their national security? 

Mr. HOLDER. No, they would not. It would violate the international obligations that I think all civilized nations have agreed 

to, the Geneva Conventions. 

Chairman LEAHY. Do you believe that the President of the 

United States has authority to exercise a Commander-in-Chief 

override and immunize acts of torture? I ask that because we did 

not get a satisfactory answer from former Attorney General 

Gonzales on that. 

Mr. HOLDER. Mr. Chairman, no one is above the law. The President has the constitutional obligation to faithfully execute the laws 

of the United States. There are obligations that we have as a result 

of treaties that we have signed, obligations obviously in the Constitution. Where Congress has passed a law, it is the obligation of 

the President or Commander-in-Chief to follow those laws. 

The President acts most forcefully and has his greatest power 

when he acts in a manner that is consistent with the congressional 

intent—consistent with congressional intentions and directives. If 

one looks at the various statutes that have been passed, it is my 

belief that the President does not have the power that you have indicated. 

Chairman LEAHY. The reason I asked that, just yesterday here 

in the Washington Post you see it says, ‘‘ ‘Detainee tortured,’ says 

U.S. official. Trial overseer cites abusive methods against 9/11 suspect.’’ 

Now, she said the convening authority for the military commissions, a top Bush administration official in charge of deciding 

whether to bring Guanta ́namo Bay detainees to trial wouldn’t not 

refer an important case for trial because, as she said, we tortured 

the detainee involved. I am glad to see we now have a nominee for 

Attorney General who is unequivocal on this. 

Now, one substantive criticism I have heard of your position on 

important issues stems from a brief you signed on to before the Supreme Court decided the case of District of Columbia v. Heller. The 

94 

Supreme Court has now clarified the law in that area, and for 

those who may wonder, in the Heller case, the Court recognized the 

person right to bear arms guaranteed in the Second Amendment of 

the Constitution, expressly held for the first time that the Bill of 

Rights includes this right among its guarantees of individual liberty and freedom. 

As I have told you, Mr. Holder, I am a gun owner, as a very large 

percentage of people in my State of Vermont are. At my own home 

in Vermont, I enjoy target shooting. And before anybody asks, our 

nearest neighbor is over half a mile away, and it is our son. 

But do you accept and understand that the Second Amendment 

guarantees an individual right to bear arms? 

Mr. HOLDER. I understand that. The Supreme Court has spoken. 

The amicus brief that I signed on to recited the history of the Justice Department’s positions that had been taken prior to the Heller 

decision; also expressed the belief in that amicus brief that was 

signed by a number of other Justice Department officials that it 

was our view, looking at the Second Amendment and looking at the 

applicable case law, that the Second Amendment did not confer an 

individual right. 

The reality is now that the Supreme Court has spoken, and that 

is now the law of the land. I respect the Supreme Court’s discussion, and my actions as the Attorney General, should I be confirmed, will be guided by that Supreme Court decision. 

Chairman LEAHY. Last year, for the first time in our history, this 

Committee reported media shield legislation, a bipartisan 15–4 vote 

in the Senate—in the Committee. This legislation provided a qualified privilege that allows journalists to maintain confidentiality of 

their sources, with reasonable exceptions, of course, to prevent terrorism and protect national security and personal safety. 

If you are confirmed as Attorney General, will you work with 

both Republicans and Democrats on this Committee on a Federal 

media shield law? 

Mr. HOLDER. Yes, I will, Mr. Chairman. It is my belief that a 

carefully crafted law to shield the press in the way that you have 

described is appropriate. 

Now, there are concerns that I am sure will be expressed by people in the Justice Department. I want to talk to the career folks 

in the Department. And I also want to ensure that with the passage of any law, we will still have the capacity to protect the national security and to prosecute any leaks of intelligence information that might occur. 

But with those caveats and with the ability to interact with people in the Department, I am in favor of the concept of such a law. 

Chairman LEAHY. Now, you are very familiar with the Justice 

Department’s Office of Legal Counsel. They are supposed to provide 

fair, impartial, independent legal advice for the executive branch. 

Now, the press reports and our own hearings have shown that it 

has been used most recently to advance extreme theories of Executive power. We have seen it in torture, warrantless wiretapping, 

and so on. 

Will you, if you are confirmed as Attorney General, commit to 

undertake a comprehensive review of all OLC opinions currently in 

effect and to correct and withdraw any that have what appear to 

95 

be incorrect or problematic analyses? Understand, these opinions 

really carry a de facto weight of law throughout the executive 

branch. 

Mr. HOLDER. Yes, I will make that pledge. It is important that 

these OLC opinions, which are so important, as you describe, that 

they truly reflect what the law is, that they reflect our values. And 

I want to ensure that any OLC opinions that are in effect are consistent with those two purposes. 

I will do so respecting the fact that OLC respects the notion of 

stare decisis, that we don’t change OLC opinions simply because a 

new administration takes over. The review that we would conduct 

would be a substantive one and will reflect the best opinions of 

probably the best lawyers in the Department as to where the law 

should be, what their opinion should be. It will not be a political 

process. It will be one based solely on our interpretation of the law. 

Chairman LEAHY. Thank you. 

Now, some Senators, including commentators like Karl Rove, 

have spoken extensively about your role in the pardon of fugitive 

Marc Rich at the end of President Clinton’s second term. In fact, 

I was very critical of that pardon at the time, notwithstanding the 

President’s constitutional right to pardon people. I probably have 

been critical of a number of different Presidents’ use of that constitutional right. 

You have also publicly said you wish you had handled the issue 

differently. Details of this matter have been exhaustively hashed 

out in several congressional hearings. The Congress has spent millions of dollars looking into this. You appeared voluntarily and repeatedly to testify on the matter, something we have not seen from 

officials of the current administration. 

So I want to give you a chance to address the suggestion by some 

that, based on your actions, you are not independent, that you will 

not be able to say no to a President who might nominate you. I 

have a two-part question to you. How do you respond to those who 

say that the Marc Rich pardon shows you do not have the character to be an independent Attorney General? And what did you 

learn from that experience? 

Mr. HOLDER. Well, as I indicated in my opening statement, I 

made mistakes, and my conduct, my actions in the Rich matter was 

a place where I made mistakes. I have never said anything other 

than that. I appeared before two congressional committees and said 

nothing but that. I have accepted the responsibility of making 

those mistakes. I have never tried to hide. I have never tried to 

blame anybody else. What I have always said was that given the 

opportunity to do it differently, I certainly would have. 

I should have made sure that everybody, all the prosecutors in 

that case were informed of what was going on. I made assumptions 

that turned out not to be true. I should have not spoken to the 

White House and expressed an opinion without knowing all of the 

facts with regard to that matter. 

That was and remains the most intense, most searing experience 

I have ever had as a lawyer. There were questions raised about me 

that I was not used to hearing. I have learned from that experience. I think that as perverse as this might sound, I will be a betVerDate Nov 24 2008 12:46 May 12, 2010 Jkt 056197 PO 00000 Frm 00107 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56197.TXT SJUD1 PsN: CMORC
96 

ter Attorney General, should I be confirmed, having had the Marc 

Rich experience. 

I have learned that I have to ensure that there is full consultation with all the prosecutors who are involved in those kinds of 

matters. I cannot assume that that, in fact, will happen. I have to 

make sure that it happens. 

I think we have to work to improve the pardon process within 

the Department of Justice. It appears that at the end of every administration there seems to be a deterioration in the process. And 

so I think we have to work on the Justice Department side to make 

sure that the rules and regulations are followed. 

It was something that I think is not typical of the way in which 

I have conducted myself as a careful thoughtful lawyer. As I said, 

it is something where I made mistakes, and I learned from those 

mistakes. 

Chairman LEAHY. And, of course, the pardon was issued by 

President Clinton, not by you. What I am going to do—and I have 

talked this over with Senator Specter. Obviously, Senator Specter 

is next. I will then recognize Senators by seniority back and forth 

in the usual way if they are here. If a Senator misses their turn, 

then they would be put in the next time they appear. 

Senator Specter. 

Senator SPECTER. Thank you, Mr. Chairman. 

Mr. Holder, pursuing the issue of the Rich pardon, you are a 

high-level professional, outstanding record, no doubt about your 

professional judgment, and the comment that it is a mistake is one 

way of approaching it. But when you take a look at the hard facts, 

it is a little hard for me to see how you came to the conclusion you 

did, even conceding the fact that none of us is perfect. 

In the Rich matter, he was charged with trading with the enemy. 

He reached a deal with the Khomeini regime during the Iranian 

hostage crisis to purchase Iranian oil in exchange for arms, automatic rifles, and hand-held rockets. He was involved in trading 

with Soviet and Iranian oil to the apartheid government, reprehensible apartheid government, in exchange for Namibian uranium, 

which was sold back to the Soviet Union; reportedly involved with 

Castro’s efforts to escalate its nuclear war program in 1991, and 

with respect to a uranium deposit in western Cuba. 

He had contributed very large sums to the Democratic Party, 

$867,000; Clinton Library, $450,000; $63,000-plus to others. And in 

this context, the House Committee found that you recommended 

Jack Quinn, had told Jack Quinn, who is former White House 

Counsel, ‘‘You do not have to provide a copy of the petition,’’ and 

that he could go directly to the White House, which circumvented 

the normal pardon procedures. And you had the pardon attorneys 

opposed to it. Margaret Love said no. 

The House Committee came to these conclusions: The preponderance of the evidence indicates that Eric Holder was deliberately assisting Quinn with the Rich petition and deliberately got the rest 

of the Justice Department out of the process to help Quinn obtain 

the pardon for Marc Rich. This conclusion is supported by an email sent by Quinn to Kitty Behan and others 3 days before 

Quinn’s meeting with Holder on November 21st. And this is the 

confirmation e-mail. Subject: Eric. ‘‘Spoke to him last evening. He 

97 

says go straight to the White House. Also says timing is good. 

And’’—s-h-d—‘‘should get in soon. Will elaborate when we speak.’’ 

Now, I have had some experience with fugitives, and when you 

deal with a fugitive, it seems to me you focus on an extradition 

warrant. Given the background of this man, it is hard to brush it 

off, it seems to me, as a mistake. The guy had a reprehensible 

record. The guy was a fugitive. The indicators are, a House finding, 

that you were very heavily involved, and yet you testified you were 

only casually involved. A question of candor on that comment. And 

then you had a President who obviously wanted to grant a pardon. 

Now, if this were some underling or somebody who wasn’t too 

bright, wasn’t too experienced, I would slough it off as a mistake. 

But given your experience and your background and your competency and the surrounding circumstance of President Clinton 

looking for a cover, how do you explain it beyond simply it is a mistake? 

Mr. HOLDER. Well, I don’t mean to minimize what I did by calling it a mistake or mistakes. And, in fact, I take what I did seriously and have expressed regret for what I did consistently. 

I would not take as gospel everything that is contained in that 

House report, and we can certainly talk about the various things 

that they have said that I dispute. 

Senator SPECTER. Well, what do you disagree with? 

Mr. HOLDER. Well, for instance, this notion that I recommended 

Mr. Quinn to the gentleman I was sitting next to at a dinner. I 

mean, I think, first—— 

Senator SPECTER. What did happen? 

Mr. HOLDER. Well, first, as a matter of fundamental fairness, I 

voluntarily appeared before that Committee and was never asked 

that question, and yet that appeared in the report. If you look at 

even the material that is contained in that report, you will see that 

after I supposedly made this recommendation to a person who I did 

not know—and according to the report, I said, ‘‘You go hire a lawyer. That person comes to me, and we will work it out.’’ 

Now, I as Deputy Attorney General, according to this report, 

would have said to a perfect stranger, ‘‘You come to me with a lawyer and we will work it out,’’ I don’t know what—— 

Senator SPECTER. What happened as to Quinn? Okay, you 

weren’t asked about it, but did you recommend Quinn? What are 

the facts aside from what the House says? 

Mr. HOLDER. I did not recommend Mr. Quinn. And, again, if you 

look at the report, you will see that the people who were trying to 

determine who a lawyer would be for Mr. Rich spent 6 months, 

interviewed a whole host of people after this dinner that I attended 

before they decided on the representation. They interviewed a number of people in addition to Mr. Quinn before they made that decision. 

Senator SPECTER. Well, you refer to a dinner. There has been a 

report that at that dinner you pointed to Quinn as a person to represent Rich. Is that not true? 

Mr. HOLDER. That is not correct. 

Senator SPECTER. Well, what is correct? 

Mr. HOLDER. I had a conversation with a gentleman, and he 

asked about what happens if somebody has a problem with the 

98 

Justice Department. And I think, as best I can remember, all I did 

was explain to him how the process worked, that there were levels 

of review, levels of appellate review, for lack of a better term, review within the Department. If somebody has an issue with somebody in the field, there are measures that you can take with a person in the field and that the Justice Department in Washington, 

D.C., has ultimate responsibility for the conduct of the Justice Department, including those parts of the Department that are in the 

field. 

Senator SPECTER. Are you saying that Quinn’s name never came 

up? 

Mr. HOLDER. No, it did not. And if you look at the minority component of the report, there is some question as to whether or not 

the gentleman whose name I now remember, Mr. Kecks, even said 

what the majority says that he did say. 

Senator SPECTER. Is it true that you told Quinn after he was in 

the case that he did not have to provide you with a copy of the petition? 

Mr. HOLDER. No. I think if you are referring to Mr. Quinn’s email that says I told him to go straight to the White House, that 

did not occur. 

Senator SPECTER. No, there is a separate point, a separate point 

that Quinn testified to, that you said in response to his offer to provide a copy of the Rich pardon petition, that you said you didn’t 

have to. Those are the issues as to whether anybody else in the Department would have known about it. 

Mr. HOLDER. I am sorry. Now I understand what you—yes. At 

a meeting that we had, I believe in November, Mr. Quinn indicated 

that that is what I told him after we had had a meeting on something else. I don’t remember that conversation, but I have never 

disputed that I might have said that to Mr. Quinn, because I 

worked under the assumption—that was true—that pardon applications that were filed in the White House were routinely sent to 

the Justice Department. The White House sent matters for pardons, referrals for pardons to the Justice Department, because they 

are supposed to originate with the pardon attorney at the Justice 

Department. 

Senator SPECTER. How do you explain this e-mail? And I acknowledge it is not your e-mail, but it is a contemporaneous e-mail 

which Quinn sent saying—corroborating at least as far as he is 

concerned, your statement, go directly to the White House, circumvent the Department of Justice. How do you explain that? 

Mr. HOLDER. It is difficult for me to explain that. I never told 

Mr. Quinn to go straight to the White House. That would have 

been in some ways illogical given the fact that things that went to 

the White House would come to the Justice Department. In any 

case, I don’t know what Mr. Quinn—where he got that from. I don’t 

know if in a conversation I had with him he misinterpreted something that I said. But I never told him go straight to the White 

House with that pardon application. 

Senator SPECTER. Were you aware, Mr. Holder, of the atrocious 

record that Rich had in dealing with Khomeini and the Iranians 

and an apartheid nation and arms in exchange for oil and rockets? 

Were you aware of this kind of a record this man had? 

99 

Mr. HOLDER. No, I was not, and that was one of the mistakes 

that I made. I did not really acquaint myself with his record. I 

knew that the matter involved—it was a tax fraud case. It was a 

substantial tax fraud case. I knew that he was a fugitive. But I did 

not know a lot of the underlying facts that you have described. And 

as I said, that was a mistake. 

Senator SPECTER. One last question on this round. 

Chairman LEAHY. I will give you extra time for that, but I am 

going to try to keep close to the time in this. Go ahead. 

Senator SPECTER. One last question. When the pardon Attorney, 

Margaret Love, said don’t do it, did you ask her why she said 

that—which would have been an avenue to find out what an atrocious record this man had? 

Mr. HOLDER. Senator, with all due respect, Margaret Love was 

not the pardon attorney at the time that this matter was being considered, and the pardon attorney who was present at the time, Mr. 

Adams, never made—expressed an opinion about this, again, because he didn’t have the material in front of him. 

Senator SPECTER I will come back to this. 

Chairman LEAHY. Thank you. 

Senator Kohl. 

Senator KOHL. Thank you, Mr. Chairman. 

Mr. Holder, you have been selected by the President-elect for a 

very important position, and for that you must be very grateful to 

him personally. But as we know, once you are confirmed, you will 

not be his lawyer but the American people’s lawyer. Your role 

among Cabinet members is unique. Your first duty will be to the 

Constitution, to the rule of law, and not to the President. 

In the minds of many people, Attorney General Gonzales stepped 

over that line and was perceived too much as the President’s lawyer and not the people’s. One of your top priorities will be to restore the integrity of the Justice Department. Because of the U.S. 

Attorneys’ firing and other scandals, the American people came to 

believe that the Department’s activities from law enforcement to 

hiring were driven too much by politics. 

How can you assure the American people that you are the right 

person to restore the independence of the Justice Department, especially in light of the questions raised by your critics that you 

were not sufficiently independence of the White House in the Clinton administration? 

Mr. HOLDER. Senator, everything that I owe as a professional, I 

owe to the Department of Justice. It is an institution that I love. 

I came into the Department as a bright young lawyer, fresh young 

lawyer out of Columbia University into the Honors Program. I had 

the pleasure of working with the best lawyers, I think, in the 

world. I learned how to be a lawyer at the Justice Department. 

I understand that the Attorney General is different from every 

other Cabinet officer. Though I am a part of the President’s team, 

I am not a part of the President’s team in the way that any other 

Cabinet officer is. I have a special and unique responsibility. There 

has to be a distance between me and the President. The Presidentelect said when he nominated me that he recognized that, that the 

Attorney General was different from other Cabinet officers. 

100 

I think if you look at my record, if you look at my career and 

the decisions that I have made, I have shown that I have the ability and, frankly, the guts to be independent of people who have put 

me in positions. President-elect Obama—President Obama is not, 

I expect, going to ask me to do anything that would compromise 

what I should be doing as Attorney General, but I want to assure 

you and the American people that I will be an independent Attorney General. I will be the people’s lawyer. 

Senator KOHL. In light of what you just said, are you prepared, 

if some issue comes up that is a matter of basic constitutional principles that you differ with the President on, that you will resign 

your job? 

Mr. HOLDER. I do not think that that is a situation that I will 

face. We have a President-elect who is a brilliant constitutional 

lawyer, a person with a great moral compass, a person who I think 

will take criticism and advice. And I would think that if we had 

a constitutional problem as significant as the one that you are describing in your hypothetical, that we would somehow work it 

through. 

If, however, there were an issue that I thought were that significant that would compromise my ability to serve as Attorney General in the way that I have described that, as the people’s lawyer, 

I would not hesitate to resign. 

Senator KOHL. Mr. Holder, for decades this country has been 

looked up to around the world for its unwavering commitment to 

human rights and the rule of law. There is a growing consensus 

that the detention center at Guanta ́namo Bay has tarnished that 

image. While the past two Attorneys General, the current Secretaries of Defense and State, and the President himself have publicly said that they would like to close Guanta ́namo, no steps as yet 

have been taken. 

Many of us were encouraged by press reports which suggest that 

a change will occur in this next administration. Shortly after taking office, the President-elect will reportedly issue an order to close 

the prison, but it does remain unclear how this will be done and 

how long it will take. 

Can you give us some indication about how you feel, what your 

priorities will be, how long you believe it will take, and what we 

will do with those detainees? 

Mr. HOLDER. Yes, Senator. Guanta ́namo will be closed. The 

President-elect during the campaign made that promise. Steps are 

being taken as we speak to look at the manner in which that can 

occur. 

I will tell you, this will not be an easy task. The physical closing 

of the facility is something that can be done relatively quickly. The 

question is what will we do with the people who are there now, 

roughly, I guess, 250 or so people. 

To responsibly close the facility, I think that we have to understand who these people are, make an independent judgment of who 

they are based on an examination of the records that exist down 

there, so that we can treat them in an appropriate way. I think 

substantial numbers of those people can be sent to other countries 

safely. Other people can be tried in a jurisdiction and put in jail. 

And there are possibly going to be other people who we are not 

101 

going to be able to try for a variety of reasons, but who nevertheless are dangerous to this country. And we are going to have to try 

to figure out what we do with them. 

But I think that review that we will have to go through to figure 

out who these people are and in what categories they fit will take 

an extended period of time. And I think that is the thing that will 

prevent us from closing Guanta ́namo as quickly as I think we 

would like. But I want to assure the American people that 

Guanta ́namo will be closed. 

Senator KOHL. Mr. Holder, while the President and the Vice 

President have called them ‘‘enhanced interrogation techniques’’ or 

‘‘special measures,’’ as the facts have leaked out, we now know that 

the White House authorized the abuse of prisoners in our custody. 

The administration admitted to using waterboarding, and press reports have suggested that sleep deprivation, extreme temperatures, 

and other abusive techniques have also been authorized. 

This administration, of course, has taken a different view with 

respect to their legality. They have maintained that they were advised by the Justice Department that all of the approved techniques were legal. They have had the backing of three Attorneys 

General. According to press reports, former Deputy Attorney General James Comey reportedly said that the administration would be 

‘‘ashamed’’ when the world eventually learned of these legal opinions. 

Will you put an end to the use of abusive interrogation techniques? What is your description of what they are? What can we 

hope to expect from you? 

Mr. HOLDER. Our Justice Department will adhere to the values 

that have made this Nation great. It is the intention of the President-elect, it is my intention, to make sure that we have interrogation techniques that are consistent with who we are as Americans 

so that we don’t do things that will serve as a recruiting tool for 

people who are our enemies. 

The decisions that were made by the prior administration were 

difficult ones. It is an easy thing in some ways to look back and 

in hindsight be critical of the decisions that they made. And yet 

having said that, the President-elect and I are, I think, both worried, disturbed by what we have seen, what we have heard. 

The pledge that he has made and that I will make is that we will 

make sure that the interrogation techniques that are sanctioned by 

the Justice Department are consistent with our treaty obligations, 

the Geneva treaty obligations that we have, and will be effective 

at the same time. 

One of the concerns that I have, as I have talked to generals and 

admirals who are responsible for interrogation techniques is what 

they have said is that some of these enhanced techniques do not 

necessarily produce good intelligence. And we want to make sure 

that whatever it is that we do produces intelligence that will be 

useful to us and help us in our fight against those who would do 

us harm. 

Senator KOHL. Thank you. One last question, and this relates to 

your ability to exercise your responsibilities independently of what 

the President may or may not like. 

102 

He is reported, as you know, to have considerable skills as a basketball player, and you have indicated to me, when we met in my 

office, that you also are a person of considerable skill. In the event, 

Mr. Holder, that he invites you to the gym for a little one-on-one, 

will you promise us and the American people that you will do everything in your power to defeat him as badly as you can? 

[Laughter.] 

Chairman LEAHY. My vote depends on your answer. 

Mr. HOLDER. Senator Kohl, he is 10 years younger than me. 

[Laughter.] 

Mr. HOLDER. He plays a lot more frequently than I do. Having 

said that, I got New York City game. 

[Laughter.] 

Mr. HOLDER. I come from the city that produced Connie Hawkins, Kareem Adbul Jabar, Nate ‘‘Tiny’’ Archibald. I learned how 

to play ball in P.S. 127 in Queens. If you give me a little time and 

a little space to get back in shape, I think I could hang with him. 

I don’t think I am ever going to be in a position to beat him, nor 

do I think that would be a wise thing to do. 

[Laughter.] 

Senator KOHL. Well said, sir. 

Mr. HOLDER. Thank you. 

Chairman LEAHY. I want you to know, Mr. Holder, I have been 

here 34 years in these hearings. That is the first time that question 

has ever been asked. 

[Laughter.] 

Chairman LEAHY. What we are going to do, I was going to break 

for 5 minutes at this point. Senator Kyl has, as we all do, different 

things he is supposed to be at, so to accommodate him, what we 

will do is we will do his round, and then we are going to break for 

about 5 minutes, then come back. 

Senator Kyl. 

Senator KYL. Thank you, Mr. Chairman. If that is all right with 

you, Mr. Holder. 

Mr. HOLDER. Sure, that is fine. 

Senator KYL. And, by the way, I think Herb may be just looking 

for some new talent for the Bucks. 

[Laughter.] 

Senator KYL. Be careful there. 

It is good to visit again, and I appreciated our discussion in 

which we discussed a wide range of issues. And as I mentioned at 

that meeting, one of the first things I would like to do is to just 

have you state for the record your views and commitments you 

made regarding a whole series of issues that we discussed. 

The first one relates to DNA. As we discussed last December, the 

Justice Department published regulations that require Federal 

agencies to collect DNA samples from individuals who are arrested 

under Federal authority and from illegal immigrants who are being 

deported. The regulations require these agencies to collect DNA 

samples at the same time that they take fingerprints and mug 

shots. The Justice Department is charged with implementing and 

administering the new regulations. It is the Department’s job to ensure that the DNA samples are collected and analyzed. 

103 

Mr. Holder, if you are confirmed as Attorney General, will you 

see to it that the new DNA regulations are enforced and that DNA 

samples are collected and analyzed as required under the new 

rules? And will you seek sufficient resources to implement the regulations? 

Mr. HOLDER. Yes, I will, Senator. The collection of that evidence 

is, I think, critical for crime solving. The use of DNA evidence is 

often seen as a way in which people who are charged with crimes 

are absolved. And that certainly is a beneficial effect, but I think 

too often people forget that the collection of this evidence is a very 

important crime-fighting tool. And so I will support those regulations. 

I think as you indicated, it is entirely possible that one of the 

things that we are going to need are additional resources to make 

sure that we have the capacity, the ability to do that job in the way 

that Congress intended. 

Senator KYL. And at least I will do my best to help to make sure 

Congress supports the resource requirements. 

Next, capital habeas. As you know, in 2005 Congress passed an 

amendment that will implement the opt-in system for a faster review of State capital cases in Federal courts. The amendment requires the U.S. Attorney General to review whether States are providing counsel to capital defendants with a review of the Attorney 

General’s decision in the D.C. circuit court. The State of Arizona 

will probably be interested in submitting such a petition for review. 

If you are confirmed as Attorney General, will you review the 

State of Arizona’s application in a timely manner and make a timely determination of whether Arizona is providing counsel to capital 

defendants and post-conviction relief? 

Mr. HOLDER. I will take my obligation seriously under those regulations and look at the evidence that the States provide with me 

that they have complied with the regulations. And to the extent the 

States do, I will give the relief that is dictated by those regulations. 

I want to make sure that, in fact, the resources in capital cases 

that the regulations call for are provided to defendants. But for 

States that actually do meet those requirements, I will check the 

necessary boxes. 

Senator KYL. And what you stated I think is absolutely true. We 

are just interested that that does not drag on beyond the time that 

a normal review process would require. 

Next, we talked some about FISA. One of the amendments to 

FISA deals with the so-called lone wolf terrorists. These are individuals who are believed to be involved in international terrorism, 

but who we at least do not have any evidence that they are actually taking orders from a particular organization. And the provision 

was enacted specifically because of the FBI’s previous inability to 

obtain a warrant to monitor Zacarias Moussaoui, the co-conspirator 

in the 9/11 plot who was arrested before the attacks, but who could 

not be searched pursuant to FISA because, despite his likely involvement in preparations for terrorism, agents could not link him 

to al Qaeda or any other group. 

The lone wolf provision needs to be reauthorized by the end of 

this year. Will you support reauthorization of FISA’s lone wolf surveillance authority? 

104 

Mr. HOLDER. I expect that I will. There are three provisions that 

are up for reauthorization. What I would like to do is examine how 

those provisions have worked, talk to people, investigators and lawyers, and get a sense of what it is they think has worked well with 

regard to those provisions, what perhaps needs to be changed. 

At least a couple of those provisions were contained in a proposal 

that President Clinton made back in the late 1990s, and I went before a couple of congressional committees seeking their institution, 

and one of them was one wolf, and the other had to do with roving 

surveillance. And so I would expect that with regard to those I 

would probably be supportive of them. 

Senator KYL. And, in fact, let me just discuss this because we 

discussed all three, and these are the other two. One is the reauthorization of the PATRIOT Act’s multi-point wiretap authority, 

and the other is reauthorization of Section 15 of the PATRIOT Act, 

which, when we discussed this, I neglected to note, although you 

are probably aware, that unlike the typical administrative subpoena, this requires a judicial approval before it is granted. 

First, with respect to the multi-point wiretap authority, would 

you support reauthorization of that? 

Mr. HOLDER. Again, I would like to have some interaction with 

the people who are responsible for the use of that tool, which is a 

very useful tool, and make sure they are satisfied with the way in 

which it is presently constructed. But I would expect that I would 

be able to support that. 

Senator KYL. And with regard to Section 215 orders as well? 

Mr. HOLDER. That is one that I think has certainly generated 

more controversy, I believe, than the other two, and I think that 

the examination—the questions that I need to ask people in the 

field who have been using that, I would want to know as much as 

I possibly can. But as I said, the tools that we have been given by 

Congress in FISA are important ones, and so I would look at all 

three of these and make the determination as to whether or not I 

will be able to support them. But I would expect that I would. 

Senator KYL. Let’s see here. We also discussed the Operation 

Streamline—I tell you what. Before I ask that, we discussed the 

warrantless surveillance. Since that is somewhat related to this, 

you indicated that comments that you had made in a speech on 

June 13, 2008, were directed to the status of the law pre-FISA 

modifications from the legislative branch. When Congress later—I 

believe it was the next month—modified the FISA law, there was 

an explicit type of search that was provided allowing warrantless 

monitoring of suspected communications of international terrorists 

predicated on the principle that the Fourth Amendment gives 

greater leeway to intelligence investigations of foreign threats. 

Do you agree with that general principle? But, more importantly 

in the context of our conversation, do you believe the new law is 

constitutional? And if confirmed, will you support its enforcement? 

Mr. HOLDER. Yes, I believe that the law is constitutional. One of 

the things that I think is in some ways regrettable is that the program—that I have not been read into and I don’t know all the dimensions of it. But as I understand it, that program is a very useful tool, is an essential tool for us in fighting terrorism. 

105 

I think that what is unfortunate is that we could have had that 

tool congressionally sanctioned at a much earlier stage. I think that 

as we saw in the steel seizure concurrence of Justice Jackson, the 

President has his greatest power when he acts consistent with congressional directives. And I think that in this instance, that is instructive. Had the administration come to Congress and asked for 

that enhanced authority many years before, I have no doubt that 

Congress would have granted him that tool. Having done that, 

though, and having had Congress say that this is an appropriate 

thing to do, I think, as I said, that is a very useful tool and one 

that we will make great use of. 

Senator KYL. We discussed in the context of illegal immigration 

an operation called ‘‘Operation Streamline’’ by the Border Patrol, 

and there is a Department of Justice aspect to this. Essentially, 

that has been utilized in two Border Patrol sectors. A third one is 

now underway. I specifically discussed the Yuma Border Sector, for 

example. This is a situation where repeat illegal border crossers 

are put in jail for 30 days. Sometimes it can be more if they have 

committed the crime over and over and over. And that has resulted 

in an extraordinary disincentive for them to try to cross illegally. 

In the Yuma Border Sector, for example, there has been a 93-percent reduction in border apprehensions after just 2 years, and 

much of that at least Border Patrol attributes to this policy of 

jailing the people for 30 days. 

However, as with so many of these other things, it requires resources, and in that regard, a lot of the resources fall on the Department of Justice side. I hope I have gotten it to you already, but 

I promised I would get you a letter from Judge John Roll, who is 

the chief judge for the Arizona District, in which he outlines some 

of the requirements for additional judges, magistrates, U.S. marshals, prosecutors, defense attorneys, as well as the hearing space 

and detention facilities. 

And if you would like to address all of those things individually, 

fine, but just as a general proposition, if you are confirmed, will 

you support the appointment of the additional personnel and the 

resources for the items that I mentioned to try to continue to expand Operation Streamline for as long as we may need that along 

our Southern border in order to help deter illegal immigration? 

Mr. HOLDER. Yes, Senator, that was—I was not aware of that operation until you brought it to my attention during our meeting. I 

think it is actually a pretty interesting concept, and I think one 

that ought to be explored, and I would want to work with you all 

to see if it is something that can be expanded. 

I think one component of it, at least as I understand it—you can 

correct me if I am wrong—was that for an initial—the first time 

a person comes across, I don’t think they are jailed. I think the person is warned—and then is put in jail the second time? 

Senator KYL. It is after the first crossing. In other words, it is 

for repeat offenders. 

Mr. HOLDER. Repeat offenders. And I think that is something 

that is worth looking at. 

One of the things that has always worried me is that a disproportionate share of what is a national problem is borne by the 

States along our Southern border. Resources that need to be diVerDate Nov 24 2008 12:46 May 12, 2010 Jkt 056197 PO 00000 Frm 00117 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56197.TXT SJUD1 PsN: CMORC
106 

rected to what is, in essence, a national problem are too often not 

sent to the place where it is really needed—the State of Arizona 

and the other States along that border. 

So my commitment would be to try to work with you, as I think 

we have in the past, to try to determine what resources are necessary, what programs would be good to try to effect a reduction 

in the number of illegal immigrants who come across those borders. 

Senator KYL. I appreciate that. I just introduced your good friend 

and colleague, Governor Janet Napolitano from Arizona, in the Department of Homeland Security hearing, and she and I have discussed this as well. So I look forward to the opportunity of working 

with both of you on trying to provide some additional deterrence 

to illegal border crossing. 

Chairman LEAHY. Thank you. I might note my friend from Arizona has raised some good points. Some of them we will probably 

have hearings on, especially on renewal of legislation. I will work 

with Senator Kyl and Senators on both sides of the aisle on that, 

but especially on these immigration matters, Senators who are 

from border States. I see Senator Cornyn here and Senator Kyl, 

and Senator Feinstein was here a few minutes ago. I rely heavily 

on their own personal experience. 

Before we break, the Committee has received letters in support 

for Mr. Holder’s nomination from numerous major national law enforcement and criminal justice organizations. And I am going to, 

without objection, put these letters into the record, including letters from the—and these are letters in support, Mr. Holder, of your 

confirmation, letters from the National Association of Police Organizations, the Fraternal Order of Police, the Federal Law Enforcement Officers Association, the National Association of Assistant 

U.S. Attorneys, the National Sheriffs Association, the American 

Probation and Parole Association, the International Association of 

Chiefs of Police, the International Union of Police Associations, the 

Major Cities Chiefs Association, the National Association of Blacks 

in Criminal Justice, the National Association of Drug Court Professionals, the National Association of Attorneys General, the National Black Prosecutors Association, the National Crime Prevention Council, the National Criminal Justice Association, the National District Attorneys Association—I noticed that especially as I 

was once Vice President of the National District Attorneys Association—the National Law Enforcement Officers Memorial Fund, the 

National Narcotic Officers Associations Coalition, the National Organization of Black Law Enforcement Executives, the National Organization of Police Officers, the National Troopers Coalition, the 

Police Executive Research Forum. I think one gets the drift of 

these. 

They will be placed in the record, and with that we will stand 

in a short recess. 

Mr. HOLDER. Thank you, Mr. Chairman. 

[Whereupon, at 11:16 a.m. the hearing was recessed.] 

AFTER RECESS [11:35 A.M.] 

Chairman LEAHY. I am always hesitant to ask photographers to 

back off, but I am going to have to ask everybody to give us a little 

break here. 

107 

You should also understand what is going on here. We do not 

have Senator Kennedy with us this morning. He is in Cabinet 

nominations before the Committee he chairs. I should note that he 

is not only a former Chairman, but he served on the Judiciary 

Committee longer than any Senator in the Nation’s history. This 

is his 46th year of service on this Committee. 

Now, we are also missing Senator Biden, who made his valedictory address to the Senate this morning. We told Senator Biden, 

another former Chairman of this Committee, that we did not mind 

him taking a drop down in position to become Vice President. But 

we do miss him. 

And the next person we are going to hear from is Senator Feinstein, the senior Senator from California. She is also the new Chair 

of the Senate Select Committee on Intelligence, and she is a very 

good friend of all of ours. Senator Feinstein the floor is yours. 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. And 

welcome, Mr. Holder. 

Mr. HOLDER. Good morning. 

Senator FEINSTEIN. I hope shortly we will be calling you ‘‘Attorney General Holder.’’ I would like to begin with something internal 

to the Department. I want to ask you a quick question on 

Guanta ́namo. If it is not something you can answer—— 

Chairman LEAHY. If the Senator could hold just a moment and 

see if we can get rid of that feedback, and we will start the clock 

again. 

Senator FEINSTEIN. And about the use of contractors in carrying 

out interrogation techniques. 

But let me begin with this: The Inspector General of the Department of Justice has over the past year put out four different reports which really revealed substantial politicization of the Department of Justice. The latest one just came out on January 13th. It 

was an investigation of allegations of politicized hiring and other 

improper personnel actions in the Civil Rights Division. 

It points out that a Bradley Schlozman, a political appointee in 

the Civil Rights Division, had been screening applicants for career 

positions based on their political beliefs and had been removing 

‘‘disloyal’’ lawyers from sections in the Department to make way for 

‘‘real Americans.’’ 

The report also found that Schlozman made false statements in 

sworn testimony to this Committee, namely, in direct response to 

questions the Chairman put to him, a question that I put to him, 

and a question that Senator Schumer put to him. 

My question is: Have you read this report? And if so, what actions can you take to follow up on it? 

Mr. HOLDER. I have not had a chance to read the report, Senator, 

and yet I have read the news accounts of it. What is contained in 

the report is very disturbing. The notion that the Justice Department would ever take into account a person’s political affiliation or 

political beliefs in making hiring decisions is antithetical to everything that the Department stands for and everything that I am familiar with. I served very proudly in the Justice Department under 

Republican Attorneys General, Democratic Attorneys General, and 

there was never a thought given to what your party affiliation was, 

what your political beliefs were in hiring, in promotion decisions. 

108 

What we have seen in that report I think is aberrant, but it is 

also, I think, one of the major tasks the next Attorney General is 

going to have to do. You have to reverse that. 

Senator FEINSTEIN. Well, this documents clear lying to this Committee, and I believe that that is a violation of law. And I would 

hope that the Justice Department would take action, however you 

do it. I don’t think we can do nothing to someone representing the 

Government who comes before us and lies. 

Mr. HOLDER. Yes, I understand that prosecutors in the U.S. Attorney’s Office in D.C.—again, just based on the press reports—actually reviewed the report and have made a prosecutive determination. If I am fortunate enough to be confirmed as Attorney General, 

I will indicate to you that I will review that determination. I don’t 

know all the facts of the case, but given the findings in the Inspector General’s report that are consistent with what you have said, 

I want to know why the determination was made not to pursue 

charges, criminal charges. 

Senator FEINSTEIN. Thank you very much. 

I listened carefully to your answers to Senator Kohl’s question 

about Guanta ́namo. I also read the speech that you made in the 

middle of 2008 where you very clearly stated that it should be 

closed, and here you said it will be closed. Let me ask these questions about that. 

Do you believe military commissions are sufficient to prosecute 

detainees who have been declared enemy combatants and pose a 

danger to the national security of the United States? 

Mr. HOLDER. I don’t think that the military commissions that we 

now have in place have all of the due process requirements that 

I would like to see contained in them. We have to come up with 

a system that will deal with those three categories of people that 

I described that I believe are contained at Guanta ́namo: those who 

I think we can safely repatriate to other countries, those who we 

can try, and then deal with those who perhaps are too dangerous, 

but nevertheless cannot be tried. 

In trying to deal with those detainees who we will try, I think 

we have to examine what tools will be available to us, what forums 

will be available to us—Article III courts, military courts. The possibility exists, I suppose, that we could use military commissions, 

but they would have to be, I think, substantially revamped to provide the due process rights that I think are consistent with who we 

are as Americans. 

Senator FEINSTEIN. Well, let me just discuss this with you. Assuming Guanta ́namo is closed—and one of the big criticisms of 

Guanta ́namo has been that it is a hypocritical situation. One set 

of laws applies to people at Guanta ́namo and another set of laws 

in the United States. So assuming that the 80 or so—well, however 

many detainees need to be relocated can be relocated, we have 

checked with military and Federal super-max and max prisons and 

believe there is space for them. And they come to the United 

States. You would assume they would fall under regular Federal 

law. Do you agree with that? 

Mr. HOLDER. I think we want to leave our options open. I don’t 

know exactly what system we would put in place or what system 

we would utilize in order to try those people. This is something 

109 

that, even as we speak, we are trying to work through as an administration in anticipation of President-elect Obama becoming 

President Obama. 

But the one thing I can assure you and the American people— 

and, frankly, the world—is that whatever system we use, it will be 

consistent with our values; it will be a system that has due process 

guarantees; it will be seen as fair. 

Senator FEINSTEIN. Some of us—Senator Whitehouse, myself, 

other Senators—have just introduced a bill that is in the Intelligence Committee which would close Guanta ́namo within 12 

months, which would essentially provide for a single standard for 

interrogation across the United States Government, namely, the 

Army Field Manual, and prohibit the use of contractors doing interrogation. 

Let me ask you about the Army Field Manual. As you know, it 

has been revised by the military. It is a comprehensive, thoughtful 

manual. It has more than a dozen different techniques. It is supported across the United States military and by about 30 retired 

generals as being an adequate standard for the United States to 

use. 

Do you believe that the Army Field Manual should comprise the 

standard for interrogation across the United States Government? 

Mr. HOLDER. Well, I have been impressed in my interactions 

with those generals and admirals, as they have discussed what 

they are allowed to do under the terms of the Army Field Manual 

and how they don’t think that the inability to do these enhanced 

interrogation techniques has in any way had a negative impact on, 

they think, their ability to get good intelligence. 

So my view is that I think starting with what we have in the 

Army Field Manual, I think that is a good place for us to start. I 

personally think that the techniques that are outlined there are 

consistent with what we are supposed to do under Common Article 

III and the other parts of the Geneva Convention. And I am not 

convinced at all that if we restrict ourselves to the Army Field 

Manual that we will in any way be less effective in the interrogation that we do of people who have sworn to do us harm. 

This is something that the President-elect is considering now and 

is giving all components an opportunity to express their views, not 

only the military but those on the intelligence side. If there is a 

contrary view, we want to give them an opportunity to make their 

case. But it is my view, based on what I have had and the opportunity to review and what I have been exposed to, that I think the 

Army Field Manual is adequate. 

Senator FEINSTEIN. Currently, all interrogation is done by contractors. CIA interrogation is done by contractors. And I wrote a 

letter to General Mukasey in the early part of last year challenging 

this, because all inherently governmental activities under the law 

should be carried out by Government employees. He wrote back 

saying that these contractors were not covered under that section 

of the law. 

I have a real issue with this. Have you had an opportunity to 

look at that? And can you comment? 

Mr. HOLDER. I am not up to speed on that, but let me say this: 

The concern that you express I think is a very legitimate one. I 

110 

think across the board, and especially when it comes to law enforcement functions interpreted pretty broadly, you want to have 

employees of our Government who are conducting and doing law 

enforcement activities. This is not something that you want to farm 

out, that you want to give to people who are not sworn. It does not 

mean that these people cannot be trained and everything, but I 

think that when it comes to core law enforcement responsibilities— 

and interrogation, I would think, would be one of those—I would 

like to, to the extent that it is possible, restrict that. 

Senator FEINSTEIN. There is—— 

Chairman LEAHY. Thank you. 

Senator FEINSTEIN. Oh, my time is up. So short. Thank you, Mr. 

Holder. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator Feinstein. And I am going 

to recognize next the senior Senator from Utah, Senator Hatch, 

who is a long-time friend. We have served here for decades, and he 

is also a former Chairman of the Committee, been a consistent supporter of the work of the Department of Justice. Senator Hatch, it 

is yours. 

Senator HATCH. Well, thank you, Mr. Chairman. Congratulations, Mr. Holder, on this appointment, and welcome back to the 

Judiciary Committee. This is the fourth time that you have come 

to the Senate for confirmation, so far without a single negative 

vote. We will just have to see if that continues, that trend. 

Now, candidly, there are some real issues and concerns, as you 

know. We have chatted about them, and you are chatting about 

them here. And I say that as someone who has said that I am inclined to support your nomination. 

