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DEPARTMENT OF JUSTICE WITH 

ATTORNEY GENERAL ERIC HOLDER 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

MAY 14, 2009 

Serial No. 111–83 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

(III) 

C O N T E N T S 

MAY 14, 2009 

Page 

OPENING STATEMENTS 

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

State of Michigan, and Chairman, Committee on the Judiciary ..................... 1 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Ranking Member, Committee on the Judiciary ......................... 17 

WITNESSES 

The Honorable Eric Holder, Attorney General, U.S. Department of Justice 

Oral Testimony ..................................................................................................... 1 

Prepared Statement ............................................................................................. 5 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Committee on the 

Judiciary ............................................................................................................... 76 

Prepared Statement of the Honorable Mike Quigley, a Representative in 

Congress from the State of Illinois, and Member, Committee on the Judiciary ......................................................................................................................... 81

Letter from the Honorable Jason Chaffetz, a Representative in Congress 

from the State of Utah, and Member, Committee on the Judiciary ................ 83 

Post-Hearing Questions submitted to the Honorable Eric Holder, Attorney 

General, U.S. Department of Justice .................................................................. 86 

Response to Post-Hearing Questions from the Honorable Eric Holder, Attorney General, U.S. Department of Justice .......................................................... 95 

(1) 

DEPARTMENT OF JUSTICE WITH 

ATTORNEY GENERAL ERIC HOLDER 

THURSDAY, MAY 14, 2009 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:15 a.m., in room 

2141, Rayburn House Office Building, the Honorable John Conyers, 

Jr. (Chairman of the Committee) presiding. 

Present: Representatives Conyers, Nadler, Scott, Watt, Lofgren, 

Jackson Lee, Waters, Delahunt, Wexler, Cohen, Johnson, Pierluisi, 

Quigley, Sherman, Weiner, Schiff, Sa ́nchez, Wasserman Schultz, 

Maffei, Smith, Sensenbrenner, Coble, Gallegly, Goodlatte, Lungren, 

Forbes, Franks, King, Gohmert, Jordan, Poe, Chaffetz, Rooney, and 

Harper. 

Staff Present: Robert Reed, Majority Oversight Counsel; Crystal 

Jezierski, Minority Oversight Counsel; and Renata Strause, Majority Staff Assistant. 

Mr. CONYERS. The Committee will come to order. 

Good morning. We welcome everyone to today’s oversight hearing 

on the Department of Justice with the Honorable Attorney General 

Eric Holder, whose career and relationship to the House Judiciary 

is well-known. A distinguished public service career; Columbia University; Justice of Department’s Public Integrity Section; Judge of 

the Superior Court; U.S. Attorney for the District of Columbia and 

Deputy Attorney General in 1997; Covington & Burling for a number of years; and confirmed as the Attorney General of the United 

States in February of this year. 

Most of us know the Attorney General. We welcome him and we 

agreed that would permit him to make his opening statement and 

additional comments, and then we will return to the regular order 

with Mr. Smith and myself making opening comments at that time. 

Welcome again to this hearing room, Attorney General Holder. 

You know most of the people, except for Quigley and three freshman Republicans who have never done this before. And so we are 

happy to have you with us. 

TESTIMONY OF THE HONORABLE ERIC HOLDER, 

ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE 

Mr. HOLDER. Well, I am glad to be here. Good morning, Mr. 

Chairman, Ranking Member Smith, and Members of the Committee. Thank you for the opportunity to appear before you today 

2 

to highlight the work and the priorities of the United States Department of Justice. 

Mr. SCOTT. Pull the mike closer. 

Mr. HOLDER. I would also like to thank you for your ongoing support of the Department. I look forward to working with the Committee and appreciate your recognition of the Department’s mission 

and the important work that I think that we do. As you know, the 

Department is responsible for ensuring public safety against 

threats both foreign and domestic, ensuring fair and impartial administration of justice for all Americans, assisting our State and 

local partners, and defending the interest of the United States according to the law. 

As I testified during my confirmation hearings earlier this year, 

we will pursue a very specific set of goals. And already over the 

first 100-plus days of my tenure as Attorney General we have 

begun working to strengthen the activities of Federal Government 

that protect the American people from terrorism, and will do all 

that we can within the letter and the spirit of the Constitution to 

continue to do so. 

We have been working to restore the credibility of the Department that was badly shaken by allegations of improper political interference. We have been reinvigorating the traditional missions of 

the Department. I feel strongly that without ever relaxing our 

guard in the fight against global terrorism, it is imperative that the 

Department also embrace its historic role in fighting crime, protecting civil rights, preserving the environment and ensuring fairness in the marketplace. 

Before answering your questions, I would like to ask you to allow 

me to briefly talk about several of our current initiatives. I provided more detail on each of them in my written statement that I 

have submitted. 

With regard to national security, this is the highest priority of 

the Department, and that is to protect the American people against 

acts of terrorism. The Department has improved significantly its 

ability to identify, to penetrate, and to dismantle terrorist plots as 

a result of a series of structural reforms, the development of new 

intelligence and law enforcement tools, and a new mind-set that 

values information sharing, communication, and prevention. Working with our Federal, State, and local partners as well as our international counterparts, the Department is working tirelessly to safeguard America. 