Now, in a speech last year, you stated, ‘‘I never thought I would 

see that a President would act in direct defiance of Federal law by 

authorizing warrantless NSA surveillance of American citizens. 

This disrespect for the law is not only wrong, it is destructive in 

our struggle against terrorism.’’ 

Now, do you believe that the President, whoever is President of 

the United States, has inherent authority under Article II of the 

Constitution to engage in warrantless foreign intelligence surveillance? Or in your opinion, does FISA trump Article II? 

Mr. HOLDER. Senator, no one is above the law. The President has 

the constitutional obligation to make sure that the laws are faithfully executed. In rare instances where Congress passes a law that 

is obviously unconstitutional—if, for instance, Congress were to 

pass a law that the Secretary of Defense should be the Commander-in-Chief or that women would not have the right to vote— 

I think that the President in that instance would have the ability 

to act contrary to a congressional dictate. 

But the President has his power at its maximum, at its zenith, 

when he acts consistent with congressional direction. And when it 

comes to the FISA statute, there is an exclusivity provision in the 

FISA Act that essentially says, as Congress has expressed, this is 

the exclusive way in which that kind of surveillance should occur. 

My speech was taking the administration to task for not following the dictates of FISA. As I indicated, I think, in response to 

a previous question, I think that had the administration worked 

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with Congress, as we are pledging to do, that tool, that very valuable tool—very valuable tool—could have been in the arsenal of the 

administration without any question about its legality. 

Senator HATCH. How do you reconcile your analysis of the Terrorist Surveillance Program with the longstanding precedents of 

Truong and Keith, the Foreign Intelligence Surveillance Court reviews decision in the In Re: Sealed case, and the recent Second Circuit decision in the Wadi al Haj case? 

Mr. HOLDER. Senator, I can’t hear you too well. 

Senator HATCH. The recent Second Circuit decision in the Wadi 

al Haj case, I think it is. 

Mr. HOLDER. I am sorry, Senator. I didn’t hear the whole question. 

Senator HATCH. Well, I asked you how do you reconcile—maybe 

I can pull this thing close. How do reconcile your analysis of the 

TSP, Terrorist Surveillance Program, with these longstanding 

precedents from Truong, Keith, In re: Sealed, and the Wadi al Haj 

case? 

Mr. HOLDER. Well, Senator, it is my belief that the statute lays 

out the means by which the President has the power, the executive 

branch has the power to do that type of surveillance. It is, as I 

said, a very valuable tool. It is one that sets out very explicitly the 

means by which this can be done. 

It seems to me that it is incumbent upon anybody in the executive branch who is engaged in that kind of surveillance to be mindful of the dictates of FISA and then to perform in that way. 

Senator HATCH. Well, let me just ask this question: As a former 

Deputy Attorney General during the Clinton administration, were 

you part of the decisionmaking process at DOJ that authorized the 

warrantless search of the residence of the spy Aldrich Ames, a U.S. 

citizen, in 1993? Do you believe that search at that time was illegal? 

Mr. HOLDER. Senator, I don’t know all the circumstances under 

which that occurred. I was not at Main Justice in 1993. I was the 

U.S. Attorney in D.C., so I did not participate in 1993—if that is 

when it occurred, I didn’t participate in that decision. And I am not 

familiar with all that might have happened. I don’t know whether 

there were exigent circumstances. I don’t know exactly what happened in connection with that. 

Senator HATCH. Okay. But back to our prior point, is the President’s inherent authority under the Constitution, can that be limited by a statute? 

Mr. HOLDER. The President’s inherent authority. 

Senator HATCH. Right. 

Mr. HOLDER. Well, it is—— 

Senator HATCH. I mean, you are relying on the statute as though 

that is binding on Article II of the Constitution. 

Mr. HOLDER. Well, the President obviously has powers under the 

Constitution that cannot be infringed by the legislative branch. 

That is what I was saying earlier. There are powers that the President has and that have been delegated to him, or that he has, and 

in the absence—Congress does not have the ability to say with regard to those powers you cannot exercise them. 

112 

There is always a tension in trying to decide where that balance 

is struck, and I think we see the best result when we see Congress 

interacting with the President, the executive branch interacting 

with the legislative branch, and coming up with solutions—— 

Senator HATCH. All right. But that still does not negate the fact 

that the President may have inherent powers under Article II that 

even a statute cannot bury. 

Mr. HOLDER. Well, sure. The—— 

Senator HATCH. Do you agree with that statement? 

Mr. HOLDER. Yes. There are certain things that the President 

has the constitutional right, authority to do that the legislative 

branch cannot impinge upon. 

Senator HATCH. Okay. Now, the FISA Amendments Act of 2008 

included important civil liability protections for those providers 

who assisted the Government with the Terrorist Surveillance Program in the aftermath of the September 11th terrorist attacks. 

Now, according to this Act, in order for the liability protections 

to apply, the Attorney General must first file a certification with 

the court. 

Now, last fall, Attorney General Mukasey filed the appropriate 

certifications with the court. You are aware of that? 

Mr. HOLDER. Yes. 

Senator HATCH. Okay. Now, do you believe that those private 

partners who assisted the Government should be given civil liability protection? 

Mr. HOLDER. Well, that is now contained in a statute. The duty 

of the Justice Department is to defend statutes that have been 

passed by Congress, unless there is some very compelling reason 

not to. President-elect Obama was against the immunity that was 

granted to those ISPs, Internet service providers, but nevertheless 

voted for the statute that contained that immunity. It would seem 

to me that unless there are compelling reasons, even given the opposition, unless there are compelling reasons, I would not—I don’t 

think that we would reverse course. 

Senator HATCH. Okay. So if confirmed as Attorney General, you 

will honor the certifications by Attorney General Mukasey. 

Mr. HOLDER. Yes, I believe that we would. Obviously, we have 

to look at if there are changed circumstances, if there is some basis 

to change that determination. But in the absence of that, I don’t 

think we would. 

Senator HATCH. Thank you. 

There have been numerous calls for prosecutor of various individuals ranging from the Vice President to attorneys at the Office of 

Legal Counsel for their support or approval of the Terrorist Surveillance Program and the CIA’s interrogation and detention program. Now, if confirmed as the Attorney General, do you intend to 

undertake, order, or support a criminal investigation of those individuals, including those individuals at the Office of Legal Counsel, 

who are involved in drafting legal opinions on these matters? Or 

are you willing to acknowledge that there can be differences of 

opinion but they acted in accordance with their best good-faith efforts under the circumstances at the time? 

Mr. HOLDER. Well, Senator, no one is above the law, and—— 

Senator HATCH. We all agree with that. 

113 

Mr. HOLDER. We will follow the evidence, the facts, the law, and 

let that take us where it should. But I think President-elect Obama 

has said it well. We don’t want to criminalize policy differences 

that might exist between the outgoing administration and the administration that is about to take over. We don’t want to do that. 

Senator HATCH. Would you consider these policy differences or 

policy decisions? 

Mr. HOLDER. Well, one of the things I am going to have to do is 

to become more familiar with what happened that led to the implementation of these policies. I have not been read into a variety of 

things that I will be exposed to, should I become Attorney General, 

and that would, I think, better inform any decision that I would 

make in that regard. 

Senator HATCH. Okay. Let me just switch the subject for—I have 

got just another 40 seconds—and explore your position—well, let 

me just start with this: I want to ask you about the constitutional 

right to keep and bear arms. As you know, that is a matter of great 

concern. I have always been baffled by those who claim they see 

rights that are not in the Constitution at all, but cannot seem to 

see the rights that actually are expressly written there. 

You have in the past, both as Deputy Attorney General and a 

private citizen, stated your belief that the Second Amendment confers only a collective right to keep and bear arms rather than an 

individual right. Last year, you signed a friend-of-the-court brief 

that took this position before the Supreme Court in the District of 

Columbia v. Heller case. Now, the Supreme Court rejected that position and held that the Second Amendment right to keep and bear 

arms is an individual right. 

In this hearing, who is right—you or the Supreme Court? 

Mr. HOLDER. In the ball game that we—— 

Senator HATCH. That sounds like an unfair question. 

Mr. HOLDER. No, no. In the ball game that we call our judicial 

system, the Supreme Court gets to be the umpire. They call the 

balls and strikes. They made the determination that the Second 

Amendment conferred an individual right. I will obviously respect 

that, and any actions I take as Attorney General will take that into 

account. 

Senator HATCH. The question I have, then, were they correct, the 

Supreme Court? 

Mr. HOLDER. Well, you know, I will say that I think based on 

Justice Department precedent, there was a good argument to be 

made in the amicus brief that we submitted. But I think it is one 

I think lawyers can disagree on, and five Justices of the Supreme 

Court have indicated what the Second Amendment is and so, yes, 

they are right. 

Senator HATCH. Thank you so much. 

Thanks, Mr. Chairman. I appreciate it. 

Chairman LEAHY. Thank you very much, Senator Hatch. 

Before I recognize Senator Feingold, I have been trying to put 

these letters into the record. I mentioned the letters of support 

from 130 law enforcement and criminal justice organizations, civil 

rights organizations, victims’ advocates, legal practitioners, and 

others. 

114 

I will now put into the record letters from several former officials, including a letter from the Attorney General, the Republican 

Attorney General under George H.W. Bush, William Barr, in support of you, and the Assistant Attorney General for the Office of 

Legal Counsel under President Reagan, and then Solicitor General 

under President George W. Bush, Ted Olsen; a former U.S. Attorney, a Republican Congressman, Under Secretary for Homeland 

Security in the Bush administration, Asa Hutchinson; Republican 

former Congressman Bob Barr; two former Deputy Attorneys General under President George W. Bush, Jim Comey and Larry 

Thompson; a letter from former Federal judge and FBI Director 

Louis Freeh, who was here earlier today; and then a number of 

other high-ranking Republican Senate staffers and executive 

branch officials. Without objection, those letters will be made part 

of the record. 

Senator Feingold is the Chair of our Constitution Subcommittee. 

Senator Feingold, I yield to you. 

Senator FEINGOLD. Thank you so much, Mr. Chairman. Mr. 

Holder, welcome. Congratulations on your nomination. I certainly 

appreciated your meeting with me on short notice a few weeks ago, 

and I look forward to many more fruitful discussions of the important issues facing the Department should you be confirmed. And I 

would like to start with a topic that we discussed then and that 

you were just talking to Senator Hatch about. 

As you know, I have been very concerned about the extreme and 

wrong-headed legal theories that the outgoing administration came 

up with to justify assertions of executive power beyond what the 

Constitution allows. These theories were developed by lawyers operating from the Department of Justice in cooperation with lawyers 

from the White House Counsel’s Office and the Office of the Vice 

President. They were used to justify actions by the executive 

branch, particularly in the areas of torture and warrantless surveillance, that I believe were illegal and inexcusable. I voted against 

the confirmations of Alberto Gonzales and Michael Mukasey because their answers on this key question of respect for the rule of 

law were so troubling. 

So one of the things I am looking for from you is a clear indication that the new administration and your Department of Justice 

will make an unmistakable break from the past when it comes to 

these issues. And I already heard you make the statement that 

those gentlemen did not make, which is that the President is not 

above the law. So I will ask you the same question I asked Mr. 

Gonzales. 

First, what is your view of the President’s constitutional authority to authorize violations of the criminal law, duly enacted statutes that may have been on the books for many years, when acting 

as Commander-in-Chief? 

Mr. HOLDER. The President, as I have said, is not above the law, 

has a constitutional obligation to follow the law and execute the 

laws that this Congress passes. If you look at the steel seizure concurrence of Justice Jackson, that I think sets out in really wonderful form the power that the President has and where the President’s power is strongest and where it is weakest. It is weakest in 

Category 3, where Congress has indicated something contrary to 

115 

what the President wants to do. That is where Justice Jackson 

says the President’s power is at its lowest exhibit. And I think— 

I am not a constitutional scholar, but I think that there has never 

been a President who has been upheld when he has tried to act in 

Category 3. I think but I am not—— 

Senator FEINGOLD. I believe that is right, and I want to follow 

that using the construct of Justice Jackson. More specifically, does 

the President, in your opinion, have the authority acting as Commander-in-Chief to authorize warrantless searches of Americans’ 

homes and wiretaps of their conversations in violation of the criminal and foreign intelligence statutes of this country? 

Mr. HOLDER. I think you are then getting into Category 3 behavior by the President. Justice Jackson did not say that the President 

did not have any ability to act in Category 3, although, as I said, 

I am not sure there has ever been an instance where the courts 

have said that the President did act appropriately in that category. 

It seems to me it is difficult to imagine a set of circumstances, 

given the hypothetical that you have used and given the statutes 

that you have referenced, that the President would be acting in an 

appropriate way given the Jackson construct, which I think is a 

good one. 

Senator FEINGOLD. So you see FISA law as under Category 3, 

right? 

Mr. HOLDER. Yes, I think the FISA law, it is a good statute, and 

it has an exclusivity provision that seems to me to be pretty clear. 

Senator FEINGOLD. You discussed with Senator Hatch whether or 

not there was some kind of independent, inherent power of the 

President. Is there anything in the FISA statute that makes you 

believe that the President has the ability under some other inherent power to disregard the FISA statute? 

Mr. HOLDER. No, I do not see that in the FISA statute. 

Senator FEINGOLD. Well, thank you. I think that is a very important break in favor of the rule of law that we have been waiting 

for in this country for many years. And I appreciate that answer. 

As I am sure you know, Congress will consider legislation this 

year to reauthorize an expiring provision of the USA PATRIOT Act. 

You were talking with Senator Kyl about that. Unfortunately, the 

last time Congress considered reauthorizing the PATRIOT Act, the 

administration used scare tactics and over-the-top rhetoric to discount the legitimate concerns raised by both Democrats and Republicans in Congress. And I have to say the administration seemed 

more interested in scoring political points than trying to sit down 

and find some common ground on some of these provisions, where 

we all want to stop those who intend to harm us, but not affect the 

rights of completely innocent Americans. 

I hope to work with you in a productive way on legitimate concerns that I and others in the Senate have about the extent of Government’s surveillance powers. In fact, I believe you joined a bipartisan letter in the summer of 2005 proposing a number of changes 

to the PATRIOT Act. I appreciate what you said in response to 

Senator Kyl about needing to hear from professionals who use 

these authorities. It is important to hear from experts and advocates concerned about these authorities and how they affect the 

privacy and civil liberties of innocent Americans. 

116 

So in light of that, will you commit to work with us on these 

issues, to keep the lines of communications open at all times, and 

to try to resolve any differences as partners who have the same ultimate goal—to protect the American people and the constitutional 

rights of our citizens? 

Mr. HOLDER. Absolutely, Senator. I will be here as often as I can, 

either in formal settings or informal ones, to talk about the needs 

that I identify that we have in law enforcement in fighting terrorism. 

I think we are going to need law enforcement tools. We need to 

always look at them to make sure that they are consistent with the 

obligations that we have, the new challenges that we face. But we 

always have to be mindful of the fact that there is a civil liberties 

component to this, and we have to make sure that we understand, 

as I have said in many speeches, that there is not a tension between respecting our great tradition of civil liberties and having 

very effective law enforcement and anti-terror tools. 

There is a false choice, I think, that is often presented, so I 

would look forward to working with you and the other members of 

the Committee in trying to make sure that we have good, effective 

laws that are consistent with our values. 

Senator FEINGOLD. Thank you for that answer. 

As you know, there was much about last year’s FISA Amendments Act with which I strongly disagreed, and that included, of 

course, the granting of immunity to telecommunications companies 

that allegedly cooperated with the President’s warrantless wiretapping program, and the inclusion of new surveillance powers 

without adequate protection for the rights and privacies of innocent 

Americans. 

But one positive provision was a requirement that the Department of Justice Inspector General, in cooperation with other relevant Inspectors General, undertake a comprehensive review of the 

warrantless wiretap program. And I am told the IG’s report is due 

to be completed by July of this year. This report could offer the 

most complete assessment to date of how the program came about 

and operated for over 5 years. 

Will you pledge the full cooperation of the Department of Justice 

with this effort? And will you pledge to support making as much 

of the report public as possible so that the American people can finally learn the full story of this illegal program? 

Mr. HOLDER. Absolutely. I think the report that will be done by 

the Inspectors General and led by a fine Inspector General at the 

Department of Justice will be an important tool, an important assessment tool for us to find out how these statutes have been working, how these provisions have been working. I know that Glenn 

Fine and the people working with him will not be shy in expressing 

any concerns that the have, but they will also not be shy to tell us 

how these tools have been effective. 

I think that that is going to be a good starting point for a conversation that I think we need to have about where we stand with 

regard to the state of the law and give us a good sense of are we 

in a good place, are there things that we need to change. So I look 

forward to that report, and I will do all that I can to ensure that 

as much of that is made public as is possible. 

117 

Senator FEINGOLD. Thanks. Your testimony recognizes the importance of restoring the credibility of the Department of Justice 

after the terrible issues involving the stewardship of Mr. Gonzales, 

and you correctly note that despite the steps in the right direction 

taken by Attorney General Mukasey, there is more work to be 

done. Certainly the release this week of the OPR IG report on politicized hiring and other personnel actions at the Civil Rights Division only underscores that point. 

As with so many of the mistakes and abuses of the last administration, I don’t think it is enough to just end the misconduct. The 

lingering effects of that misconduct must also be addressed. So 

whether it is politicized hiring in the Civil Rights Division or for 

immigration judges or allegations of politically motivated prosecutions as in the Siegelman case—and there may still be many 

more—what will you do to make sure that justice is truly served 

and that those who engaged in wrongdoing do not, in effect, have 

the last laugh? And, in addition, will you cooperate in any further 

oversight of these matters by the Congress, especially with respect 

to documents that have until now been withheld? 

Mr. HOLDER. Well, one of the things I am going to have to do, 

I think, as Attorney General in short order is to make—basically 

do a damage assessment and understand in a way that I do not 

now how has the institution been harmed by the activities that 

were uncovered by these Inspector General reports. What has been 

the lasting impact? There has certainly been damage to the Department’s reputation. I want to know as a result of those action has 

there been any structural damage to the Department. 

I will work to make that assessment. I will be more than glad 

to come back to this Committee and share with you what I have 

found and perhaps with some suggestions that I might work out 

with you all how we might prevent those kinds of things from happening in the future. I look forward to working with you in that 

regard. 

Senator FEINGOLD. What about the documents? 

Mr. HOLDER. To the extent that there are documents that will 

help this Committee in that assessment, and to the extent that 

there is not a reason why we should be holding onto them, I will 

make them available, always with the presumption that, you know, 

transparency is the best thing and making available documents 

makes the most sense. 

There are institutional concerns that we have that I think should 

be respected. But I also respect the oversight obligations that this 

Committee has, and to the extent that I can make documents available in this context or in others, I will do that. 

Senator FEINGOLD. Thank you, Mr. Holder. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. Thank you very much, Senator. 

Senator Sessions is here. Of course, Senator Sessions is also a 

former U.S. Attorney and knows what one goes through in that regard, and we have relied on him for that experience. 

Senator Sessions, it is over to you. 

Senator SESSIONS. Thank you, Mr. Chairman, and congratulations, Mr. Holder, on the nomination. You certainly bring excellent 

background and experience to the job as a Federal prosecutor for 

118 

a number of years and as a Federal judge. I think you come to the 

office with far more experience than Attorney General Gonzales 

had. I thought he was a good man, but when you lack experience, 

sometimes you can make errors unintentionally. I think former Attorney General Janet Reno was a State prosecutor, but was really 

inexperienced in a lot of the big issues that come before an Attorney General. 

So you do have the background. You have a great family. It is 

good to see your wife, a fine physician and an Alabamian, and the 

sister of one of the leading persons in changing the racial situation 

in the South, as she led the fight to alter the segregated higher 

education policies that were so often conducted in the South, and 

those were unacceptable, and she did a very important historic— 

played a big historic role in that and is so recognized today. 

So I know you are committed to justice and fairness and equal 

rights. I just want to ask a few things. You have had a lot of questions so far about national security. In your opening statement, you 

said, ‘‘I will use every available tactic to defeat our adversaries.’’ 

That is basically what President Bush says. ‘‘I am charged with defending this republic. I am going to use whatever power I can.’’ And 

then you go on to say, ‘‘And I will do so within the letter and the 

spirit of the Constitution.’’ 

Well, first of all, fundamentally, isn’t the controlling authority 

the constitutional requirements first? Would you agree, what the 

Constitution actually requires is the fundamental requirement of 

public service? 

Mr. HOLDER. I am sorry, the Constitution requires? 

Senator SESSIONS. What the Constitution requires is what you 

are committed to do. Is that not correct? 

Mr. HOLDER. That is correct. 

Senator SESSIONS. Now, the only thing that worries me about the 

spirit of the Constitution is that the spirit tends to be in the eye 

of the beholder, and that what you might think is the spirit of the 

Constitution, somebody else might not. And I guess I am worrying 

about these intelligence officers and military officers and people in 

the Department of Defense who attempted to protect and defend 

this country at a time of great concern after the 9/11 attacks. And 

if you formed a prosecution policy, you would want it to be based 

on the plain law of the Constitution, not what somebody might 

think is within the spirit of the Constitution. Would you not? 

Mr. HOLDER. Well, Senator, as you know, having been a prosecutor and a great U.S. Attorney yourself, there are a whole variety 

of things that have to go into making a prosecutive determination: 

What was that person’s intent? Did that person act under the 

thought that he or she had authorization from a higher authority? 

These are all the kinds of things that would have to be weighed 

in trying to make the determination whether somebody had acted 

appropriately, inappropriately, lawfully, or unlawfully. Those are 

the kinds of things that would have to be weighed. 

Senator SESSIONS. I certainly agree with that. I do just note that 

in your June 2008 speech to the American Constitution Society, 

you say that actions after 9/11 were excessive and unlawful. Is that 

your prosecutorial decision, or is that your impression based on 

what you may have felt at the time? 

119 

Mr. HOLDER. I think that is a fair way of putting it. I think it 

is an impression. Again, I am not at that point and I am not now 

read into all of the programs that I was taking the administration 

to task there about. I was focusing on the warrantless surveillance 

program. 

There may components to that that I don’t understand, I am not 

familiar with. I have had a chance to look at everything that has 

been written—not everything, but a lot that has been written 

about, have looked at the—I guess the white paper that the administration put out justifying its view of how it could use the FISA 

statute. 

Senator SESSIONS. I thank you for just saying that. It makes me 

feel somewhat better. I have been in probably 30 hearings in 

Armed Services and in Judiciary on these matters. They are very 

complex. The law changed as time went by. Supreme Court cases 

came and clarified uncertainties, sometimes overruling what had 

been previously approved to be legal. And so I think that is important. 

It makes me feel a little better about your next statement in that 

speech, where you said, ‘‘We owe the American people a reckoning.’’ 

You are not threatening and not guaranteeing you are going to 

prosecute people until you fairly evaluate all the facts and the evidence and the law they thought they were dealing with at the time. 

Mr. HOLDER. No, Senator. And, actually, when I used that 

term—that has gotten a lot more attention than I think it deserves—I really was only talking about sharing information with 

the American people to the extent that we could about what was 

done in their name. I wasn’t really thinking about prosecutions at 

all in that regard. I was thinking about information sharing. 

Senator SESSIONS. Well, you know, Jack Goldsmith wrote the 

book ‘‘The Terror Presidency.’’ He was a brilliant lawyer in the Department of Justice. He felt that some of the things that the Bush 

administration did were in error, and he has been critical and cited 

as a critic of the administration. But he made these comments: 

‘‘One consequence of the OLC’s authority’’—that is the Office of 

Legal Counsel, and that is an office within the Department of Justice, as you know, that is given authority to express opinions. He 

said, ‘‘One consequence of their authority to interpret the law is the 

power to bestow on Government officials what is effectively an advance pardon for actions taken at the edges of vague criminal 

laws.’’ 

In other words, if something is vague and the Attorney General 

Office of Legal Counsel says it is okay, then isn’t an official in the 

intelligence agencies and the military or the Federal Investigative 

Service entitled to rely on that until it is reversed? 

Mr. HOLDER. Well, one of the things that you would have to take 

into account in making a prosecutive decision or just making a determination as to whether somebody had acted appropriately would 

be to see under what authority they were acting. An OLC opinion 

that gave a person the ability to do something and was reasonably 

relied on and the opinion was appropriately and in good faith drafted would be something that would obviously have to be taken into 

account in deciding whether somebody acted appropriately or not. 

That would be a huge factor. 

120 

Senator SESSIONS. I think that is true, and sometimes those 

opinions could have been in error. As Attorney General of Alabama, 

I used to have to issue those opinions, and it did protect the officers 

of the State until some lawful court reversed it. And I just think 

we need to remember that as these officers are out there trying to 

serve their country. 

Attorney General Mukasey says you rely—he said if you don’t 

follow that principle, it would tell people that if you rely on a Justice Department opinion as part of a program, then you will be subject to criminal investigation when and as and if the tenure of the 

person who wrote the position changed or the political winds 

changed. In other words, the average guy out there serving his 

country has got to be comfortable that he can rely on the opinions 

of the Department of Justice. Anyway, I am glad you say that. 

With regard to the FALN clemency situation, we had a hearing 

on it in the Senate, and it was pretty contentious. The United 

States Senate passed a resolution that was 95–2—I think most of 

our—every member of this Committee supported it—that deplored 

that pardon and included, ‘‘Whereas, the release of terrorists is an 

affront to the rule of law, the victims and their families, and every 

American who believes that violent acts must be punished to the 

fullest extent of the law,’’ then it deplored those activities. 

We discussed that at some length—and my time is winding down 

now. Maybe we will be able to talk about it a little later. 

Mr. HOLDER. Sure. 

Senator SESSIONS. But fundamentally, let me say this: I thought 

it was an inexplicable pardon. I believe that it reversed the recommendation of Margaret Love, a very fine pardon attorney, who 

I believe you removed, and allowed this to go forward in a way that 

I think is unjustifiable. And you indicated you learned from that 

process. 

Let me ask you fundamentally now on the merits—— 

Chairman LEAHY. A vote has started. 

Senator SESSIONS. Okay. 

Chairman LEAHY. And the time is up. Do you want to make a 

short—— 

Senator SESSIONS. I have got 20—— 

Chairman LEAHY. Because we are going to—— 

Senator SESSIONS. Oh, I am over. I thought I had 2 seconds, but 

I am over 20 seconds. 

Chairman LEAHY. We are going to have a second round. 

Senator SESSIONS. I will just ask this simple question. You have 

indicated you made a mistake. Do you believe that the decision and 

the ultimate act of President Clinton to pardon these individuals 

was wrong? 

Mr. HOLDER. I think it is a difficult decision that the President 

had. I think that there were a lot of people who were in support 

of that clemency request: Nobel Peace Prize laureates, Coretta 

Scott King, President Carter, Desmond Tutu, Cardinal O’Connor in 

New York. 

When one looks at the nature of the offenses that put those people in jail—and these were criminals. These were terrorists. These 

were bad people. But the President’s determination was that they 

had not committed any acts themselves that resulted in death or 

121 

bodily injury. And on that basis, and given the amount of time that 

they had served in jail, roughly 16 to 19 years, most I think 19 

years, and given the length of the sentences that they had received, 

it was his determination that the clemency requests were appropriate, taking all that into consideration. And—— 

Senator SESSIONS. But do you personally now—I know the President justified it. Do you personally have an opinion, after all of 

this, whether it was right or wrong? 

Mr. HOLDER. I think that given all that I have described that 

what the President did was reasonable. 

Chairman LEAHY. Senator Schumer, you are also, like all of us, 

juggling three different committees. I am going to recognize you. I 

would ask—because the vote has started us and several of us will 

be leaving, myself included—that at the end of your round of questioning, would you—we will then stand in recess until 2:15 at the 

end of Senator Schumer’s questions. And, Senator Sessions, I guarantee you you will have another round. 

Senator SESSIONS. Thank you. 

Senator SCHUMER. Thank you, Mr. Chairman, and thank you, 

Mr. Nominee. And I appreciate—I will try to stick with my 10 minutes and get over to the vote. 

I want to thank you for your years of service. I worked with you 

when you were Deputy Attorney General. I was impressed then, as 

I am now, with your integrity, your experience, your excellence. 

Much of the discussion leading up to your hearing has focused on 

the question of your independence. Will you be the people’s lawyer 

or the President’s lawyer? And I think this is absolutely and correctly at the heart of the matter, because every other day, it seems, 

another scathing report from the Inspector General hits us on the 

head like a hammer, reminding us that the likes of Alberto 

Gonzales and Bradley Schlozman sullied and demoralized a great 

legal institution, probably the finest civil service institution in the 

country, that they really dragged through the mud. 

So we are in dire need of a less political and more independent 

Justice Department beginning at the very top, and I spent a lot of 

time in the last Congress, as you know, making this point. 

Four years ago, moreover, the question of independence was my 

central consideration when Alberto Gonzales sat in the witness 

chair, that he was too close to the President, didn’t understand the 

nature of the job of Attorney General. As I said when I voted 

against him at the time, ‘‘It is hard to be a straight shooter when 

you are a blind loyalist.’’ And I think that in my entire Senate career, the vote against Alberto Gonzales may have been one of the 

most vindicated by subsequent history. 

So some of my friends across the aisle are questioning your independence and making ludicrous comparisons to Mr. Gonzales, and 

they are cherrypicking a few episodes from your long and distinguished career and ignoring, conveniently, other more substantial 

actions you have taken that manifest a true independent streak in 

the best traditions of the Justice Department. My colleagues have 

mentioned them already. I am not a fan of either the Marc Rich 

pardon or the FALN. I disagree with your ultimate analysis on 

FALN—and on Marc Rich, I guess, although you certainly said that 

was a mistake. I was a critic then and I am a critic now. 

122 

The essential point, though, is that many who have criticized 

your role in those pardons, Democrat and Republican alike, recognize your entire career and vigorously support your nomination: 

Jim Comey, Louis Freeh, the Fraternal Order of Police. So if we 

are going to make an informed assessment about your independence, I think we have to look at the entire record. And as I look 

at your background and record, it is clear that you are less connected and less beholden to the new President than most Attorneys 

General in the last 50 years. Let’s review for a moment. I have a 

few quick questions for you. 

Have you ever been President-elect Obama’s personal lawyer, 

like William French Smith had been for years for Ronald Reagan? 

Mr. HOLDER. No, I have not. 

Senator SCHUMER. Have you ever been a staffer to Barack 

Obama, like Ed Meese had been for President Reagan? 

Mr. HOLDER. No, I have not, Senator. 

Senator SCHUMER. Have you ever served as official counsel to 

Barack Obama, like Alberto Gonzales had been for George Bush? 

Mr. HOLDER. No, I have not, Senator. 

Senator SCHUMER. And, by the way, has Barack Obama ever dispatched you to the hospital room of a sick Government official to 

get him to authorize an illegal wiretap program? Yes, I didn’t think 

so. 

Mr. HOLDER. No, he has not. 

[Laughter.] 

Senator SCHUMER. All right. And I take it you are not a close relation to the new President, like Bobby Kennedy was to Jack Kennedy? 

Mr. HOLDER. No, we are not related by blood, though people do 

say we look alike. 

Senator SCHUMER. I don’t think so. 

[Laughter.] 

Senator SCHUMER. Although you are both very handsome. 

Mr. HOLDER. I have heard he is handsome, and I was going to 

try to draft on that. 

Senator SCHUMER. Okay. Let me ask you this: Have you ever 

been a professional politician, like, say, John Ashcroft or Dick 

Thornburgh? 

Mr. HOLDER. No, I have never run for office. 

Senator SCHUMER. Okay. Before last year, at age 57 after 30 

years as a lawyer, did you owe any paid job or Government appointment to Barack Obama? 

Mr. HOLDER. No, I have not. I do not. 

Senator SCHUMER. When did you first meet the President-elect? 

Mr. HOLDER. After he was elected, but before he was sworn in 

as a Senator. 

Senator SCHUMER. All right. What did the President-elect tell 

you about what kind of Attorney General he wanted you to be? 

Mr. HOLDER. He said, ‘‘Eric, you have got to understand. You 

have got to be different. You know, we have a pretty good relationship. That is probably going to change as a result of your taking 

this position. I don’t want you to do anything that you don’t feel 

comfortable doing. You have got to be my counselor. You have got 

to tell me if I am going to get myself in any kind of trouble. I unVerDate Nov 24 2008 12:46 May 12, 2010 Jkt 056197 PO 00000 Frm 00134 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56197.TXT SJUD1 PsN: CMORC
123 

derstand that the Justice Department is different. I understand 

that you are going to be different.’’ He said he hoped that it 

wouldn’t affect our relationship. But he says he understands that 

I have a different obligation than other people in the cabinet. 

Senator SCHUMER. Well, that is refreshing, because I doubt that 

President Bush ever had that kind of conversation with Alberto 

Gonzales, and it is a refreshing change. 

So when we talk about independence, we need to keep in mind 

the notion of independence is often a two-way street. I welcome 

your nomination not just because you will be a different kind of Attorney General, but because Barack Obama will be a different kind 

of President. So I really want to thank you. I believe that your 

nomination, should you be approved, will end the rancid 

politicization at the Department, because it will mean an end to 

waterboarding and other shameful forms of torture, and because it 

will mean a full return to the rule of law and our reputation 

around the world. I believe you, unlike some of your predecessors, 

will be the chief law enforcement officer of the land above all. 

So I want to look forward, not backward. We should be focusing 

on how you will lead the Department and how you will change it. 

And so in that vein, I have some questions for you. Now, Senator 

Leahy touched on this, but I want to elaborate because I had questioned quite pointedly and carefully Mr. Schlozman. I thought then 

that he was not telling the truth, and, of course, the IG’s report 

said he made false statements to Senator Leahy, Senator Feinstein, 

and several to me. 

So last week—and I am not satisfied that the referral to the U.S. 

Attorney was just—you know, they said they are not going to prosecute without any explanation whatsoever. I wrote General 

Mukasey asking him that the matter of Schlozman be additionally 

referred to Nora Dannehy. She is the Acting U.S. Attorney for Connecticut. She has been made special prosecutor already to look into 

possible criminal activity in the Department’s hiring and firing. 

Do you see any problem with making such a referral, should you 

be selected—or approved as Attorney General? 

Mr. HOLDER. Well, I would say that I have great respect for the 

lawyers who work in the U.S. Attorney’s Office in D.C. That is the 

office that I had the great privilege of leading. There are good lawyers there, and the fact that if it is accurately reported that they 

had a chance to fully look at that matter and they declined prosecution, that would be significant for me. 

On the other hand, I am very disturbed by what I read or have 

read about that is contained in the report where the Inspector General essentially makes a finding that false testimony was given before this Committee. And as I indicated to Senator Feinstein, I 

would like to myself review the determination that was made by 

the U.S. Attorney’s Office in D.C. 

Senator SCHUMER. At the very minimum, without disclosing any 

confidential grand jury or other information, could we at least get 

a report on why the U.S. Attorney in D.C. refused to prosecute? 

Was it that he disputed the lying to Congress terminology of the 

IG? Was it that he didn’t think he could prove the case? Perjury 

cases and false statement cases are difficult. Would you at least be 

willing to commit to us to do that? 

124 

Mr. HOLDER. I will to the extent that I can share that information. I mean, grand jury secrecy frequently prevents a prosecutor 

from sharing all of the reasons why he or she has made a particular determination. But to the extent that we can, I will do that. 

Senator SCHUMER. Good, because I am not asking for specific details of who said what before the grand jury, but just why the ultimate conclusion was made. And if you disagree with it, I presume 

you would refer it—you would look somewhere, and Ms. Dannehy’s 

office is the right place to go. 

Just one more on the Civil Rights Division—again, a crown jewel 

of this Justice Department. The report from the IG revealed in 

many ways it was more like a campaign headquarters than a hall 

of justice. The report luridly detailed the remarkable extent to 

which the Civil Rights Division—what a great tradition in that 

body through Democrat and Republican Presidents alike. Under 

George Bush the First, they took the Voting Rights Act to a greater 

extent in reapportionment and other cases than anybody else. And 

then from 2003 to 2006, one single appointee, political appointee— 

Schlozman—hired 63 lawyers, 20 percent of the lawyers working at 

OCR, on the basis of their conservative political leanings. It is a 

blatant violation. It would be a blatant violation if someone did the 

same—a Democrat did the same thing on the liberal side. And one 

supervisor saying to another that he took his coffee ‘‘Mary Frances 

Berry style—black and bitter.’’ A type of overtly racist statement, 

all the more shocking when it is a supervisor at the Civil Rights 

Division who says this. 

What are you going to do to make sure that this doesn’t happen 

again? What are you going to do to sort of clean up and straighten 

out the Civil Rights Division with its great tradition? 

Mr. HOLDER. Let me be very clear. The attempt to politicize the 

Department will not be tolerated, should I become Attorney General of the United States. It will be my intention to return that Division and the Department of Justice as a whole to its great traditions, and the great traditions that it had under Democratic and 

Republican Attorneys General and Presidents. 

What we have seen revealed in these Inspector General reports 

is almost unbelievable to me. It is clearly abhorrent, and it is inconsistent with the way in which I would run the Department of 

Justice. 

Senator SCHUMER. And do you expect a thorough cleaning up of 

the Civil Rights Division, setting it back on its civil service course, 

if you will? 

Mr. HOLDER. It is my intention to devote a huge amount of time 

looking at the Civil Rights Division and restoring that Division, 

making sure that there is a sense of mission, there is a focus on 

the things that have made that, as I think you appropriately call 

it, one of the jewels in the Justice Department. 

I see somebody sitting behind you, Bill Yeomans, who served in 

the Civil Rights Division very proudly. He is the kind of person 

who we need in the Division, and he is the kind of person who 

should be supervising people. He is the kind of person who should 

be teaching the young lawyers in the Civil Rights Division. That 

is what is my intention, to bring the Civil Rights Division back to 

the kind that existed when Bill Yeomans was there. 

125 

Senator SCHUMER. Well, thank you, Mr. Holder, and I am quite 

certain on your record and on the basis of the testimony today you 

will be confirmed and will be a really fine Attorney General. 

We are adjourned until 2:15. 

[Whereupon, at 12:36 p.m., the Committee recessed, to reconvene 

at 2:15 p.m., this same day.] 

AFTER RECESS [2:19 p.m.] 

Chairman LEAHY. Isn’t it amazing, what a busy day this is in the 

Senate? Senators have been in and out. There’ve been numerous 

confirmation hearings going on. There have been farewell speeches 

given on the Senate floor, one by a man I’ve sat with on this Committee for over 30 years, Senator Joe Biden of Delaware, who is 

leaving to become Vice President. The other, a Senator of my 

neighbor State, from the State of New York, Senator Hillary Clinton. So, a number of Senators have left to be there for their farewell. I apologize to each one of them. 

Obviously I’ve been here, as have other people chairing such 

hearings. They are now in the process of swearing in a new Senator from Illinois, who is no longer Senator-designee Burris, but 

now Senator Burris. So I’m going to go, next—speaking of elected, 

or appointed—the newly reelected—the newly reelected and senior 

Senator from South Carolina, Senator Graham. I mentioned the 

‘‘senior Senator’’ because one of his predecessors, with whom I also 

served, Senator Hollings, served as junior Senator from South 

Carolina, for how many years, Lindsey, about 30? 

Senator GRAHAM. Thirty-six. 

Chairman LEAHY. Thirty-six years. He’s the most senior junior 

Senator, ever. That’s because Strom Thurmond, who came here 

with the first Congress, the Continental Congress—— 

[Laughter.] 

Chairman LEAHY [continuing]. Was the senior Senator. But 

Lindsey Graham is the senior Senator from South Carolina. He has 

recently been in Afghanistan, Pakistan, Iraq, with Senator Biden. 

We’re glad to have you back. Go ahead. 

Senator GRAHAM. Thank you. I enjoyed my trip with the Vice 

President-elect, and I did a lot of listening. It was fun. 

[Laughter.] 

Chairman LEAHY. That apparently is not the totally inside joke 

that you might have thought it was. 

[Laughter.] 

Senator GRAHAM. Thank you, Mr. Chairman. I can assure you, 

I’m genetically term limited, so I do have a tough act to follow in 

Thurmond and Hollings. 

But the one thing I would like to say to our nominee, I cannot 

think of a more personal decision one could make than hiring a 

lawyer. You’ll be the Nation’s lawyer as the Attorney General. But 

my perspective on these matters is that the President of the United 

States deserves the ability, within reason, to pick a lawyer, an Attorney General, that he or she has great confidence in. The fact 

that this President has chosen you speaks well for you. Given your 

resume, even though we have probably a lot of political differences, 

I could understand why he has great confidence in you. 

Having said that, as we move forward, one of the big issues facing this Nation, and the legal community within our Nation, is 

126 

what to do with detainees that are captured and what is called ‘‘the 

war on terror’’. It’s complicated, it’s emotional, but I think it’s very 

important that we get it right. 

Mr. Holder, is it fair to say that we’re at war, in your opinion? 

Mr. HOLDER. I don’t think there’s any question but that we are 

at war. And I think, to be honest, I think our Nation didn’t realize 

that we were at war when, in fact, we were. When I look back at 

the ’90s and the Tanzanian—the embassy bombings, the bombing 

of the Cole I think we as a Nation should have realized that at that 

point we were at war. We should not have waited until September 

the 11th of 2001 to make that determination. 

Senator GRAHAM. I’m almost ready to vote for you right now. 

[Laughter.] 

Mr. HOLDER. I’ll stop. 

[Laughter.] 

Senator GRAHAM. I agree with you. We’re at war. The enemy 

that we’re at war with, would you agree, is an unconventional 

enemy? 

Mr. HOLDER. No question about that. There is not going to be a 

surrender signing on the battleship Missouri. This war is not going 

to end in that way. 

Senator GRAHAM. And the people, we’re finding, they don’t wear 

uniforms. 

Mr. HOLDER. They do not, which creates a lot—— 

Senator GRAHAM. They operate outside the law of armed conflict. 

Mr. HOLDER. They do. 

Senator GRAHAM. Maybe some of the most vicious people our Nation has ever fought in our history. 

Mr. HOLDER. I would agree with that. 

Senator GRAHAM. If you were trying to explain to a civics class 

in the 9th grade the battlefield, where is the battlefield in this 

war? What makes up the battlefield? 

Mr. HOLDER. That’s a very interesting question, Senator. The 

battlefield—there are physical battlefields, certainly, in Afghanistan, but there are battlefields, potentially, you know, in our Nation. There are cyber battlefields that we’re going to have to— 

where we’re going to have to engage. 

But there’s also—and this sounds a little trite but I think it’s 

real—there’s a battlefield, if you want to call it that, with regard 

to the hearts and minds of the people in the Islamic world. We 

have to do things in a way, conduct ourselves in a way, that we 

win that battle as well, so that people there who might otherwise 

be well-intentioned do not end up on the wrong side and against 

us. 

Senator GRAHAM. The way I put it, there’s a high ground in 

every war, and there’s physical high ground, and in this there’s the 

moral high ground, which I think is essential to win this war, is 

for America to maintain the moral high ground. Do you agree with 

that? 

Mr. HOLDER. Yes, I do. 

Senator GRAHAM. Now, when you talk about the physical battlefield, if our intelligence agencies should capture someone in the 

Philippines that is suspected of financing Al Qaeda worldwide, 

127 

would you consider that person part of the battlefield, even though 

we’re in the Philippines, if they were involved in Al Qaeda activity? 

Mr. HOLDER. Yes, I would. 

Senator GRAHAM. Okay. 

Now, as we decide what forum to try people and how to interrogate them and how to detain them, the only thing I ask of this new 

administration is that we not criminalize the war. I’m not asking 

for the ability to be inhumane. Matter of fact, I am crying out for 

our country to realize that if we capture somebody in this war on 

terror, no matter how vicious the enemy may be, it becomes about 

us, not them. Once they’re in our capture it’s not about who they 

are or what they believe, it’s about our values. 

So as we close Guanta ́namo Bay, I would just urge you to sit 

down with military lawyers, people in both parties, and great legal 

minds and let’s think through this process of how we can be at war 

with this enemy and protect ourselves and maintain the moral high 

ground that would be essential. 

The hard case for me, and I think for the country at large, is that 

person that is captured in this war on terror, because of the sensitive nature of the information, may not be subject to the normal 

criminal process, whether it be a military trial or an Article 3 trial, 

but we know, based on competent evidence, that they will go back 

to the fight. Have you thought much about what to do with that 

group? 

Mr. HOLDER. Struggled with that, and continue to struggle with 

that. These are extremely difficult questions, the ones that you 

have posed. It’s one of the reasons why, in my opening remarks, 

I said it, and I meant it sincerely, that all of the knowledge and 

all of the good ideas does not reside in the executive branch. You 

are a person who has spent a lot of time thinking about these 

issues. We had a very interesting conversation when I came to visit 

you, and had, I thought, some very, very interesting perspectives 

and some good thoughts. 

This Committee has been engaged in thinking about the very 

questions that you raise. We are going to have to come up with 

American solutions. These are truly not Republican and Democratic issues. I mean, we as a Nation, and this Committee in particular, I think, has to come up with a way in which we resolve 

those issues. 

And the one that you have raised is one that has given me a 

great deal—I’ve given a great deal of thought to. How do we deal, 

in an appropriate way, with somebody who we know is a danger 

to this country, and yet be true to our values, and in that battle 

for the hearts and minds that I discussed, make it appear that 

we’re treating this person, sworn to harm us, treat that person in 

a fair way, in a way that, frankly, they would not treat us. 

Senator GRAHAM. Absolutely. 

Mr. HOLDER. And how we resolve that issue, that particular 

issue, I think will say more about us as a Nation than almost anything. 

Senator GRAHAM. Well, let me put on the record sort of a goal 

I think we all share, that if we hold someone in prison, in a military prison, it will not be because somebody in the executive 

branch said so. It has to be as a result of a process that would 

128 

allow independent checks and balances. I really believe that the 

Federal courts have a tremendous responsibility and role in answering the questions before that we’re talking about now. 

So my goal would be, is that if we hold somebody off the battlefield that we think is part of the enemy force, not subject to normal 

criminal trials, that it will be done with the process that people 

have confidence in, that the person will be held only after an independent judiciary agrees that the evidence is competent and that 

the executive branch collaborates with the Congress and other respected institutions in making that decision. I think that has sort 

of been lacking. If we can find that common ground, I think the 

country will be better off. 

And when it comes to the trial of people suspected of committing 

a war crime, I hope you will look long and hard at our military justice system. I’ve been part of it for 25 years. I think you’ve seen, 

at Guanta ́namo Bay, some of the sentences show that the jurors, 

the panel members, are very reflective and they evaluate the evidence and they take their duty very responsibly. 

I’d end on this note. Our allies are struggling with this problem. 

Every other Nation deals with this through the domestic criminal 

ends. As I understand it, there is no concept in domestic criminal 

law that would allow you to hold someone indefinitely without 

trial. Do you agree with that? 

Mr. HOLDER. I think that’s right. 

Senator GRAHAM. And let me tell anyone who’s listening: there 

should not be. No one should be held, in a domestic criminal environment, indefinitely without the right to a trial. But I do believe 

that every person who commits to going to war against America, 

or any other peaceful Nation, should be held off the battlefield as 

long as they are dangerous. Do you agree with that? 

Mr. HOLDER. I do. 

Senator GRAHAM. There is a difference between a warrior and a 

criminal. If you want to know that difference, go read the transcript of Khalid Sheik Muhammed as he testified before the Combat Status Review Tribunal. There is no doubt in my mind that he 

is at war with us, and that if he ever was released, he would go 

back to the fight. So there is a difference between a common criminal and a committed warrior. The military justice system is humane, is transparent, I think it’s the right forum, and I look forward to working with you as we answer these hard questions. 

So, God bless. Thank you for your willingness to serve your country in this capacity. 

Mr. HOLDER. Thank you, Senator. 

Chairman LEAHY. I might say, just for a moment, Mr. Holder, 

Senator Graham has discussed these issues with me—sometimes 

we’ve been on long trips, sometimes just privately. I’ve relied on his 

own experience in the Judge Advocate General’s Corps. We have 

also had a number of military, as Senator Graham knows, come before us and testify, sometimes risking their own careers to say 

what they feel should be done. We’ve sat there with two- and threestar generals, testifying that way. They, Senator Graham, and others have been most instructive to the members of this Committee 

who have not been in the military about how the Uniform Code of 

Military Justice works. 

129 

I would suggest, should you be confirmed, as I fully expect you 

to be, that you may want to spend—we’ll obviously have hearings 

on this subject, but you may want to spend some time in informal 

discussions with people like Senator Graham, myself, and others, 

both Republicans and Democrats on this Committee, maybe in an 

informal setting, who will at least let you know what our views are 

and have the kind of candid, off-the-record discussion that one 

should, because this is a major issue facing our country. 

Mr. HOLDER. I think that’s actually a very good idea. I referenced—didn’t want to talk about the substance—the conversation 

that I had with Senator Graham. I spent probably half an hour, 

forty-five minutes with him. I left there thinking that this is a gentleman who’s thought about these issues an awful lot. 

I think what you say about our military system of justice is correct, not only in the sentences that have been handed down, but 

also the evidentiary rulings that judges have made there, things 

that I think a lot of people did not necessarily expect to see in that 

system. I think that what you’re saying, Mr. Chairman, makes an 

awful lot of sense. There is—as I say, you all have grappled with 

these issues a lot longer than I have, quite frankly, and it would 

be foolish not to tap into the wisdom that resides in this Committee. 

Chairman LEAHY. If there’s no objection, I’m going to put into the 

record a letter of support from 10 retired generals and admirals. 

There’s 10 retired generals and admirals that support you, Mr. 

Holder. They are experts on military issues, including military detention and interrogation, and they’ve reflected the conscience of 

the Nation in this area. They say, in their letters, to summarize 

them, that they feel you will keep America safe, while protecting 

our basic constitutional rights. I think that should be considered. 

[The letters appears as a submission for the the record.] 

Chairman LEAHY. Now, when I first came on this Committee, I 

served with Senator Mathias of Maryland, a man who shows great 

conscience. I served for years with Senator Sarbanes of Maryland, 

a person I know and know well, also traveled with. His successor 

is now here, Senator Cardin, who carries on the tradition of 

thoughtful Senators from Maryland. 

Senator Cardin, thank you for being here. The floor is yours. 

Senator CARDIN. Thank you, Mr. Chairman. I have great mentors 

in Senator Mathias and Senator Sarbanes. 

Mr. Holder, thank you. Thank you for being willing to serve your 

country again. I want to thank your family, because we know the 

sacrifices that they have to make and the long hours that you’re 

going to need to put in as the Attorney General of the United 

States. 

I want to talk a little bit about the Civil Rights Division. The 

Civil Rights Division has such an important function in our country. They’re responsible for the enforcement of the Federal statutes 

against discrimination, the Civil Rights Acts, the Voting Rights 

Act, the Equal Credit Opportunity Act, Americans With Disabilities 

Act, the National Voter Registration Act, and Uniform and Overseas Citizens Absentee Voting Act, and the list goes on and on. It’s 

a critically important division in the Department of Justice, and for 

the people of this country. 

130 

The record over the last eight years has been alarming. There 

have been so few important cases brought by the Civil Rights Division over the last eight years in just about every category. They 

have resisted being proactive and protecting the civil liberties and 

civil rights of the people of this country. 

When you look at the allocation of resources that’s been given to 

the Civil Rights Division, it’s been reduced. We’ve already had several Senators comment about Bradley Schlossman’s activities and 

his partisan politics, and the personnel decisions made in the Civil 

Rights Division—illegal activities, I might add. 

I want to give you an opportunity to tell me your own personal 

commitment to the Civil Rights Division, if you are confirmed to be 

Attorney General, and how you will direct that division head as far 

as the historic role of the Civil Rights Division, and what you expect to see during the Obama administration. 

Mr. HOLDER. Senator, I agree with you. It is—the Civil Rights 

Division is unique. It is, in some ways, the conscience of the Justice 

Department, and I think in some ways you can measure the success of an Attorney General’s tenure by how the Civil Rights Division has done. The Civil Rights Division has not necessarily gotten 

the attention, the resources, the support that it has needed and requires over the last few years. 

Should I become Attorney General, that would be my attention, 

to give it the resources that I have and the attention that the Division needs, and to revitalize a place that has really tons and tons 

of great lawyers, paralegals, and support staff, people who are 

dedicated to the mission of that Division, people who work hard 

and stay there, you know, extraordinary long periods of time 

through the course of their careers, when they could go and do 

other things and get paid far greater amounts of money. They’re 

committed to the mission of the Division, and that, I think, has got 

to be one of the things I really focus on, should I become Attorney 

General. 

One of the things we’re going to have to do, as an initial matter, 

is to get a great Assistant Attorney General, a person who is 

steeped in civil rights law, a person who’s respected, and a person 

who will understand that the job he or she is going to be given is 

going to be a tough one, and will be committed to revitalizing that 

great Division. I think we can do it. I think we’ll also need the help 

of the members of this Committee in terms of resources, oversight. 

There are a whole variety of ways in which I think you could help 

us, but that will be a priority for me. 

Senator CARDIN. I appreciate that. 

I want to just mention one example, in voting rights cases. The 

record over the Bush administration, they brought zero cases on 

behalf of African Americans for voting rights between the years of 

2001 and 2006, yet they were there to defend the Georgia draconian voter ID law that’s been called the modern day poll tax. 

In my campaign for the U.S. Senate in the 2006 elections, there 

were deceptive practices that took place in Maryland, and in other 

States around the Nation, that were aimed directly at reducing minority participation in the elections. We asked the Justice Department to take a look at those practices. Senator Schumer sent a letter in, asking for action. Then-Senator Obama filed legislation to 

131 

strengthen the deceptive practices laws to give the Justice Department additional tools, if they need those additional tools, to make 

it clear that we won’t tolerate those who are using campaign tactics 

to suppress minority participation. 

I would like you to review the laws that you have, the tools that 

you have today, and come back to us and let us know whether you 

have adequate tools available to you so that the Federal Government can be actively involved to make sure that those types of 

practices that took place in my State, and many other States 

around the Nation—such things as sending out letters in minority 

communities telling them that election day was the wrong day, to 

try to keep them from voting—that you have the tools to make sure 

that the full weight of the Attorney General, the Department of 

Justice, can be used to prevent those types of activities. 

Mr. HOLDER. Senator, I appreciate that offer and, should I be 

confirmed, I will take you up on it. The needs are great in that Division. I hope the expectations are high, and I hope that we will 

meet those expectations. This is a President-elect who is committed 

to the very things that you’re talking about. This is an Attorney 

General, or a person who could be the Attorney General, who 

shares the concerns that you have. 

Senator CARDIN. Well, again, I thank you for that. 

I’ll mention one other area that I think shows a disparity, a racial disparity, in our country. We’ve had a lot of discussion about 

the crack cocaine issue. When you take a look at the statistics, African Americans now serve virtually as much time in prison for 

drug offenses as whites do for violent crimes; 37 percent of the people arrested for drug violations, 59 percent of the convictions and 

74 percent of those sentenced for drug offenses are African American, even though they represent only 15 percent of the people. 

My point is this. We know we have disparities in our laws, we 

know we have disparities in the way prosecution is centered, and 

it’s very clear that’s true in regards to crack cocaine. We need a 

strategy to make sure that we rid ourselves of those types of practices in this country. I don’t want to be soft on those who are violating our criminal statutes. I want to make sure that we are 

tough. 

Drugs are a huge menace to our society and I want to do everything I can to make sure we have effective laws, but let’s make 

sure it is fairly applied in this country. I would like to have your 

commitment that you will work with us and come up with a strategy where we can have, I think, a fairer system of justice, and a 

tough system as well. 

Mr. HOLDER. I think that’s right. We have to be tough, we have 

to be smart, and we have to be fair. Our criminal justice system 

has to be fair. It has to be viewed as being fair. When I was a judge 

here in Washington, DC, I saw, in the people who served on juries 

here, a knowledge, a recognition that, at least in their minds, parts 

of the criminal justice system were not fair, and you saw it in some 

of the verdicts that I saw in cases that I presided over. 

When I would speak to jurors afterwards and say, you know, why 

did you vote this way in a case where it seemed to me the government had all the evidence, that proved all the elements of the 

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tem, disparate penalties, and say that, you know, I really am not 

going to be part of that. And so I think those are the kinds of attitudes that we have to recognize that are out there and come up 

with a system, as you say, that is tough, smart, and fair. 

Senator CARDIN. I have time for one more question, so let me return to the issue of torture for one moment. Your answers were 

very strong, and I strongly support what you have said in regards 

to torture. But I want to call your attention to one other area 

which could be a concern, and that is the use of rendition, where 

the United States has custody of individuals and turns them over 

to other countries, where we know that they will, in fact, use torture as a means of interrogation. 

The United States has entered into the Convention Against Torture. That convention provides that we should not expel, extradite, 

or otherwise effect the involuntary removal of any person to a 

country where there are substantial grounds for believing the person would be in danger of being subjected to torture. Can you just 

tell me, pretty clearly, that in your points about torture being illegal in this country, that it would be wrong for the United States 

to turn over custody of an individual that we have to a country 

where we have reason to believe that they will use torture against 

an individual that we transmit custody? 

Mr. HOLDER. Let me try to state this as simply as I can: it simply should not be the policy or the practice of the United States of 

America to turn over a prisoner, a captured person, to a nation 

where we suspect or have reason to believe that that person will 

be tortured. I’ve engaged in, as a U.S. Attorney, renditions—ordered renditions, but this was to bring people from a foreign country to this country for trial. 

If we are sending somebody to a place where—England, Canada, 

I don’t know, some place where we have some basis to believe people will be adequately treated and fairly tried, we’re in a fundamentally different situation than sending somebody to a country 

where we think they will be mistreated and will not be tried in a 

fair system, and that should not be the policy or practice of our 

great Nation. 

Senator CARDIN. Again, I thank you for those clear answers. 

They’re the ones that, at least, I wanted to hear. 

And I just want to concur with Senator Graham and his comments in regards to the way that we treat the people that we detain, and I’d look forward to your confirmation as the next U.S. Attorney. 

Mr. HOLDER. Thank you, Senator. 

Senator CARDIN. The next Attorney General. 

Chairman LEAHY. Thank you very much. 

We also have a former Attorney General, former Supreme Court 

Justice, newly reelected Senator from Texas, who has been my 

partner on Freedom of Information Act legislation. And because no 

good deed goes unpunished, his caucus has now elected him to be 

head of the Republican Senatorial Campaign Committee. I’m glad 

you could have time, however, to be here. I recognize Senator Cornyn from Texas. 

Senator CORNYN. Thank you, Mr. Chairman. I mentioned to—Mr. 

Holder, good afternoon. 

133 

Mr. HOLDER. Good afternoon. 

Senator CORNYN. Good to see you. 

I mentioned in our conversations, Mr. Chairman, Mr. Holder and 

I, about our shared commitment to open government issues and 

Freedom of Information Act reform. I believe he agreed that open 

government, more transparency produces greater public confidence 

in their government and more accountability among public servants, and I don’t want to speak for you, Mr. Holder, but I think 

you agree that you would work with us to open up the government, 

to make it more transparent and more accountable. Did I represent 

that correctly? 

Mr. HOLDER. I would hire you as my lawyer. 

[Laughter.] 

You did—yes, exactly right. That’s consistent with our conversation. 

Senator CORNYN. Senator Cardin did a good job asking about 

things like rendition. It’s at the top of my list to think about. If we 

closed Guanta ́namo Bay and a military tribunal or some other tribunal determines that an individual is not guilty of a particular 

war crime with which they’re charged and they’re ordered released, 

if we closed Guanta ́namo Bay and put these detainees at Ft. Leavenworth, or somebody else, and their home country won’t take 

them back, what do you propose we do with them? 

Mr. HOLDER. That is a difficult question. It’s one that, I guess, 

Senator Graham was talking about. At the end of the day, if we 

have a basis to determine that a person is dangerous and we have 

evidence that would demonstrate that that person is dangerous, I 

don’t think that, given the Supreme Court decision in Hamdi and 

the responsibility that I have as Attorney General of the United 

States, should I be confirmed, for the safety of this Nation, that 

that is a person who we can release. Now—— 

Senator CORNYN. You’re aware that according to the Department 

of Defense, about 61 detainees who’ve been released from 

Guanta ́namo Bay have rejoined the fight against the United States 

and our allies? And that would be the kind of danger that you 

would want to protect our country from. Is that correct? 

Mr. HOLDER. Right. We want to try to minimize that possibility, 

while at the same time making sure that we are fair in making a 

determination that somebody is dangerous, and then having periodic reviews to make sure that that person remains dangerous. I 

think if you do that, we are within our rights, and within the law, 

to detain that person. 

Senator CORNYN. Let me readdress—because of the nature of 

these, I’ve been in and out. Forgive me if this is territory you’ve 

covered before; it probably is. But as you know, on August 11, 

1999, President Clinton extended offers of clemency to 16 terrorists 

who are committed to gaining Puerto Rico’s independence by waging war on the United States. They had not shown remorse for 

their crime and they had not even applied for clemency, yet the 

clemency that was granted by President Clinton has been condemned overwhelmingly by both parties in both Houses of Congress. 

134 

I’m advised—and please, I’m asking this as a question. I was advised that, this morning, you called this clemency ‘‘reasonable’’. 

Could you explain why you think it’s reasonable? 

Mr. HOLDER. Yeah. I thought—what I said was, I thought that 

the President’s determination was a reasonable one, given the fact 

that there was—that these people had served really extended periods of time in jail, given the fact that the nature of the offenses 

of which they were convicted, they did not directly harm anyone, 

they were not responsible directly for any murders. 

But I think another factor is that we deal with a world now that 

is different than the one that existed then. That decision was made 

in a pre-9/11 context. I don’t know what President Clinton would 

do now. I tend to think that I would probably view that case in a 

different way in a post-9/11 world. 

Senator CORNYN. How about in a post-New York Trade Center 

bombing in 1993, attacks against our embassies in Africa, the 

bombing of the U.S.S. Cole. Would those have been sufficient to 

raise your concern about granting clemency, to acknowledge terrorists who did not even apply for clemency and who showed no remorse for their crimes? 

Mr. HOLDER. As I was saying to Senator—I think it was Senator 

Graham—that I think we as a Nation didn’t come to understand 

that we were at war soon enough, that we waited, perhaps, until 

the attacks in New York, Pennsylvania, and Washington on September the 11th. 

And you know, hindsight is always 20/20. But I think that, looking at the incidents that you have referenced, those—again, I can’t 

speak to the present, but those, I think, might have had an impact 

on—on my views. 

Senator CORNYN. Did you recommend clemency for the FALN 

terrorist to President Clinton? 

Mr. HOLDER. Yes. 

Senator CORNYN. Was that a mistake? 

Mr. HOLDER. I don’t think it was a mistake. 

Senator CORNYN. Well, let me rephrase that, in fairness to you. 

You said, after 9/11 you would have viewed it differently. Post-9/ 

11, if you had it to do over again, would you do the same thing or 

would you have declined to recommend it to the President? 

Mr. HOLDER. That’s an interesting question. I think that I would 

have viewed it differently. I think that the recommendation that I 

might have made would have been different in this way. I think 

I would have said either this is something we shouldn’t do, or to 

the extent you want—or to the extent that there’s a desire to do 

something and you’re asking what my opinion is, that the sentences should not be commuted to the extent that they were. I 

think that’s where I probably would have ended up. I don’t think 

I would have—I would not have ended up, I think, in the same 

place that I was when that happened. 

Senator CORNYN. You would agree with me that I—I assume, 

after 9/11, the legally correct and appropriate way to address this 

novel attack against the United States, and the fact that we—I 

think you agreed with Senator Graham earlier that they should not 

be treated—terrorism should not be considered just a mere crime, 

but that the war against terror raised a number of novel legal 

135 

issues that really we had not had to struggle with since World War 

II, and even then it was far different than it is today. 

I want to just ask you a hypothetical. Earlier, you condemned the 

use of waterboarding. But you’re familiar with the ticking time 

bomb scenario, and I just want to pose a hypothetical for you. Let’s 

say, as Attorney General, you find out that there are terrorists who 

have access to chemical, biological, or nuclear weapons and that 

you have a detainee who is in possession of information that, if disclosed, would prevent those weapons from being detonated in the 

United States, and thousands—maybe tens of thousands—of innocent people being killed. 

You would still refuse to condone aggressive interrogation techniques like waterboarding to get that information which would, 

under my hypothetical, save, perhaps, tens of thousands of lives? 

Mr. HOLDER. Well, I think there are a couple of ways in which 

I would look at that. One, I would not assume that because I would 

say waterboarding should not be done, that that’s the only tool, the 

only mechanism that we would have in our arsenal to try to get 

that information from that person as quickly as we could. 

I also think I’m not at all certain that waterboarding somebody, 

torturing somebody, whatever we want—whatever technique you 

want to use, is necessarily going to produce the results that we 

want. What I’ve heard from the experts is that people will say almost anything to avoid torture. They will give you whatever information they think you want to hear. 

So, I’m not at all certain that, given the time sensitivity that I 

assume we have in your hypothetical, that waterboarding that person would necessarily give us the result that we want. And I think 

we also have to understand that we have other things in our arsenal that we could use, other techniques that we could use that 

would, I think, perhaps produce the result that we want. 

Senator CORNYN. Well, of course, torture is illegal under international treaties and under our domestic laws. I’ve heard people 

talk about torture in expansive ways, where things like sleep deprivation, other techniques that maybe you would employ as an alternative are considered torture to them as well. 

But under my hypothetical, if that were the only thing standing 

between you and the deaths of tens of thousands of Americans. You 

would decline to use that interrogation technique in order to save 

those lives, is that correct? 

Mr. HOLDER. Again, I think your hypothetical assumes a premise 

that I’m not willing to accept. 

Senator CORNYN. I know you don’t like my hypothetical. 

Mr. HOLDER. No, the hypothetical is fine. But the premise that 

underlies it, I’m not willing to accept, and that is that 

waterboarding is the only way in which I could get that information from those people. 

Senator CORNYN. Assume that it was. 

[Laughter.] 

Mr. HOLDER. See, given the knowledge that I have about other 

techniques and what I’ve heard from retired admirals, generals, 

and FBI agents, there are other ways, in a timely fashion, that you 

can get information out of people that is accurate and will produce 

usable intelligence. And so it’s hard for me to accept or to answer 

136 

your hypothetical without accepting your premise. I don’t think I 

could do that. 

Senator CORNYN. One last question, quickly. You’re aware that 

some of the techniques that are used, aggressive questioning techniques, are used as a part of training by American military officers 

and enlisted men as part of their own survival training, are you 

not, sir? 

Mr. HOLDER. Well, it’s my understanding—and I might be wrong 

here—that we acquaint our people with those techniques so they 

can have some familiarity, some understanding of what it is they 

might face if they are captured by people who are far less—we’ll 

put it out there—far less civilized, far less humane, far less conversant with the rules of law and war, so that they understand that. 

That is not necessarily because that’s done, it’s something that we 

are condoning. It’s just to make them, to the extent we can, more 

resistant to the techniques that might be applied to them. 

Senator CORNYN. Thank you very much. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator Cornyn. 

Earlier today, the Assistant Democratic Leader from Illinois was 

the senior and junior Senator from that State. He is back again as 

just senior member. We noted here, Senator Durbin, in the hall 

earlier, that your new colleague has been sworn in. I would also 

note that he’s the chair of our Human Rights Subcommittee. That’s 

a subcommittee that was created because of Senator Durbin’s longtime interest in this subject, and he’s chaired it to great bipartisan 

praise. 

Senator Durbin. 

Senator DURBIN. Well, thank you, Mr. Chairman. That was very 

kind of you. I apologize for stepping out, but for the purpose noted, 

was to add another Democratic vote, which, as the Whip of the 

Democratic Caucus, I thought was a high priority for me, and for 

our future President. 

Mr. HOLDER. I would not argue with that, Senator. 

Senator DURBIN. You’d better not. 

[Laughter.] 

Mr. HOLDER. I am honored that you’re here today. I was present 

for your opening statement. I reflected on it because I paid special 

attention to this issue of torture. At times it has been a source of 

torture politically for me, for some of the things I’ve said and questions I’ve raised. But I have felt from the outset that it really 

struck at the fundamentals of who we are as Americans. 

Arthur Schlessinger, Jr., the late historian, said that ‘‘No position taken has done more damage to the American reputation in 

the world, ever, than on the torture policy of this outgoing administration.’’ It led me to vote against Attorney General Alberto 

Gonzales, as well as his successor, Attorney General Michael 

Mukasey. I felt that they were equivocal and, in the case of 

Gonzales, had been involved in the formulation of that policy. 

I listened to your opening statement, and in three words—in 

three words—the world changed, as far as I’m concerned, because 

you stated, without hesitation: ‘‘waterboarding is torture’’. I can’t 

tell you how many times Senator Whitehouse and I asked that of 

the current Attorney General and we could never, ever get a 

137 

straight declarative sentence. I think it’s important, important for 

our country, important for our position in the world. I understand 

Senator Cornyn’s questions. I think they are questions that everyone who watches Jack Bauer in 24 would ask. Most Americans do; 

I have. It’s a different scenario. 

When we’re going to draw values, principles, and laws, we have 

to really be cognizant of the fact that you can always construct a 

scenario that will challenge the foundation of any legal principle. 

I think it is far better for us to stand by standards that have guided our Nation for generations and return to them now with this 

new administration. 

The Judge Advocates General are the top military justice lawyers 

in America. I’ve asked them about the techniques other than 

waterboarding: painful stress positions, threatening detainees with 

dogs, forced nudity, mock execution. They told me that each of 

those techniques is illegal and violates Common Article 3 of the Geneva Conventions. 

When I asked Attorney Generals Gonzales and Mukasey the 

same question, they refused to respond. I think it’s only fair that 

I ask you that question. Let me ask you that question directly: do 

you agree with the Judge Advocates Generals, would it be illegal 

for enemy forces to subject an American detainee to painful stress 

positions, threatening detainees with dogs, forced nudity, or mock 

execution? 

Mr. HOLDER. I am not as conversant with those techniques as I 

am with waterboarding. It’s something I really kind of focused my 

attention on. And so I would not go so far as to say that those constitute torture. I don’t know enough about them. On the other 

hand, Common Article 3 requires that people—prisoners—be treated in a humane fashion, and so I would agree that the techniques 

that you have described—I would agree that the folks in the Judge 

Advocate General Corps are in fact correct, that those techniques 

violate Common Article 3. 

Senator DURBIN. So in your mind they cross that threshold and 

become inhumane? 

Mr. HOLDER. I believe that’s right. 

Senator Durbin. I was interested in the questions asked earlier 

about rendition. I won’t return to that issue. 

I’m sorry that our colleague—we’re all sorry that our colleague, 

Senator Kennedy, cannot be with us today, and when the new organizational chart comes out, for the first time in 46 years, he 

won’t be on the Senate Judiciary Committee, and we’re going to 

miss him. 

One of the issues that he cared about dearly, and I shared his 

concern, was the issue of immigration. I’d like to ask you a question or two about that. 

We’ve had decisions made, policies implemented by this administration about the legal rights of those who are charged with being 

in this country illegally. The so-called streamlining regulations of 

this administration drastically reduced the time that immigration 

judges devote to each case, increasing the number of decisions 

issued with no written opinion and resulting in a huge backlog of 

cases in the Federal appeals courts. 

138 

Now, Richard Posner is a judge I know in Chicago; you probably 

know Judge Richard Posner as well as I do. He is probably as conservative as they come. He and I get together for lunch once a year 

and we talk about the issues before us, and he was unequivocal in 

what he said about what’s happened as a result of these new policies. 

He issued an opinion in which he concluded, ‘‘The adjudication 

of immigration cases at the administrative level has fallen below 

the minimum standards of legal justice.’’ That’s a quote from Judge 

Posner. 

What are your views on these questions about the streamlining 

regulations, the administrative reviews, the delays, and the backlogs? Do you believe that they have compromised the basic standards of justice in America? 

Mr. HOLDER. I believe that in any proceeding in which the 

United States is a participant, we have to be fair and we have to 

be perceived as being fair, whether it is a criminal proceeding 

where death is a possibility as an option for a convicted defendant, 

or we’re making a determination about what the immigration status is of somebody. 

We have to make sure that people are given, if not a technical 

legal due process—all the technical legal due process that somebody might get in a—in a trial, we have to make sure that, using 

that word—that phrase expansively, that everybody gets due process. We are true to ourselves, true to our Nation, true to who we 

are as a people if we do that. We cannot hold ourselves out as better than other Nations, and I think we are, unless we do those 

kinds of things and commit ourselves to doing it. It’s not easy. It 

necessarily means an expenditure of resources. 

This is a difficult time for us, trying to figure out where limited 

resources are going to go, and yet that in some ways is the ultimate test. It’s an easy thing to adhere to your values in times that 

are non-stressful, where the money is flowing. This is really the 

test, when we are at war in a couple of places around the world, 

when we have budgetary concerns. This is the test for America: are 

you really who you say you are? I believe we are, and I believe with 

the appropriate leadership, we can handle and deal with the issues 

that you’re talking about. 

Senator DURBIN. I trust that you will consider reviewing the policies and regulations that led to this current situation involving the 

review of immigration cases. 

Mr. HOLDER. I’ll certainly do that. But more than that, what I’d 

like to do is work with the members of this Committee to come up 

with ways in which we are true to ourselves, true to our values, 

and come up with the necessary resources so that we are able to 

do that. 

Senator DURBIN. I know Mr. Schumer asked you earlier about 

this Mr. Schlossman, Bradley Schlossman, in terms of people he 

hired in the Civil Rights Division of the Department of Justice. I 

know he asked you the question of whether he was subject to prosecution. 

I’d like to ask you, I guess, a more practical question. According 

to the Inspector General’s report, Mr. Schlossman hired 63 career 

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servative or Republican Party credentials. He hired only two career 

attorneys who were identifiable as Democrats. He clearly was applying some sort of ideological litmus test, in clear violation of the 

Civil Service Reform Act. 

So those 63 career attorneys in the Civil Rights Division comprise almost 20 percent of the entire workforce in that Division, so 

they technically have Civil Service protection. They were appointed 

to these positions, apparently in contravention of the Civil Service 

Reform Act. What’s the recourse here? Are you forced to accept 

those 63? 

Mr. HOLDER. I’m not sure what the recourse is. But I don’t think 

we should paint with too wide a brush who these people are, these 

63 lawyers at the Justice Department in the Civil Rights Division. 

I don’t know who they are. They could be very well-intentioned people, dedicated to the mission of the Civil Rights Division. It doesn’t 

mean, because they are conservative, because they are Republican, 

that they should not have the jobs that they now hold. I think the 

focus really ought to be on the mechanism that was used to get 

them into the Department. 

Senator DURBIN. I agree with that. 

Mr. HOLDER. And what he did is deplorable. What he apparently 

did in front of this Committee, according to the Inspector General, 

by not telling the truth, is also deplorable. And as I indicated, I 

think it was to Senator Feinstein, should I be confirmed as Attorney General, I’m going to review the decision—determination made 

by the U.S. Attorney’s Office here in DC—again, that I have great 

respect for, but I’m going to review that determination to make 

sure that their decision to decline prosecution was an appropriate 

one. 

Senator DURBIN. Thank you very much, Mr. Holder. Mr. Chairman, I yield. 

Chairman LEAHY. Thank you very much. I would recognize our 

friend from Oklahoma, Senator Coburn. Good to have you here. 

You have waited here very, very patiently. 

Senator COBURN. Happy to do it, Mr. Chairman. 

Chairman LEAHY. Glad to have you here. Please, the floor is 

yours. 

Senator COBURN. Thank you. 

Well, welcome, again. I’m sure we’re going to be here awhile. 

A couple of things. I handed you a list of supposed wastes and problems within the Justice Department that totals nearly $10 billion, and the reason I gave it to you is, is one of the things that 

we worked on this past year, but was not funded, but the Justice 

Department did have was a cold case initiative on unsolved civil 

rights crimes. I’m just going to ask you for a commitment today, 

whether we fund that or not, will you commit to make sure that 

the intent of the Emmett Till Unsolved Civil Rights Crimes are fulfilled? 

You have plenty of money there to do it, even if we don’t fund 

it. I’m looking for a commitment that that will become a priority 

under your management of the Justice Department, whether we do 

a good job of funding it or not. I think there’s plenty of money for 

you to move around, both in terms of grants to States, and I’d like 

a response on that. 

140 

Mr. HOLDER. The fact that that initiative exists, that this Committee, that this Congress thought it important enough to devote 

its attention to it, is an indication of this Committee, our government, at its best. I actually believe that. Those are crimes committed a long time ago that, without the perserverence and the conscience that I think this Committee demonstrated, could have been 

forgotten. They are stains on our Nation’s history. There are still 

raw feelings about what happened. And so, yes, you do have my 

commitment. 

Senator COBURN. Okay. 

Mr. HOLDER. And I’ll figure out ways to try to move money 

around. 

Senator COBURN. Well, the commitment’s in the name of the 

board, the Emmett Till board, and one gentleman in particular, 

Alvin Sykes. We owe a great deal of gratitude to him. I tried to 

make that a more efficient bill. I wasn’t able to do it. We all sent 

out press releases, but it still isn’t funded and it still isn’t happening. What needs to happen, is it needs to happen; whether we 

fund it or not, there’s plenty of move in there. 

I want to go back to FALN, for a minute. Being from Oklahoma 

and the tremendous tragedy we had there, and I’ve heard your 

statements in terms of the reasonabless, why did not the weight of 

the prosecutors and the victims’ families bear more on your decision in terms of thinking that that was a reasonable part? Tell me 

how you came to this idea that it’s possibly reasonable. 

Mr. HOLDER. I mean, I did factor that in to my determination. 

You had two U.S. Attorneys who weighed in against it. Law enforcement was against it. There are obviously the feelings that victims had, and we took those into—I took—let’s talk about me. I 

took those into account and balanced that against the people who 

were advocating for it, an impressive group of people. 

Also looked at the nature of the crimes, the duration of the sentences that they had served, and it seemed to me that on balance— 

on balance. It was a difficult decision, but on balance—in a pre-9/ 

11 world, that the sentences that they had, substantial sentences 

up to 19 years—16, 19 years, that that was—that was appropriate, 

that the clemency petitions were appropriate. That was what— 

those are the—those are the factors I considered. 

Senator COBURN. So when we had our conversation together in 

the office, which I enjoyed very much, you admitted to a couple 

mistakes of judgment. But you would tell this Committee now, you 

don’t think that was one of them? 

Mr. HOLDER. No. I think we can certainly have a difference of 

opinion about that, but I don’t think that what I did there was a 

mistake in the same way that I would describe what I did in the 

pardon—the Rich pardon matter as a mistake. 

Senator COBURN. Yes. I just have to kind of think back and the 

fact that if Terry Nichols were to get clemency right now, what 

would the people of Oklahoma think? You know, here’s the co-conspirator in the Oklahoma City bombing, and under the same circumstances, you know—which, granted, there is some differences 

in the case, but there’s not a whole lot of difference; one is aiding 

and abetting versus commission of an act. So that is still worrisome 

to me. 

141 

I want to spend some time—I talked with you about the Heller 

decision in my office. I believe the Second Amendment right—I believe the Supreme Court got it right. And I know your position on 

it, and I know you have publicly stated that that’s the law of the 

land now in terms of our individual right to hold and own a gun. 

Post-Heller, can you kind of give me what your position is now? 

You know, there’s a lot of publicity out there in terms of written 

statements and previous comments about what you believe on the 

Second Amendment. Tell me where you sit today, and more specifically with that thought, as Attorney General of the United States, 

what you would do with that. 

Mr. HOLDER. Well, I think that post-Heller, the options that we 

have in terms of regulating the possession of firearms has—has 

been narrowed. I don’t think that it has been eliminated, and I 

think that reasonable restrictions are—are still possible. But any 

time that we think about interact—or interfering with what the 

Supreme Court has said is a personal right that has to be factored 

in now, the Heller decision, and the Supreme Court’s view of the 

Second Amendment. I don’t think that that means that we should 

turn away from the efforts that we have made to make this Nation 

more safe, to be responsible about—about guns and who has them, 

how they are used. 

I mean, our effort, for instance, to go after felons in possession 

of weapons, I mean, should be as strong now as it was, you know, 

pre-Heller. But I think that there is certainly—we’re in a different 

world. I think we operated, for a good many years, with the assumption that the Second Amendment referred to a collective right. 

We now know that that is not the case. So we are still, I think, 

going to have to grapple with that and understand what that 

means, but I think it is a huge factor. It’s a major difference. 

Senator COBURN. Let me ask you specifically. Much of your statements in the past had to do with guns as far as sporting events. 

Do you believe there’s any assurance given by Heller that, outside 

of sporting use, there’s a right to own and hold a gun? 

Mr. HOLDER. Outside of—— 

Senator COBURN. Utilization for sport, for hunting, for skeet 

shooting, for target practice. Do you believe that there’s a right to 

own a gun for other than hunting or sportsmen’s purposes? 

Mr. HOLDER. I think, post-Heller, absolutely. That’s one of the 

things we’re dealing with in Washington, DC now. 

Senator COBURN. What kind of common-sense gun regulations 

would you like to see enacted? 

Mr. HOLDER. Well, I agree with President-elect Obama, you 

know, closing the gun show loophole, banning the sale of cop-killer 

bullets, things of that nature. Those are, I think, the things that 

we need to focus on. Those are the things I think have a law enforcement component to them. Those are the—those are the things 

that I think are—are still viable in a post-Heller world. 

Senator COBURN. Do you find any irony in the fact that you can 

serve your country in the military at 18, but in some places we 

would want to limit your ability to own a weapon until you’re 21? 

Mr. HOLDER. Well, I don’t—well, I guess there is—there’s a bit 

of dissonance there. These decisions are made on a, I guess, a 

State-by-State basis. I guess there is some dissonance there. 

142 

Senator COBURN. Okay. 

As Attorney General, will you make a commitment to defend 

Heller’s holding that the Second Amendment protects an individual’s right to bear arms? 

Mr. HOLDER. Sure. That is the law, as the Supreme Court has 

given it to me. 

Senator COBURN. Would you do so if the Supreme Court granted 

cert in a case affecting or revisiting Heller? 

Mr. HOLDER. I’m sorry. Would I? 

Senator COBURN. Would you also defend Heller if the Supreme 

Court were to grant cert in a case affecting or revisiting Heller? 

Mr. HOLDER. Oh, I see what you mean. Well, I mean, you have 

to examine the facts of the particular case and understand how 

those facts fit under the Heller determination. But Heller—— 

Senator COBURN. Well, let’s assume it does. 

Mr. HOLDER. Okay. Well, I mean, we follow—I’m a lawyer who 

follows, you know, the doctrine of stare decisis. The Supreme Court 

has spoken and, in viewing these new facts, one would have to take 

into account, in a very substantial way because it is the ultimate— 

the ultimate arbiter has said what the Second Amendment means 

—have to take that into account in deciding what position the Justice Department would take. I mean, Heller is a significant, significant opinion. 

Senator COBURN. I’m sorry. I didn’t hear the last part of that. 

Mr. HOLDER. I said Heller was a very significant opinion. 

Senator COBURN. Yes, it is. It’s one I’m very happy about, as a 

Second Amendment advocate and as somebody from Oklahoma. 

If the court were to change, and yet Heller still holds and it was 

challenged again, as the chief law enforcement officer of the country, you would be obligated to defend the stare decisis of Heller. Is 

that true? 

Mr. HOLDER. Sure. That would have to be something that would 

take—that I’d have to take into consideration in determining what 

the Justice Department’s position was on a new case, a new set 

of—a new set of facts. That would be a factor. Stare decisis would 

tell the Solicitor General—me—that you have to take into consideration the fact of the Heller decision. 

Senator COBURN. Right. I’m out of time. Thank you very much. 

We’ll come back to this. 

Mr. HOLDER. Thank you. 

Chairman LEAHY. Incidentally, I do want to compliment the Senator from Oklahoma for his rendition of ‘‘Rocket Man’’. 

Senator COBURN. Thank you. 

Chairman LEAHY. You will probably not move Elton John from 

the charts, but you carried the tune better than the Chairman did. 

Senator COBURN. Well, actually I’m a Beach Boy generation, so 

it was a little hard for me to move to the other genre. 

Chairman LEAHY. We’ll do ‘‘Margaritaville’’ next time. 

[Laughter.] 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Mr. Chairman. 

Mr. Holder, welcome to the Committee. I’m pretty much at the 

tail end of a long and thorough, at least, first round of questioning. 

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143 

spect and affection for the man, to remark on how pleased I was 

that Senator Warner, who served here for so long and with such 

distinction, for his first, I guess you could call it, official return to 

the body that he served, really as an embodiment of both independence and dignity, two characteristics you share with him, chose to 

do so to support your candidacy and to call all of us to the better 

angels of our nature. I was touched and impressed. I know he’s not 

here any longer, but I would like to say that for the record anyway. 

On a more personal note, I want to say how impressed I am with 

your kids. This has been a long episode for them. It is a lot less 

exciting for them than it is for you to be here, and it’s a sign of 

what a wonderful upbringing they’ve had at the hands of their 

mom and grandmother, that they’ve represented your family so 

well here today. 

Mr. HOLDER. We will take into account the fact that they might 

otherwise be at school right now. 

[Laughter.] 

Senator WHITEHOUSE. That’s right. 

Chairman LEAHY. And I should note that, at some point after the 

next break—well, obviously you do whatever you want to do, and 

I should say I’ll certainly give you extra time for this, I mentioned 

to your mother that it’s part of the Constitution few of us understand, that grandparents are required to spoil grandchildren, and 

then the parents can deal with it afterwards. 

Senator Whitehouse. 

Mr. HOLDER. She’s a very constitutional—she’s a good constitutional lawyer. She follows the Constitution quite well. 

Senator WHITEHOUSE. We in the Senate have the good fortune 

and privilege to be present at occasionally extraordinary moments. 

One, for instance, was Senator Kennedy, who I’m thinking of 

today—he’s not with us, but other people have mentioned him— 

and his return to the Senator for the critical Medicare vote, where 

he made such a difference after his diagnosis. 

The year before, it was probably Senator Schumer’s hearing in 

this Committee that brought Deputy Attorney General Comey before us to tell an appalling, an astonishing tale of the mission to 

Attorney General Ashcroft’s beside. Deputy Attorney General 

Comey and FBI Director Mueller, with their lights on, racing to the 

hospital, pounding up the stairs to try to get there. 

The FBI Director calling ahead to the agents by the stricken Attorney General’s bedside, to tell them, whatever you do, don’t leave 

this man alone in the room with the White House counsel and 

Chief of Staff to the President. Don’t let them throw Comey out of 

the room. Then after that, we’ve learned about the eyeball-to-eyeball confrontation between the Department of Justice and the 

White House. 

Jim Comey’s testimony was remarkable. I know he is a supporter 

of yours, that he supports your nomination, and that he’s written 

to us on your behalf. 

What struck me was the personal nature of some of his discussion of how lonely and exposed it felt to be that far out, under that 

much pressure, standing on that principle. 

I know you have been there as well. As a U.S. Attorney, you 

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144 

man of the House Ways and Means Committee, probably one of the 

handful of most powerful men in this town. You were there again 

as Deputy Attorney General when you cleared a special prosecutor 

to go after a member of the cabinet of the President who appointed 

you, and you were certainly there when you cleared the expansion 

of the investigation of the President himself who had appointed 

you. 

If you don’t mind me asking you a personal question, can you tell 

us a little bit about what you were feeling at those moments? And 

in those moments if it was lonely, as I suspect it was, what were 

your touchstones that gave you the courage and confidence to go 

forward and continue with those difficult decisions? 