With regard to Mexican cartels in the southwest border, the Department has undertaken significant work to confront the threat 

posed by the Mexican cartels and to ensure the security of our 

southwest border. We are increasing our focus on the investigations 

and prosecution of southbound smuggling of guns and cash that 

fuel the violence and corruption in Mexico, as well as attacking the 

cartels in Mexico itself in partnership with the Mexican authorities. 

We are also policing the border to interdict and to deter the illegal crossing of undocumented persons or contraband goods and confronting the large and sophisticated criminal organizations operating simultaneously on both sides of the border. 

3 

With regard to Guantanamo, the Department is leading the work 

set out by President Obama to close the detention facility at the 

Guantanamo Bay Naval Base and to ensure that policies going forward for detention, for interrogation, and transfer of detainees live 

up to our Nation’s values. Paramount is our commitment to doing 

everything possible, again, to keep the American people safe. 

With regard to financial and mortgage fraud, as we work to reinvigorate the Department’s traditional law enforcement mission, we 

have focused significantly on financial crimes. The successful prosecution of Bernard Madoff is one tangible example of the progress 

we are making in this area, and the investigation of that particular 

matter continues. 

Moreover, the Administration has announced a new coordinated 

effort across Federal and State governments and the private sector 

to target mortgage loan modification fraud and foreclosure rescue 

scams, which aligns responses from Federal law enforcement agencies, State investigators and prosecutors, civil enforcement authorities, as well as the private sector. 

I appreciate the Committee’s work with us on legislation to enhance the Department’s criminal and civil tools and resources to 

combat mortgage fraud, securities and commodities fraud, money 

laundering, and to protect taxpayer money that has been expended 

on recent economic stimulus and rescue packages. 

Additionally I am committed to ensuring that homeowners who 

may have difficulty making mortgage payments do not experience 

discrimination and can benefit in equal measure from legitimate 

loan modification programs and other Federal programs designed 

to provide mortgage assistance and to stabilize home prices. We 

will use the full range of our enforcement authority to investigate 

and to prosecute this type of lending discrimination. 

With regard to civil rights, the Department continues to be fully 

committed to defending the civil rights of every American. And we 

are rededicating ourselves to implementing the range of Federal 

laws at our disposal to protect rights in the workplace, the housing 

market, and also in the voting booth. 

One important element of strengthening civil rights is to ensure 

fairness in the administration of our criminal laws. The Justice Department firmly believes that our criminal and sentencing laws 

must be tough, they must be predictable, they must be fair, and 

they must be free from unwarranted racial and ethnic disparities. 

The Justice Department has recently begun a comprehensive review of Federal sentencing policy. I have asked the Deputy Attorney General to convene and chair a Department-wide sentencing 

and corrections policy working group that will examine, among 

other issues, Federal cocaine sentencing policy. Based on that review, we will determine what sentencing reforms are appropriate, 

including making recommendations to Congress on changes to 

crack and powder cocaine sentencing policy. 

Another civil rights issue that is a priority for us is the enactment of an effective hate crimes legislation bill. I thank you, Mr. 

Chairman for your leadership in this area. 

Finally, with regard to the American Recovery and Reinvestment 

Act of 2009, that included $4 billion in Department of Justice grant 

funding that will be distributed by the Justice Department’s three 

4 

major grant-making offices: the Office of Justice Programs; the Office of Violence Against Women; and the Community-Oriented Policing Services Office, also known as COPS. This funding is being 

used to enhance State, local, and tribal law enforcement efforts, including the hiring of new police officers to combat violence against 

women and to fight Internet crimes against children. In addition, 

it will help reinvigorate the Department’s traditional law enforcement mission, a key element of which is partnership with State, 

local and tribal law enforcement agencies and is vital to keeping 

our communities strong. 

As Governors, mayors and local law enforcement professionals 

struggle during the current economic crisis, we will remain steadfast in our commitment to fighting crime and keeping communities 

safe. 

Chairman Conyers, Ranking Member Smith, and Members of the 

Committee, I want to thank you again for this opportunity to address the Department of Justice’s priorities. I will be pleased to answer any questions that you might have. Thank you. 

[The prepared statement of Mr. Holder follows:] 

5 

PREPARED STATEMENT OF THE HONORABLE ERIC H. HOLDER, JR., 

ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE


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Mr. CONYERS. Thank you very much, Attorney General Holder. 

We welcome your first appearance to the Committee today. 

We are very sensitive to the fact that this Administration and 

the Department have hit the ground running. These first 110 days 


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or so have not been short of activity and setting a new direction, 

and it has been exciting and breathtaking to watch. 