Mr. HOLDER. Well, I appreciate the question, Senator Whitehouse, and I’m sure you have felt those moments as well, having 

been U.S. Attorney and having had to make those lonely decisions. 

I think you go back to the beginning and why you took—why we 

took—those jobs: you wanted to do the right thing. We swore to an 

oath to uphold the law. If you’re going to be a good prosecutor, you 

have to treat the facts that come before you, irrespective of the political party of the person who might be involved, the connection 

they might have to you, personal or otherwise, the impact that it’s 

going to have on the administration that you serve. 

That is why the Attorney General is different and has to be in 

some ways distant from the cabinet, even from the President that 

the Attorney General serves. Personally, those were not necessarily 

difficult decisions because it’s what I expected of myself and what 

people who mean something to me would expect of me, not difficult 

in that sense, but they were nevertheless ones that, after made, I 

think you reflect on and you have feelings about the impact of 

those decisions on the lives of people who you admire, people who 

you have worked with. 

It doesn’t give you any—any great sense of joy to have done 

them, and yet it is what you’re called on to do. It is what I will 

do if I am fortunate enough to become the next Attorney General 

of the United States, to make those kinds of decisions in the way 

that I have in the past, lonely ones, as you’ve described them, but 

the right decision. I think I’ve shown a capacity to do it in the past, 

and a determination to do it in the future. 

Senator WHITEHOUSE. Thank you. 

Let me rattle off a few quick questions. The Bush administration 

knocked down the firewall between the Department of Justice and 

the White House, it limited conversations on cases to a very, very 

small number of officials. I have many disagreements with Attorney General Mukasey, but to his credit, he did rebuild that firewall. Will you pledge to us to maintain it? 

Mr. HOLDER. I will. I’ve been presumptuous enough that we have 

actually started working on that, in anticipation for whoever might 

be Attorney General—I’m not going to be so presumptuous there— 

so that the communication between the White House and the Justice Department reflects that which Judge Mukasey—Attorney 

General Mukasey has put in place and is consistent with what existed during the Clinton administration. 

Senator WHITEHOUSE. The tainting—some would even say corruption—of the Department of Justice during the course of this adVerDate Nov 24 2008 12:46 May 12, 2010 Jkt 056197 PO 00000 Frm 00156 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56197.TXT SJUD1 PsN: CMORC
145 

ministration has been both pervasive and systematic. It is my view 

that, frankly, if we went down this Committee and everybody listed 

something that bothered them that had happened, and you had 

that whole list assembled, there would still be more. 

In that regard, what process do you think is appropriate, coming 

on—to use a sailing metaphor—as the new captain of the ship to 

do a damage assessment, see what needs to be fixed, and that way 

you can move on to other business, but you will know as the commander of the Department that there is a process in place to make 

sure that whatever has been left undone, that ought to have been 

done, or whatever has been done that ought not to have been done, 

is set right? 

Mr. HOLDER. Well, I think you’ve set it out: an assessment has 

to be done, and that assessment has already begun in the transition effort that is ongoing. Attorney General Mukasey, Deputy Attorney General Phillip have been most generous in sharing information with us, been honest with us, very frank with us in pointing out places that they think need special attention. I have to say 

about those two gentlemen, that the only thing we were not given 

was the luxury of time. I think that, given more time, they would 

have done more. 

But we’re going to have time. Hopefully I will be one of the people who have that time. It is incumbent upon those who will run 

the Justice Department to do that damage assessment, what is— 

given what has happened, where does the damage still exist, and 

then come up with mechanisms to try to repair that. A lot of it will 

be inspirational. There are a lot of people who are still down in the 

Department. So, there—there has to be that kind of connection and 

I think it’s going to have to be a personal connection. 

I think, should I be confirmed, I’m going to have to spend a lot 

of time walking the halls, getting on airplanes, and talking to people in the field at the various U.S. Attorney’s offices and making 

them feel a sense of mission, that the Justice Department is back 

in the way that it traditional has been, as I said previously, under 

Republican and Democratic Attorneys General and Presidents. 

Senator WHITEHOUSE. Our distinguished Chairman was courteous enough to say I could have a little more time, so let me trespass on his indulgence with one final question. There has been 

some discussion about the prosecution of false statements to Congress. In addition to the recent OIG report about false statements 

by Department of Justice officials to Congress, I have referred a 

matter involving the EPA Administrator to the Department of Justice regarding false statements made to the Environment and Public Works Committee. I think that, frankly, it’s been something of 

a recurring problem. 

In addition to asking you to review the District of Columbia U.S. 

Attorney’s Office determination, I would ask you if you would consider working with us on what might be appropriate prosecution 

guidelines for such offenses, and what might be appropriate notice 

or training to people who come before us about the obligation that 

they take on when they testify, because I think people tend to forget that they’re here under oath. I think I’ve heard stuff that’s everything from simply slipshod to outright, cold-blooded lies. 

146 

Mr. HOLDER. Well, I think there’s certainly an obligation on the 

part of those of us in the executive branch to make sure that those 

who testify on behalf of the agencies, that we lead, or could lead, 

that there armed with all the tools that they need so that they can 

acquit themselves in a way that we would expect them to. I think 

that the point you make about training—testifying is not necessarily something that comes to people naturally. 

I’ve done this more than a few times, and I’ve got to tell you that 

this process has still frightened me. And to put younger people who 

have not done it before, you know, Senators, Congressmen like 

yourselves without training them, without making them understand the significance of what it is they are doing, without making 

them understand what’s on the line, reflects poorly on people who 

run those—run those agencies. So I will take that suggestion as a 

good one and try to work with the people in the Department so 

that what we have seen in the recent past is not replicated in the 

Justice Department that we will have. 

Senator WHITEHOUSE. I thank you, and I thank the distinguished 

Chairman. 

Chairman LEAHY. I thank you. 

My friend, the Senator from Kansas, Senator Brownback, is here. 

I’m going to yield to him. Then after his questions, we’ll take a 

break and give everybody a chance to stretch. If the members of 

the Obama family want to run hollering up and down the halls, 

feel free. It’ll probably get on the evening news, though. 

Senator Brownback. 

Senator BROWNBACK. Thank you very much, Mr. Chairman. 

The nominee—— 

Chairman LEAHY. I meant the Holder family. I’m sorry. 

Senator BROWNBACK. Mr. Holder, congratulations on the nomination. I do have a number of questions to ask you, but I want to congratulate you and your family—— 

Mr. HOLDER. Thank you, Senator. 

Senator BROWNBACK [continuing].—For an extraordinary American journey, and it has been that. 

I want to start off on Guanta ́namo Bay. One of the places that 

people have talked about moving the Guanta ́namo Bay detainees, 

is Ft. Leavenworth, Kansas, which is in my State. 

Ft. Leavenworth does not want these detainees. If I could put it 

any clearer to you, I would, but they do not want these detainees. 

The reason they don’t want these detainees, is that it really gets 

in the way of their primary mission, which is education. This is the 

Command and General Staff College of the military. It’s at Ft. 

Leavenworth. It’s a small base. It also has a disciplinary brig. 

But it’s eight miles—an eight square mile base. It has no perimeter fence. It’s bordered on the Missouri River. It has a train that 

regularly goes through about every 15 minutes. It has major 

sources of terrorist target points that they could go at. But that’s 

only one piece of it. The primary mission of Ft. Leavenworth is to 

train the next generation of army and military leaders, and the 

Command and General Staff College—Secretary Powell went 

through this facility. 

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147 

worth today. We have heard from students from Egypt, Jordan, 

Saudi Arabia, and Pakistan, that they will leave the school if the 

detainees come to Ft. Leavenworth. The point is, a number of Islamic countries don’t think these detainees should be held anywhere. 

Then if you hold them at the same place that they’re training 

their next generation of army and military leaders, they’re saying 

we’re out of here, we’re gone. And so the people there on the base 

are saying you are really messing with the primary mission, and 

on top of that the relationships are built there often between army 

officers, our army officers and ones from Pakistan, Saudi Arabia, 

Kuwait, key relationships in the ongoing war on terrorism. If you 

hurt that by moving detainees to a place at Leavenworth that’s not 

fit anyway to move this, this is a big hit. 

I would just plead with you really to look at the specifics. I heard 

your clear statement earlier that you’re closing Guanta ́namo, but 

the physical plant doesn’t fit and the mission is significantly 

harmed if these detainees are moved to Ft. Leavenworth. I would 

hope you would conduct an open and a very clear process before 

any are moved anywhere, particularly looking at a place like Ft. 

Leavenworth. 

Mr. HOLDER. Senator, I will pledge to do that. There is a review 

now that is under way to try to figure out what might happen with 

whatever the number of people are who might have to—have to be 

moved once that assessment of what the population at 

Guanta ́namo looks like. You have raised some very, very important 

points. The inability to—to have people from Islamic countries 

leave and then cut short that interaction that they might have with 

our military, is really something that, over the long term, could 

harm the interests of our Nation. So, that factor will be one that 

I will take back to the discussions that we are having. I think that 

is a—that’s an extreme—that’s—not that it’s not something I’d 

heard before, but I think that is a very important point. 

Senator BROWNBACK. It’s a big issue for them. I’ve spoken to Secretary Gates and the Chairman of the Joint Chiefs about this as 

well. 

Last Congress, Senator Kennedy and I successfully worked to 

pass a Prenatally and Postnatally Diagnosed Conditions Act, and 

there’s no reason I would expect you to know about that bill. But 

what it was targeted at, was to provide an adoption list for children 

born with Down Syndrome. Right now, if you do the in-utero test 

for Down Syndrome, 80 percent of the children are aborted. Both 

Senator Kennedy and I thought that was a real tragedy. What we 

need to do, is to try to figure systems to try to encourage that they 

be born. This is a very tough situation. If you can’t handle it, there 

are people that want to do this rather than killing the child. 

Then we also put in that there would be current information put 

forward about life expectancy of Down Syndrome children conditions for early treatment. We’re both very proud that we could get 

this on through. The Kennedy family has been great on working 

with people with disabilities, and I was delighted to partner with 

him on it. 

The thing I find extraordinary is that the Americans With Disabilities Act, part of which Justice Department will be enforcing, 

148 

applies and protects people with disabilities, yet we tend to not 

apply it but at a certain point of life, and the children tend to be 

killed before it gets applied to them. 

I would hope you would review within the Department of Justice 

when you would apply the ADA, the Americans With Disabilities 

Act. I know there are other agencies that have jurisdiction, and 

maybe primary jurisdiction ever this, but that you would look at, 

when do we apply the ADA? I don’t know if you’re familiar with 

that or if you could make a point of view on it. 

Mr. HOLDER. I think the—at core, what you’re talking about are 

very personal, difficult decisions that people have to make. 

Senator BROWNBACK. I’d say a very legal question on your part. 

Mr. HOLDER. But I think the legal determination is based on 

what the Supreme Court has said. In essence, our personal decision 

is tied to the right to privacy. I think that the legislation that you 

described, that you worked on with Senator Kennedy, is admirable, 

the possibility of adopting Down’s children, that’s obviously a wonderful thing. 

The application of the statute that you mentioned, in a—I guess 

a prenatal sense, I just don’t know what the impact of that would 

be on—— 

Senator BROWNBACK. Can you see the disconnect here? If that 

child gets here, it’s protected and has the ADA apply. If it doesn’t, 

60 to 80 percent are killed. I would hope you would look at that 

and say that this should be applied at an earlier point, because 

clearly the intent is to protect this child, not to kill it. 

Finally, I want to get into this, and I hope we can get into it 

more in the second round. I look at your background, and much of 

it which I find very impressive and admirable. The Marc Rich case 

really bothers me. I look at this, and a guy that renounced his U.S. 

citizenship and works with Iran in weaponry that maybe even is 

being used against our allies in the Middle East and is a fugitive, 

and then you allow this to move on forward. 

I just—that one just seems to me to be really extraordinary. 

When I go through the factual setting of it—and you’re a thorough 

lawyer. You wouldn’t be where you are today if you weren’t a thorough lawyer. This case just screams out at something that it seems 

like you would push back aggressively against. And then it has the 

political connections to it as well. 

One of the things I’ve been very troubled about lately is the number of political corruption cases we’ve had going on in the United 

States, and you’ve had several recently. Then this one has a connection where his former wife is giving money to the President’s library, where this is going through at the last minute. I just think 

it undermines confidence in the overall system. I haven’t heard yet 

really a satisfactory explanation to me from you about how you let 

that one go through, given the nature of this case. 

I ask, Mr. Chairman, for the record that the letter dated January 

12th of this year from the—this is detailing what the House committee had put forward, sent by Congressman Dan Burton, be entered into the record, that goes through some of the specific dates 

and the hearing—the lengthy hearing that the House did on this. 

I just, I look at all those things and that just—that one seems to 

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149 

ated with in the past, and it seems to have a lot of political connections to it and it really troubles me. 

Mr. HOLDER. Well, as I indicated in my opening statement, and 

I think in response to questions put to me by Senators Specter and 

Hatch, I made mistakes in that matter. One thing I want to make 

clear though, with regard to this notion of political connections, I 

was not aware at that time about these contributions or the ties 

that existed between Mr. Rich’s wife and other people in the Democratic Party, things of that nature. 

With regard to questions about the facts, and some of the ones 

that you have mentioned, that was one of the mistakes I made. I 

did not acquaint myself in a way that I should have about all that 

existed in the files about—about Mr. Rich. I think if I had done 

that, I would have come up with a different determination. 

But that is one of the things that I have said consistently during 

Mr. Burton—Congressman Burton’s hearings, in interviews that 

I’ve done, and before this Committee today, that that was one of 

the mistakes that I made. I think, as I’ve also said, that my record 

should be viewed in its entirety as you make your determination 

as to whether you think I’m fit to serve as Attorney General. 

This matter in which I made mistakes, I think, should be contrasted with a whole host of other decisions that I’ve had to make 

where I think I got it right, which is not to minimize. I don’t mean 

to do that. I’m not minimizing the mistakes that I made there. But 

I do think that—I will hope—that will be placed in the appropriate 

context. 

Chairman LEAHY. The Senator from Kansas had asked consent 

for a letter to be introduced in the record. I apologize, I didn’t hear 

that, and of course it will be introduced in the record. 

[The letter appears as a submission for the record.] 

Chairman LEAHY. Senator Hatch, you wanted to say something 

before we recess? 

Senator HATCH. I’ll be very short, Mr. Chairman. 

Mr. Holder, you’ve acquitted yourself well. First of all, I support 

you and believe that you should be supported. But let me just 

make this one comment. And I won’t make it in the form of a question, I just want to see what you think. 

First, as you may have heard today, the FISA Court of Review 

released its earlier decision that the Protect America Act of 2007, 

which allows warrantless foreign intelligence surveillance, is constitutional. I know hat everyone will have to study the decision, but 

I wanted to note with particularity the court’s holding: ‘‘We hold 

that a foreign intelligence exception to the Fourth Amendment’s 

warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States.’’ 

Now, this is a very significant decision. Mr. Chairman—and your 

answers to me earlier seemed to be consistent with this decision, 

that you’re willing to be bound by the Constitution, and I knew you 

would be and I appreciate you saying that. 

Mr. Chairman, I ask consent that an article from today’s New 

York Times, written by Eric Littwell, about this decision entitled 

150 

‘‘Intelligence Court Rules Wire—Tapping Power Legal’’, be put in 

the record at this point. 

Chairman LEAHY. Without objection, it will be. 

[The article appears as a submission for the record.] 

Senator HATCH. And Mr. Chairman, if I could just add one other 

thing. This is difficult for you to go through, but it’s important. I 

just want you to know that I’ve been carefully monitoring this; I’ve 

been here part of the time and not here part of the time. But I look 

forward to you being confirmed and serving in this really, really 

important position. I hope that you’ll do it in a nonpartisan way, 

which I think you will. I hope that the mistakes of the past will 

have influenced you even further towards being a great Attorney 

General, and that’s what I’m expecting of you. 

Thank you, Mr. Chairman. I said I’d be less than a minute, and 

I’m sorry if I went over. 

Chairman LEAHY. I thank you, Senator Hatch, for your comment. 

We’ve worked together on these matters for many years. One of the 

things that was said while you were out following discussion by 

Senator Graham, is Mr. Holder’s willingness to sit not just in formal meetings, but to have some informal gatherings on some of 

these issues with both Republicans and Democrats. 

I’ve always felt that law enforcement should not be a matter— 

you don’t look at law enforcement and say that a crime is a Republican crime or a Democratic crime. If you’ve got a crime and a victim you don’t ask what their political parties are, you ask how you 

go about helping the victims and catching the criminal. Both Republicans and Democrats, I’ve been told, after your comments, have 

said to me they intend to take you up on that. 

We’ll stand in recess subject to the call of the Chair. 

[Whereupon, at 3:45 p.m. the hearing was recessed.] 

AFTER RECESS [4:07 p.m.] 

Chairman LEAHY. Thank you, all. 

Again, one of the things I’ve heard universally out here, Mr. 

Holder, is how great your children have been. I’m glad to see you’ve 

mercifully given them a break. 

We have a longstanding and valued member of this Committee, 

who’s the senior Senator from Iowa, and he’s justifiably proud to 

have been the person who authored the False Claims Act, the modern version of it. I know you’ve worked in that same area, Mr. 

Holder. 

You have not had your first round, is that correct? 

Senator GRASSLEY. That’s right. 

Chairman LEAHY. It seems like it was so long ago that we started. But go ahead. I’ll yield to the senior Senator from Iowa so he 

can have his first round. 

Senator GRASSLEY. Mr. Holder, first of all, obviously I haven’t 

given your Department the attention I should today and been here 

all the time, because I’m Ranking Member on the Senate Finance 

Committee and we had four hours of discussion before we passed 

out a bill dealing with the Children’s Health Insurance bill. So 

that’s where I’ve been. I’m senior Republican there and I had to be 

there, so I’m sorry I missed. I hope I’m not repetitive, but if I am, 

please forgive me. 

151 

The L.A. Times recently reported that you urged pardon attorney 

Roger Adams to change his recommendation against clemency for 

Puerto Rico terrorists to a recommendation in favor of clemency for 

at least some of them. Then after Roger Adams resisted, you directed him to draft a neutral options memo. I’d like to show you 

an FBI surveillance video secretly recorded in a Chicago apartment 

and ask you some questions. This chilling video shows Edwin Cortez and Alejandro Torres. 

These were two of the terrorists who received clemency from 

President Clinton after you directed that the Justice Department 

change its recommendations. The video shows Cortez and Torres in 

the process of building a bomb. Were the two terrorists in this 

video in the group that you asked the pardon attorney to draft a 

positive recommendation for? 

Mr. HOLDER. Senator, I can’t answer that question. I don’t have 

the records in front of me. I don’t know the names of the people 

who were among that group of 15, I guess. I don’t know the answer 

to that. 

Senator GRASSLEY. Okay. Well, as I said, their names were 

Edwin Cortez and Alejandro Torres. 

At the time you directed the pardon attorney to draft a neutral 

options memo, had you ever seen this video before? 

Mr. HOLDER. No. I’ve not seen this video before. 

Senator GRASSLEY. And you were aware that the video existed? 

Mr. HOLDER. I think I’ve seen it in some news accounts in the 

recent past, like in the last week or so, something like that. 

Senator GRASSLEY. Were you aware that after this video was 

taken, a search of the apartment led to the seizure of 24 pounds 

of dynamite, 24 blasting caps, weapons, disguises, false identification, and thousands of rounds of ammunition? 

Mr. HOLDER. I can’t say that I’m aware of that specific fact. I did 

know that the people who were a part of that group, for lack of a 

better term, had access to, had been captured with, explosives. I 

don’t know the amounts or whether it was in connection with this 

particular thing. 

Senator GRASSLEY. Were you aware that the FAL and terrorists 

threatened to kill the judge at their sentencing hearing? 

Mr. HOLDER. That one, I’m not—I’m not aware of that. 

Senator GRASSLEY. Okay. Well, these are facts that I believe. So 

let me ask you this: if you don’t think that before the President decides to overturn the sentences of people like those in this video 

that were doing the things that I said they were doing, that the 

Justice Department ought to make sure that he is aware of the important facts like these? 

Mr. HOLDER. I’m sorry. The question was? 

Senator GRASSLEY. Yes. The question is, don’t you think that before the President—a President, in this case, President Clinton— 

decides to overturn the sentences of people like those in the video 

that we just showed doing what I said that they were doing, that 

the Justice Department ought to make sure that the President is 

aware of the important facts like these that I just stated? 

Mr. HOLDER. Yes. If the pardon process, the clemency process is 

working well, the President should have before him all of the relVerDate Nov 24 2008 12:46 May 12, 2010 Jkt 056197 PO 00000 Frm 00163 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56197.TXT SJUD1 PsN: CMORC
152 

evant facts so that he can make an appropriate determination, 

using the power that he has, fully informed. 

Senator GRASSLEY. Yes. Well, then let me get on this case to 

what I believe you said and how you characterized it. In light of 

all that we’ve discussed here, did you believe that it is fair to characterize Cortez and Torres as ‘‘non-violent’’ and therefore deserving 

of clemency? 

Mr. HOLDER. I’m not sure I ever described them as non-violent. 

What I said before was that—and I’m not —I don’t know if these 

two are the individuals who are part of that 15 of that group. What 

I said is that—said with regard to the group of 15, none of them 

had, themselves, been directly linked to a murder or directly linked 

to a crime that involved an injury to somebody. Crimes of violence 

can be defined in a whole variety of ways that don’t necessarily involve injury to a person. Some drug offenses are considered crimes 

of violence, even though a person has not been hurt. So the distinction I made was the way in which I phrased it at the beginning 

of the day, I guess, and throughout the day. 

Senator GRASSLEY. Yes. Well, earlier today you said, in response 

to a question from Senator Sessions, that the people who received 

clemency didn’t actually hurt anyone, and that you thought that 

granting them clemency was reasonable. But isn’t it true that the 

only reason that the people in the video didn’t hurt anyone is because the FBI caught them before they got a chance to do their 

damage? 

Mr. HOLDER. Yeah, that might be so, but that is, nevertheless— 

you know, it’s a difference between, let’s hypothetically say, between murder and attempted murder. If some—there’s an intervening act that stops the person from committing the crime that 

they wanted to do, the person’s intent is certainly nefarious and 

worthy of punishment, but the ultimate crimes are fundamentally 

different ones. 

Senator GRASSLEY. On another pardon, I know that Senator 

Specter has gone through the Rich pardon, but I have some details 

that I’d like to ask as well. In addition to being an unrepentant fugitive who had renounced his U.S. citizenship to avoid justice, Marc 

Rich was also a billionaire tax cheat. Speaking as Ranking Member 

of the Finance Committee where we talk an awful lot about tax gap 

and make sure that the tax laws are effective, it bothers me that 

giving Rich a ‘‘get out of jail free’’ card happens, and that’s especially offensive to me. 

You have admitted to poor judgment in your handling of this 

case. However, it is hard for many people to accept a general statement of regret because Rich was so obviously undeserving, and because all that money that his ex-wife gave to political leaders just 

before the pardon made it look like it was a very corrupt operation. 

I’d like to hear what you have to say to those people who think 

‘‘I made a mistake and I’m sorry’’ just isn’t enough. What specific 

facts or legal considerations led you to be ‘‘neutral leaning favorable’’ to the Rich pardon? Was it a decision you made on fact, the 

law, or political considerations? 

Mr. HOLDER. The mistakes that I made in the Rich matter, as 

I—I think I said earlier, all involved the fact that—a variety of 

things. Among them, I should have been more informed about Marc 

153 

Rich and—and his case. I was not. I should have kept the people 

who were involved in the prosecution in the Southern District of 

New York—good lawyers—and people at main Justice who were involved in the pardon process—I should have kept them involved. I 

assumed that they were. I found out later that they were not. 

With regard to the political stuff and the money going back and 

forth between, I guess, Rich’s wife or supporters, whatever, that, I 

did not know about. That did not enter into the decision or the actions that I took. With regard to the question of what my recommendation was, when I said ‘‘neutral’’, as I’ve testified, I guess, 

eight, nine years ago at this point, neutral was an unartful way of 

saying I don’t know enough about this case. I should have used different words, I suppose. 

When it’s—you talk about leaning towards favorable, what people frequently do not put to the end of that phrase is what I said, 

was neutral leaning towards favorable if there was a foreign policy 

benefit that might be gained, and that was on the basis of the 

Prime Minister of Israel weighing in and supporting the pardon. I 

didn’t say that I’m saying we should do this pardon. I said, look, 

if there is a foreign policy benefit, that somebody else will have to 

make the determination. If there is that, then that might be something that would make me think that this is something we ought 

to consider. 

Senator GRASSLEY. If the attorney for Rich had been someone 

that you had no relationship with rather than former White House 

counsel Jack Quinn, would you have been as sympathetic to his 

case as you were? 

Mr. HOLDER. I wasn’t sympathetic to the case. All I did with regard to Mr. Quinn, as I’ve done for any number of lawyers, initially 

was to try to set up a meeting that he wanted to have with people 

in the Southern District of New York to review his case. The lawyers in the Southern District of New York refused to do that, and 

that was the end of it. I didn’t pressure anybody, I didn’t question 

their judgment. I might have done it differently, but it was their 

case. They made the decision not to do it. 

When it came to the pardon component of this, I had, I think, 

two conversations with Mr. Quinn, one in November, another one 

on that last night in January. I wasn’t particularly sympathetic. I 

didn’t do anything to try to make this—this pardon happen. I certainly didn’t perform as well, I think, as I should have, and had 

I performed as well as I was capable of doing, I might have done 

something more. I think I would have done more to try to prevent 

it, but I didn’t do anything affirmatively to try to make the pardon 

happen. 

Senator GRASSLEY. Well, I think maybe you just stated a partial 

answer to this next question, so let me—but let me ask it anyway. 

What do you think was your biggest mistake in the handling of the 

Rich pardon? And please be very specific about what you think you 

should have done differently. 

Mr. HOLDER. Yeah. I should have made sure that I was better 

informed, that I knew more about the facts, about the underlying 

case, about the history of Mr. Rich. I should not have spoken to the 

White House and made the statements that I made without having 

had all of that knowledge. I should have ensured that the involved 

154 

lawyers were actually a part of the process instead of assuming 

that they were. I think those are the mistakes that I made in connection with the Rich matter. 

Senator GRASSLEY. Yes. 

Chairman LEAHY. Thank you. 

Senator GRASSLEY. Did we get 10 minutes or 2 minutes? 

Chairman LEAHY. Yes. You had 10. 

Senator GRASSLEY. Well, it started out—if I had 10 then I had 

10, and I’ll quit. But I thought it was five. Five registered. 

Chairman LEAHY. In the second round it’ll be five minutes each. 

I’ll begin the second round. I’ve been told there are some that 

wanted—did you have another short question you wanted to ask? 

I’ll try and accommodate you. 

Senator GRASSLEY. No. I think if he finished answering this 

question, you looked at me and I looked away from him. But if you 

finished answering the question—— 

Mr. HOLDER. I was done. 

Senator GRASSLEY. Okay. Then I’ll put it in the record. 

Chairman LEAHY. Okay. Thank you. 

[The information appears as a submission for the record.] 

Chairman LEAHY. The Freedom of Information Act, or FOIA, 

something that Senator Cornyn and I have worked on, establishes 

a statutory presumptive disclosure of information in the possession 

of the Federal Government. Actually, it places a burden on the government to justify if they’re going to withhold anything from the 

American public. When requesters think they’ve been wrongly denied, of course they can sue and the Justice Department defends 

agencies in those lawsuits. 

Now, each new Attorney General traditionally establishes what 

the ground rules are going to be on FOIA. Attorney General Reno 

urged departments to disclose, err on the side of disclosing, unless 

there was foreseeable harm. The current policy we’re using now 

was issued by then-Attorney General John Ashcroft, reversed the 

presumption of disclosure to non-disclosure, by telling Federal departments and agencies the Justice Department would defend their 

action in not disclosing it. They could make any kind of a—legal 

argument. 

Will you review the FOIA policies and practices, and if you do 

review them, will you do it at least with the consideration to reopening the kind of openness—or to reestablish the kind of openness that FOIA was intended? 

Mr. HOLDER. I will pledge to do that. I don’t know exactly how 

the administration is going to be structured and what traps I 

would have to run through in order to actually promulgate the policy, but that which Attorney General Reno—her policy, I think, is 

the way—the place where we ought to be, and that would be what 

I would be working towards. My thought would be, my guess would 

be, that the administration will—would support that. 

Chairman LEAHY. Much of the legislation I’ve worked on, in a bipartisan way, I might say, has been to improve the criminal justice 

system, improve and increase DNA testing, for example. The Justice For All Act, passed in 2004, included the Innocence Protection 

Act. I worked with former Republican Congressman Ray LaHood, 

155 

Democratic Congressman Bill Delahunt in the House, both former 

prosecutors. 

A key part was the Curt Bloodsworth post-conviction DNA testing grant program, the idea being we didn’t want an innocent person in prison or on death’s row, but at the same time, as former 

prosecutors, we didn’t want to see an innocent person go to jail, 

knowing that that meant the guilty person is still out loose and 

could commit the same crime over again. 

The Justice Department has been slow, ineffective, and sometimes obstructionist in implementing these programs. They put up 

barriers. They resisted funding key programs. The fact of the matter is, it’s something that works well for both prosecution and defense. Will you work with me and others in the Congress in both 

parties to see that the key DNA testing programs are effectively 

funded and implemented? 

Mr. HOLDER. I look forward to that, Senator. The Justice Department—we in the Justice Department have not only a responsibility 

for trying to solve crimes and convict people who committed them. 

The Justice Department, unlike maybe the responsibility that I 

think defense attorneys have, they have a more unique function, 

we have—and especially those of us who potentially are in charge 

of the Department—have a responsibility to the system. 

And to the extent we can have tools that are made available to 

acquit people, exonerate people, as well as find them guilty, those 

things should be supported. I was—that’s what I was talking 

about, I think, earlier with Senator Kyl. I agree with what he said 

and what you’re saying, that there is a need for technology. 

Chairman LEAHY. We also have the Debbie Smith DNA backlog 

reduction program to reduce the backlog of untested rape kits and 

all. These are all things that we should work on. It’ll make law enforcement go better. It’ll also not only will keep innocent people 

from going to jail, but it’ll make it more effective and we’ll get the 

actual person who committed the crime so they’re not out there 

where they might commit the crime again. 

Just like enforcement of the Violence Against Women Act. Will 

you make enforcement of this a priority, including enforcement in 

Indian country? 

Mr. HOLDER. Yes, I will. It has been something that has been of 

importance to me since I was the U.S. Attorney here in Washington, DC. I started a domestic violence unit in the U.S. Attorney’s Office in DC, having witnessed the crimes and the assaults 

that—and the unique problems that these cases present while I 

was a judge here in Washington, DC. I took the concerns that I 

saw, that were generated by what I saw as a judge, into the U.S. 

Attorney’s Office and started a domestic violence unit. And so I 

would be more than happy to work with you on that. 

Chairman LEAHY. And lastly, many of us in both parties worked 

very, very hard to reauthorize the Voting Rights Act. We do it for 

everybody, black, white, Hispanic, whatever they might be, poor, 

rich, to make sure that the right to vote in this country is given 

to everybody. Now there’s a direct appeal to the Supreme Court on 

that. I remember standing proudly—Senator Specter and I both 

stood proudly—with President Bush when he signed the reauthorization. 

156 

Will you, if you are Attorney General, defend the constitutionality of the Voting Rights Act reauthorization before the U.S. 

Supreme Court? 

Mr. HOLDER. Yes. The Justice Department has as a matter of 

policy the obligation to defend Federal statues. I can’t think of a 

statute that my Department of Justice, should I be confirmed, 

would be more proud to stand behind. 

Chairman LEAHY. Thank you. 

Senator Specter. 

Senator SPECTER. Thank you, Mr. Chairman. 

With only a five-minute round, I’ll try to be brief on the questions and I’d appreciate your being brief on the responses. 

You testified, Mr. Holder, that you were not intimately involved, 

only a passing familiarity, with the Marc Rich case, yet the record 

shows that you met or talked to Quinn on October 22nd, 1999, November 8th, 1999, January 18th, 2000, February 28th, 2000, November 17th, 2000, November 21st, 2000. Do you stand by that testimony, that you were not intimately involved, only had a passing 

familiarity with that matter? 

Mr. HOLDER. Yes. The conversations that I had with him dealt 

with—I think, certainly the beginning part of it—the question of 

whether or not he was going to get a meeting with the U.S. Attorney’s Office in the Southern District of New York. When it came 

to the actual pardon, I think I had two contacts with him: one in 

November, one in January. I never had a detailed conversation 

with Mr. Quinn about the facts of the case, and I have said that 

that is a mistake, that I had—you know, I should have either had 

that conversation with him, or independently I should have acquired sufficient knowledge so that I could have acted in a better 

way. 

Senator SPECTER. Well, that doesn’t sound like a passing familiarity to me, but we’ll let that stand. 

We came to the point as to whether you made any inquiry. According to the testimony of Roger Adams, the pardon attorney, he 

called you at 1:00 a.m. on January 20th because he was concerned 

that a pardon might be given to Marc Rich. You testified this 

morning, when I asked you about all of these sordid details about 

Marc Rich, about trading with the Iranians during the hostage crisis, oil for arms, hand-held rockets, dealing with the Soviet Union 

and Namibia and apartheid government in South Africa in exchange for Namibian uranium. 

That was certainly an opportunity, when Roger Adams, the pardon attorney, called you—he opposed the commutation of Rich—the 

pardon of Rich—to find out what the facts were. When he called 

you at 1:00 a.m., wasn’t that a pretty clear-cut signal that he was 

very concerned to have called you at home in the middle of the 

night, and an occasion for you to say, well, what’s up here, Mr. 

Adams? What are you so concerned about? And then you would 

have found out about all of these facts. 

Mr. HOLDER. Well, I suppose that could have happened. The 

call—as I remember, the call with Roger at that time was to inform 

me—he might have actually called me at 11:00 in addition to that. 

I’m not sure. I think he might have. But the call from Roger, I 

157 

think, was to tell me that the Rich pardon had gone through, or 

that Rich and Pinkus Green were on the list. 

The way I viewed those calls at that point, I thought we were 

dealing with a fait accompli, that the President of the United 

States, on the last day in office at 11:00 at night, or whenever it 

was I got that call, had made up his mind and that the decision 

was a final one. I didn’t expect that I would have the capacity to 

turn President Clinton’s mind around that late in the administration. I mean, this was the last night of his administration. 

Senator SPECTER. But you were on the record as saying ‘‘neutral 

leaning favorable.’’ There has been a waiver of privilege on these 

pardon matters, according to a letter from David Kendall to Congressman Dan Burton. 

Did President Clinton talk to you about the Rich pardon? 

Mr. HOLDER. I never spoke to President Clinton about the Rich— 

Rich pardon. 

Senator SPECTER. You’ve been questioned extensively about the 

FALN, and in the context of your testimony that you have tried to 

follow—respect career professionals. On the FAL matter, according 

to the L.A. Times, January 9th, 2009, Mr. Holder instructed the 

Pardon Attorney’s Office to ‘‘effectively replace the Department’s 

original report recommending against any commutation with one 

that favored clemency for at least half the prisoners.’’ Mr. Adams 

told the L.A. Times that he responded to Mr. Holder ‘‘of his strong 

opposition to any clemency in several internals memos of a draft 

report recommending denial and in at least one face-to-face meeting, but each time Holder wasn’t satisfied.’’ 

Well, Mr. Holder, if you wanted to make a recommendation of 

clemency, why didn’t you have the directness to do so on your own 

without seeking the cover of the pardon attorney, who had told you 

he was against it? Why submit a second request for a report after 

there has been opposition registered? 

Mr. HOLDER. All I asked Roger Adams to do was his job. The responsibility was—what I asked him to do was to draft a memo that 

went from me. The memo did not go from Roger Adams or from 

anybody else. The name that is on the memo is mine. It is a routine thing for the Deputy Attorney General to ask people who work 

for him to prepare memoranda—— 

Senator SPECTER. But he had told you he was opposed to it and 

you go back to him and say change it, I want you to recommend 

clemency for at least half of these people. Why do you place the 

burden on him to give you cover if you want to make a recommendation of clemency? 

Chairman LEAHY. The Senator’s time is up, but go ahead and answer the question. 

Mr. HOLDER. Well, I’m not asking for cover, I’m asking him, as 

I said, to do his job. And I would not get cover, given the fact that 

the memorandum went from me. My name is on that memorandum 

so that anybody can look at that and say, well, now, who made this 

crazy decision? You look at it, it says from the Deputy Attorney 

General to the President. Eric Holder’s name is on it. Roger Adams’ 

name is not. 

Senator SPECTER. Okay. One more? One more, Mr. Chairman? 

158 

Chairman LEAHY. Senator Kohl wanted to ask his five minutes 

and then go to vote. As soon as he finishes that, if you want to ask 

one more question, go ahead. 

Senator Kohl. 

Senator KOHL. Mr. Holder, if confirmed, you’ll be responsible for a budget of nearly $26 billion. As you know, your allocation of that 

budget will provide us with some insight into your priorities. 

Over the past years, we saw a concerted effort by this administration to sharply reduce Federal funding for local law enforcement, something that deeply troubled many of us. Funding for 

proven, effective programs like COPS, Byrne, and juvenile justice 

have been decimated. Last year, the President’s budget requested 

a 60 percent reduction for State and local law enforcement programs, which was below its already inadequate levels of prior 

years. 

As a result, vital services to our communities have been cut, police departments have had to down-size, local prosecutors have 

been laid off, drug task forces have been eliminated, and prevention and intervention programs have had to scale back their services or even close their doors. 

Given your support for these programs in the past, can we expect 

to see a real change here? Will restoring these programs to their 

funding levels of prior years before the Bush administration be a 

top priority of yours? 

Mr. HOLDER. Yes, Senator Kohl. This is one of my top priorities. 

One of the three things I mentioned on the day of my announcement was a need to increase support of our State and local partners, not only because of what they traditionally do in helping us 

fight violent crime, but because also when it comes to the national 

security component that is now such a big part of what the Justice 

Department does, they are, in essence, I guess what we’ve come to 

call force multipliers. They can help us on the national security 

side by looking at that car that has somebody in it that doesn’t look 

quite right if they have tools that they can use to analyze data, information. They can help us not only in the traditional way in 

which we’ve thought of them, they can also help us on the national 

security side. So, I think this has to be a priority for us. 

Senator KOHL. Thank you. 

Mr. Holder, I was very disappointed with the sharp cut-back of 

antitrust enforcement at the Justice Department during the eight 

years of the Bush administration. When we conducted an antitrust 

oversight hearing in 2007, we found sharp declines in the numbers 

of antitrust investigations initiated by the Department. Many 

mergers among direct competitors in highly concentrated industries 

passed review without any modifications, including the XM-Sirius, 

Whirlpool-Maytag, and AT&T-Bell South mergers, to name just a 

few. This serious decline in antitrust enforcement has been very 

disturbing. Vigorous and aggressive enforcement of our Nation’s 

antitrust laws is essential to ensuring that consumers pay the lowest prices and gain the highest quality goods and services. 

What’s your view with respect to the importance of strong antitrust enforcement? 

Mr. HOLDER. It’s a critical part of what the Justice Department 

does. It’s especially true now where consumers in this Nation are 

159 

beset upon by so many different things, the economic downturn, 

our economic condition more generally. I think we have to make 

sure that we do all that we can to ensure that the American people, the consumers of this Nation, have a system that is designed 

to be free, to be competitive. And so antitrust enforcement will be 

something that we will devote a lot of attention to. We’ll get an Assistant Attorney General who understands the mission of that division, the historic mission of that division, and I expect that we’ll 

be more active. 

Senator KOHL. One last question on resale price maintenance, 

Mr. Holder. For nearly a century, it was a basic rule of antitrust 

law that a manufacturer could not set a minimum price for a retailer to sell its product. This rule allowed discounting to flourish 

and greatly enhanced competition for dozens of consumer products, 

everything from electronics to clothes. 

However, in 2007 a 5–4 decision of the Supreme Court in the Legion case overturned this rule and held that vertical price fixing 

was no longer banned in every case. I believe that this decision is 

very dangerous to consumers’ ability to purchase products at discount prices and harmful to retail competition. 

Do you agree with me on this principle, that manufacturers setting retail prices should be banned? Can we expect you to support 

that and provide a letter for us with respect to your position on this 

issue? 

Mr. HOLDER. This is something that we talked about in our 

meeting, Senator. I have to say that that decision disturbs me. I’m 

not at all certain that—again, hearkening back to our desire to protect the American consumer, to make the market as open, as free 

as we can—that that decision by the Supreme Court is necessarily 

a good one, and so I would want to work with you to try to figure 

out ways in which we can bring the competitiveness back that I 

think perhaps the Supreme Court in that decision has removed 

from the system. I’m very concerned, very disturbed by—by that 

decision and the implications and what flows from it, so I look forward to working with you on that. 

Senator KOHL. I thank you very much. 

Chairman LEAHY. Thank you. 

Senator, you wanted to finish a question? 

Senator SPECTER. Now I have two yes or no questions, no explanation. Did you talk to President Clinton about the FALN pardon? 

Mr. HOLDER. No, I did not. 

Senator SPECTER. Would you make available to me the paper you 

referred to with respect to the request to Roger Adams on the Rich 

issue? We haven’t been able to get a hold of a copy of that paper. 

Mr. HOLDER. I’m not sure I understand. 

Senator SPECTER. It’s the FALN paper. 

Mr. HOLDER. I’m sorry? 

Senator SPECTER. Would you make available to me a copy of the 

FALN paper you referred to? 

Mr. HOLDER. That is a document that belongs to the Justice Department. It is not, from my understanding, mine to give. 

Senator SPECTER. Well, you referred to it in your testimony. 

Mr. HOLDER. Yes. I have seen the document, but it is not my document. It belongs to the Justice Department. 

160 

Senator SPECTER. Do you have the document? 

Mr. HOLDER. I have the document, but I have to give it back to 

the Justice Department. I signed an agreement that I will let no 

one see the document, including the people who had worked with 

me. The only person who is allowed to see that document is me, 

and I am supposed to give it back to them when I’m done with it. 

Senator SPECTER. Well, I’ll ask the Justice Department for it. 

Would you ask them, too? 

Chairman LEAHY. I think we’ve gotten—we’re into five of your 

two questions. 

Senator SPECTER. Oh, no. I have some more. 

Chairman LEAHY. Okay. We’ll stand in recess, subject to the call 

of the Chair. We have a vote on. 

[Whereupon, at 4:40 p.m. the hearing was recessed.] 

AFTER RECESS [5:05 p.m.] 

Chairman LEAHY. Thank you. We gave a little extra time to Senator Specter, and now we’d go back to Senator Feinstein. I’m going 

to try to keep the order the way it’s supposed to be. I’ll go, in about 

five minutes, to Senator Grassley. 

Senator GRASSLEY. Right now? 

Chairman LEAHY. Yes. 

Senator GRASSLEY. Okay. Thank you. I’ll continue where I left 

off. 

Senator FEINSTEIN. Mr. Chairman, it is difficult to hear. I don’t 

know whether I’m a dead zone or what, but I just can’t hear. 

Chairman LEAHY. Having been in hearings with the Senator 

from California I know she’s not getting deaf, so it must be a dead 

zone. 

Senator GRASSLEY. Okay. 

Chairman LEAHY. Is it on? 

Senator GRASSLEY. Mine is on, yes. 

Can I go ahead? 

Chairman LEAHY. Yes. 

Senator GRASSLEY. Okay. 

On the night before the pardons were issued, January the 19th, 

Quinn’s notes reflect a telephone call with you in which you said 

you had ‘‘no personal problem with a pardon’’, but that you expected a ‘‘howl from the Southern District’’ once prosecutors there 

found out about it. Mr. Chairman, I’d like to place some telephone 

notes in the record at this point. 

Chairman LEAHY. Without objection. 

[The information appears as a submission for the record.] 

Senator GRASSLEY. And then I have a chart that has these calls 

on them that you can look at. 

You testified before the House that you did not remember saying 

you had no problem with a pardon. Do you remember a comment 

about ‘‘howl from the Southern District’’ ? 

Mr. HOLDER. At this point, Senator, I mean, we’re talking about 

something that happened, what, 2001? So that’s eight years ago. I 

don’t remember that, though I—though I find that comment interesting because if I said that, that in some ways indicates that I’m 

working under the assumption the Southern District knows about 

this. I see quotes around only part of it, and then something that 

says ‘‘when they find out’’, which appears not to be from—I guess, 

161 

from this piece of paper that I was—I was just handed. So, I 

don’t—I don’t remember. 

Senator GRASSLEY. Okay. 

As a prosecutor, wouldn’t you agree that notes like these, taken 

at a time or just after a conversation, are much more reliable evidence than somebody’s memory on the conversation months or 

years later? 

Mr. HOLDER. As a general matter, I’d say that that’s true. I 

wouldn’t say that that’s true of the particular piece of paper that 

I have in front of me. I’d want to know exactly what were the circumstances under which this was generated, what were the conditions. I mean, there’s a lot of questions I’d want to know about this 

piece of paper. I would agree with you, generally. 

Senator GRASSLEY. Okay. 

Well, would you have in your possession any notes that would 

support a different account of the conversation? 

Mr. HOLDER. No. I didn’t take any notes of any of the conversations that I had. I don’t—I’m not in the habit of taking notes of 

conversations I have. 

Senator GRASSLEY. Do you have any explanation why Mr. Quinn 

would have written these notes if they weren’t true? 

Mr. HOLDER. No. 

Senator GRASSLEY. Okay. 

Mr. HOLDER. I take—on the other hand, I don’t know why he 

would have taken these notes. But one thing that sticks in my 

mind is this one that he—he took the note that said, supposedly 

I said ‘‘go straight to the White House’’. I know I did not say that, 

and that appears in a piece of paper, a note that he took, which 

gives me some pause with regard then to other things that he perhaps wrote. I’m not saying he’s making things up. Maybe he misinterpreted things. But that one, I know I did not say. This, I simply don’t remember. 

Senator GRASSLEY. Well, could I assume that based upon the 

notes, that you did say something to Quinn on the night before the 

pardon about the prosecutors in the Southern District howling that 

seems to suggest that you knew that they were unaware that the 

pardon was being considered and that they would complain loudly 

if they knew? After all, if they knew, the prosecutors would have 

been already out there yelling about it. 

Yet, you testified before the House that you didn’t ask to see the 

pardon petitions when Quinn first mentioned it because ‘‘my belief 

was that any pardon petition filed with the White House ultimately 

would be sent to the Justice Department’’. It’s hard to believe that 

you assumed the Justice Department had been reviewing the petition since November 2000, but by January 2001 that prosecutors 

were not yet howling about it. Isn’t it true that you knew, on the 

night before the pardon, that the prosecutors did not have a chance 

to weigh in, and doesn’t that contradict your testimony that you believe the White House would forward the petition to the Justice Department? 

Mr. HOLDER. No. Actually, I think, as I said earlier—again, I’m 

not—I’ve not seen this, you know, for some time. And I’m—I think 

that the fact that you say Holder says, there’s only part of that 

that’s in quotes, ‘‘howl from the Southern District’’. Again, I don’t 

162 

remember saying that, but if in fact I said that, I think that actually points the other way. It shows that there is an expectation assumption on my part that the people in the Southern District, in 

fact, know about this. I don’t—now, the part that says ‘‘when they 

find out’’ does not have quotes around it, so I don’t know where 

that comes from. 

Senator GRASSLEY. Okay. My time is just about up. Mr. Holder, 

during the House pardon hearings you said repeatedly that you believed all along the President was extremely unlikely to grant the 

pardon. According to your testimony, that’s why you failed to make 

sure the President heard both sides of the story. 

Essentially, you didn’t think Justice Department input was necessary to stop it because Rich was a fugitive, and that would disqualify him. However, less than a year earlier you had successfully 

supported the position for another fugitive, Preston King. Mr. 

King’s case is very different from Marc Rich, but they were fugitives and President Clinton had just pardoned King. In light of the 

recent history, why would you say that you thought merely being 

a fugitive would disqualify Rich? 

Mr. HOLDER. Well, because the King case was really fundamentally different. That involved a person, an African American, who 

had been discriminated against. I don’t remember. I don’t—I think 

it was a Selective Service case, or something. I don’t remember exactly what the facts were, but that had the indicia of something of 

a wrong that needed to be righted. 

Mr. King being a fugitive was not in the same category of fugitive as—as Mr. Rich. They were just fundamentally different types 

of cases. I don’t remember all the facts, but I do remember it was 

something about a racial injustice that had happened to Mr. King. 

I think it had something to do with a draft case, but I’m not sure 

about that. 

Chairman LEAHY. Thank you. 

Senator Feinstein. 

Senator FEINSTEIN. Thank you very much. 

Mr. Holder, when my time was used up in the morning we were 

talking about the use of independent contractors that the CIA utilizes to carry out interrogation techniques. I mentioned that I 

wrote a letter to Mr. Mukasey in February of last year, asking as 

to why this does not satisfy the inherently governmental strictures 

that must be used. The FBI uses its own people, its own agents for 

interrogation, the military uses their own agents for interrogation, 

or soldiers for interrogation, but the CIA uses, wholly, contractors. 

It seems to me that the interrogation of detainees in a war fought 

by the United States is an inherently governmental function. I’d 

like to ask that you commit to re-review those decisions, and I have 

the letters here which we will forward to you. 

Mr. HOLDER. Fine. I’d be glad—we’d be glad to, Senator Feinstein. 

Senator FEINSTEIN. Thank you very much. 

Let me ask this question. It seems that one of the issues surrounding closure of Guanta ́namo is what to do with the 80 or so 

detainees that likely will not be tried, but have been adjudged to 

be unlawful combatants and a threat to U.S. security. Do you believe that there are international treaties, and specially the law of 

163 

armed conflict, that would allow the detention of an enemy combatant for the duration of the conflict? 

Mr. HOLDER. I think—I can’t refer to something specific, but I 

think that’s a generally accepted rule of war, that during the 

course of a conflict a person who’s captured by the other side can 

be detained for the duration of that—of the conflict. But there are 

safeguards for that person, there are ways in which that person 

has to be treated, but I believe that is the general state of the law. 

Senator FEINSTEIN. Well, if you assume, as I do, that the law of 

armed conflict would cover this and that this is an unusual, asymmetric war that’s going to go on, that there should be some form 

of regular Federal review of the case. Do you have any thoughts 

on that? Should that be an annual review, which I would think 

would make sense to have a judge look at the case outside, thereby 

provide some element of due process? 

Mr. HOLDER. Yes. That’s one of the things I’d like to work this 

Committee on, and one of the things I discussed with Senator Graham. I think that there has to be fairness in two spots, one, in 

making a determination that the person is an enemy combatant, is 

dangerous, and then, two, a review of that decision on some periodic basis. I think a year is probably pretty reasonable. Because if 

we get to the point where we conclude that the person is not dangerous, then I think we need to go to the other phase, which is to 

try to repatriate the person, take the person to some other country. 

Given the fact that this is a war that may go on for an extended 

period of time, I think that kind of review has to be a part of what 

we—what we do. 

Senator FEINSTEIN. One more quick question, and I thank you 

for that. 

The FBI is in the jurisdiction of this Committee, as well as the 

Intelligence Committee, for its work on counter-terrorism and intelligence-related activities. The Senate Intelligence Committee received, last week, the answers to questions from one of its open 

hearings that was held in January of 2007. Now, that’s two years 

to get a response and we’ve had to fight to get the response. 

The FBI regularly tells both this Committee and the Intelligence 

Committee that it can’t respond quickly because all information 

provided to Congress has to be vetted through the DOJ, and that 

causes delays. Similarly, the DOJ prevents the FBI from answering 

questions from Congress on its domestic intelligence and counterterrorism questions. 

Now, we are not looking to get into the details of an investigation. We are looking to carry out our oversight responsibility, and 

therefore I would like to ask you if you would review this oversight, 

because I think it’s been a way to stymie oversight rather than 

prompt, quick review which allows the committees to do their 

work. 

Mr. HOLDER. I’ll commit to doing that. A two-year response is obviously unacceptable. I’ll work with Director Mueller and the folks 

in the Justice Department to see if there’s a way in which we can 

decrease that amount of time. Two years is simply unacceptable. 

Even—I don’t know exactly what’s going on in the—in the Justice 

Department. We can certainly do better, way better, than that. 

Senator FEINSTEIN. Thank you very much. 

164 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator Feinstein. Thank you for 

coming back. I know that you have the additional burden, as the 

outgoing chair of the Rules Committee, to coordinate the inauguration on the 20th. So, I know that you’ve been doing double and triple duty today, as well as taking over Intelligence. So, thank you 

very much. 

And of those who have double and triple duty, Senator Kyl, of 

course, is the Assistant Republican Leader for the Senate, and has 

also been in other committees today. So, Senator Kyl, I appreciate 

you coming back. I yield to you. 

Senator KYL. Thank you, Mr. Chairman. There seems to be an 

inordinate number of members of this Committee and the Finance 

Committee that serve together, and we had a big mark-up in that, 

so I apologize for the way that the questions here are perhaps a 

little bit broken up. 

We talked this morning about many of the matters that you and 

I discussed when we met in my office. There was one other matter 

that we hadn’t gotten to yet, and I want to bring that up, first. It 

was the problem of Internet gambling. Without going through all 

of the different things that we discussed, we talked about the potential for fraud, money laundering, and organized crime. 

Again, I won’t go through all of that. But the question that I 

would ask, and want to just get confirmed for the record, is that 

you indicated that under your leadership the Department of Justice 

would continue to aggressively enforce the law against the forms 

of Internet gambling that DOJ considers illegal. 

Mr. HOLDER. That is correct, Senator. 

Senator KYL. Then we discussed the regulations that were issued 

recently by—actually, jointly by the Federal Reserve Board and the 

Treasury Department, in consultation with the Attorney General. 

The regulations primarily try to go at the problem by thwarting the 

payments for unlawful Internet gambling—in other words, to shut 

off the cash flow. 

I mentioned the fact that they were already beginning to spend 

millions of dollars in an effort to try to undo these regulations 

somehow, and hope that you would—and you indicate you would— 

oppose efforts to modify or to stop those regulations, and, of course, 

continue to be vigilant in enforcing those regulations to shut off the 

flow of cash from this illegal activity. Is that your intent? 

Mr. HOLDER. Yes, that is my position. That’s what I will do. 

Senator KYL. Yes. Thank you. I appreciate that very much. We 

could talk a lot more about the pernicious nature of Internet gambling, but in view of the time here, let me move on. 

One thing we did not talk about, but I understand—in fact, I 

know you were asked by Senator Leahy—I’ve forgotten who it was, 

someone earlier, about the liability protection for the telecommunications companies under the FISA law. 

My understanding is that you answered the question, saying that 

you would honor the certificate issued by Attorney General 

Mukasey that allowed the companies to claim the liability protections, unless there were compelling circumstances. Is that approximately correct? 

Mr. HOLDER. That’s, I think, correct. Yes. 

165 

Senator KYL. Okay. 

Now, the certification by General Mukasey was based on an investigation of the previous conduct of the telephone communications—telecommunications—companies prior to the revisions in the 

law in order to determine whether they were entitled to receive retroactive immunity. In other words, the lawsuits had been filed 

based upon their earlier conduct. The new law provides explicitly 

protection for conduct prospectively. So the question obviously that 

arises then, is what conceivable, compelling circumstances could 

you conceive of that would relate to this previous investigation that 

caused General Mukasey to issue the certification? 

Mr. HOLDER. Senator, I’m not sure that I can come up with what 

those compelling circumstances might be. I guess maybe I was 

being a little too lawyerly in trying to give myself some wiggle 

room. I can’t imagine what set of circumstances there would be 

that would have us go back and undo those certifications. I can’t 

imagine it. I don’t know. 

Senator KYL. And you are aware that the Department of Justice, 

of course, has taken a position in the litigation involving AT&T in 

support of the liability protections that have been invoked by 

AT&T? 

Mr. HOLDER. Yep. 

Senator KYL. And it would be quite unusual, where constitutional issues are involved, for the Department, just because of a 

change in administration, to take a different position? 

Mr. HOLDER. Yeah. It would certainly not happen as a result of 

the change in administration. That would not be a compelling circumstance. And I—if you—— 

Senator KYL. I didn’t mean to suggest that either. 

Mr. HOLDER. No, no, no. No. I’m just saying that if you—you 

know, put me to the task to say, all right, Mr. Holder, tell me what 

the compelling circumstance might be, I don’t think I could answer 

that question. 

Senator KYL. I hope you’ll consider this question not out of 

bounds. We also discussed the speech you made, and you talked 

about activities before the Congress acted. I had one question to 

ask in that regard, but we hadn’t discussed this. You were Deputy 

Attorney General during the Clinton administration when the Department of Justice authorized the warrantless served of Aldred 

Ames, the spy, who is a U.S. citizen, of course. This was in 1993. 

Were you involved in that authorization, by any means or to your 

recollection? 

Mr. HOLDER. I don’t remember. 

Senator KYL. Do you have any reason to believe that it was unconstitutional? 

Mr. HOLDER. No. Actually—— 

Senator KYL. Even though it was warrantless? 

Mr. HOLDER. No. I was talking to a member of my staff. As I understand it—now, as I understand what he relayed to me, there is 

a national security exception not covered by FISA that would have 

made that search appropriate, legal, I think. 

Senator KYL. Yeah. FISA was not involved in that. 

Mr. HOLDER. Right. I think that’s what was relayed to me. 

Senator KYL. Okay. My time is up for this round, so I’ll—— 

166 

Chairman LEAHY. I thank you very much, Senator. 

Senator Feingold. 

Senator FEINGOLD. Thank you. 

Again, Mr. Holder, among the last-minute administrative actions 

taken by the outgoing Attorney General was to approve major 

changes to the Attorney General guidelines governing domestic FBI 

investigations, changes that went into effect on December 1st. As 

you may recall, I and a number of other Senators on this Committee repeatedly raised concerns about these new guidelines, with 

the way that Congress was supposedly consulted, with the decision 

to push these through during the lame duck period, and also with 

the substance of the changes. 

Will you take a close look at these guidelines early in your tenure and consider whether changes need to be made, and will you 

engage in real consultation with Congress as you do so? 

Mr. HOLDER. The guidelines—I will do that, Senator. The guidelines are necessary because the FBI is changing its—its—its mission, going from a pure investigative agency to one that deals with 

national security matters. I understand the concerns that you have 

expressed. I think the thing to do would be to see how these guidelines work in operation, but then to take—ask some serious questions, and whether or not the concerns that you and others have 

raised have been borne out by the way in which these things have 

been used in practice. So, yes, I would commit to doing that. 

Senator FEINGOLD. Thank you. I think these concerns are really 

quite serious. I appreciate that. And this is related to it. The FBI 

has developed a policy document that is hundreds of pages long to 

implement these new guidelines. I asked FBI Director Mueller back 

in September whether those policies would be made public to the 

greatest extent possible. He said yes. I understand from a letter we 

recently received from the FBI General Counsel that a process is 

under way to consider what portion of those policies can be made 

public. 

As Attorney General, will you support efforts to make as much 

of those FBI policies as public as possible? 

Mr. HOLDER. Yes. I think that helps the FBI, it helps our overall 

law enforcement effort to be as transparent as we can, understanding there are certain things that we cannot share. But to the 

extent that we can, we are helped by doing that. 

Senator FEINGOLD. Thank you. 

In his first State of the Union address, President Bush said of 

racial profiling: ‘‘It’s wrong and we’ll end it in America.’’ Not long 

after that, Representative John Conyers and I introduced the End 

Racial Profiling Act. Senator Barack Obama was a co-sponsor of 

the bill in the last two Congresses. Will you support the enactment 

of this or similar legislation to end racial profiling in America? 

Mr. HOLDER. I’m not familiar with the bill. I apologize for that. 

But I think that we have to do something to end that practice. It’s 

not good law enforcement. You make assumptions on the basis of 

the way a person appears and you either put somebody in the 

ambit of suspicion, or you miss somebody because you’re looking at 

that other person. There are a whole variety of reasons why we 

shouldn’t be doing that, so I am against, in every way, racial 

profiling. 

167 

Senator FEINGOLD. Well, my question was whether you’d support 

legislation, because there have been some things done by the Justice Department and the administration in this regard. Do you 

agree that there’s a need for legislation in this area? 

Mr. HOLDER. I’d like to work with you and see what the legislation says and see if there are deficiencies in what the Department 

has done, and get a sense—this is not an issue I focused on very 

recently—and get a sense of whether ore not legislation, as opposed 

to something else, might be the better way to do it. I’m not saying 

that I’m opposed to legislation, I simply don’t have a factual basis 

at this point. 

Senator FEINGOLD. Fair enough. I do think there’s a strong need 

for legislation, a law of the land, making it very clear from a legislative, legal point of view that this is not tolerable. 

On the death penalty, as you know, in 2000 when you were the 

Deputy Attorney General, the Justice Department publicly issued 

a nearly 400-page report with every conceivable piece of data about 

Federal death-eligible cases, down to the District level, covering the 

time since the Federal death penalty was reinstated in 1988. This 

comprehensive report was extremely helpful in understanding how 

the Federal death penalty has been implemented. 

In the past two years, I have repeatedly asked Justice Department officials whether they would prepare a similar report covering 

the time period since 2000. And while the Department provided 

some statistical information in connection with an oversight hearing I held in June 2007, it never agreed to prepare a detailed report similar to the one Attorney General Reno issued. 

Will you commit to making this information publicly available, if 

you are confirmed, just as you and Attorney General Reno did in 

2000? 

Mr. HOLDER. Yeah. That report was done by lawyers in my office 

and I thought it was a very useful examination of the system and 

raised some very disturbing questions about not only the racial 

identity of people who were in the death system—in the Federal 

death system, but also the geographic distribution of those people. 

So this is an issue that I think needs to be revisited. It’s been 

about, as you say, eight years or so, and it might be, I think, an 

appropriate time to do another—another study, and then share the 

results as we did in that first—in that first study. 

Senator FEINGOLD. Thank you for that. 

Finally, I was encouraged by your testimony that the DOJ should 

‘‘reinvigorate its efforts to protect the public in areas such as food 

and drug safety and consumer product safety.’’ As you know, private lawsuits play a significant role in protecting the public, but 

the outgoing administration has pursued a far-reaching policy of 

trying to preempt State tort law through Federal regulatory action. 

What is your view of this trend toward so-called regulatory preemption, and do you think the position of the Federal Government 

in such cases needs to be changed to restore common-law legal 

rights of injured citizens? 

Mr. HOLDER. Well, I’m not an expert in that—in that field of the 

law, but I think what we need to do is approach that from a proconsumer perspective. I think we need to always be doing that, protecting the American people, but I think that’s especially true now, 

168 

given the economic hardships that so many of our fellow citizens 

are facing. 

Senator FEINGOLD. Thank you, Mr. Holder. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much. 

Senator Cardin. 

Senator CARDIN. Thank you, Mr. Chairman. 

Mr. Holder, when you are confirmed to be the Attorney General 

of the United States, one of your principal responsibilities is to 

make sure that access to our legal system is available to all of our 

citizens. 

Last year, this Committee held a hearing on access to civil legal 

services. We looked at the Legal Services Corporation. The last 

study was done in 2005 that showed that, of those people who are 

eligible for legal services and apply for legal services, about 50 percent are turned away. Over a million cases a year were denied because of a lack of resources to have access to our system. That denies justice to the people who could not get those services. 

When we look at this circumstance, we find that we can do a lot 

better. I guess my question to you is this. Congress should have 

been appropriating more money. We’re at about 50 percent of what 

we said was the minimum level for appropriations, so Congress 

hasn’t provided the money. We haven’t had a reauthorization Legal 

Services Corporation for a long time. My question to you is, I hope 

this will become a priority. I understand the difficulty of getting 

legislation passed in Congress in this area. It’s not going to be 

easy. The jurisdiction rests primarily with the HELP Committee. 

This Committee has the responsibility of access to the legal system, but I would hope that we could find a way to bridge this gap, 

working together with the Department of Justice, and take advantage of an opportunity. Even though we’re in tough economic times, 

the circumstances are even more difficult for people who are seeking help through our legal system. 

Mr. HOLDER. Yeah. I think one of the responsibilities that the Attorney General has, in addition to a few other people, is a systemic 

responsibility, not only to do the things that concern the Department of Justice directly, but also to take care of a system of justice, 

on the criminal side as well as the civil side. 

I was one of the co-chairs of President Clinton’s effort of lawyers 

for One America, where we tried to stress the need for representation in civil matters. The statistics are appalling and consistent 

with what you say, the number of people—usually poor and disproportionately women—who are not represented in civil proceedings and they are not getting justice as a result of that. 

Senator CARDIN. I want to bring up a matter that you initiated 

when you were the U.S. Attorney for the District of Columbia, and 

that is Community Prosecution Project, where you worked with the 

community to get a better understanding of what you’re doing, and 

also a better understanding of the community needs. The goal was 

to reduce crime, to increase neighborhood safety, and get better cooperation between the community and the prosecutor so that you 

could be more effective. 

169 

My question is whether we could use that as a model and try to 

develop smarter ways that we can involve communities so that we 

can keep our communities safer. 

Mr. HOLDER. I think it is a model and I think it is something 

that we should experiment with in other parts of the country. We 

have seen the success of community policing, and it was our 

thought that community prosecution would also work. I think that 

we saw positive results from what we tried in Washington, DC, and 

we tried it in other places in demonstration projects. Funding for 

it didn’t continue into the new administration. I think it is something that is worthwhile and worthy of looking at, and potentially 

expanding. 

Senator CARDIN. We’re working on some legislation with some 

other members of the Committee to try to allow some discretion in 

setting up these types of programs in other parts of the country. 

We urge you to work together with us to see whether we can’t get 

some legislation passed in that area. 

Let me ask just one more question dealing with the Juvenile Justice and Delinquency Prevention Act. I want to talk about one of 

the four core requirements, which is the deinstitutionalization of 

status offenders. Status offenders are those who are truant, or 

minor issues. In the 1980s, we enacted a valid court order exception, which was supposed to be an exceptional circumstance where 

you could put a juvenile in a facility in order to rotect that juvenile. 

It was never meant to undermine the purpose of the Act, to deinstitutionalize status offenders. The number of use of these orders 

have increased dramatically over time. 

I would urge, as we look at the reauthorization of this Act, to 

make sure that the core requirements that were intended are now 

carried out and we have a realistic schedule so that we can phase 

out the need for this exception. 

Mr. HOLDER. I agree with you, Senator. We don’t want to have 

a situation where we have status—juvenile status offenders who 

are made a part of the juvenile system. It does not do them well. 

It doesn’t—we have limited space in the juvenile system. In any 

case, we shouldn’t be using that space for status offenders. There 

has to be an alternative way in which we deal with them. And 

again, it’s a question of who we are as a Nation. We can be—we 

have to be, you know, smart, up front. 

If we deal with these kids who have these status offense problems in a constructive way, it’s much less likely that we’re going 

to have to deal with them either as juveniles later on in the system, or as adults in the criminal justice system. But it all requires 

focusing attention on those kids when they’re not really in serious 

trouble. 

Senator CARDIN. Thank you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Senator Coburn. 

Senator COBURN. Thank you. First of all, I’d like unanimous consent to put into the record evidence of self-defense from gun ownership, various articles. 

Chairman LEAHY. Without objection. 

[The articles appear as a submission for the record.] 

170 

Senator COBURN. Since I only have five minutes, I want to go 

back to guns just for a minute. Do you have any plans to issue regulations or seek a change in the concealed carry laws of the States 

or have a Federal regulation that might impact those? 

Mr. HOLDER. That has not—that has not been something that I 

have discussed with anybody in the administration. It’s nothing 

that I have contemplated. 

Senator COBURN. It’s nothing you’re contemplating? 

Mr. HOLDER. No. 

Senator COBURN. And I understand President-elect Obama does 

have an opinion on ‘‘assault weapons’’. Can you tell me what your 

plans are and how you view that, and whether or not you think 

that ban ought to be reinstituted? 

Mr. HOLDER. Yeah. I think you had asked me earlier about the 

regulations that I thought might still exist post-Heller, and I had 

mentioned, I think, closing the gun show loophole, the banning of 

cop-killer bullets, and I also think that making the assault weapons ban permanent would be something that would be permitted 

under Heller, and I also think would be good from a law enforcement perspective. 

Senator COBURN. Okay. Thank you. 

I want to move just to another area that hasn’t been covered. I 

also want to say, I’m still troubled about the FALN decision, with 

that. As I kind of do some more equivalency with the Oklahoma 

City bombing and the people who were in the conspiracy but yet 

didn’t actually commit the acts that took the lives, I just have to 

tell you, I’m still troubled with your viewpoint on that and the fact 

that you don’t believe it was a mistake in judgment. 

I want to ask you about Governor Blagojevich. In the answer to 

the questions of the Committee, you failed to mention what evidently was a very short-lived and early relationship in doing some 

legal work for them. On December 17, 2008 in a letter to Senator 

Specter, you said you never did substantive work on the Illinois 

gaming matter, and that the engagement never materialized. Mr. 

Chairman, I have a copy of the letter which I’d like included in the 

record, if I might. 

However, in response to an FOIA request to the Illinois Gaming 

Board, it appears that from an April 2, 2004 letter, that you had 

at least done enough research to submit a detailed first request for 

documents from the Gaming Board, and that you had at least one 

telephone conversation with the chairman of the Illinois Gaming 

Board. I would like this document placed in the record as well, 

which I will submit. 

[The information appears as a submission for the record.] 

Senator COBURN. But tell me how that is not substantive work. 

Mr. HOLDER. Yes. I was going to say, the letter was drafted by 

an associate who I worked with, a very capable young man, and 

really only is of preliminary nature. We’re asking for very preliminary documents. We did not receive any documents in response to 

that letter. 

The call that we had was, again, of a preliminary nature. That 

was something that we were trying to get things set up in terms 

of acquiring documents, figuring out what our jurisdiction was 

going to be, figuring out who we were going to report to, dealing 

171 

with a conflict that existed between the State and my law firm. 

None of those things were ultimately resolved. We never got any 

of the material that we sought. We were never paid for any of the 

work that we did, and that’s why we have described it in the way 

that we did. 

Senator COBURN. Okay. It’s a reasonable explanation. 

Did you all ever send a bill for the hours worked by your associate? 

Mr. HOLDER. No, we did not. 

Senator COBURN. I want to go to one of the things that’s troubled 

me tremendously, and that is that we have rules on our veterans 

who come back who—and I’m actually asking for a commitment, 

because we have a rule that says a veteran who is incapable at this 

time of not handling his affairs is adjudicated mentally defective 

and cannot own a gun. There’s no trial that goes through for that, 

there’s no true protection of his rights. This is through—not 

through statute, this is through regulation. 

And the current law prohibits individuals who are adjudicated as 

mentally defective from possessing a firearm. I don’t have any 

problem with that, but by regulation, ‘‘adjudicated as mentally defective’’ is defined as ‘‘a person who is either a danger to himself 

or others’’, which I don’t have any problem with, or who lacks the 

mental capacity to contract or manage his own affairs. We have a 

lot of veterans coming back with closed head injuries who get better, but they ended up losing the rights to go hunting with their 

kids or their grandfather when they come back. 

Do you believe that this definition that is used in regulation is 

appropriate? 

Mr. HOLDER. I’m not familiar with this area of the law or that 

definition. What you’ve described, though, is a bit troubling. Of 

course, I think you’re right: people can get well. To the extent that 

they do and have an ability, I suppose, to demonstrate that they 

are well, rights, then, I think, maybe perhaps ought to flow back 

to them. What I’d like to do is perhaps work with you on this. 

Senator COBURN. I’d be happy to send you a letter stating this 

out much more thoroughly and ask for your opinion and response 

to that, if we could get that. 

Mr. HOLDER. But I think you raise an issue that could be a legitimate one. 

Chairman LEAHY. Thank you, Senator Coburn. 

Senator COBURN. I will yield back. 

Chairman LEAHY. Did you have another question? 

Senator COBURN. Well, I have some but—— 

Chairman LEAHY. We’re about to go into our—well, once Senator 

Whitehouse is over, we’re going to go into our third, and final, 

round. But if you want, if you have one more question, I’m trying 

to give flexibility. 

Senator COBURN. Actually, I’m doing fine, Mr. Chairman. 

Chairman LEAHY. Okay. 

Senator COBURN. Thank you for your graciousness. 

Chairman LEAHY. Thank you. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thanks, Mr. Chairman. 

172 

Mr. Holder, I just want to touch on one thing briefly, because 

there’s been so much discussion in this room about whether President Clinton’s decision in the FALN matter was reasonable. At the 

time in the pre-9/11 environment that prevailed then, there was 

substantial support for this, was there not? 

Mr. HOLDER. Yes, there was. The—— 

Senator WHITEHOUSE. I’m looking at a list here which is—it’s described as a partial list of the supporters, and it’s 15 pages long. 

And if I could just mention some of the names that are on it: 

former President Jimmy Carter; there are 11 members of the U.S. 

Congress; there are 5 members of the New York City council, which 

is interesting when you consider that the most grievous offense 

that the FALN committed was two bombings in 1975 and 1977 in 

New York; numerous members of the New York legislature; the 

former mayor of the City of New York, David Dinkins; a formal resolution actually on behalf of the city council of New York. 

From the religious community, the United Church of Christ supported this in, it looks like one, two, three general synods, so they 

repeatedly did this. The General Conference of the United Methodist Church supported it. The Baptist Peace Fellowship of Northern America supported it. Back to New York City again, the presiding bishop of the Episcopal Church of New York City supported 

it. The General Secretary of the American Baptist Churches of 

America supported it. The Ecumenical Officer and President of the 

Council of Bishops of the African Methodist Episcopal Church supported it. The Puerto Rican Bishops Conference supported it. The 

President of the World Council of Churches supported it. The General Secretary of the World Council of Churches supported it.The 

Deputy General Secretary of the Young Women’s Christian Association supported it. 

I count five Nobel Peace Prize award recipients who supported 

it, and one Nobel prize for medicine recipient who supported it; two 

organizations that had received the Nobel Peace Prize, Amnesty 

International and Physicians Against Nuclear Weapons; and two 

family members of deceased Nobel Peace Prize winners, including—particularly relevant to all of us—Coretta Scott King, of the 

United States. 

The President of the National Lawyers Guild. In fact, the National Lawyers Guild, by resolution, supported it, and on and on we 

go. So I just wanted to put those names in the record. We can all 

agree or disagree about this, but I think in context it’s important 

to recognize some of the leading legal civil rights, Christian, and 

governmental organizations who were in support at the time. 

The other thing I wanted to touch on, is the Chairman had a 

wonderful hearing recently with some of the police chiefs. There’s 

been a real conflict, I think, between homeland security and hometown security. Homeland security has had buckets of money and 

people have been able to buy, you know, scuba equipment, underwater vehicles, and train up for every possible thing you can think 

of, all of which is, you know, a good thing, but a lot of it has come 

at the expense of hometown security, cuts in police coverage, reductions of community policing. I ran a Community Prosecutor’s Office 

when I was the Attorney General. 

173 

I’d love to hear you—and the police officials who were present 

said that it had become very unbalanced, that in terms of the public safety effect in their own community, the people whose safety 

they were responsible for, they felt that they had a lot of resources 

for a very small risk with respect to homeland security, and very 

small resources for current, present, under the Bush administration, increasing violent crime risk in their communities, and that 

it was extremely disproportionate. From a sort of policy point of 

view, how would you propose to address that question? Do you see 

it as an unbalanced situation right now? 

Mr. HOLDER. Well, that’s something that I’d want to work with 

the committee on and see whether or not, in fact, that imbalance 

exists. I don’t want to get on the bad side of our my—our former 

colleague, Janet Napolitano. 

Senator WHITEHOUSE. That’s right. We can’t get you in trouble 

with Janet Napolitano now. 

Mr. HOLDER. Who was a U.S. Attorney with the two of—with the 

two of us, and you know I don’t want that to happen. But we really 

do need to put our money where there is the greatest harm, or potential harm. Obviously, defending our Nation and keeping our citizens safe is our primary objective, but that has a couple of components to it. 

We not only have to worry about criminals and terrorists from— 

from foreign shores, we also have to worry about criminals who are 

here and among us. And we cannot lose the progress that we made 

during the ’90s, when we worked with you when you were Attorney 

General in Rhode Island, to see those crime rates really come 

down. We can’t afford to see those crime rates creep back up. We 

have to do what we can to make sure that we maintain a lid on 

the crime that we started in the ’90s, but at the same time protect 

us from—from terrorists. 

I think we can do both, but it really is a question, with the limited amount of money that we have, making sure that we’re spending it in the appropriate places. And I would like to work with this 

Committee, and with Janet—Secretary Napolitano—in figuring 

that out. She and I are going to have a meeting, actually, I think 

next week, an informal meeting just to talk about that—those 

kinds of issues. I don’t—I don’t know she’ll be as generous as she 

seemed to indicate in the conversation that we were having when 

we started talking about actual money, but we’ll see. But maybe 

as a former colleague you might help me, Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Mr. Holder. 

Thank you, Mr. Chairman. 

Chairman LEAHY. I see these former U.S. Attorneys getting together. 

Now, for those who want to know the schedule, we’re going to 

begin our third, and final, round. I’ll reserve my time for the moment and I will begin with Senator Specter. After we finish this 

round, this third and final round, we will have completed our time 

with Judge Holder, and then we will set a time—I haven’t—I was 

going to consult with Senator Specter before we do. We’ll set a time 

for the panel tomorrow, which will be the completion of the hearing. Judge Holder will not have to come back, obviously, for that. 

174 

Depending on what time we finish tonight, Senator Specter and I 

will consult and set a time for the morning. 

Senator Specter. 

Senator SPECTER. Mr. Chairman, I understand your interest in 

concluding tonight and I’m agreeable to that, but not if it’s going 

to cut us short on questions. You and I had discussed this for a few 

moments a minute ago. In the Attorney General hearings on 

Alberto Gonzales, which I chaired, Senator Kennedy had a total of 

57 minutes. He had two 10-minute rounds. He wanted a third 

round, which was 22 minutes. He wanted a fourth round, which 

was 15 minutes. And so far, there have been 15 minutes, 10 and 

5. You’re talking about another five, where you may extend it a little. That is insufficient for the questions I have on this confirmation. 

Chairman LEAHY. Well, if Senator Kennedy comes back we’ll give 

him extra time, but the—— 

Senator SPECTER. I don’t think it’s funny, Mr. Chairman. I don’t 

think it’s funny. 

Chairman LEAHY. I was at the Ashcroft—I have the chair. I was 

at the Ashcroft hearing, the Gonzales hearing, and the Mukasey 

hearing. The Mukasey hearing, we only had—the last hearing we 

had, we only—we had two full rounds. The only third round was 

just you and I. In the Gonzales hearing, there were three rounds, 

which we’re having now. In the Ashcroft hearing, there were two 

rounds. Only you and I had a third round. Now, we’re not going 

to have a different system because it’s a Democratic administration 

than we had with a Republican administration. You are recognized 

for your third round. 

Senator SPECTER. Well, Senator Leahy, the Gonzales hearing was 

a Republican administration. That’s exactly the same thing. A Republican was chairman of the Committee. There were requests for 

more questions and I acceded to those requests. I have other serious, important questions to ask and so does Senator Kyl, and so 

do others. I would like to find out from the Senators who are here. 

Senator Kyl, how many more questions do you have? How much 

more time do you need? 

Senator KYL. Thank you, Senator Specter, for yielding. I would 

just suggest to the Chair, I have several more questions. I’m trying 

to go through them right now to get it down to the bare minimum. 

We can finish tonight. I have no intention of dragging this out. But 

I would ask for the same consideration that Democrats were given 

during the Gonzales hearing, nothing more than that. I think if we 

stop talking about this and just get on with the questions, we can 

finish, but we will need a little bit of additional time. 

Senator SPECTER. How much more time do you need, Senator 

Grassley. 

Senator GRASSLEY. I don’t know how to say how much time. I 

don’t think it’s—it’s surely not as much time as I’ve used, but I do 

have the issues of congressional oversight, the False Claims Act, 

and whistle-blowers that I’d like to discuss with the Attorney General. 

Senator SPECTER. Senator Sessions. 

Senator SESSIONS. Well, I had thought we’d probably go into a 

third round, so I had expected to have two more opportunities. I 

175 

didn’t expect to finish tonight. There are some things I wanted to 

work on overnight. But the Ranking Member, I know, has been on 

top of this from the beginning. 

Senator SPECTER. Do you have an estimate of how much time 

you need? 

Senator SESSIONS. Fifteen minutes. 

Senator SPECTER. If everybody could do that, there would be 

some parameter and we could be more precise. 

Senator SESSIONS. Fifteen minutes. 

Senator SPECTER. how much more time do you need to finish? 

Senator COBURN. Well, Mr. Chairman, my suggestion is that you 

allocate, at a minimum, 15 minutes more for each Senator. 

Chairman LEAHY. Why doesn’t the Senator from Pennsylvania 

begin his questions? Let’s hear where we go. A number of questions 

have been asked two or three times already. We can sit here all 

night long and ask the same question over and over and over and 

over again, which doesn’t seem to accomplish anything for anybody. 

The—I would suggest the Senator from Pennsylvania begin his 

questions and let’s see how we go. 

Senator SPECTER. Mr. Holder, turning to the issue of the request 

for independent counsel to investigate Vice President Gore on allegations that he had raised hard money from the White House in 

violation of Federal law during the tenure of Attorney General 

Reno when you were Deputy Attorney General, there was a strong 

recommendation by FBI Director Louis Freeh, Charles LaBella, 

designated by Attorney General Reno to make an independent evaluation as to whether there ought to be independent counsel, and 

a third attorney, Robert Conrad, who came in for the same purpose. All three of those made strong recommendations for the appointment of independent counsel. 

There were four witnesses who testified that Vice President Gore 

was at a meeting where there were discussions about raising hard 

money. Leon Panetta, who was one of the four witnesses, said, 

‘‘The purpose of the meeting was to make sure that he’’, Gore, 

‘‘knew what the hell was going on.’’ 

Attorney General Reno discounted the testimony of one witness, 

David Strauss, who was Chief of Staff for Vice President Gore, who 

had a notation of 65 percent soft, 35 percent hard. Couldn’t remember what was said, Attorney General Reno did not acknowledge 

that as competent evidence, which it was under the hearsay exception of ‘‘prior recollection recorded’’, which is different from ‘‘prior 

recollection refreshed’’. He didn’t qualify for ‘‘prior recollection refreshed’’, but he did for ‘‘prior recollection recorded’’. 

There were 13 memorandum from Harold Icches to the Vice 

President from August of 1995 to July of 1996 containing divisions 

as to hard money and soft money, also, the Federal contributions, 

which is the equivalent of hard money contributions. 

Vice President Gore testified that ‘‘the subject matter of the 

memorandums would have already been discussed in his and the 

President’s presence’’. The Vice President further acknowledged 

that he ‘‘had been a candidate for 16 years and had a good understanding of the hard money’’. 

Now, the applicable law states that where there is a preliminary 

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176 

lieve that further investigation is warranted, it seems to me, as it 

seemed to FBI Director Freeh, Charles LaBella, and Robert Conrad, that independent counsel should have been appointed. Independent counsel was not appointed. 

I chaired the subcommittee hearings that went into this issue in 

great detail, and it seemed obvious that Vice President Gore was 

being favored. If it hadn’t been the Vice President, the superior, 

that independent counsel would have been appointed. Shouldn’t 

independent counsel have been appointed in that matter? 

Mr. HOLDER. No, I don’t believe so, Senator Specter. Louis Freeh, 

Chuck LaBella, are very good lawyers and people who I respect and 

people who, coincidentally, are supporting my nomination to be Attorney General. There were—they had their view of that matter. 

We had career lawyers at the Public Integrity section who had a 

contrary view. Attorney General Reno and I looked at those conflicting recommendations or conflicting views of the case and made 

the determination that we thought that which was expressed by 

the Public Integrity Section was stronger, was more reflective of 

both the facts and the existing law, which is not in any way to take 

away from—from Louis Freeh and Chuck LaBella. 

These are people who are friends of mine who are great lawyers, 

and I certainly respected the opinions that they shared with us. In 

fact, that gave me pause. The fact that we had those kinds of recommendations coming from people that I respected, it made me 

think twice about where we were going. But ultimately, our determination was that the Public Integrity Section lawyers made the 

better call. 

Chairman LEAHY. Well, the time of the Senator from Pennsylvania has expired. Certainly feel free to continue. I just want to 

make sure I understood one thing. Mr. LaBella and Judge Freeh 

are both supporting you as Attorney General, is that correct? 

Mr. HOLDER. That’s correct. Mr. Freeh, I think, is going to be testifying tomorrow, and both have submitted letters. 

Chairman LEAHY. Please go ahead, Senator. 

Senator SPECTER. Mr. Chairman, I would appreciate it if my line 

of questioning was not interrupted. 

Mr. HOLDER. I’m sorry, Senator. I didn’t—— 

Senator SPECTER. You didn’t interrupt it. 

Mr. HOLDER. Oh. 

Senator SPECTER. I’m not talking to you. I’m talking to him. 

Chairman LEAHY. I think the only reason I interrupted is because your time had run out and I was trying to give you a little 

extra time. 

Senator SPECTER. Well, you could have accomplished that without bringing up collateral matters to interrupt the train of the inquiry. There’s no doubt that the Chairman would have had other 

time to make any comments he wanted. He runs the place. 

Do I understand you to say that you think that was a proper decision, Mr. Holder, not to appoint independent counsel, and if 

you’re confirmed and a similar situation arises, that you would not 

appoint a special prosecutor? We don’t have an independent counsel status, but we have the equivalent of a special prosecutor. Are 

you saying that if you’re confirmed you’ll stand by that kind of a 

judgment? 

177 

Mr. HOLDER. I’m saying that I will stand by the judgment that 

I made then, and also assure you and the American people that I’ll 

look at the law, the facts, and make the appropriate determination. 

And if an independent counsel, a special prosecutor is warranted, 

I will do that. 

Just for some perspective, one of the things that people talk 

about is perhaps we were trying to favor Al Gore. Well, we certainly didn’t favor Al Gore when we decided to make that rescue 

of Elian Gonzalez in Florida, a critical state, as it turned out. Vice 

President Gore criticized the decision to make that—to do that operation. Maybe that cost him the State, I don’t know. But Attorney 

General Reno and I certainly did not show him any favoritism 

then, and we certainly didn’t show him any favoritism with regard 

to the matter that we are talking about here. Our determination 

was based really on the facts and the law. 

Senator SPECTER. Well, you have your judgment which you’ve expressed, and you stand by it, and I have my judgment. I don’t 

think it’s a closed question. I don’t think that, on the basis of that 

evidence, if it hadn’t been the Vice President, if it hadn’t been a 

superior, somebody to favor, been John Doe, independent counsel 

would have been appointed. I think it’s so clear, that it raises a 

question in my mind as to your fitness for the job. 

Mr. HOLDER. With all due respect—— 

Senator SPECTER. Let the record—— 

Mr. HOLDER. With all due respect, Senator, you are a good lawyer. I’d like to think of myself as a good lawyer. Good lawyers frequently disagree about these kinds of things. I don’t question your 

integrity, veracity. I respect your opinion in the way that I would 

hope that you would respect mine. It was not done for any reason 

other than what I would consider a neutral assessment of the material that we had in front of us. 

Senator SPECTER. You are an excellent lawyer, Mr. Holder, if you 

wouldn’t—if you weren’t such a good lawyer, I wouldn’t be so surprised. If you were a poor lawyer, an inexperienced lawyer, not a 

real professional, I could say, well, he doesn’t know any better. But 

my evaluation is that a man in your position knew better. That’s 

the whole point. But you’ve expressed yourself and I’ve expressed 

myself. 

Mr. HOLDER. Senator, we’re getting close to a line here. I will 

certainly understand a difference of opinion, but you’re getting 

close to questioning my integrity, and that—that is not appropriate. That’s not fair. That’s not fair, and I will not accept that. 

Senator SPECTER. What’s not fair? 

Mr. HOLDER. To suggest that the decision that I made in the 

case, along with Attorney General Reno, supported by career lawyers from the Public Integrity Section, was anything other than a 

call on the facts and the law. There was never any attempt on the 

part of any of those people, those career people, the Attorney General, or this Deputy Attorney General to do something that was inappropriate or that favored Vice President Al Gore. That was not 

the case. 

Senator SPECTER. Well, you’re telling me what you think about 

it. 

Mr. HOLDER. That’s fine. 

178 

Senator SPECTER. And I’m telling you what I think about it. 

Mr. HOLDER. That’s fine. 

Senator SPECTER. And when I look at Marc Rich and the circumstances surrounding that, you gave a pardon to that guy who 

was a fugitive with that terrible record. And you have Roger 

Adams calling you at 1:00 a.m. It looks to me like there’s favoritism to give cover to President Clinton. We talk about FALN. 

That’s inexplicable to me. We all have been over all the facts as 

to how you have the professionals opposing clemency. They give 

you a report opposed to clemency. Then you want them to change 

their report in order for you to have cover. So I have to make a 

determination on my vote looking at the totality of your record, 

which overall we appreciate. 

Mr. Chairman, may the record show that it is 5 minutes and 27 

seconds, so that I have now had—— 

Chairman LEAHY. Actually, it is 10 minutes and 31 seconds, because that is 5 minutes plus your 5 minutes. 

Senator SPECTER. May the record show that it is 25 minutes, 

251⁄2 minutes, so that on the Kennedy standard, I only have 211⁄2

minutes left. 

Thank you, Mr. Chairman. 

Chairman LEAHY. If the Senator is finished his time, then Senator Grassley. You are on your third and final round, and I appreciate the—— 

Senator GRASSLEY. You missed—— 

Chairman LEAHY. No. Senator Specter wants to make sure you 

are all given extra time, and that is what I am doing, as I did for 

Senator Specter. I appreciate your taking only the 10 minutes instead of—— 

Senator SPECTER. Well, Mr. Chairman, I am not finished yet. 

Chairman LEAHY. Well, then finish your questions within a reasonable amount of time. You are now on the third round of 5 minutes each. You have gone 10 minutes into it. Do you want more 

time in your third round? Because there will not be more than 

three rounds. 

Senator SPECTER. Mr. Holder, when you came to see me for the 

so-called courtesy call, I showed you a letter which I had written 

to Attorney General-designate Gonzales, and I have written a similar letter to you and handed it to you. But you had a chance to see 

it at that time, and I gave you notice about it. 

This is the parameter and the scope of congressional oversight, 

and the essence of the letter is a conclusion by a Congressional Research report about the scope of appropriate congressional oversight. And it says in part that DOJ consistently obliged to submit 

to congressional oversight, regardless of whether litigation is pending, so that Congress is not delayed unduly in investigating misfeasance, malfeasance, or maladministration at DOJ or elsewhere. In 

the majority of instances reviewed the testimony of subordinate 

DOJ employees such as line attorneys and FBI field agents was 

taken formally or informally and included detailed testimony about 

specific instances of the Department’s failure to prosecute alleged 

meritorious cases. In all instances, investigating committees were 

provided with documents respecting open or closed cases that included prosecutorial memoranda, FBI investigative reports, sumVerDate Nov 24 2008 12:46 May 12, 2010 Jkt 056197 PO 00000 Frm 00190 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56197.TXT SJUD1 PsN: CMORC
179 

maries of FBI interviews, memoranda and correspondence prepared 

during the pendency of cases, confidential instructions outlining 

the procedures or guidelines to be followed for undercover operations in the surveillance and arrest of suspects and documents 

presented to grand juries not protected from disclosure by Rule 

6(e). 

Do you accept that as the appropriate legal standard for congressional oversight? 

Mr. HOLDER. Well, I would say this, Senator. Congressional oversight of Justice Department activities is obviously very important, 

and I will respect Congress’ role. In general, I will work to keep 

the Committee fully informed of the Department’s policies and programs. 

Now, there are limits, I think, to what we can say about ongoing 

law enforcement matters, including grand jury testimony that 

might jeopardize an investigation. That would be a concern I would 

have, and also a concern about the impact of revealing that kind 

of information and the chilling effect it might have on line lawyers, 

but will work to cooperate with you to make sure that you have access to the materials that you need so that the oversight that you 

conduct would be meaningful. 

Senator SPECTER. Well, I take that to be a ‘‘no’’ answer. 

Mr. HOLDER. Well, I am not—this seems a bit broad to me. 

Senator SPECTER. Well, Mr. Holder, may I suggest this: that you 

take a look at it, study it more fully, and give me a response in 

writing as to whether you would accept that as the appropriate 

range of congressional oversight? Or if you disagree with any part 

of it, tell me which part you disagree with that? 

Mr. HOLDER. I would be glad to do that, Senator. 

Senator SPECTER. Mr. Holder there have been suggestions for a 

revival of the so-called fairness doctrine, and my question to you 

is: Do you think that as a matter of public policy, the so-called fairness doctrine ought to be reinstated? 

Mr. HOLDER. Senator, that is a topic I have not given an awful 

lot of thought to. If I could perhaps submit an answer to you in 

writing after I have had an opportunity to think about that. 

Senator SPECTER. That would be fine. 

Mr. HOLDER. I wouldn’t want to commit myself to something and 

not give you the benefit of what is my best thinking on that. 

Senator SPECTER. Well, this is a subject which I did not take up 

when we had our so-called courtesy call, so that would be fine. I 

will propound some questions to you in writing on that because I 

want you to answer also the constitutional question, if you would. 

Mr. HOLDER. Sure, that is fine. You have been very generous in 

sharing with me, both at the meeting and in the address you did 

on the floor, with laying out for me, I think in a very generous 

fashion, the things that I could expect at the hearing. And I called 

you to say that I appreciated that. 

Senator SPECTER. Senator Leahy asked you about a reporter’s 

shield. You said you would be willing to consider it. We had a reporter held in jail for 85 days on the allegation that a source was 

not disclosed. At all times, the special prosecutor in the case knew 

where the leak came from. I would appreciate it if you would be 

180 

a little more definitive in your response. I do not want to protract 

the discussion now. 

Mr. HOLDER. That is fine. 

Senator SPECTER. Because I want to give my colleagues plenty of 

time, so—— 

Mr. HOLDER. Well, let me just say this, Senator. Maybe I wasn’t 

as clear as I could have been. I actually favor such a measure. All 

I was saying was that I would want to work on what it would actually look like. There is a piece of legislation, I understand. There 

are going to be concerns, I can tell you, I am sure, within the Department. I would want to work with you on that. But my position 

is that I think something can be crafted to deal with the issues 

that you have raised and the concerns I know I am going to hear 

at the Justice Department. But I am in favor of a shield law. 

Senator SPECTER. Well, the critical question is the national security issue. If you would take a look at that and give me and us your 

judgment, I would appreciate it. 

Mr. HOLDER. Okay. 

Senator SPECTER. The issue of—which is the topic that we started with, we started with you. And my sense is that there are two 

fundamental principles involved here. One is the right to counsel, 

Sixth Amendment right to counsel, and an integral, indispensable 

part of that is freedom of communications to a lawyer. The second 

principle is the State or the Commonwealth, which I used to represent, has the obligation of the burden of proof. And it seems to 

me that the prosecutor ought never to try to prove his case out of 

the mouth of the defendant. And I don’t know if you anticipated 

where your memorandum would lead, but it has led to some pretty 

tough situations with the Southern District case denying counsel 

fees and finding by the district Federal judge a violation of Sixth 

Amendment rights upheld by the Second Circuit. 

I would like you to respond to that in writing, too, as opposed 

to an extensive dialogue here. 

Mr. HOLDER. Sure. I would be glad to, although I will note that 

I think the progress that we have made in this area, in walking 

it back from what I think people in the field have done, was largely 

as a result of the work that you and Chairman Leahy did in expressing concerns about positions the Justice Department was taking that, frankly, I think were inconsistent with that initial memo 

of mine. So I would be glad to respond to the questions that you 

will propound to me. 

Senator SPECTER. Thank you, Mr. Holder, for being a patient witness. 

Mr. HOLDER. Thank you. 

Senator SPECTER. A witness with a lot of stamina. It is an important attribute for this job. Thank you, Mr. Chairman. 

Mr. HOLDER. Thank you, sir. 

Chairman LEAHY. Are you finished your questions? I am not 

going to cut you off. This is your last round. 

So you are you done? 

Senator SPECTER. Yes. I understood the parameters. 

Chairman LEAHY. Okay. I just wanted to make sure you felt you 

had enough time. 

181 

Senator SPECTER. This is the last tango. I will have some more 

questions in writing, but that is—— 

Chairman LEAHY. Senator Grassley. 

Senator SPECTER. Oh, Mr. Chairman, I want to put into the 

record with unanimous consent as a pro forma matter a whole series of documents, and also the editorials, without taking the time 

to enumerate them. 

Chairman LEAHY. Of course. Of course. Also, we have an enormous number of letters in favor of the nominee. We have some opposed to the nominee. They will all be put in the record. 

Yes, go ahead, Senator Grassley. 

Senator GRASSLEY. Mr. Holder, when we met several weeks 

ago—and I thank you for coming and visiting with me for a long 

period of time, I talked to you at length about my congressional 

oversight efforts and how I take this constitutional responsibility 

very seriously. Oversight help makes Government more transparent. The taxpayers have a right to know whether the taxpayers’ 

money is being appropriately spent. We have got waste, fraud, and 

abuse rampant in any administration. In my opinion, oversight is 

a particularly important issue for any nominee in your position because of the critical work that your Department does in its support 

of law enforcement agencies, particularly the FBI. 

So I hope you appreciate the role that Congress has in conducting oversight over the activities of the executive branch, including your Department. Over the years, I have made congressional oversight a top priority regardless of which political party is 

in the White House. I have requested documents, information, access to DOJ personnel for interviews, and I have learned that oversight works best when the agency fully cooperates with Congress. 

Unfortunately, agencies are all too often untimely in responding to 

Congress, and in the worst cases totally unresponsive. This is unacceptable and I hope you agree. 

Mr. Holder, I expect that you will be responsive to my oversight 

work and that my questions and document requests will be taken 

seriously and answered in a timely and complete way. I hope that 

I have your assurance that, if you are confirmed, you will assist me 

with oversight activities, be responsive to my requests, help me 

make the Justice Department as accountable in this coming administration as I have attempted to make it accountable in previous 

administrations, both Republican and Democrat. But the idea is to 

make it more accountable to the American people. 

That is an expectation on my part. You can respond if you want 

to. But would you pledge to be responsive to all congressional requests for information and provide this information to Congress in 

a timely manner? And before you answer that, I would like to point 

out a particular problem that I have had over a period of years. 

Would you work—and this is specifically in your position as Attorney General, being over everything in the Department, including 

the FBI. Would you ensure that responses are not held up due to 

lengthy what they call ‘‘clearance processes’’ at subordinate agencies such as the FBI? 

Mr. HOLDER. Senator, I will, in response to, I guess, the general 

assertion, try to do all that we can to make sure that we respond 

fully and in a timely fashion to the very legitimate questions that 

182 

I know that you have propounded to the Department. And to the 

extent that there is a problem with our internal processes, I will 

look at those and try to make sure that we make them work better. 

What I would hope that we would have is a relationship where, 

if you are not getting something in what you consider a timely 

fashion, that you will feel free to give me a call, pick up the phone, 

and say, you know, with regard to subject matter A, I sent this 

whenever, I have not received a response, so that you are not upset 

by our lack of response, at least give me an opportunity to check 

on the internal workings of the Department to make sure that we 

are doing it as quickly as we can. And if we are not, if I can’t give 

it to you, at least I can give you an explanation. 

Senator GRASSLEY. Then in that regard, you will remember I 

gave you a notebook of things that were unanswered, and I would 

hope you would help us clear those up so that you, taking over a 

Department in a new administration, have a clear slate and, you 

know, 6 months from now there is no question what you are responsible for or what the previous administration was responsible 

for. 

On the issue of whistleblowers, as you might know—or at least 

I think I have told you—I have been an advocate for whistleblowers 

because I value candid, unfiltered information they provide to Congress about the executive branch activities. And, quite frankly, 

most of the time they come to Congress as a last resort. They probably don’t even know about whistleblower protection, but something is bad. They tend to be very patriotic people, for the most 

part, want Government to do just what is right. 

Anyway, many whistleblowers who often come forward, they face 

tremendous retaliations in agencies, and that retaliation may be as 

straightforward as being terminated. It could be cloaked as a reassignment or shifting in duties. Either way, retaliation is exactly 

why we passed the Whistleblower Protection Act and countless 

other laws. These laws are a vital tool to ensure that whistleblowers are protected, but oftentimes that does not mean that the 

wrongdoers are disciplined by their agency. This is especially true 

in law enforcement agencies like the FBI, I have found out. 

So, you know, I just ask you to take a look at that. Take it seriously. They deserve the same protection and consideration whether 

in the FBI or anyplace else. Whistleblowers who raise concerns 

with management or who bring concerns to Congress and cooperate 

with congressional oversight efforts should be protected, not retaliated against. 

So can you give me a commitment that you will not retaliate 

against Justice Department whistleblowers and instead work with 

them to address concerns that they raise? Will you commit to ensuring that every whistleblower is treated fairly and that those 

who retaliate against whistleblowers are held accountable? And 

particularly on that last point, there are so many times that injustice has been done, the people that did it to them have never been 

held accountable. 

Mr. HOLDER. Yes, I can make those pledges both to ensure that 

people are given the opportunity to blow the whistle and they will 

not be retaliated against, and then to hold accountable anybody 

who would attempt to do that. I have worked with people, whistleVerDate Nov 24 2008 12:46 May 12, 2010 Jkt 056197 PO 00000 Frm 00194 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56197.TXT SJUD1 PsN: CMORC
183 

blowers, both in Government and more recently in private practice, 

and I have seen their utility, their worth, and, frankly, the amount 

of money that they return to the Federal Government. And they 

serve a very, very useful purpose. 

Senator GRASSLEY. Can you give me—since you have been in 

Government in the past, just as an example, how have you dealt 

with whistleblowers, and particularly if they didn’t agree with 

maybe a policy or something, or a position on a particular matter 

with you, if you have ever—or maybe you have not dealt with whistleblowers. 

Mr. HOLDER. I have dealt with whistleblowers. I don’t think that 

I have ever dealt with a whistleblower who has had a problem with 

a particular policy. I have not had that kind of interaction where 

somebody was complaining about something. The relationships and 

interactions that I have had with whistleblowers have generally 

been pretty positive, even, as I was saying, in the work that I have 

done in private practice, dealing with the lawyers who are representing the whistleblowers. I tried to represent my clients as 

zealously as I could, but I could understand what they were doing, 

and I could see the worth to the Federal Government by the actions that they had taken. 

Senator GRASSLEY. I had a couple other questions there, and I 

just hope that you would take some sort of positive approach, a 

statement or something like that, early on in your taking over the 

Department to make sure that there is a friendly atmosphere. I 

wish a President of the United States, previous and this one coming up, would have done that, because I think at the highest level 

of Government, it would send a signal, you know, that if something 

is wrong, we want to find out about it. After all, the public’s business ought to be made public. And if it takes a whistleblower to 

get it done, do it. 

I am not going to ask questions about the False Claims Act, but 

I think I expressed to you in my office, as author of that legislation, 

it has brought in $20 billion that maybe would not have been found 

without people in Government knowing about it and bringing cases 

themselves, some of them with the help of the Justice Department. 

And it has had some problems. I have got some legislation I am 

going to show you that would correct some things that have, in a 

sense, weakened it from original intent, that I think I have got 

broad bipartisan support to get passed, and I would surely appreciate very much your considerations of those. And anything specific 

I have on False Claims, I will submit along with a lot of other 

things for a response in writing. 

But just so you know, I think the False Claims Act, originally in 

defense and now in health care, has been a very, very important 

tool for us to root out fraudulent use of taxpayers’ money and gaming the system for personal benefit. And so I hope you will use it, 

help people that use it, move cases forward, you know, things of 

that nature. 

Mr. HOLDER. Yes, I will do that, Senator. You and I have worked 

together before on False Claims Act matters, and I will continue 

to have that level of cooperation with you. You raise good points. 

Senator GRASSLEY. I believe I am done, totally done, Mr. Chairman. 

184 

Chairman LEAHY. Thank you, and I appreciate you giving that 

time. As I said, I have tried to arrange it, and I know, Senator Kyl, 

you have some more questions. 

Senator KYL. Thank you, Mr. Chairman. 

Chairman LEAHY. I would appreciate your effort to keep them 

within a—— 

Senator KYL. I have really whittled them down here. 

Senator Specter raised the question of compelling testimony for 

reporters. The Department of Justice guidelines relating to subpoenas for reporters have been around about 28 years, to my 

knowledge, and they were used when you were at the Department 

of Justice, were they not? 

Mr. HOLDER. Yes, they were. 

Senator KYL. Among the people who have written about this, 

U.S. Attorney Patrick Fitzgerald has written, and I quote, that 

‘‘The Justice Department operates under rigorous regulations restricting the issuance of subpoenas to journalists.’’ Do you know of 

any serious problems with the Department of Justice guidelines? 

Mr. HOLDER. With regard to the subpoenaing of reporters? 

Senator KYL. Yes. 

Mr. HOLDER. Nothing that comes to mind. 

Senator KYL. And just so you will know, I am not trying to trap 

you on it. This is a very controversial matter, and some of us believe that the Department of Justice guidelines have served us very 

well. I am not aware of any serious problems with them either, but 

there are proponents of the legislation who would obviously go beyond them. 

We received several letters last year from members of the administration expressing concerns. I am going to boil this down, but Attorney General Mukasey and Director of National Intelligence 

McConnell wrote a couple of those letters. Their views in the letter 

expressed, and I am quoting here, ‘‘serious concerns, especially 

with regard to the bill’s effect on our ability to protect the national 

security and investigate and prosecute the perpetrators of serious 

crimes.’’ That was April 22nd of last year. 

I am just going to read one other slightly longer paragraph. They 

say, ‘‘We oppose this bill because it will undermine our ability to 

protect intelligence sources and methods and could seriously impede national security investigations. Indeed, this bill only encourages and facilitates further degradation of the tools used to protect 

the Nation. We have been joined by the Secretary of Defense, the 

Secretary of Energy, the Secretary of Homeland Security, the Secretary of Treasury, and every senior intelligence community leader 

in expressing the belief, based on decades of experience, that by undermining the investigation and deterrence of unauthorized leaks 

of national security information to the media, this legislation will 

gravely damage our ability to protect the Nation’s security.’’ 

I am not going to go into all of the issues. As I said, I boiled it 

down a little bit. But let me ask you about just some that they 

have raised. 

One problem they raised—I don’t know whether this is inadvertent or not, but the bill applies only prospectively. It does not 

apply to investigations once the harm has occurred. So you could 

185 

get into investigations pre-9/11, but on 9/12 you would not be able 

to require testimony for acts that have already occurred. 

Would you agree that a media shield bill should allow the Government to investigate serious harm both prospectively and with 

regard to harm that has already occurred? 

Mr. HOLDER. Well, Senator Kyl, you have raised a series of concerns that I think have to be taken seriously. What I was trying 

to say earlier was that I think that a bill can be constructed that 

would handle or deal with the concerns you have raised, and perhaps others that you are going to raise, and still deal with what 

I think are the salutary parts of the legislation. There is a value 

on—the concerns you raise are legitimate ones. On the other side, 

the notion of having a free press and protecting reporters and their 

sources I think is something that also has to be put in the mix, 

which I am not saying that what you are saying is not substantial, 

and it must be dealt with. Concerns about prosecuting people who 

leak national security matters, the concern about intelligence—all 

of those things have to be dealt with, from my perspective, before 

I would sign off on a particular bill. 

What I was saying is that I think the concept is a good one, and 

I think there is a way in which we can find a good bill ourselves. 

Senator KYL. And I appreciate the Department of Justice guidelines recognize a concept. The question is whether you go beyond 

that. I am just trying to get your view on a few specific matters: 

One, whether there should be any difference between a prospective 

or investigation into something—trying to get information or investigate a terrorist act, for example, that has not occurred yet versus 

investigating one that has already occurred, from which, of course, 

you might get very good information. 

As a general proposition, can you think of a reason why there 

should be a distinction between the two? It is one of the problems 

in the draft of the bill that I believe exist, and General Mukasey 

and Director McConnell identified as well. 

Mr. HOLDER. Okay. I would want to look at that and understand 

it a little better. 

Senator KYL. Okay. You have discussed already the need to try 

to protect as much as possible classified information. One of the 

concerns is the requirement that a media shield bill should deal 

with classified information in camera; that is to say, if it is going 

to be involved, at least protect it because it is classified. Can you 

think of any reason why that general principle should not be applied to legislation like this? 

Mr. HOLDER. Again, I would want to look at the provisions of the 

bill, understand the concern, which sounds like a very legitimate 

one, the ones you have now raised, and try to understand why that 

perhaps was not included in the bill, or just understand how the 

bill treats the concern you have just raised. 

Senator KYL. I gather it is safe to say that some of—we have 

been working on specifics of this bill for some time. You haven’t. 

And it is going to be difficult for you to express a view about some 

of the specific issues that have arisen. That is the reason for your 

general reluctance to be too specific, correct? 

Mr. HOLDER. That is correct. 

186 

Senator KYL. Let me try just with respect to a couple of other 

general principles. One of the things that General Mukasey and Director McConnell say in their letter is that the bill leaves out—I 

am quoting now—‘‘leaves out key non-FISA tools that are essential 

to the protection of national security: the wiretapping provisions of 

Title III, pen register trap-and-trace authority, and national security letters. All of these tools are important,’’ they say. 

Just as a general proposition, can you think of any reason why 

they wouldn’t be allowed to be used? 

Mr. HOLDER. Again, speaking very generally—— 

Senator KYL. Excuse me. Why a media shield law would preclude 

our law enforcement from using those tools. 

Mr. HOLDER. Again, not having had the experience with the bill 

or in this area that you have, I am not sure I would want to commit myself. But, again, that sounds like an issue that is very worthy of consideration. 

Senator KYL. Rather than trying to pursue more specifics here, 

let me ask a couple of general questions. 

Would you work to address the concerns raised in this letter and 

the other letters that have been written, as well as the views letters expressing the concerns of the Department of Justice? 

Mr. HOLDER. Yes, absolutely. I mean, I don’t want you to leave 

here thinking that you have got some press crazy here as potentially Attorney General. 

Senator KYL. No, I do not believe that at all. Just these are really important. 

Mr. HOLDER. They are. 

Senator KYL. And the career people at the Department have really been expressing a lot of views to us. Would you tell us that you 

will talk not just to the political appointees but to the career people 

in the Department who have really worked with these issues for a 

long time? 

Mr. HOLDER. Absolutely. But beyond that, Senator, I want to 

talk to you and to people who have worked on this bill and who 

might have a contrary view of it. 

As I said before, I guess in my opening statement, you know, 

knowledge doesn’t reside only in the executive branch. The experience that you have had with this, the obvious knowledge that you 

have of these issues are the kinds of things that I need to be educated about. It may change my mind, frankly. 

Senator KYL. One thing just in that regard that would be very 

useful—I mean, I presume eventually if this legislation is introduced and goes somewhere, we will have a hearing on it. And I 

would request and would hope that you would be willing to testify. 

Hopefully your views will have been crystallized. I mean, we should 

not act on this until you have had an opportunity to study it, to 

get your views crystallized, and that you would be willing to testify 

in a hearing relating to the subject on such a bill. 

Mr. HOLDER. I would be glad to. 

Senator KYL. I mentioned Secretary Gates’ letter. It is a separate 

letter, actually. Actually, he has written two separate letters, and 

I will not go into any of the those details. He simply talks about 

past investigations of unauthorized disclosures that have gravely 

damaged our national security. He talks about circumstances in 

187 

which the bill would permit this kind of activity to occur. He says 

the restrictions—the limitations of the bill remain far too restrictive, and he also criticizes the fact that the definition would extend 

the protection to leaks publicized to individuals who are not even 

journalists as that concept is normally understood, to quote him in 

here. 

Secretary Gates will continue to serve in the Obama administration, and I would hope that you would seek his views and address 

his concerns as well, would you not? 

Mr. HOLDER. I am sure he will be asking me about this at the 

next—at a Cabinet meeting, should I be confirmed. He will be 

wanting to know why am I in a fundamentally different place than 

he is. But I will have that conversation with him. 

Senator KYL. I am sorry. I guess I did not understand the preamble to what you—— 

Mr. HOLDER. I was saying that on the basis of what you have 

just said about the concerns raised by Secretary Gates, and should 

I be confirmed, I might expect to hear from him at a Cabinet meeting about why I was in the position that I was in. 

Senator KYL. Okay. And, finally—and I don’t know—I gather Director Mueller will be around for a while, but he, too, has weighed 

in, along with 11 other senior members of the intelligence community. And, again, I will not quote from his letter. He expresses 

strong opposition. But I would just ask you to agree to be sure and 

speak with him about the concerns he has and to try to address 

the concerns that he has specifically talked about—national security and foreign intelligence. Would you be willing to do that? 

Mr. HOLDER. Yes. As I said—— 

Senator KYL. As we say in depositions, you need to give an audible answer to the question. 

Mr. HOLDER. Thank you. 

Senator KYL. The last question I have on this subject—and it will 

be the last question I have for you—I mentioned U.S. Attorney Patrick Fitzgerald before. He has written on this, and one of the 

things he noted—and he is exactly right, in my view. He said, ‘‘A 

threshold question lawmakers should ask is whether reporters will 

obey the law if it is enacted.’’ In other words, if you are trying to 

do a favor there, then that should set out the guidelines by which 

people conduct themselves. ‘‘They’’—meaning lawmakers—‘‘should 

ask, because the Reporters Committee for Freedom of the Press 

calls for a shield law, while urging journalists to defy the law when 

a court upholds a subpoena for source information.’’ So here is the 

solution to it, and I am going to ask you if you think this would 

work. 

His view is that any shield bill should require that a person 

seeking its protection first provide the subpoenas information 

under seal to the court to be released only if the court orders the 

information disclosed. That way the individual gets both the protection of the law, but also would—his part of the bargain is if the 

court should rule that the law still does not apply, then he has to 

disgorge the information that the public would, therefore, have the 

benefit—or not the public, but that the law would, therefore, have 

the benefit of that information, if that is the way the court ruled. 

188 

Do you think it is sensible to have such a requirement in such 

a bill? 

Mr. HOLDER. Well, again, I am not as steeped in this as I will 

be and should be, but that does strike me as somewhat reasonable. 

But I say that with the understanding that perhaps I would have 

a chance to just become more familiar with the law, the response 

of that reporters group that you have mentioned, and see whether 

that would have an impact on my thinking. 

Senator KYL. There is no reason that you should be as steeped 

in this as some of us who have been working on it for a long time. 

But, certainly, it is a very serious matter, as all of these individuals have indicated. It will require some attention on your part, 

and I commend, assuming you are confirmed, to you that you begin 

studying up on this so that, should it be considered here, we would 

have the benefit of your views on that, and I look forward to conversations with you about how to approach this subject. 

Thank you. 

Mr. HOLDER. Thank you, Senator. 

Chairman LEAHY. Is that it? And I am not suggesting you ask 

more. 

Senator KYL. I narrowed it down to the best of my ability. There 

is much more. If I have anything else, I will ask the question in 

writing or just—— 

Chairman LEAHY. I appreciate your cutting it down like that. 

Senator Sessions, I think you said you had one or two more? He 

said hopefully. 

Senator SESSIONS. And you said see if I can do better. I can’t 

speak as fast as Senator Kyl, though. We Southerners are a little 

slower. 

In an April 2004 speech to the American Constitution Society, a 

liberal group, you asked the audience what it could do to bring 

about a liberal renaissance, which is a legitimate political effort to 

promote your beliefs, and you singled out the media and criticized 

them for impeding liberal views and said, ‘‘In the short term, this 

will not be an easy task with the mainstream media somewhat 

cowered by conservative critics and the conservative media disseminating the news in anything but a fair and balanced manner. 

And you know what I mean there. The means to reach the greatest 

number of people is not easily accessible.’’ 

So we do have this discussion of the fairness doctrine. Do you 

think the Government has the ability to interject itself in the free 

market of ideas and direct somehow that there be a balance between one view and another view on the airways? 

Mr. HOLDER. Well, the views I was expressing there were views 

that I had as a private citizen, would not reflect what I would do 

if I were confirmed as Attorney General. What I had said in response to the question that had been raised earlier about the fairness doctrine is that I just needed to know more about it before I 

could intelligently respond to the question. But I did not mean to 

implicate the fairness doctrine in that speech. 

Senator SESSIONS. That is important, I think. I just think that 

is a trail that is doomed to failure for some Government bureaucrat 

trying to state what somebody can say on the public airways. 

189 

Also before the American Constitution Society, you spoke about 

the Boumediene decision that for the first time granted habeas corpus rights to detainees, prisoners of war, or illegal combatants that 

were being held at Guanta ́namo Bay. Justice Scalia, I would note, 

in dissent said, ‘‘It would almost certainly’’—this decision ‘‘will almost certainly cause more Americans to be killed.’’ 

You said this: ‘‘The very recent Supreme Court decision, by only 

a 5–4 vote, concerning habeas corpus and Guanta ́namo is an important first step, but we must go much further.’’ 

I thought that this decision was really a radical departure from 

precedent. Never in the history of England, where we inherited habeas corpus rights, or in the United States have prisoners of war 

ever been given habeas rights. But the Supreme Court held that. 

What do you mean, ‘‘we must go much further’’ ? Do you have 

ideas that you would like to impose, apparently not required by the 

Constitution, but that would further constrict our ability to hold 

those who are at war with the United States? 

Mr. HOLDER. No, I guess when I said ‘‘go further’’ there, that 

was, I think—2004? I am not sure. I think 2004. 

Senator SESSIONS. 2008. That was a June 2008 speech, I have. 

Mr. HOLDER. Okay. 

Senator SESSIONS. It would not be 2004 because the decision was 

after 2004. 

Mr. HOLDER. Oh, after Boumediene, okay. Well, I am not sure 

what I had in mind there other than the concern generally that 

was expressed throughout the course of that speech about our Government making sure that, however bad the people were we had 

in Guanta ́namo, in the same way, I guess, that Senator Graham 

had mentioned earlier, that these people were treated in a way 

that was consistent with our values. So I might have been referring 

to that. I am just not sure. 

Senator SESSIONS. Well, just in my view, it is unthinkable that 

prisoners of war, particularly those who do not comply with the 

rules of warfare and violate the Geneva Conventions, would be 

given the same rights as an American citizen accused of a crime. 

It had never been done until this decision, and we have tried to— 

it was based on statutes, I think, rather than the Constitution, and 

we are trying to wrestle with that and maybe make that situation 

better. 

Let me ask this. I asked you earlier about your commitment to 

your statement where you said that you planned to ‘‘work to 

strengthen the activities of the Federal Government that protect 

the American people from terrorism.’’ You pledged ‘‘to use every 

available tactic to defeat our adversaries.’’ 

In his book—which is a very important book, I think—Jack Goldsmith, ‘‘The Terror Presidency,’’ who, as I said, has been in the Department of Justice. He left President Bush’s Department of Justice. He opposed some of the things that they did, but not all. He 

described the situation about where the Department of Justice refused to authorize a CIA covert operation to kill Osama bin Laden 

in 1998 when you were in the Department of Justice as the Deputy 

Attorney General. He wrote this: ‘‘The White House and Justice 

Department lawyers opposed an unrestricted lethal operation 

against bin Laden and would authorize his killing only if it were 

190 

necessary for self-defense in the course of legitimately attempting 

to arrest him.’’ That is page 95. 

He also noted at this time the CIA ‘‘had bin Laden in its sights,’’ 

and he discusses how this works. And what he said was, after previous hearings and complaints about covert activities, that the CIA 

and their agents had become conditioned to read their authorizations very carefully, and that George Tenet, then CIA Director, and 

other managers were insisting that these kind of operations be approved with unambiguous language. And according to his book, the 

Office of Legal Counsel—that is, the Department of Justice’s Office 

of Legal Counsel—agreed that the legal prohibition against assassinations did not apply to a military target like bin Laden, who 

posed an imminent threat to the United States—and who had 

openly declared war on the United States, I would add. So far, so 

good, Mr. Goldsmith writes. 

But then the ambiguities appeared. ‘‘White House and Justice 

Department lawyers opposed an unrestricted lethal operation 

against bin Laden.’’ And that is when he said we only authorized 

the killing in the course of a legitimate arrest. And part of this 

whole thing was how agents have become intimidated and fearful 

of being prosecuted or having their careers ruined for conducting 

what they think is accurate policy. That is a danger that we deal 

with. 

So I guess my question to you is: To what extent were you involved in those decisions? And is this accurate? And did the White 

House and other Department of Justice lawyers basically put additional controls on OLC’s opinion? 

Mr. HOLDER. Senator, I guess I am a little disturbed—I read that 

book, and I was a little disturbed to read that portion of the book. 

I am not at all certain it was appropriate. I don’t know—I am sure 

he got that cleared. I mean, I don’t know. But I am not very comfortable talking about that operation in this forum, in this setting. 

I was certainly aware of it. I didn’t have the lead on the Justice 

Department’s role in that. Maybe let’s transition. 

I would say that there is clearly a need for people in the field 

to have clear direction, and we have to be aggressive. We have to 

understand the nature of the foe that we face. No one should take 

from any of the statements that I have made today a notion that 

we are going to retreat from being aggressive and seeking out and 

getting people before they would get us. I don’t mean to say that 

at all. What I have said is that I think we can do that in a way 

that is consistent with our concern about civil liberties. There is 

not a tension between those two. We can be very aggressive using 

all the appropriate tools that we have, that we would get, that we 

now have, or additional tools that we might seek from Congress, 

and at the same time be true to our values. I am not saying that— 

so that is the point that I was trying to make in my earlier testimony. 

Senator SESSIONS. Well, I am sure that is true, but these are concrete situations, and I guess it appears from the book that OLC felt 

there was a legitimate basis. I would just note, on his website bin 

Laden had declared war on the United States. This is not a normal 

thug on the streets of Manhattan or something. This is a person 

who declared war on the United States, and they concluded the 

191 

United States is legitimate in defending itself. But the final decision that came down said that you could only utilize lethal force 

in the course of an arrest. 

Did you support that decision or the OLC opinion? 

Chairman LEAHY. I am not trying to stop you from answering. 

Obviously, answer the way you feel free. Part of that—we are getting into an area that many of us have been briefed on in a very 

classified nature, and I don’t want to put Mr. Holder in a difficult 

position of having to answer something that may go into a classified area. He obviously is used to handling classified material, and 

I will let him make his own judgment. I am not trying to put words 

in your mouth at all. But I would just caution Senators to be careful in what areas they go into. 

Having said that, I will yield the floor back to Senator Sessions 

and Mr. Holder. 

Mr. HOLDER. Senator, as I said earlier, I am a little reluctant— 

I would be glad to answer your question in what I would consider— 

in a more appropriate forum. Maybe I am being overly cautious 

here. I don’t know. But we are talking about something—I mean, 

it is out there—that was a covert operation, that required the highest-level clearances. 

Frankly, maybe I am free to talk about that now. I don’t know. 

I am just not feeling very comfortable responding to that question. 

But I will be more than glad to find out what ability I do have to 

talk about that and would be more than glad to share with you 

whatever I can. 

Senator SESSIONS. I would like that either in a closed fashion or 

in public if you can do so, and I think we need to know that. The 

problem is that we have created a climate for intelligence agents, 

military officers, law officers who are out serving the country in 

some very difficult things, in which they get ambiguous leadership 

and then are not able to act. And, apparently, bin Laden was in 

the sights of the United States Government, and we were prepared 

to act, waiting only for legal clearance. And we get back one of 

these ‘‘cover your rear end’’ ambiguous things, and the CIA guys, 

or whoever was involved in this, say they are not acting on it. And 

I think that is a danger and a weakness that could leave us more 

vulnerable than we need to be in the future. 

With regard to the closed testimony matters, this Committee has 

savaged anybody that even tried to investigate leaks. The New 

York Times can print anything, and members of our—as long as it 

embarrassed George Bush, and we want to get after—get after anybody that would suggest it was a breach of security. 

So I think it odd, but I will leave this question as it is. I do not 

want to ask you to say something you should not. 

Chairman LEAHY. And, Senator Sessions, I appreciate that. I also 

don’t want to get into a debate. We also could go into the whole 

debate about what happened when we took our troops out of Afghanistan to go into Iraq when they had bin Laden cornered. I 

mean, these are all debates of mistakes—some mistakes, some 

maybe not—in the past. I am more concerned about what kind of 

an Attorney General would Eric Holder be, and the concerns about 

what he is talking about, what are his plans if he is Attorney General? How will he run the Department? What is his philosophy? 

192 

What would he do? Because that is ultimately what 100 Senators 

have to vote on. 

Senator SESSIONS. Well, that is what I am trying to get at. You 

have interrupted me and used some of my time. That is what I was 

getting at. The OLC—what would you do in the future? OLC, according to this, had felt that it was justified. I think it was justified. Somewhere in the White House it said—and Justice Department lawyers—that you were privy to these discussions, sent an 

ambiguous message, and it makes me worry about the future. That 

is what I am asking about. 

Mr. HOLDER. And all I would say, Senator, is that I agree with 

you that there has to be, to the extent possible, unambiguous direction given to our people in the field. And it means that lawyers who 

are involved in that process have to understand that the words 

that they use, the direction that they give, has to be as precise as 

possible so that there is not that degree of ambiguity in those directions and might somehow have an inhibiting influence on the 

people in the field. They have got to understand what it is they can 

do, what it is they can’t do, and that is incumbent upon the people 

who are making those decisions, the people at OLC or in other 

parts of the Justice Department. 

So I understand. I hear the concern that you express, and I understand that. 

Senator SESSIONS. The Washington Post asked that the Senate 

Judiciary Committee should press you on the rationale for supporting pardons that occurred, and I have asked you a little bit 

about that previously, and we sort of ran out of time. You did indicate you thought the President’s decision on the FALN was reasonable, and I was a United States Attorney for 12 years, Assistant 

United States Attorney for 21⁄2, Attorney General for 2. In my opinion, it is not reasonable, it is not close. I mean, that is all I can 

tell you. And I do not believe it was a close question, and it worries 

me that you say that was a reasonable decision. 

In one article, a letter by Deborah Devaney, one of the Assistant 

United States Attorneys who prosecuted that case, and published 

in the Wall Street Journal in 1990, writes, ‘‘As one of the FALN 

prosecutors, I know too much. I know the chilling evidence that 

convicted the petitioners, the violence and vehemence with which 

they conspired to wage war on all of us.’’ 

She goes on to say, ‘‘In the first prosecution, some of the petitioners were captured in the back of a van with weapons used to 

commit armed robberies.’’ Then she goes on to say, ‘‘Yet the President’’—perhaps you did not know your role at that time. ‘‘Yet the 

President has seen fit to reward these conspirators simply because 

they were unsuccessful in their murderous attempts.’’ 

Well, it goes on. It was opposed by the prosecutors in the case. 

The pardon attorneys—Margaret Love had rejected it previously. 

Roger Adams gave you the opinion you wanted in the first paragraph, but then spent four pages explaining why this was a very 

problematic decision, and one could read that as his personal objection to it, and I think he conveyed that to you. 

The FBI Director, Mr. Freeh, opposed it, and he had labeled 

FALN one of the three greatest domestic terrorist threats to the 

193 

United States in 1998. And Mr. Adams did tell you, did he not, the 

pardon attorney, of Mr. Freeh’s view on that? 

Mr. HOLDER. I was aware of the FBI’s view on that matter. 

Senator SESSIONS. They had killed six people. One of the persons 

offered the commutation of sentence had planned an elaborate escape attempt using a helicopter and got an extra 15 years for that, 

which is certainly not excessive for this kind of violent offender. 

There were over 130 groups and dozens of people injured, six people killed. And then there was no contrition. The defendants were 

so unrepentant that two of them, two of the 16, who were given 

clemency refused to accept it because they had to promise not to 

continue to be violent. So to me this is really a pretty august statement that this was reasonable. 

I would also note that the—15, it says on mine. 

Chairman LEAHY. It is 5 minutes, plus 15 on there. For a 5- 

minute round, you are now into 20 minutes. I was just wondering. 

Senator SESSIONS. Well, you asked how—— 

Chairman LEAHY. I am trying to be fair. 

Senator SESSIONS. I know. You asked me how much time, and I 

said 15. I will try—I will wrap up. 

Chairman LEAHY. It is 5 plus the 15 that shows on here. It was 

5 minutes to begin with. Now it is 15 minutes beyond that 5. It 

has been 20 minutes. 

Senator SESSIONS. I believe you are right, Mr. Chairman, as 

usual. I believe you are right. I apologize. I was looking at the 

time, but incorrectly. 

And the Sentencing Commission did an evaluation of what the 

sentencing would have been for these people had they been sentenced under the more recent Sentencing Guidelines, and without 

parole, they were 30-year-plus sentences. And that is without parole, whereas these people were sentenced—some—up to—one or 

two at 90. 

Tell me again, was this your personal view that this would be appropriate? And is that what you conveyed to the President? 

Mr. HOLDER. I looked at the situation, took into account the fact 

that these people were not directly involved in incidents that led 

to death or injuries, took into account the body of people—I guess 

Senator Whitehouse, he mentioned at least a few of them—people 

who were weighing in in favor of the clemency; the conditions that 

were put on it, that is, they had to renounce violence and some 

travel restrictions; weighed what the view was in law enforcement 

from the U.S. Attorneys, from the investigative agencies, and obviously took into consideration what the pardon attorneys were saying, both of them. And it seemed to me that the clemency—and 

also took into account significantly the length of the sentences that 

these people had already served and the sentences that had been 

imposed by the trial judge initially—or trial judges initially. 

It seemed to me that the clemency grant, taking all that into consideration, was appropriate, and that was what I conveyed to the 

President. 

Senator SESSIONS. Well, thank you, Mr. Chairman. I do think— 

and I particularly find the Rich pardon that you acquiesced in and 

leaned toward to be problematic in light of the tremendous controversy this one caused about a year or so before. And it had to 

194 

go before hearings. A resolution of the Senate found it deplorable, 

and I would have hoped that you would have been more forceful 

with the President on the Rich pardon. And if you had done so, you 

would have helped protect him and his legacy, which was besmirched by this. Richard Cohen, his ally, opposed your confirmation because you didn’t resist that pardon effectively, and it just 

troubles me. 

Thank you, Mr. Chairman. 

Chairman LEAHY. I think I would note parenthetically that tens 

of millions, some would say hundreds of millions of dollars of a Republican-controlled Congress went on for 6 years to try to besmirch 

President Clinton’s reputation in a number of areas. I would also 

note that I do wish that President Obama had some of the advantages coming in that President Bush did when President Clinton 

left President Bush the largest surplus in America’s history, paying 

down the national debt, and creating an enormous number of jobs. 

President Obama will inherit the largest deficit of any nation on 

Earth in history, and the largest deficit and a tripling of the national debt. 

I realize that part of that cost was all these hearings that might 

be besmirching President Clinton’s decision and legacy, but the fact 

is, I think all of us, Republicans and Democrats, wish we were inheriting the economic situation that President Clinton left to his 

successor rather than the one that is being left to President 

Obama. 

I am not going to take the 20 minutes that everybody has been 

taking of their 5 minutes here, but just a couple of quick points. 

Am I correct that as Deputy Attorney General you had no final 

decisionmaking power to grant clemency or pardons? Is that correct? 

Mr. HOLDER. That is correct. 

Chairman LEAHY. And am I correct that your memo—I am talking about FALN now. Your memo to the White House made no recommendation on clemency for the prisoners, but rather, provided 

an analysis with multiple options for each prisoner. Am I correct? 

Mr. HOLDER. That is all I have been able to find, the options 

memo, which lays out the whole range of possibilities that the 

President could consider. But I have to say, Mr. Chairman, I do 

think that in some form or fashion I conveyed a recommendation 

to him. I just don’t—I can’t find it. 

Chairman LEAHY. Am I correct that none of the FALN members 

offered clemency by President Clinton were present when individuals were killed or injured? 

Mr. HOLDER. That is correct. 

Chairman LEAHY. And am I correct that the prisoners were released under strict supervision of Federal probation authorities and 

none have caused any future harm? 

Mr. HOLDER. That is my understanding. 

Chairman LEAHY. Am I correct that the clemency offers were 

conditioned on the prisoners’ willingness to renounce violence and 

each of them had already served either 16—somewhere from 16 to 

19 years in prison? Am I correct? 

Mr. HOLDER. That is correct. And two of the—as Senator Sessions noted, two of the individuals who were offered clemency 

195 

would not accede to that demand, that is, to renounce violence, and 

they, therefore, did not get out of prison. 

Chairman LEAHY. They stayed in prison. 

Mr. HOLDER. They stayed. 

Chairman LEAHY. And the clemency provided by President Clinton was supported by various Members of Congress, numerous religious, human rights, labor, Hispanic, civic, and community groups, 

including former President Carter, Archbishop Desmond Tutu, and 

Coretta Scott King. Am I correct? 

Mr. HOLDER. That is correct. 

Chairman LEAHY. And am I also correct that your nomination to 

be Attorney General has been enthusiastically endorsed by the Nation’s top law enforcement organizations and numerous law enforcement officials, including many who were among the biggest 

critics of the FALN clemency? Am I correct in that? 

Mr. HOLDER. I think the Fraternal Order of Police testified in the 

hearings that were held and criticized the FALN pardons, and the 

Fraternal Order of Police has endorsed my nomination. 

Chairman LEAHY. And we have put into the record their endorsement of your nomination, and, of course, we will have, among others, former Director of the FBI Louis Freeh, no shrinking violet he 

when it comes to law enforcement matters, who enthusiastically 

and strongly supports you. 

Senator Coburn. 

Senator COBURN. Thank you, Mr. Chairman—— 

Senator SESSIONS. Mr. Chairman, since we kind of have a little— 

you took a personal privilege there. May I have just 2 minutes? 

One minute? 

Chairman LEAHY. One minute. 

Senator SESSIONS. One minute. 

Chairman LEAHY. Start the clock. 

Senator SESSIONS. I think it is true that President Clinton did 

cite your recommendation in his later basis for granting the pardon, number one. 

Mr. HOLDER. I am sorry. Which pardon, Senator? The—— 

Senator SESSIONS. The FALN—no, the Marc Rich pardon. 

Mr. HOLDER. Rich pardon, yes. 

Senator SESSIONS. That is right. Excuse me. And Osama bin 

Laden and Khalid Sheikh Mohammed weren’t directly involved in 

the murders. They were conspirators to that, and they probably 

and morally are more accountable in my view, and equally accountable as those who actually carried out the attacks in the United 

States. Wouldn’t you agree? 

Mr. HOLDER. I would, but the FALN people are not in the same 

category as Khalid Sheikh Mohammed or bin Laden in that they 

were not the heads of the organization. That is not my understanding of the people who were—where the pardons were—again, 

I want to emphasize these people were criminals. They were terrorists. I am not giving them a pass. They served substantial amounts 

of time. I don’t want anybody to—— 

Senator SESSIONS. You recommended against the law enforcement people that they not serve the full time they were sentenced, 

and they wouldn’t even file papers—I don’t think any of them actually even asked for a pardon. They were hard core about it. 

196 

Chairman LEAHY. The Senator’s—— 

Senator SESSIONS. Excuse me. Okay. My time is up. 

Chairman LEAHY. The Senator’s 5 minutes has gone to minutes, 

but Senator Coburn. 

Senator COBURN. Thank you, and I promise not to take 24 minutes. 

First of all, sorry you have had such a long day, and—— 

Chairman LEAHY. I am going to need a doctor if you do. 

Senator COBURN. And I know the Chairman wants to get home 

to his grandchildren, and I know you all would like a break and 

have a dinner, and so I am going to be very short. Three points for 

the record. 

One, the only thing I would say about the FALN is that clemency 

was granted after the Oklahoma City bombings, so there is a lack 

of sensitivity there. And it wasn’t to the same degree, but the intent was. 

Number two, as far as the comments by my colleague Senator 

Whitehouse, your soon-to-be-boss, when you are sworn in as Attorney General, made great efforts on the Homeland Security Committee to take away the parochialism of the Homeland Security 

grants. And only three members of this Committee voted with him 

to make it on the basis of risk instead of on the basis of parochialism. So I hope you will look at that as you see this necessity 

of trying to rearrange the money that you have in terms of looking 

at risk instead of parochialism that makes us all look good. 

I want to get you on record. We talked about this in the office. 

Your boss and I passed a bill called the Transparency and Accountability Act. It requires the submission of where you spend your 

money, both the contracts and the subcontracts, the grants and the 

sub-grants. Is your intention to comply with that on a timely basis 

so the American people can see that? 

Mr. HOLDER. Yes. 

Senator COBURN. Thank you. And then my last question about 

guns, I promise. I will never ask you another one in the Committee 

hearings. And all I want is a yes or no, because I think people need 

to hear where you are going on this. There is some uneasiness 

among the Second Amendment crowd in this country, and what I 

am trying to do is clarify that. 

Will you commit to protect and preserve the rights of those 40 

States that have a right-to-carry law by opposing legislation that 

would encroach upon those rights? 

Mr. HOLDER. You mean opposing State legislation? I am not—— 

Senator COBURN. No. Opposing Federal legislation that would 

encroach upon those rights. Let me say it again for you. 

Mr. HOLDER. Yes, I understand the question. I am just not sure 

how—what the appropriate role would be for the Federal Government in the situation that you describe. 

Senator COBURN. Well, if we are passing a law that is obviously 

going to do that, as the supreme enforcer of the law in this land, 

as the head law enforcer, it should be upon you to challenge that 

into court when it obviously is going to violate the Heller decision. 

So what I am asking you is to specifically state that if we pass 

something that violates these State laws—in other words, is going 

to limit these State laws, take away Second Amendment rights as 

197 

being defined by the Heller decision, will you, in fact, intercede on 

the basis of the Heller decision to defend the rights of the States 

to have carry laws? 

Mr. HOLDER. Well, I wouldn’t support any law that violated the 

dictates of Heller. Now, I don’t know—the question you ask is a hypothetical, and it is hard to answer hypotheticals without having 

all of the facts. But I will state, as I said, I think earlier, Heller 

is the law of the land. It has to be taken into account with regard 

to any legislation that might be considered. 

Senator COBURN. Well, let me just pin you down just a little bit 

closer so I can get comfortable. 

Mr. HOLDER. Okay. 

Senator COBURN. Do you believe States presently have the right 

to establish carry laws in States? 

Mr. HOLDER. I think that—— 

Senator COBURN. Either concealed carry or not concealed carry 

laws. 

Mr. HOLDER. Without agreeing or disagreeing with them, I think 

States do have those rights, yes. 

Senator COBURN. The States do. Will you work to protect that 

the States will continue to have that right? 

Mr. HOLDER. Senator, yeah, I guess. I mean, I am in favor—— 

Senator COBURN. You are making my Second Amendment crowd 

really nervous. They want to hear you say, yeah, they have that 

right and they ought to be able to maintain that right. That is 

what they want to hear you say. 

Mr. HOLDER. And I guess what I am saying to that same crowd 

is that I have no intention, this administration has no intention, 

of doing anything that would affect a State’s regulation of firearms, 

who can carry a firearm, under what circumstances. There is nothing that we have discussed, nothing that is in planning, nothing 

that I can imagine that we are going to be doing in that regard. 

Senator COBURN. So—— 

Chairman LEAHY. Would the Senator yield to me? 

Senator COBURN. I would be happy to yield. 

Chairman LEAHY. Just to ask for a clarification, the State of 

Vermont has very simple laws on guns. During hunting season, 

deer hunting season, on your semiautomatics, you are restricted to 

a certain number of rounds to give the deer a chance. We post 

signs outside the city limits of Montpelier, our State capital, saying 

that if you are going to hunt deer inside the city limits of Montpelier—like, for example, crossing the State House lawn or something—you are limited to shotguns. That is the only place you are. 

Anybody, unless they are a felon, are allowed to carry a loaded concealed weapon above a certain age without a permit. Nobody does. 

We like the fact that we can. The vast majority of us in Vermont, 

like myself, own numerous firearms. 

Do I understand you to say you are not going to be on a crusade 

to have the Federal Government come in and override the laws of 

the State of Vermont? 

Mr. HOLDER. That would be true. Maybe I am not expressing—— 

Chairman LEAHY. Which are a lot less restrictive than the laws 

of Senator Coburn’s State. 

198 

Mr. HOLDER. Maybe I have not expressed this well, but this is 

not an agenda item, it is not a focus, it is not an expectation that 

I have for this administration. I am not sure how I can say it any 

plainer than that. There are things that we want to do with regard 

to crime prevention and to reduce crime, but the concern that you 

have raised is not on an ‘‘of the menu items’’ that I have seen— 

or could imagine. 

Senator COBURN. Thank you for your answer. It is not the one 

I wanted to hear, but thank you for the answer. 

Mr. Chairman, we will submit additional questions, and thank 

you for being patient, and thank you, Mr. Holder, for the fine job 

you have done today. 

Mr. HOLDER. Thank you, Senator. 

Chairman LEAHY. The witness is dismissed with our thanks. 

Mr. HOLDER. Thank you. 

Chairman LEAHY. And with me, you are dismissed with my admiration and my gratitude. 

Mr. HOLDER. Thank you very much. I think I have been very—— 

Chairman LEAHY. It is very clear I am going to vote for you. We 

will reconvene tomorrow morning with the panel at 10 o’clock in 

the Senate Judiciary Committee hearing. 

With that, we stand in recess. 

Mr. HOLDER. Thank you, Senator. 

[Whereupon, at 7:14 p.m., the Committee was adjourned, to reconvene at 10:a.m., Friday, January 16, 2008.] 

[Questions and answers and submissions for the record follow.] 

(199) 

CONTINUATION OF CONFIRMATION HEARING 

OF ERIC H. HOLDER JR., NOMINEE TO BE 

ATTORNEY GENERAL OF THE UNITED 

STATES 

FRIDAY, JANUARY 16, 2009, 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m., in room 

SD–326, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Specter, and Sessions. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. I am glad to see all of you, 

many familiar faces in our hearing room. I am thinking Senator 

Specter and I have spent a significant portion of our lives in this 

room. I look around, and I am missing one of the Senators I sat 

with here for over 30 years, Senator Biden, who has now left the 

Senate for other duties of sorts. So I welcome all of you. 

Yesterday we met in the Senate Caucus Room from 9:30 until 

7:15 so that every Senator, Republican and Democratic alike, could 

ask Eric Holder whatever questions they had. That is a historic 

room for a historic nomination. 

Senator John Warner of Virginia once again showed the bipartisanship and leadership that he has shown for over 30 years in the 

Senate. He noted the problems facing the Department of Justice 

and the country are so great that he would urge everybody to put 

aside partisanship and work together. He presented and endorsed 

Eric Holder to be Attorney General, described his outstanding 

qualifications, integrity, and independence. 

Congresswoman Eleanor Norton was eloquent in her statement 

of support for Eric Holder, a former judge first nominated by President Ronald Reagan, and then a prosecutor in the District of Columbia. 

Everybody asked the questions they wanted to. Senators of both 

parties have done so. Much of the questioning was substantive. We 

touched on many important issues, and the Senators were—technically the third round was a 5-minute round, but we went 20 and 

25 minutes and longer for some of the Senators. I went until everybody said they had asked all the questions they wanted. 

200 

Now, having heard Mr. Holder’s testimony, I am more convinced 

than ever he is a person who will reinvigorate the Department of 

Justice. He served ably as a member of the President’s national security team. He pursued the Justice Department’s vital missions 

with skill, integrity, independence, and a commitment to the rule 

of law. I said before he is a prosecutor’s prosecutor. And I am not 

going to use all my time because I want to get the witnesses, but 

I would yield to Senator Specter. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman. The attendance is 

substantially less than yesterday. I cannot imagine why, considering the impressive array of seven witnesses who are here. But I 

join the Chairman in thanking all of you for coming, and outside 

witnesses are very important to give a fuller picture. 

As I said yesterday, I had hoped to have initially 12 and then 

down to 7, and only three witnesses have been permitted here. But 

I do not intend to press that point because I know that there is 

great disdain in the American public for disagreements or bickering 

in Washington, D.C. So the Chairman and I have had a very cordial relationship for 28 years—actually before that. I met him 

when he was the district attorney of Burlington. I had a smaller 

city—Philadelphia—to be district attorney. And we had the national convention in Philadelphia, and I met this young fellow. He 

was not as tall then. He had a lot more hair. 

[Laughter.] 

Chairman LEAHY. A lot more. 

Senator SPECTER. And we have worked very closely together, and 

we have had a disagreement about the handling of the scheduling 

and the handling of witnesses in a number of matters here. And 

I do want to help President-elect Obama. It is very important. 

There are enormous problems facing this country, and we all ought 

to do everything we can. 

There is the constitutional responsibility that this Committee has 

on advice and consent, and we are at the consent part now. And 

separation of powers is the rock bed of our republic, and independence is very important, and I emphasized that yesterday in the 

questioning of Mr. Holder. So we have an important role to perform 

here, and we appreciate your coming in. 

In the interest of time, I am going to yield back the balance of 

my 2 minutes and 37 seconds. 

Chairman LEAHY. Thank you. 

The first witness, who was here for a good part of the hearing 

yesterday, is Louis Freeh. Judge Freeh is a former Director of the 

Federal Bureau of Investigation. I read this from the notes, Judge. 

I do not think there is anybody in the room that needs to know 

that, but you are. Your career began in the Department of Justice 

in 1975 when you became a special agent for the FBI. He has a 

long and distinguished career as a public servant under both 

Democratic and Republican Presidents. He was appointed by President George H.W. Bush as a Federal district court judge, a lifetime 

appointment, in the Southern District of New York. He had been 

a career Federal prosecutor in the United States Attorney’s Office 

201 

for the Southern District of New York, serving as chief of the Organized Crime Unit. 

Now, he gave up that lifetime position to take the appointment 

as the head of the FBI, and I should note for the record, I have 

known Louis Freeh and his wife, Marilyn, and family for years. I 

am thrilled and I feel honored that he is now a part-time resident 

of the State of Vermont. 

Judge, please go ahead. We will start with you, and I will introduce each one, and if it is OK with you, I thought we would just 

go through and let everybody testify, and then we will ask some 

questions. 

STATEMENT OF HON. LOUIS J. FREEH, FORMER DIRECTOR, 

FEDERAL BUREAU OF INVESTIGATION 

Mr. FREEH. Thank you. Good morning, Mr. Chairman. Senator 

Specter, good morning to you. It is a pleasure to be before you. I 

have been in front of this Committee dozens and dozens of times 

over the years, and I am very pleased to come here and speak in 

support of the nomination of Eric Holder. 

We have presiding over the Committee today not just two Chairmen—Senator Specter being a former Chairman of this Committee—but two prosecutors, two district attorneys, who know firsthand the importance and the challenges of protecting our laws and 

our society, but also adhering to the rule of law and being politically independent as you make important decisions—decisions 

which are subject to review and criticism. So I think the country 

and the Senate could not have two more knowledgeable and experienced people to lead the inquiry, and I commend the Committee 

and you, Mr. Chairman, and the Ranking Member for the fairness 

and thoroughness of your hearing. 

You know, I was confirmed twice by this Committee. I spent 25 

years serving in the U.S. Government, mostly the Department of 

Justice. I left the FBI Director’s job after 8 years. One of the things 

I was proudest of is, when I left Washington, no one in the Senate, 

no one in the Congress had called for my resignation while I was 

here. No one said I was politically partisan. No one said that I was 

not independent. And, for me, and the FBI, that was a great feeling. I also left town without being further investigated, which, as 

you know, is a great benefit to any Federal serving official. 

When I was a prosecutor, Attorney General Thornburgh at the 

time sent me down to Atlanta to work on a bombing case. It was 

a pretty egregious case. Someone had killed a Federal judge and 

also the head of the NAACP in Savannah. That was my first opportunity to meet Griffin Bell. Griffin Bell, in his typical humility, 

called me up. I was in the U.S. Attorney’s Office in Atlanta. And 

he said, ‘‘Mr. Freeh,’’ he said, ‘‘if I can help you in any way, I know 

a few people in town here.’’ 

When he was Attorney General—and you probably have heard 

this story—he was in his conference room, the great conference 

room where both of you have visited, and he was presiding over a 

meeting. His secretary came out—he was a new Attorney General—and she was very excited, and she said, ‘‘General, General, 

the White House is on the phone.’’ And he looked at her, and he 

202 

said, in his typical Southern drawl, ‘‘I don’t take calls from buildings.’’ 

The importance of that statement I think is very relevant to your 

inquiry here and to what I want to say about Eric Holder. The Attorney General of the United States is the chief law enforcement 

officer of the United States. Beyond competence, the elements of integrity, the elements of leadership, and, I think most importantly, 

political independence is critical. 

Attorney Generals, like district attorneys, like U.S. Attorneys, 

like FBI Directors, will make decisions from time to time with 

which people disagree, and that is an important facet of the service 

and an essential element of our democracy. I made many decisions 

when I was an Assistant U.S. Attorney, when I was the Deputy 

U.S. Attorney, certainly when I was an FBI Director, that people 

disagreed with. And Eric Holder has made decisions with which I 

disagree, and I will talk about those briefly in a moment. But it 

is not the decision to me as much as the process and the principles 

and the integrity and independence with which that decision is 

made. 

My very strong belief with respect to Eric Holder is that he has 

tremendous, he has great character, he has got good judgment. He 

has excellent competence as a lawyer, which I will talk about, because I also worked with him in the private sector, as you know. 

But he does have political independence. He is not afraid to say no, 

in my view, to an Attorney General and now, if he is confirmed by 

the Senate, the President of the United States. And I think if we 

look at those essential characteristics and elements, we can put 

into better perspective decisions which he made, and as I said, 

some decisions which he yesterday told you he regretted and with 

which I also disagreed. 

The men and women of the Department of Justice—and I can 

speak, I think, for the men and women, many of them, in the FBI, 

had tremendous respect for Eric Holder as U.S. Attorney. And as 

you know, when you were district attorneys, if someone wanted to 

really find out about what kind of a job you were doing, they would 

ask your assistants, they would ask the assistant district attorneys 

who worked for you, your chiefs; and they would give a pretty honest and pretty accurate view as to your qualities as a leader, 

whether or not you were strong, whether you were politically independent, whether you had the courage, the moral courage to take 

on difficult cases and make difficult decisions. 

And with respect to Eric Holder, beyond the background investigations, which the FBI, of course, performed with respect to him, 

the agents who worked with him, particularly when he was a line 

assistant, have told me time and time again that he was smart, he 

was honest, he was fair, he was not afraid. He exercised his office 

without fear or favor, whether he was looking at a very powerful 

political subject of an investigation—as you know, he did prosecute 

one as U.S. Attorney. And he did not pull his punches when it 

came to fair and thorough investigations. 

That reputational evidence to me is quite essential. The Federal 

Rules of Evidence allow reputational evidence to be heard by a jury 

because our experience has found that it is very reliable. His reputation as a good prosecutor, an honest prosecutor, and an indeVerDate Nov 24 2008 12:46 May 12, 2010 Jkt 056197 PO 00000 Frm 00214 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\56197.TXT SJUD1 PsN: CMORC
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pendent prosecutor is very, very well established. I have never 

heard anything to dispute that, and I think that that is an essential evaluation for you to conduct. 

The letters that you read yesterday, Mr. Chairman, those endorsements are not come by very easy, in my experience. The International Association of Chiefs of Police—I am on one of their 

boards. They don’t casually or routinely endorse people. It is not a 

coincidence that you have all those endorsements. You have them 

because his reputation and the experience of the men and women 

who have worked with him on the line and worked with him in the 

Department of Justice see him and have experienced him as a 

good, honest, tough, and independent prosecutor. 

And I have another note here, Mr. Chairman, which I would submit for the record, from Ron Noble, who, as you know, is the Director General in Interpol. And Assistant U.S. Attorney, Senator Specter, in Philadelphia, a protege of Ed Dennis, he said he would fly 

over here if anybody wanted to speak to him. But he says that Eric 

Holder is exactly the kind of attorney that we should trust as our 

Attorney General. 

You know, I worked with Eric Holder probably more than anybody in this room. I saw him on a daily basis sometimes when he 

was deputy. We disagreed a lot. We argued over things. He would 

overrule me from time to time. I would challenge him occasionally—maybe more than occasionally—on things. And we came out 

sometimes on different ends of a point or a position. But in all of 

those dealings, what I saw was a smart, intelligent, skillful attorney, a great public servant, somebody with humility and somebody 

with independence who was not afraid to say no and call something 

as he thought it had to be called. And for me, that is very essential. 

Let me talk just 2 minutes—not 2 minutes, but briefly about the 

Marc Rich and the FALN matters. 

You know, on the Marc Rich matter, I was the Deputy U.S. Attorney in the Southern District of New York. That was a Southern 

District of New York case. One of the things I did while I was Deputy U.S. Attorney is I went over to Switzerland. I actually negotiated with the Swiss to get a warrant of extradition served on 

Marc Rich. 

The pardon of Marc Rich was a corrupt act. There is no other 

way that I could describe it. And committees here have looked at 

it. They have evaluated it. It was a corrupt act. But it was not an 

act by Eric Holder. Let me give you just a quick picture of what 

was going on at the end of the Clinton administration when this 

pardon took place. 

Nobody in the Department of Justice, nobody in the FBI had a 

clue about who was on the pardon list. The White House staff and 

its leadership, whoever was working this process, actively conspired to ensure that nobody knew what they were doing. On the 

morning of Inauguration Day—the morning of Inauguration Day— 

I sent two FBI agents to stand at the west gate of the White House 

so they could read the list of pardoned officials when it was published, because they wouldn’t tell us who was being considered. 

Eric Holder made some terrible mistakes, which he told you 

about yesterday, in allowing himself to be used and co-opted with 

respect to the facilitation of that pardon. But he did not underVerDate Nov 24 2008 12:46 May 12, 2010 Jkt 056197 PO 00000 Frm 00215 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\56197.TXT SJUD1 PsN: CMORC
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stand, he did not authorize, he certainly did not execute this pardon. And he has learned a lot from that. I think as Senator John 

Warner told us, we can be sure from that experience that he will 

never allow himself again to be put in that position. 

The FALN pardon, you know, I wrote the letter to the Department of Justice vehemently opposed to that. The FBI took a very 

strong position. We were continuing FALN investigations at the 

time of that pardon. But the pardon process functions as a quasijudicial process. Both the pardon attorney who prepares the materials for the deputy and ultimately the President of the United 

States function in a quasi-judicial manner. I did not agree, I do not 

agree with the decision with respect to that pardon. I opposed it 

personally. I opposed it as Director. And I don’t think it was a reasonable act to be done. 

But there are many, many judicial decisions, some of which I 

made briefly when I was a judge, with which people disagreed. The 

process, however, that was followed was the process prescribed in 

the Department and by the President. And I don’t think it is fair 

or a good index of the character, judgment, and independence of 

Eric Holder to look at that without the context of 26 years of dedicated, independent, and brave leadership. 

Briefly, in private practice, you know, I hired Eric Holder when 

I was general counsel at MBNA Bank of America. I had a very 

complex piece of litigation in Texas, and I hired him to handle it. 

I could have hired any lawyer in America, and a lot of my colleagues from the Southern District were wondering why I didn’t 

hire them. I didn’t know Eric Holder in a social frame. I still don’t 

know him in a social frame. I hired him for that case because his 

legal skills, his integrity, and his willingness to tell me independently whether or not the case was one that should be tried or settled in a very complicated scheme was someone who I trusted. He 

litigated the case. He did a superb job. The judge ended up sanctioning the plaintiff’s lawyers, which, as you know, rarely happens 

in Federal court. And by everybody’s estimate, both my lawyers in 

the bank and co-counsel and the judge, he did an absolutely outstanding job. 

Let me just finish by echoing what John Warner said, and I 

agree with you, Mr. Chairman. I mean, it was such a pleasure to 

see him and hear him yesterday. He nominated our oldest son to 

the Naval Academy, he was my Senator for 8 years, and just the 

template of what we want for public service in Government. And 

remember what he said. He said, you know, ‘‘The theme and the 

phrase I keep hearing with respect to this man is ‘He is a good 

man.’ ’’ And being a good man in the Attorney Generalship of the 

United States is critical. And beyond good, as I said, I think he has 

superb lawyering skills. I mean, where do we find for our Attorney 

General someone who has had the trial and prosecutorial experience of someone like Eric Holder? 

He is a man of integrity, he is a man of the law, and I think and 

I know he will exercise political independence. This Committee will 

make sure that he does that. The media will make sure that he 

does that. The people in the FBI will make sure that he does that. 

And if he doesn’t, you are going to hear about it. I don’t think you 

will because I don’t think he will be anything except independent. 

205 

But you have a great candidate here, and I really urge you to approve him for confirmation. Thank you. 

[The prepared statement of Mr. Freeh appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much, Judge Freeh. 

Our next witness, Chuck Canterbury is the National President of 

the Fraternal Order of Police, one of the Nation’s largest and most 

prominent voices for law enforcement officers. He has served in numerous capacities in that organization: National Vice President, 

National Second Vice President, of course, now as President, Twenty-five years of experience in law enforcement; a police officer in 

South Carolina. It was in Horry County, wasn’t it? 

Mr. CANTERBURY. Yes, sir. 

Chairman LEAHY. He has also been appointed by President 

George W. Bush to serve on the Medal of Valor Board. He serves 

on our Nation’s Homeland Security Council. He certainly is no 

stranger to this Committee. 

Mr. Canterbury, please go ahead, sir. 

STATEMENT OF CHUCK CANTERBURY, NATIONAL PRESIDENT, 

NATIONAL FRATERNAL ORDER OF POLICE 

Mr. CANTERBURY. Thank you, Mr. Chairman and Mr. Ranking 

Member Specter. We are very pleased to be here and graciously accepted the invitation. 

As the spokesperson of the largest law enforcement organization 

not only in the country but obviously in the State of Pennsylvania, 

and hopefully one day in the State of Vermont, Senator, we are 

very pleased to be here to offer our strong support for this candidate to be the next Attorney General of the United States. 

We are also fortunate to have both of you gentlemen, and the 

leadership that you provide, for the law enforcement community 

across this country is greatly appreciated by my peers in law enforcement. 

Upon hearing the news that President-elect Obama intended to 

tap Mr. Holder for this Cabinet position, we directed our legislative 

staff to conduct the most exhaustive examination of a candidate’s 

record for anybody that we have ever endorsed for the position of 

Attorney General. We looked at his record of his 12 years at the 

Department of Justice in the Public Integrity Section, his role as 

the Deputy Attorney General, and that of the time he spent in the 

judicial branch as a judge. It was an extremely thorough review. 

His positions, his policy work, and the official acts were consistent with the goals of the FOP, and we have every reason to believe that he will be an exemplary U.S. Attorney General with 

whom we will have a very productive relationship. 

I think the FOP brings a unique perspective to this nomination 

because of our familiarity with his record in the courtroom and as 

a judge and a U.S. Attorney. As part of this review process, we 

talked to the rank-and-file officers in the District of Columbia, one 

of our largest groups, and talked to him about his time in superior 

court as a judge. To a man, every individual that we talked to reported that he was fair and tough, and they spoke favorably about 

U.S. Attorney Holder, describing him as an ‘‘able and aggressive’’ 

prosecutor. And from the perspective of the line officers who work 

206 

on real cases, those are the adjectives that you want to hear as a 

police officer. 

The FOP has a better sense and a complete picture because of 

the interviews that we conducted with our membership, with the 

men on the street that actually worked cases with Eric Holder. 

I would also like to add that we talked to a lot of our career employees, members of our organization who worked at the Department of Justice, the best of the best, and many of them are members of our organization, and they were anxious for us to endorse 

Eric Holder for this position. He is one that they felt was one of 

their own who could take the helm of the Department and restore 

the integrity that they felt the Department needed. 

The FOP was also privileged to have the opportunity to discuss 

with Mr. Holder a number of different issues, including his vision 

for the Department of Justice and the ability to have input and 

talk to him about the crime-fighting strategies and the policies that 

affect our members, the rank-and-file, the boots on the street. 

I believe that the President-elect has made a great choice in Eric 

Holder to be the next Attorney General of the United States, and 

we want to emphasize that all the major law enforcement organizations have announced their support. I believe it is unprecedented 

that you have the chiefs, the rank-and-file, the sheriffs, all organizations standing together on this. 

I urge the Committee to complete their review of this nominee 

in as quickly a fashion as possible and favorably report this to the 

Senate floor. As you examine his record, I believe you will find him 

not only well qualified but possessed of the requisite character, 

knowledge, and skills to do this job and be an extremely effective 

leader for the Department. 

And, again, Mr. Chairman, Mr. Ranking Member, we thank you 

for the invitation, and we urge you to move this along as quickly 

as possible. We believe that he will be a fine Attorney General. 

Thank you, sir. 

[The prepared statement of Mr. Canterbury appears as a submission for the record.] 

Chairman LEAHY. Thank you, Mr. Canterbury, and I thank you 

and your organization for all the time you have spent up here before this Committee, the help you have given, and Mr. Pascal who 

is here often on critical law enforcement matters that we have before us, and I appreciate that. 

Our next witness is John Payton. He became Director-Counsel 

and President of the NAACP Legal Defense Fund last March. This 

was after a very long and distinguished career in private practice. 

He is the sixth person to lead the Legal Defense Fund in its 67- 

year history, something started by Thurgood Marshall. Mr. Payton 

is recognized as one of the premier litigators in this country. His 

civil rights experience includes Supreme Court arguments defending the use of race-based remedies in the University of Michigan’s 

admission criteria. He worked in private practice here in Washington, D.C., for the law firm of Wilmer Hale. He was Corporation 

Counsel of the District of Columbia. He served as President of the 

District of Columbia Bar. He has taught at Harvard, Georgetown, 

and Howard law schools. 

207 

Again, he is no stranger to this Committee, and, Mr. Payton, 

thank you very much, sir, for being here. 

STATEMENT OF JOHN PAYTON, PRESIDENT AND DIRECTORCOUNSEL, NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC. 

Mr. PAYTON. Thank you, Mr. Chairman. It is a pleasure to be 

here, especially on the occasion of the nomination of Eric Holder. 

I am here to support enthusiastically his nomination to be Attorney 

General of the United States. The Legal Defense Fund views it as 

a national imperative that the Department of Justice live up to its 

name by delivering justice and equality for all people in the United 

States. 

The harsh reality today—and it is a very harsh reality today— 

is that the Department of Justice is in shambles. Mr. Holder, if he 

is confirmed, will inherit a Department with its very credibility in 

question. The entire Department has been decimated by scandal 

and controversy, from the firings of U.S. Attorneys to the use of an 

ideological test for the Justice Department’s Honors Program to the 

assault on the Civil Rights Division. 

The task at hand is nothing less than to reclaim the soul of the 

Department of Justice, as former Attorney General Edward Levi 

phrased it immediately after Watergate, a strikingly analogous set 

of circumstances. But I believe the core of the soul of the Department of Justice is its Civil Rights Division. Yes, integrity must be 

restored to all of the Department’s operations. And, yes, it must regain its independence from political influence. But the area in 

which the Department has been most damaged is the Civil Rights 

Division, which has been plagued by problems that have shaken its 

very foundation. 

Press reports and hearings before this Committee have revealed 

the insertion of politics into litigation decisions, the weakening of 

enforcement, improper or possibly illegal personnel practices, and 

a substantial decline in cases filed to protect racial and ethnic minorities. Politics and ideology have triumphed over evenhanded enforcement at almost every turn. Career civil rights lawyers in the 

Department have been demoralized, and many have been literally 

driven out of the Department. 

This Tuesday, the Department’s Office of Inspector General and 

the Office of Professional Responsibility released their joint report 

on an investigation of allegations of politicized hiring and other improper personnel actions in the Civil Rights Division. The report 

was completed last July, but only released this week. It is a shocking report. 

It shows, as the earlier report identified, an enemies list that 

was used to actually keep people from becoming members of the 

Department. The entire Department of Justice Honors Program 

used the enemies list. Our organization, the Legal Defense Fund, 

was on the list. 

The second report is even more shocking than the first. It concludes that hiring in the Special Litigation Section, the Employment Litigation Section, the Voting Section, the Criminal Section, 

the Appellate Section, all were illegally infected with political and 

208 

ideological considerations; and it makes a criminal referral to the 

U.S. Attorney’s Office. 

But as I said, the entire Department of Justice has suffered 

grievously. The challenge for the next Attorney General requires 

very special leadership and very special commitment. It requires 

someone who can inspire and be an example. 

Yesterday’s hearing, I believe—and I sat through almost all of it 

and heard the rest—was a dramatic example and dramatic evidence of why President-elect Barack Obama has selected Eric Holder to lead the Department of Justice at this critical moment. We 

face perilous times, both internationally and domestically. The 

legal issues before us are complex and dynamic. I think there is no 

better person than Eric Holder to restore integrity and honor to the 

entire Department of Justice, and the ethical standing and reputation for excellence of its Civil Rights Division. He has an exceptional resume, which you heard about yesterday: Columbia, Columbia Law School, the Honors Program, lawyer in the Public Integrity 

Section, a judge, U.S. Attorney, Deputy Attorney General, partner 

at a very prestigious law firm. Let me just add one other thing to 

his resume. He began his legal career as a legal intern at the Legal 

Defense Fund, and ironically, in the recent past, that would have 

disqualified him from working at the Department of Justice. 

I also know Eric from my own history and professional experience in this town. As you said, Mr. Chairman, I was partner at a 

law firm for many years here. I was Corporation Counsel. I was 

President of the D.C. Bar. I have known Eric for almost that entire 

time. We are friends. I think that his personal commitment to 

issues of justice and equality is exceptional. His experience and the 

strength of his commitment to fairness assure me, and I am sure 

they assure this Committee, that the odious practices identified in 

this week’s report by the Inspector General will never be tolerated 

on his watch. 

Let me reiterate one final point. I don’t think there is a better 

person to lead the Department of Justice at this critical moment 

than Eric Holder. And with his nomination, we can begin to restore 

the crown jewel of our Nation’s legal system. 

I urge the Senate to confirm Eric Holder as the next Attorney 

General of the United States. He will make us all proud. 

[The prepared statement of Mr. Payton appears as a submission 

for the record.] 

Chairman LEAHY. Thank you, Mr. Payton, and I do appreciate 

that. Actually, with you testifying, it reminded me of something 

that I was going to do yesterday, and because we went so late I 

didn’t. But Judge Freeh has talked about all the different people 

who have written in and support Eric Holder. Mr. Canterbury 

talked about the unique nature of all the different types of law enforcement being for him. And I put letters from those different organizations in the record yesterday. But we have also received letters of support for Mr. Holder’s nomination signed by more than 60 

civil rights organizations, including the NAACP, the Leadership 

Conference on Civil Rights, the Southern Poverty Law Center, the 

Mexican American Legal Defense and Education Fund, the National Women’s Law Center, the American-Arab Anti-Discrimination Committee, the Anti-Defamation League, the AFL–CIO, the 

209 

Asian-American Justice Center, and a whole lot more. So I will put 

the whole entire list of support into the record along with the letters. So thank you very much. 

Ms. Townsend, it is always good to see you. She was until last 

year Homeland Security and Counterterrorism Adviser to President George W. Bush, where she chaired the Homeland Security 

Council, certainly one person that most people in this country, 

when you would be interviewed on television or elsewhere, would 

listen very carefully on a subject that affects every one of us. She 

advised the President on homeland security policy, anti-terrorism 

matters. 

I have been in meetings where the President has gone out of his 

way to praise the advice you have given. 

Previously, Ms. Townsend spent 13 years at the Department of 

Justice in a variety of senior positions, including counsel to the Attorney General for Intelligence Policy, which I believe was probably 

the first place we met; Acting Deputy Assistant Attorney General; 

Director of the Office of International Affairs; Chief of Staff to the 

Assistant Attorney General in the Criminal Division. She worked 

with Mr. Holder during his tenure as a U.S. Attorney and as Deputy Attorney General. She served as a Federal prosecutor in the 

United States Attorney’s Office in the Southern District of New 

York. She began her prosecutorial career as an assistant district 

attorney in Brooklyn, New York. That was probably after Eugene 

Gold. The reason I mention him, he and I served on the board of 

the National District Attorneys Association. We oftentimes had 

meetings in his office. 

So thank you for appearing, and please go ahead and give your 

testimony. 

STATEMENT OF FRANCES M. FRAGOS TOWNSEND, FORMER 

HOMELAND SECURITY ADVISER TO PRESIDENT GEORGE W. 

BUSH 

Ms. TOWNSEND. Mr. Chairman, thank you for the warm welcome 

I have received. It really is a privilege and an opportunity to be 

here today before the Committee to testify in support of the nomination of Eric Holder to be Attorney General. 

You went through my re ́sume ́, if you will, and I suppose to many 

here my appearance in support of Eric comes as something of a 

surprise, given my most recent position. But as you noted, my 23 

years of public service included 13 years at the Department of Justice, where I worked both with Eric Holder and for Eric Holder at 

various points. 

Eric’s career both as a superior court judge and as a career prosecutor in the Public Integrity Section of the Criminal Division 

rightly earned him both the respect and the affection of career 

prosecutors not only here in Washington, but around the country 

in the U.S. Attorneys’ offices around the Nation. Not surprisingly, 

given his experience, I found Mr. Holder to be open-minded, fair, 

and respectful of the views and the opinions of the career lawyers. 

Mr. Holder was never reluctant to hear discussion between career and appointed staff if there was a disagreement among them, 

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210 

sideration and respect to the advice of the career lawyers. In his 

interactions with the Office of Intelligence Policy and Review, he 

took his national security responsibilities seriously, and he always 

made himself available whenever he was needed. He carefully reviewed the detailed documents prepared for submission to the Foreign Intelligence Surveillance Court when his approval was required and unfailingly deliberated on the questions and facts before 

signing such submissions. 

In yesterday’s testimony, Mr. Holder spoke about being at the 

Department during the East Africa embassy bombings and in 2000 

during the Cole. One of the cases I thought I might mention to you, 

because I think it is very relevant to the execution of his national 

security responsibilities, was the successful prevention of the Millennium attack 1999 into 2000. As the Committee is aware, and as 

Director Freeh will recall, this was a very difficult time. We had 

very specific threat information. Both Attorney General Janet Reno 

and the Deputy Attorney General were personally involved in the 

Justice Department and FBI’s investigation. 

We took risks to prevent that attack. We made considered legal 

judgments to prevent that attack. We applied the Foreign Intelligence Surveillance Act in a far more aggressive way that had 

ramifications beyond the disruption of the Millennium attack. That 

case could have, if tradition had held, been prosecuted under criminal wiretap laws. I believed at the time and recommended both to 

the Director and the Attorney General that we use the Foreign Intelligence Surveillance Act legally and appropriately in that investigation. Eric Holder was a part of that deliberation. They were 

persuaded that the use of the Foreign Intelligence Surveillance Act 

to disrupt that plot was correct. That plot was not only successfully 

disrupted, individuals who were later criminally prosecuted, the 

prosecutors in the Southern District of New York legally and appropriately used the take from the foreign intelligence surveillance, 

and that was upheld on appeal. 

That is the kind of man Eric Holder is. That was a difficult legal 

decision. It was a close call, and it was a decision that he was willing to take because he understood the seriousness of the threat. 

But I wish to be clear. I am not here because I believe that, if 

confirmed as Attorney General, Eric Holder will decide legal issues 

necessarily in the same way that I would. On the contrary, I expect 

that there would often be times where this was not the case. 

I am here because I believe Eric is competent, capable, and a 

fair-minded lawyer who will not hesitate to uphold and defend the 

laws and the Constitution of the United States. I know Eric to be 

an honest, decent man of the highest ethical standards, who both 

understands and appreciates the strong and proud traditions of the 

Department of Justice and will protect and honor them. 

The Attorney General position must be filled quickly. We remain 

a Nation at war and a Nation that faces the continuous threat of 

a terrorist attack. We cannot afford for the Attorney General position to sit vacant or for there to be a needlessly protracted period 

where the leadership of the Department is in question. 

For these reasons, sir, I humbly and respectfully recommend that 

the Committee move expeditiously to confirm Eric Holder as an Attorney General of the United States. 

211 

Thank you. 

[The prepared statement of Ms. Townsend appears as a submission for the record.] 

Chairman LEAHY. Ms. Townsend, thank you very much. I appreciate that, especially, as you stated, there will be areas where you 

disagree with Mr. Holder. I think in my 34 years here there has 

never been an Attorney General, in a Republican or Democratic administration, included Attorneys General that I have voted for, that 

I have not found something where I have disagreed. 

Joseph Connor is the son of Frank Connor. Frank Connor was 

still a young man when he lost his life in a bombing at Fraunces 

Tavern in New York, a bombing that was conducted by a Puerto 

Rican nationalist group called the Armed Forces for National Liberation, FALN. Mr. Connor testified before the Senate Subcommittee on Foreign Relations in 1999 about the clemency that 

was granted to some FALN members. He worked with Senator 

Hatch to introduce the Pardon Attorney Reform and Integrity Act 

to Congress in 2000. I was touched also very much in reading your 

testimony, Mr. Connor—all of which will be placed in the record, 

of course—when you spoke about the fact that your father never 

got to see his grandchildren. My colleagues on this Committee have 

to hear my stories ad infinitum about my grandchildren. I think 

that is one of the greatest joys of life to have your grandchildren. 

So we thank you for coming back to the Senate. You have been 

here before, and please go ahead, sir. 

STATEMENT OF JOSEPH F. CONNOR, GLEN ROCK, NEW 

JERSEY 

Mr. CONNOR. Well, thank you. Thanks for having me back. They 

say you love your children, but you really love your grandchildren, 

so—— 

Chairman LEAHY. Without taking up your time, I would add that 

I have told people that I have discovered this hidden clause in the 

Constitution which requires grandparents to spoil their grandchildren, then turn them back to the parents, who have to deal 

with the consequences. 

Mr. CONNOR. Oh, so that is what happens, I guess. Okay. Thanks 

for the insight. 

My name is Joseph Connor, and I am here, as the Senator said, 

for a second time, once again addressing the unimaginable, immoral, and really dangerous 1999 clemencies to 16 Puerto Rican 

terrorists of Los Macheteros and the FALN. We will call them the 

FALN. These terrorists proudly claimed responsibility for over 130 

bombings in the U.S., including the murder of my 33-year-old father, Frank Connor, as he ate lunch at Fraunces Tavern in downtown New York. It was January 24, 1975. 

Despite the warnings and recommendations to the contrary from 

the FBI, the Bureau of Prisons, prosecutors, Janet Reno herself, 

then Deputy Attorney General and current Attorney General nominee Eric Holder yesterday flatly admitted recommending release of 

those terrorists. 

Upon hearing those words yesterday, some questions popped into 

my mind. One was: Did he actually believe in their cause? No. 2, 

did he recommend the release at someone else’s direction, perhaps 

212 

the President? And, No. 3, and maybe most disturbing, did he not 

know what they did? It seemed that a lot of the issues that were 

raised he claimed he didn’t know about, from the surveillance tape 

of them building bombs to their threat of Judge McMillan at their 

sentencing. And that was disturbing. 

He admitted to have taken advice from people outside our Government—dignitaries, if you will, folks like Desmond Tutu, Jimmy 

Carter, Coretta Scott King—and ignore those people within our 

Government—the FBI, the Bureau of Prisons, the prosecutors. 

Something didn’t add up. 

When we look back at the people whose recommendation he did 

take, on what information were they basing their recommendation? 

Were they told the ‘‘political prisoner’’—I put that in quotes—line 

that the pro-FALN people were passing? Or did they actually know 

the facts? Something tells me if they knew the facts, they wouldn’t 

be recommending this. 

Putting aside as well documented involvement in the outrageous 

pardon of Marc Rich, the Attorney General nominee’s egregious 

recommendation for playing Russian roulette by unleashing unrepentant terrorists on the American people against the advice of the 

FBI, Bureau of Prisons, prosecutors—even Janet Reno herself— 

should disqualify him on its own merit. 

It is almost 10 years ago, but, incredibly, we are revisiting today 

the same issues, the recriminations of the hearings, and how sad 

that we have to go through this again. We knew the clemencies 

were wrong in 1999. After all, the Senate voted 95–2 to condemn 

them. Yet here we are contemplating the confirmation of the architect of that very release as the top law enforcement officer in our 

country? How can this be? 

If anything, the devastating attacks of 9/11, we should be more 

resolute in our opposition to anybody who would be soft on terror 

or support any terrorist organizations. 

If anyone needs to be reminded about what terrorism can do, 

give me a couple minutes. 

It was a beautiful day on January 24, 1975. I had just turned 

9; my brother, Tom, had just turned 11. That night, my Mom was 

cooking us a dinner to celebrate our birthdays, and we were expecting our father home on time to celebrate with us. 

Well, after we got home from school, we found out that there was 

a bombing downtown. We didn’t know my father was in it right 

away. My Mom didn’t know he had a meeting that day. He wore 

an old suit when he wouldn’t have expected to be with clients. But 

when she called up, he didn’t answer. She knew then something 

was wrong. 

After hours, we finally got the news that he had been killed. He 

and three others were murdered that day, intentionally and, as we 

may find out later from Rick, who will give a bit more information, 

the bomb was meant to kill a lot more people than the four that 

it ended up killing. 

My Dad was only 33, as I mentioned. He was the only child of 

immigrants Thomas Connor and Margaret Maloney. His father was 

an elevator operator downtown, and his Mom was a cleaning lady 

at J.P. Morgan. She was so proud when she got him the job so he 

wouldn’t be in a dangerous position. His friends were becoming 

213 

cops and firemen or working in the subways. But he got a job in 

a nice office out of high school. And his was an American success 

story. He went to college at night. He worked his way up to an officer position at J.P. Morgan, and he had two sons, and he had made 

something of himself, from a cleaning lady to an office at the bank. 

It was an amazing story. 

Although my Mom is remarried to a fine man and my brother 

Tom and I have families of our own, not a day passes without us 

feeling the void that this has left in our lives. My father’s death 

has become a wound, and it was reopened when the clemencies 

were offered, and it has been reopened now by this nomination. 

These terrorists took away my Dad’s life. As you mentioned, he 

never got to see his sons graduate high school and college, meet his 

daughters-in-law, or be a grandfather. 

Now, we ask why. The kids ask why, what happened? It seems 

that it was all done for politics. Was it direction from the President 

to further his wife’s Senate future? Or was it something else? Was 

it someone who believed in the cause of the terrorists? 

Who were the FALN? And like I said, Rick will get into it a little 

bit more, but contrary to the disingenuous claims we heard yesterday, there was nothing non-violent about these people. These people blew up 130 bombs in the U.S. They killed five people, and they 

meant to kill a lot more. They devastated lives and maimed. 

The day after their release, one of them was on with Tim 

Russert, and when asked about the Fraunces bombing, one of them 

released, one of these people who was non-violent, had nothing to 

do with it, said, ‘‘Well, you know what? The restaurant didn’t take 

the proper precautions,’’ blaming someone else, never taking responsibility for what happened. And these people were released. 

On 9/11, my brother, Tom, and I commuted through the World 

Trade Center. We left. I said good-bye to him in the Trade Center. 

I went my way, he went his. At quarter to 9, I saw the North 

Tower explode out my window. I couldn’t get Tom on the phone, 

and I called my cousin, Steve, who worked at Cantor Fitzgerald. 

Steve never answered. Steve was my father’s godson. He was killed 

on 9/11. 

Tom and I got home that night safely to our families, but there 

are consequences. Terrorism cannot be treated as a political tool. 

It has to be treated for what it does. It kills people, and it hit our 

family very hard twice. 

Despite what Mr. Freeh just said, the clemency process was not 

followed properly. We were never informed as a family of their release, although I understand we were supposed to have been 

through the Victims Rights and Restitution Act of 1990. The terrorists did not request clemency. They did not express remorse. They 

were not required to provide information solving other crimes. They 

were allowed 30 days to decide to accept the conditions, and they 

were given conference calls between prisons. 

Now, clemency is an individual grant, yet they were treated as 

a group, and that is not right. 

Supporters were given nine meetings with Mr. Holder and his 

group. You know how many we got? None. He never talked to us. 

Despite what he said yesterday, he didn’t—there was no consideration to the victims, at least to the people I know. 

214 

Had we been properly notified, we would have told him what 

happened, because it seemed like yesterday from the conversation 

he didn’t know about the threats to the judge, he didn’t know about 

them building bombs. It was a very disturbing moment in the 

interviews yesterday. 

The biggest issue that I read in the recently released memos, as 

it came from the Justice Department, was how the public relations 

fallout might be if these guys committed more crimes—not what 

might happen to those people who were injured by them, but what 

the public relations issues would be for Holder and his team if 

something went wrong. 

I have a whole litany of questions I would like to put into the 

record. I know I am kind of going late now. I can read them now, 

or I can do it at another time. But I have a bunch of questions—— 

Chairman LEAHY. I have read them, and if you want to flag 

some, go ahead. 

Mr. CONNOR. OK. 

Chairman LEAHY. I am trying to give as much flexibility to all 

the witnesses as I can. 

Mr. CONNOR. I appreciate that. Look, I know I am going long. 

Chairman LEAHY. I know this is a difficult time. I am not trying 

to cut you off. Your whole statement, of course, will be made part 

of the record, but if there are some of those questions you would 

like to emphasize, please go ahead. 

Mr. CONNOR. Thank you. See, yesterday a lot of issues came up 

that caused my statement to change and my questions to change, 

because he said some things that were just a surprise. 

He admitted that he knew so little about the terrorists. As he 

testified yesterday, he hadn’t seen the surveillance video, didn’t 

know they had threatened the judge. How then could you know 

enough about the case to feel comfortable in releasing them? What 

does that say about the judgment there? 

He said none of these terrorists were part of any attacks that 

killed or hurt people. Given his limited knowledge on the subject, 

how could he possibly know that? And given what Ricardo Jimenez 

said on ‘‘Meet the Press,’’ that is just not true. 

He took advice of others over his own due diligence, from what 

I could see, and that is irresponsible. It borders on incompetence. 

Now, I know he has a long record, and I know there are a lot 

of very good people here who have spoken to his successes in the 

past. But it is not unprecedented that one mistake can disqualify 

you. Look at what happened when Clinton had Zoe Baird and 

Kimba Wood. They were both very qualified people, and both of 

them had to withdraw their nomination because they did something like hire illegal aliens to work in their house and didn’t pay 

taxes on them—which to me is far less egregious than what he did. 

He mentioned yesterday that Cardinal O’Connor supported clemency. That is not true. I have a letter from the Cardinal specifically 

saying he didn’t, because I contacted the Cardinal at the time. 

We came here in 2000 and introduced the Pardon Attorney Reform and Integrity Act, and we warned at the time about future 

terrorist acts. And we hoped that by instituting this act, which 

never was instituted, that there wouldn’t be releases like this, that 

there would be a light shining on people so everyone would know 

215 

what the pardon attorney was doing and what the Justice Department was doing before the clemencies were released. And that is 

the transparency that we need, not yesterday in the meetings when 

Mr. Holder was asked to produce a document recommending the 

clemency, he didn’t want to do it. 

Now, this new administration is supposed to be the most transparent in our Government’s history, yet his Attorney General has 

no transparency. 

I will go now, but I urge the Senate to review Mr. Holder’s 

record. Put aside any politics, put themselves in the shoes of ordinary Americans who have given them their trust and their vote, 

and decide if this man who recommended playing Russian roulette 

with American people by releasing unrepentant terrorists should be 

charged with protecting our fellow citizens. I think ordinary Americans would agree the answer is very clear. 

Thank you. 

[The prepared statement of Mr. Connor appears as a submission 

for the record.] 

Chairman LEAHY. Thank you, Mr. Connor. 

Mr. Richard Hahn is the President and CEO of R. Hahn & Company, Inc., a security consulting and investigating company specializing on counterterrorism and homeland defense. He retired from 

the FBI after a distinguished career that spanned 33 years as a 

senior supervisory agent and as a special agent. As a member of 

the FBI, he investigated domestic and international terrorist organizations, specialized in events carried out by the Armed Forces of 

National Liberation, or the FALN. And he testified before this 

Committee in 1999, 10 years ago, about the FALN clemencies. 

Thank you for coming back and testifying again. Of course, your 

whole statement will be made part of the record. Please go ahead, 

Mr. Hahn. 

STATEMENT OF RICHARD S. HAHN, R. HAHN & COMPANY, 

SEAL BEACH, CALIFORNIA, AND FORMER FBI SPECIAL AGENT 

Mr. HAHN. Thank you, Mr. Chairman. My purpose in being here 

today is to make clear just who and what the FALN and the 

Macheteros were. 

These organizations were no less terrorists than any of the terror 

organizations recognized by this Government today. These were 

clandestine organizations with cellular structure and secret membership. This makes knowing who did what acts inside these conspiracies difficult, if not impossible. But despite this, through investigation some acts attributable to those who received clemency 

are known. 

Former FALN member Freddie Mendez chose to cooperate with 

the Government after being convicted on Federal charges, but before being sentenced. Mendez described being mentored by FALN 

leader Oscar Lopez, one of those offered clemency. Lopez taught 

Mendez how to detect and avoid surveillance, use dead drops for 

communications, the code words used by the FALN, how to operate 

safe houses, and how to build a bomb. 

Mendez participated in the preparation of bombs in October 1979 

which were coordinated with the Macheteros. On that occasion, he 

was assisted by Oscar Lopez and Ida Luz Rodriguez, and carried 

216 

a bomb with Ricardo Jimenez to the Democratic Party headquarters in Chicago with the intention of placing it in their offices. 

Three bombs were placed in Chicago that day. He participated with 

Oscar Lopez, Dylcia Pagan, Ida Luz Rodriguez, Haydee Torres, 

Luis Rosa, Ricardo Jimenez, and William Morales in the armed assault on the National Guard Armory in Oak Creek, Wisconsin, to 

steal weapons and explosives. Employees were put on the floor, 

guns placed at their heads, and they were repeatedly threatened 

during the takeover. 

He also participated in the armed takeover of the Carter-Mondale campaign headquarters in Chicago for the purpose of intimidating campaign workers and delegates to the convention. Mendez 

named participants in the planning and execution of this invasion 

as himself, Oscar Lopez, Carmen Valentin, Dylcia Pagan, Ricardo 

Jimenez, Ida Luz Rodriguez, Luis Rosa, and Alicia Rodriguez. It is 

noted that they carried rifles and a variety of pistols into the assault, and, again, workers were threatened, bound, gagged, and the 

offices ransacked. 

Mendez was arrested in Evanston, Illinois, along with Carlos 

Torres, Haydee Torres, Adolfo Matos, Ricardo Jiminez, Dylcia 

Pagan, Ida Luz Rodriguez, Alicia Rodriguez, Luis Rosa, Elizam 

Escobar, and Carmen Valentin. Some of these conspirators had just 

participated in the armed takeover of a truck rental agency, not 

only stealing a truck but robbing the patrons of personal effects. 

The group had gathered in Evanston for the express purpose of 

robbing an armored car that serviced Northwestern University. All 

were wearing disguises and armed. 

In a separate investigation of an FALN safe-house apartment operated by Alejandrina Torres and Edwin Cortes, over 21 pounds of 

dynamite, 24 blasting caps, four handguns, over 3,000 rounds of 

ammunition were discovered and seized. Also found were disguise 

materials, false identification, and terrorist training manuals. 

Cortes and Torres were videotaped as they built firing circuits for 

bombs. They also were surveilled electronically and physically as 

they made plans and traveled to Wadsworth Veterans Hospital in 

Kansas with weapons and explosives to attempt the escape of 

FALN leader Oscar Lopez. A second safe-house apartment in Chicago searched in April 1983 was found to contain a semiautomatic 

rifle, silencers, bulletproof vests, and documents including intelligence materials from the police in Puerto Rico. Cortes and co-conspirator Alberto Rodriguez were surveilled electronically as they 

plotted an armed robbery and subsequently, with Alejandrina 

Torres, as they planned bombings of military installations in Chicago. 

Regarding other crimes of the FALN, as you know, they engaged 

in a campaign of bombings that started in 1974 and did not end 

until 1983. This campaign encompassed over 100 explosive and incendiary attacks, killed five and maimed scores of others, including 

several police officers. Some of these attacks were designed to kill. 

In December 1974, the FALN called in a report of a dead body in 

a building in Spanish Harlem. A booby-trapped explosive device 

hung on the opposite of the main entry door. Exploding as the door 

opened, a New York P.D. officer was blinded in one eye and severely maimed. Ironically, the officer, Angel Poggi, was Puerto 

217 

Rican himself, and even more incredible, it was his first day on the 

job. 

In January 1975, the bombing of Fraunces Tavern killed four 

and wounded 60. Credit was claimed within minutes by a written 

FALN communique. 

In August 1977, the FALN conducted the daytime bombing of the 

employment offices of Mobil Oil in Manhattan, killing one and 

maiming several others. 

The Macheteros have a similar history of terrorist acts. In 1978, 

the Macheteros ambushed a patrol car of the Police of Puerto Rico 

in an attempt to steal weapons, uniforms, and the patrol car itself. 

One of the officers was killed as he resisted the ambush. The other, 

stripped of his uniform was left handcuffed to a tree at the side of 

the road. The Macheteros proudly claimed credit for this act in a 

written communique. 

In October 1979, the Macheteros, in concert with the FALN, conducted bombings on the island of Puerto Rico while simultaneously 

bombings were conducted in the U.S. Credit for these were claimed 

by a joint communique to the press which bore the logos and 

names of both the FALN and the Macheteros. 

In December 1979, the Macheteros, with other groups, conducted 

a well-coordinated attack on a Navy transport bus at Sebana Seca, 

Puerto Rico. The bus was blocked on a public highway. Then another vehicle driven by the terrorists pulled into the opposing lanes 

of traffic, shot the bus driver, and proceeded to rake the side of the 

bus with automatic weapon fire. Two died and many more were 

wounded. 

In January 1981, the Macheteros bombed jet aircraft of the Puerto Rican National Guard, resulting in tens of millions of dollars in 

damage to the specialized aircraft. 

In 1983, the Macheteros fired LAW rockets at the FBI office in 

Hato Rey, Puerto Rico, and at the U.S. Courthouse in Old San 

Juan, Puerto Rico. 

And, finally, in the fall of 1983, the Macheteros engineered one 

of the greatest thefts in U.S. history, the theft of over $7 million 

in U.S. currency from a Wells Fargo depot in West Hartford, Connecticut. Much of the money ended up in the hands of Cuban 

agents. 

All of this is a matter of public record not only accessible to the 

Department of Justice, but to any motivated citizen, who wishes to 

find these facts. All this makes clear that these conspirators were 

not merely activists but, in fact, were indeed terrorists. 

In my opinion, granting them clemency in the absence of any cooperation or understanding of who committed the most heinous of 

crimes remains a compromise of our justice system and reflects a 

failure of the Government personnel with oversight of such matters 

to competently carry out their duties. 

[The prepared statement of Mr. Hahn appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much. 

Our last witness is Stephen Halbrook. He has practiced law for 

over 30 years. He has authored or edited seven books and dozens 

of articles related to the right to bear arms. He is also the author 

of an amicus brief in a recent Second Amendment case before the 

218 

Supreme Court, District of Columbia v. Heller, submitted on behalf 

of Vice President Cheney and 250 members of the House of Representatives. 

Mr. Halbrook is known in my State, a State which actually, as 

I mentioned yesterday, has no gun laws except during hunting season. And then we have certain restrictions if you are going to hunt 

on the Statehouse lawn. I also noted the fact that I own numerous 

weapons, and I am almost tempted—well, I will tell the story about 

Director Freeh and myself target shooting in my backyard in 

Vermont later on. 

Go ahead, Mr. Halbrook. 

STATEMENT OF STEPHEN P. HALBROOK, ATTORNEY AT LAW, 

FAIRFAX, VIRGINIA 

Mr. Halbrook. Thank you, Mr. Chairman. Good morning, Senator 

Leahy and Senator Specter. It is a real pleasure to be here. 

I did file the amicus brief on behalf not only of 250 representatives, but also 55 Senators, including a majority members of this 

Committee, in the Heller case. Heller, as you know, held that the 

Second Amendment means what it says. The right of the people to 

keep and bear arms means that individuals have that right. 

I am author of the book ‘‘The Founders’ Second Amendment’’ and 

numerous other publications. I have done a lot of litigation on this 

subject in the Supreme Court. I am outside counsel for the NRA. 

I am not representing them here today. 

This is an issue for which we have an explicit constitutional 

guarantee. We live in an age when people invent rights, and they 

seem to be implicit in the Constitution. And I like Senator Leahy’s 

‘‘the right to spoil grandchildren’’ as an implicit constitutional 

right. It is a lot more innocuous than other ones that might be invented, and I fully support that concept. 

As you know, Mr. Holder filed—rather, joined in an amicus brief 

in the Heller case, denying that the Second Amendment protects 

any individual right and seeking to uphold the total ban on handguns by D.C. residents. 

My background, by the way, I have appeared before this Committee a number of times, going back to the 1982 Subcommittee on 

the Constitution hearing and report which was entitled ‘‘The Right 

to Keep and Bear Arms.’’ 

Serious concerns I think are raised about Mr. Holder’s position. 

Throughout his career he has denied that the Second Amendment 

basically means anything in regard to private citizens, and he has 

advocated basically the criminalization of what many people consider to be their constitutional rights. And I am talking about, for 

example, the advocacy of making it a 5-year felony to possess an 

unregistered firearm in the District of Columbia. That was when 

he was U.S. Attorney. And there have been many other draconian 

proposals that he has set forth. 

I listened carefully yesterday to Mr. Holder’s testimony, in particular, the question that if the Supreme Court reconsidered the 

issue of the meaning of the Second Amendment, whether it recognized individual rights. It does refer to the right of the people, after 

all, not some kind of elusive collective right that doesn’t really protect anybody, and if the Supreme Court revisits that issue, what 

219 

position would you take? And Mr. Holder responded that first it 

would depend on the facts, even though facts really don’t matter 

in the interpretation of a constitutional provision. And he did say 

that stare decisis is one consideration that would be taken into account. I think given that he has supported the so-called collective 

rights view for his career, it is most likely that he would, indeed, 

support a reconsideration of the meaning of the Second Amendment. 

And, in addition to that, Mr. Holder, based on his career-long 

proposals for draconian firearm bans, would be likely to say that 

nothing really violates the Heller decision if it, indeed, stands the 

test of time. 

I am not going to get into any policy questions, but I did take 

note yesterday that he advocated the reenactment of the so-called 

assault weapon ban as a permanent fixture. The Heller decision did 

talk about firearms that are commonly possessed by law-abiding 

people for lawful purposes as being protected by the Second 

Amendment. It might depend on what a person arbitrarily chooses 

to call by this pejorative term ‘‘assault weapon’’ whether that test 

would be met or not. But there is a lot of meat in the Heller decision that basically says that banning commonly possessed firearms 

would violate the Second Amendment. 

He mentioned that what he called the ‘‘gun show loophole’’ must 

be closed, and it reminds me of his prior advocacy of a Federal law 

that would require background checks on all private intrastate 

transactions involving firearms, presumably making it a felony to 

give a firearm to your grandchild as a gift without a Federal background check. 

And, also, he has advocated the registration of all firearms, that 

all of those background checks on private transfers would be registered with the Bureau of Alcohol, Tobacco, Firearms, and Explosives so we would have a registration system of firearms. 

He was asked yesterday about proposals to ban firearm possession by individuals who are in the age group 18 to 21 years old, 

and that was a proposal that he supported. Mr. Holder supported 

H.R. 1768 back in 1999. So you would have the phenomenon of a 

person who is serving in the armed forces, eligible to do so at age 

18, eligible to vote, serve on juries, and it would be a Federal felony 

for them to possess a firearm. 

Now, the Attorney General not only prosecutes Federal crimes 

and influences courts on the meaning of constitutional rights. The 

Attorney General also administers and enforces the Gun Control 

Act through the Bureau of Alcohol, Tobacco, Firearms, and Explosives. 

For his entire career, Mr. Holder has denied that individuals 

have any Second Amendment rights. On behalf of law-abiding citizens, he has advocated that firearms must be registered, and the 

possession of an unregistered firearm be punished with 5 years’ imprisonment. The millions of Americans who exercise their Second 

Amendment rights rightly feel uneasy about this nomination. 

Much has been said about unjust prison sentences imposed on 

persons who possess crack cocaine, not to mention the rights of alleged terrorists held at Gitmo and other places. And we would hope 

for sympathy to be shown for Americans who bother no one and 

220 

who merely wish to exercise their Second Amendment rights without being sent to prison because they possess a gun without the 

Government’s permission. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Halbrook appears as a submission for the record.] 

Chairman LEAHY. Thank you. It is interesting hearing what you 

are saying and listening to Mr. Holder yesterday. I have a home— 

or a house in Virginia that I use when I am down here. My home 

is in Vermont. I have often been struck that in your State of Virginia, your gun laws are considerably more restrictive than the 

laws are in my State of Vermont. For example, you couldn’t carry 

a concealed weapon without a permit in Virginia. You could in 

Vermont. I mean, you could this afternoon if you were there. 

I own at least a dozen weapons of different sorts ranging—well, 

of all calibers, and I enjoy shooting in my backyard. You cannot do 

that in Virginia. 

Mr. Holder—I asked him would he support Federal laws that 

would restrict Vermont’s laws other than the obvious ones about 

felons who are restricted. And that has been upheld by the Court 

in their purchase and use of weapons. I asked him if he would support restricting Vermont laws. He said no. It is interesting. And we 

have considerably less laws than you have in Virginia on firearms. 

Now, Judge Freeh, we talked about your unique perspective. 

And, Mr. Halbrook, I will let you go back to that if you care to 

after. But let me just—the thought occurred while you were speaking. 

Judge Freeh, you have this unique perspective and you did work 

closely with Eric Holder, as you have described, when you were 

FBI Director. You said sometimes you agreed, sometimes you disagreed. 

You certainly been very critical of the pardon of Marc Rich, and 

you know that both I and Senator Specter have been very critical 

of that pardon. Of course, it was a pardon issued not by Eric Holder. It was issued by then-President Clinton. And the clemency 

granted to members of the FALN, you were critical of that, as was 

I. But the clemency was granted by President Clinton. 

But notwithstanding these disagreements, if he is confirmed as 

Attorney General, he is going to be Attorney General of all the 

country. Both you and I will be in the country served by this Attorney General. Notwithstanding your past disagreements, you do 

strongly support the nomination of Eric Holder. Is that correct? 

Mr. HAHN. Yes, sir. I do. 

Chairman LEAHY. Thank you. 

The question I always ask—and I used to ask this of prosecutors 

in my office, and I think it is a mark of a prosecutor. I ask if they 

will be politically independent, follow the rule of law, not feel they 

have to be subservient to any political party. I certainly prosecuted 

members of both the Republican and Democratic Party, including 

a Chairman of my own party. The Attorney General has to be independent of the President who nominates him. 

Do you have any question in your mind that he would be politically independent? 

221 

Mr. FREEH. No, I don’t. I mean, as you well put it, Mr. Chairman, the Attorney General is not the President’s lawyer. We have 

had, unfortunately, in that office, I think at times, people who 

thought that was the case. But he is not the President’s lawyer. 

The President has a White House counsel for those purposes. And 

I know that Eric Holder understands that difference. I think he 

would be very quickly able to say no to the president if he disagreed with him. And I think that is the confidence and trust that 

we need in that position. 

Chairman LEAHY. In fact, would you agree with me that a President is ill served by an Attorney General who is unwilling to say 

no to him if he thinks that a President is wrong? 

Mr. FREEH. Of course he is. It not only subverts the purpose of 

the Attorney General, but it puts the President in a very vulnerable position. 

Chairman LEAHY. And you dealt with him when he was Deputy 

Attorney General and you were Director of the FBI. We have another FBI Director now, well respected by this Committee. Do you 

have any doubt that if the current Director were to come into an 

Attorney General Holder and say, Mr. Attorney General, I think 

you are wrong on this and here is why, do you have any doubt that 

he would get a fair and complete hearing? 

Mr. FREEH. No. He would get a completely fair hearing, and I 

think Eric would expect that from his staff. And I think the people 

in the career staff who did not do that would not be his trusted advisers and would not be serving the country in their function. 

Chairman LEAHY. And, Mr. Canterbury, obviously the Fraternal 

Order of Police has had some disagreements, certainly, on the 

clemency issue of the FALN, and I recall your organization testifying to Congress. In fact, we asked you to testify to Congress at 

that time. 

But do I understand your testimony correctly that you believe 

that Eric Holder will be a strong Attorney General, especially on 

law enforcement matters? 

Mr. CANTERBURY. Based on the totality of his record, we absolutely believe that. We sit here like we did in 1999, we abhor the 

clemency that was granted. We thought it was wrong, just like Director Freeh. We still think it was wrong. But we also believe 

based on the information in the record of Eric Holder that, given 

the position of authority of the Attorney General versus a Deputy 

Attorney General and the fact that clemency was a Presidential 

issue and not his sole recommendation, we believe that he would 

be fair, and we look at it from the totality of circumstances and his 

career, and we feel comfortable after an exhaustive review of his 

decisions as a judge and as a prosecutor. 

Chairman LEAHY. And your support of him, you are joined by 

virtually every national law enforcement organization there is. 

Mr. CANTERBURY. Every organization we know of, Senator. 

Chairman LEAHY. I am sorry. I went 32 seconds over my time. 

Senator Specter. 

Senator SPECTER. Mr. Connor, thank you for your appearance 

here today. You have put a significantly different dimension on the 

hearing from other items that we have heard, and sometimes these 

matters on paper don’t really reflect the kind of injury and the kind 

222 

of scarring which is involved. But I think it is very, very important 

to bear in mind what the victims have to say and how the victims 

feel about it. 

Mr. CONNOR. Thank you. 

Senator SPECTER. When I bumped into you yesterday in the corridor, you told me neither you nor your family have come to closure. I can see it as you described the wounds, and I think it was 

really unfortunate that you weren’t consulted and at least given an 

opportunity to be heard about it. 

Director Freeh, welcome again to this Committee. A distinguished career: FBI agent, a judge, Director. You have come down 

harder on the characterizations of what Mr. Holder has done than 

anybody else in the hearing. You say that the Rich pardon was a 

‘‘corrupt act.’’ You said it twice. You said it was a ‘‘terrible mistake.’’ He allowed himself to be ‘‘used and co-opted.’’ Pretty tough 

words. Tougher than Mr. Canterbury, who characterized it as ‘‘abhorrent.’’ You said that he will be independent because the Committee will make sure about that. 

Well, my experience, 28 years on this Committee, is we have 

been more ignored by Attorneys General than we have been able 

to influence them. Every time we seek information, letters signed 

jointly by Chairman Leahy and Ranking Member Specter or Chairman Arlen Specter and Ranking Member Leahy, we get nothing in 

return. 

You say the media will make sure? Absolutely not. The media 

doesn’t know what is going on. Sometimes they find out, but they 

can’t stop it. 

In the limited time, I am not going to pursue that. I wanted to 

get into one question with you. With respect to the independent 

counsel and campaign finance—and I pressed Mr. Holder very hard 

about that, and I could only comment about a bit of that because 

of the limitation of time. But there is a subject I want to take up, 

and this is going to be what I am going to have to say, Mr. Chairman, so I may take a little longer, if I may. 

I chaired the full Committee on the Rich pardon. I know a lot 

about that, more than we could get into. But on the independent 

counsel investigation, I chaired the Committee, and you made a 

statement: ‘‘It is difficult to imagine a more compelling situation for 

appointing an independent counsel.’’ 

Difficult to imagine a more compelling situation for appointment 

of independent counsel. 

That is why it seemed to me that a man of Mr. Holder’s status, 

intelligence, experience, that it was inexplicable. ‘‘Inexplicable’’ is 

the word that I apply also to the Rich pardon and also I apply to 

the FALN situation. 

The matter is still under investigation, as you have said—FALN; 

a situation where two of the people wouldn’t even accept clemency, 

that the Federal Government, the U.S. Government had no standing to convict them. They wouldn’t accept clemency. People involved in murders and bank robberies—you could have a parade of 

victims that would fill a stadium. 

But on the issue of independent counsel—and, Mr. Chairman, I 

ask consent that the memorandum from Mr. Freeh to the Attorney 

General be included in the record. 

223 

Chairman LEAHY. Of course. Without objection. 

Senator SPECTER. As well as the memorandum I am about to 

refer to now. 

Chairman LEAHY. Whatever memos that you wish to be included, 

they will be included. 

Senator SPECTER. Mr. Freeh, this is a matter you and I talked 

about when I conducted the investigation in the year 2000, and I 

now refer to a memo, and I talked to you about it a few moments 

ago before the hearing started. No surprises. No ‘‘gotcha’s.’’ Everything on top of the table. 

This is a memorandum which you wrote to Mr. Esposito, one of 

your top deputies, about a meeting he had with Mr. Lee Radek, 

who was the head of the Public Integrity Section of the Department 

of Justice. And this is what it says in part: ‘‘I also advised the Attorney General of Lee Radek’s comment to you that there was a lot 

of ‘pressure’ on him and PIS’’—Public Integrity Section—‘‘regarding 

this case’’—campaign finance investigation—‘‘because the Attorney 

General’s job might hang in the balance (or words to that effect). 

I stated that these comments would be enough for me to take him 

and the Criminal Division off the case completely.’’ 

This memo is dated December 9, 1996, and the background was 

that President Clinton had been reelected, and Attorney General 

Reno had said she wanted to stay on publicly, and she hadn’t been 

reappointed. And then there is this meeting between your top deputy and one of her top deputies in effect saying ease off the campaign finance investigation. 

And you complain in this memo, which I won’t read fully because 

of the limitation of time—that the FBI ought to take over. The FBI 

had been kept out of the investigation. 

Now, that is the backdrop of what is happening in the Department of Justice, where Mr. Holder is the deputy, where they are 

bringing the issue to the FBI to ease off so the Attorney General’s 

job will be safe. 

Now, how do you evaluate that in terms of politics, rank politics, 

reappointment of a public official interfering with investigation, 

law enforcement, and the rule of law? 

Mr. FREEH. Well, as I said, I couldn’t think of a more compelling 

case to go to an independent prosecutor, but let me just put that 

in perspective. And we have spoken about this before. 

That was not a statement, of course, by the Attorney General. It 

was by her Public Integrity Section chief. 

Senator SPECTER. Well, now, wait a minute, Mr. Freeh. Do you 

think that Radek did that all on his own? 

Mr. FREEH. Well, I don’t know. I never got a chance to cross-examine him. 

Senator SPECTER. Of course, you don’t know, but—well, I will 

draw my inference. Radek is doing his boss’ bidding. Now, that 

happens occasionally. 

Mr. FREEH. Well, I would draw a different inference, but I would 

say the following: That statement was alarming enough, together 

with all the other information we had, that I renewed my recommendation that this case go to an independent prosecutor. The 

Attorney General disagreed. We had a very strong, perhaps the 

strongest disagreement in 8 years, over that issue. 

224 

Eric Holder, just to put it into perspective, was, of course, aware 

of this—he was the deputy—went out of his way with me and the 

Attorney General to say that, you know, Louis has a different position, we have to respect that position, and actually supported the 

fact that I was taking a different position, which is, again, how I 

adjudge him to be willing and able to speak up and be independent. 

I didn’t agree with the Attorney General’s determination, but she 

made that determination subject to what she believed to be the 

right factors, and we disagreed. 

Senator SPECTER. Well, as the record will show, this memorandum you sent was sent as a copy to Mr. Holder. I will let the 

memo speak for itself, where Radek, one of her top deputies, talks 

about a lot of pressure on him and the Public Integrity Section. I 

think it is an obvious conclusion that pressure is coming from the 

Attorney General. 

Mr. FREEH. Yes, well, I don’t agree with you, respectfully, Senator. 

Senator SPECTER. Well, OK. Why not? Why not? 

Mr. FREEH. Well, because there was never a conversation that 

we had where she indicated and, more importantly, any action that 

she ever took that we were aware of—and we were pretty aware 

of everything that was going on in the case—that at all indicated, 

you know, her aptitude or willingness or even consideration of trying to interfere with this investigation in any manner, so—— 

Senator SPECTER. Interfere? 

Mr. FREEH. Yes. 

Senator SPECTER. Well, you weren’t on the case in any real 

sense. This memorandum particularizes your request to her to get 

these people off the case who were submitting to pressure and to 

put the FBI in as the lead investigative agency. You weren’t the 

lead investigative agency, were you? 

Mr. FREEH. Not at that time, no. 

Senator SPECTER. Mr. Freeh, let me move to another very delicate subject, one which you and I discussed years ago and talked 

about a few minutes ago. You turned down the White House request for a briefing on campaign finance reform. Would you testify 

as to the circumstances of that matter? 

Mr. FREEH. Yes. Well, we had a criminal investigation called the 

‘‘campaign contributions case,’’ and the subjects of that investigation, as you know, were senior people in the White House, including the President, the Vice President, and others. And at some 

point, the White House wanted to be briefed on the criminal case, 

which was also the intelligence operation by the Chinese Ministry 

of Intelligence in the United States to which we have documentation—this Committee has looked at it—interfering with the electoral processes here in the United States. So we decided—— 

Senator SPECTER. Interfering with the electoral process where? 

Mr. FREEH. In the United States. So we decided that we could 

not brief the President and senior officials, who were also subjects 

of the investigation, on the investigation. It seemed to me a pretty 

no-brainer with respect to conflict, also protecting the integrity of 

the investigation. So the Attorney General and I discussed it, and 

225 

we made a decision not to brief them on the criminal aspects of the 

case. 

Senator SPECTER. Was there any aspect of any other governmental function, foreign policy or anything else, beyond the criminal investigation? 

Mr. FREEH. There was, and that part of the case was briefed to 

them. In other words, Chinese intelligence operations, we briefed 

the National Security Adviser—— 

Senator SPECTER. But you declined to brief the President. 

Mr. FREEH. Oh, I don’t think he asked me for a briefing. 

Senator SPECTER. Well, could it have been a part of the briefing 

that the President did ask you for? 

Mr. FREEH. Well, no, he didn’t. He didn’t ask me for any briefing 

at all, actually. It was the National Security Adviser, and we 

briefed them on everything except the criminal aspects of the case 

for which subjects in the White House were now under investigation. 

Senator SPECTER. You say the White House asked for the briefing. 

Mr. FREEH. The National Security—— 

Senator SPECTER. Griffin Bell said the White House doesn’t ask 

for things. 

Mr. FREEH. The National Security Adviser. 

Senator SPECTER. OK. Well, I am concluding now. The inferences 

I draw—and I will give you an opportunity to disagree with me. 

The inferences that I draw is that this investigation was right to 

the top—the President, as you testify, the Vice President, the Attorney General’s job, the question about independent counsel as to 

the Vice President, the President being involved. 

I had told you, when we talked about it at the time—you and I 

and Fred Thompson had a conversation—that I thought you were 

on very shaky grounds in not responding to a President’s request. 

If you had evidence that might activate the impeachment process, 

you ought to go to the Speaker of the House. You came to me. I 

had just been Chairman of Intelligence, and Fred Thompson was 

Chairman of campaign finance reform. 

Well, I will let these facts speak for themselves as to what kind 

of pressure there was and whether Mr. Holder was a party to a 

matter which succumbed to political pressure. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Senator Sessions. 

Senator SESSIONS. Thank you. 

Chairman LEAHY. Senator Sessions was the only one who was 

able to claim any kind of direct connection to the nominee yesterday, because the nominee’s wife is from Alabama. Her family is 

from Alabama. 

Senator SESSIONS. And they are a remarkable family she has and 

a remarkable sister particularly, a historic figure in the civil rights 

movement. 

Let me just say, Mr. Freeh, thank you for coming. And the matters that we are discussing here, as you can tell from Senator Specter’s remarks, were pretty big deals at the time, were they not? I 

mean, this is a very intense situation, a very difficult time for you 

226 

and the FBI during all these periods of allegations and campaign 

contributions and so forth. 

Mr. FREEH. Yes, sir, they were. 

Senator SESSIONS. I just want to say this: I believe Senator Specter felt the pressures, he felt the development of the investigations, 

and Senator Specter was asking the tough questions to find the 

truth, as he always tries to do, and felt that there was political efforts to block that, to block the truth from being discovered, which 

is not consistent with the highest ideals of American justice. And 

it was a very difficult time. I remember it well. 

So I like Mr. Holder. I think he has a lot of fine qualities. But 

I think it is appropriate that this be inquired into. I thank you for 

your integrity in your testimony and in your work at the time. 

With regard to the pardons, Mr. Freeh, your Department of Justice experience, I think maybe the only panelist—maybe Ms. Townsend did, too, previously. But there is a reason, is there not, that 

we have a pardon attorney? I mean, thousands of people ask for 

pardons every year or commutations of sentences. The President— 

I think the last two or three Presidents have served 8 years, gave 

about 400 or 500. The vast majority are denied. 

I know of a case where a former public official in Alabama in his 

70s and reaching the end of his life—maybe 80s—was convicted 40 

years ago. He has contributed to his community ever since. He 

would like a pardon. I doubt he will get a pardon. Thousands are 

turned down, see, more deserving than the ones that got approved. 

That is what upsets me, and that is what caused me to question 

my friend, Mr. Holder, a man I respect very vigorously, at the time 

of the FALN pardon. 

So everybody can make a mistake, and somebody said the best 

spin you could put on this is that Bill Clinton could talk anybody 

into anything. So if he wanted it, maybe he just talked Mr. Holder 

into doing something he really didn’t want to do, and he tried to 

resist but just couldn’t resist. Maybe that is what happened, but 

it was a big mistake, I think. 

Mr. Hahn, yesterday I compared the fact that some of these people didn’t actually murder somebody or set off a bomb to the fact 

that neither did Osama bin Laden or Khalid Sheikh Mohammed. 

They didn’t actually do it; they got people who flew the airplanes 

and caused all the destruction. And Mr. Holder responded that this 

was not in the same category and that it was not his understanding that any of the terrorists, FALN terrorists, were ‘‘heads 

of the organizations and leaders.’’ 

What is your evaluation of that? 

Mr. HAHN. Well, first of all, Senator, in fact, Oscar Lopez Rivera 

is and was a leader of the FALN. So there is no question as to 

whether or not—— 

Senator SESSIONS. So he was in error in his memory or failed to 

know that when he recommended the pardon. 

Mr. HAHN. Correct. And the second point, of course, is these are 

clandestine organizations with secret membership. Who did what 

acts remains unknown. So it could very well have been, in fact, 

Oscar Lopez Rivera told Freddie Mendez that he had participated 

in bombings both in the United States and Puerto Rico. 

227 

Now, that is pretty amazing since the FALN never claimed credit 

for any bombings in Puerto Rico, but other groups did. So did he 

act on behalf of other groups when he was there? We don’t know 

the answer to those questions. So we really don’t know whether or 

not Oscar Lopez or any of these other people may have been involved in acts in which people were killed. 

Senator SESSIONS. Now, Mr. Freeh, that is why you go through 

the pardon attorney process. You remember Kathryn Love—I 

mean, Margaret Love, the former pardon attorney? 

Mr. FREEH. Yes, sir, I know her. 

Senator SESSIONS. For some reason, Mr. Holder removed her, I 

understand. She was, I thought, a woman of great integrity and 

handled the job—she was a Democrat, but she handled the job exceedingly well. But, at any rate, those are the kind of facts that, 

if you go through the formal process, the pardon attorney gets, does 

he not? 

Mr. FREEH. He does. He does. 

Senator SESSIONS. And you avoid mistakes when you do that, 

and you also seek out the opinions of the prosecutors who tried the 

case and the agents who investigated the case. I just feel like that 

was a very unwise thing, I mean, how that went along. 

Mr. Connor, thank you for sharing the human perspective on 

this. I appreciated the little opportunity to chat with you yesterday. 

Mr. CONNOR. I appreciate that, Senator. 

Senator SESSIONS. You know, one of the things I think I shared 

with you that was troubling to me was, after such a big controversy 

over this pardon, the Senate voted 95–2, Chairman Leahy and all 

the members of our Committee voted to deplore President Clinton’s 

pardon. The Marc Rich pardon was done not much longer after 

that. So, Mr. Chairman. I will wrap up. 

I guess I will ask Mr. Hahn or maybe—well, let me ask Mr. 

Freeh. It strikes me that after all of that flap over the FALN pardon that the Deputy Attorney General who was handling these 

matters should have been even more resistant to the Marc Rich 

pardon, which you have considered to be corrupt, and should have 

done everything possible to resist it, and certainly shouldn’t have 

said, ‘‘I am leaning toward it,’’ but should have said, ‘‘It is the position of’’—‘‘Mr. President, you can do what you want, but my position is you should not execute this pardon.’’ 

Mr. FREEH. Yes. No, Senator, you are absolutely right. You were 

a lead prosecutor. You were responsible for an office. You know, I 

was, as I mentioned before, the Deputy U.S. Attorney in the Southern District. I went over to the Swiss authorities to negotiate for 

Marc Rich’s arrest. There was nobody more outraged at that pardon than me and my colleagues in the Southern District of New 

York. 

But I did say earlier this morning, you know, the White House 

went to extraordinary lengths to deceive the Attorney General, myself, the Department of Justice, and everyone about who was on 

the secret pardon list, whether it is a pay-for-play list or whatever 

you want to call it. 

But, you know, to put Eric Holder’s position and victimization in 

perspective, as I said, I had two FBI agents on inauguration morning—8 years ago next week, I had two FBI agents standing in the 

228 

cold outside of the west gate of the White House, because that was 

the only way we were going to see the publicly posted list of people 

who were pardoned. 

So the extraordinary lengths that they went to—and Marc Rich’s 

lawyer being a part of that cabal—I don’t think it is fair to put that 

blame totally on Eric Holder. He takes responsibility, and he will 

never make that mistake again. But I think, as Senator Warner 

said yesterday, he is learned from that mistake, and that should 

certainly not be the basis upon disqualifying him for a job which 

I think he is going to do with excellence. 

Senator SESSIONS. Thank you. I think you framed the issue for 

the Senate very well. 

Mr. Chairman, thank you for allowing us to have extra time. 

Chairman LEAHY. Thank you. Again, I am going to put in the 

rest of the letters from victim’s advocates and all the law enforcement in the record. 

We will keep the record open until the close of business today. 

I thank all of you for being here. I know how busy you are. 

Judge Freeh, you said that you were heading to Vermont this 

afternoon. I want you to know that at my home this morning in 

Vermont, the temperature was 24. That is 24 below zero. 

Mr. FREEH. Thank you, sir. 

Chairman LEAHY. Thank you. We stand in recess. 

[Whereupon, at 11:51 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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