I wanted to raise a number of questions for you: the Department’s use of state secrets privilege; the detention policy for detainees, both at Guantanamo and around the world; your Department’s 

position with respect to possible prosecution of government officials 

who may have authorized the use of torture, and whether it might 

be appropriate to appoint a special counsel, as more than a dozen 

of the Committee Members of Judiciary have suggested; the release 

of additional, still secret Office of Legal Counsel memos relating to 

the so-called war on terror and the pending Office of Professional 

Responsibility investigation of those who wrote such memos; the 

Department’s position in the Black farmers case, the Pigford matter; the decision to reverse course and oppose release of the detainee abuse photos, even after the Department told the Federal 

court that they would be released; and the proposal contained in 

a bipartisan measure I have introduced to create an independent 

blue ribbon commission to investigate and tell the American people 

about the real reason we entered into a war on terror. 

And so those are all the questions I have. 

Mr. HOLDER. Where would you like me to start, Mr. Chairman? 

Mr. CONYERS. Well, you could start from the end and work back 

to the front if you would like. 

Wait a minute, let’s hear from Mr. Smith. He has a much longer 

list than I do. Lamar Smith. 

Mr. SMITH. Thank you, Mr. Chairman. And welcome, Mr. Attorney General. 

The President made a campaign promise to close the Guantanamo Bay terrorist detention facility before he had been briefed by 

our national security agencies. But keeping his campaign pledge 

could, in fact, endanger American lives. 

Before the Administration transfers detainees to the United 

States, the American people need to know why al Qaeda financial 

specialists, organization specialists, bomb makers and recruiters 

are being sent to our shores. They will certainly give new purpose 

To Neighborhood watch organizations. 

Under this Administration’s approach, some terrorists will end 

up in American jails, but their detention facility could become a 

target for attack by terrorist sleeper cells here and around the 

world. 

The United States already gives such detainees more rights than 

any other country. If moved to the U.S., these terrorists could be 

granted even more constitutional rights. Supreme Court precedents 

indicate Federal courts can bestow constitutional rights upon people simply because they are on U.S. soil. Those rights could mean 

information obtained or heard after a terrorist has been captured 

is inadmissible as evidence. If terrorist attorneys forum shop for 

friendly Federal judges, they could be released into American communities and become a threat to our families and neighbors. And 

if detainees are transferred to other countries, there is no guarantee they will continue to be incarcerated. They could be released, 

returned to the battle field and kill Americans or our allies. 

According to Pentagon sources, at least 15 percent of released detainees have returned to fight our troops, and no doubt many more 

18 

have gone undetected. Media reports indicate that 17 Uyghurs are 

in the process of being released to the United States. They are all 

associated with terrorist organizations. They admitted they were 

trained by known terrorists who were part of a group that threatened to kill civilians at the Olympic Games in China last year. All 

of this is occurring when there is nothing wrong with the GITMO 

facility. Following the Attorney General’s trip to Guantanamo Bay, 

he admitted ‘‘the facilities are good ones.’’ 

Before a single detainee is transferred or released anywhere, all 

unclassified files regarding their backgrounds should be made public. However, it appears the Administration is sharing more information about the detainees with foreign governments than it is 

with the American people. Anxious Americans shouldn’t have to 

hope for a postcard from France to get information about terrorists. 

The Administration has replaced the phrase ‘‘enemy combatants’’ 

with ‘‘detainees’’; ‘‘war on terror’’ with ‘‘overseeing contingency operations’’ and the term ‘‘terrorism’’ with ‘‘man caused disasters.’’ 

But these attempts to downplay dangerous threats to America 

don’t change the fact that al Qaeda and others still want to kill 

Americans. Worrying about image more than substance trivializes 

the very real risk to American lives. 

I am concerned that in his first few months in office, this Administration has engaged in a pattern of behavior that is endangering 

the American people. First, the President announced the closing of 

Guantanamo Bay without any plan for the terrorists detained 

there, and has admitted that he cannot guarantee that those detainees who are released will not seek to attack our country again. 

Second, the Administration has made public sensitive information regarding top secret interrogation techniques, giving our enemies a road map to neutralizing these techniques in the future. 

Third, the Administration has expressed support for repealing 

the REAL ID Act, one of the central recommendations of the bipartisan 9/11 Commission. Repeal of REAL ID will once again allow 

terrorists, including those in the country illegally, to obtain U.S. 

drivers licenses and acquire the appearance of legitimacy. 

Fourth, the Administration has continued to ignore Federal law 

and tolerate State and local so-called ‘‘sanctuary’’ policies protecting illegal immigrants, including illegal immigrant criminals 

from deportation. Time and again we have seen Americans killed 

and injured by illegal immigrants who were protected from deportation by the sanctuary policies. 

Fifth, the Justice Department recently has come out in favor of 

equalizing the penalties for powder and crack cocaine, an intensely 

addictive drug. We shouldn’t forget that it was the escalating violence in the inner cities across the country that resulted in the stiff 

crack penalty. Administration officials need to take responsibility 

for their actions. If they don’t, the American people should hold 

them accountable. 

Mr. Chairman, with these concerns in mind, I welcome the Attorney General again and look forward to our hearing and to his testimony. 

Mr. CONYERS. Thank you, Lamar Smith. 

19 

We have several votes, it will probably take an hour. So we will 

stand in recess and we will resume as soon as the votes are concluded. 

Mr. HOLDER. Thank you. 

Mr. CONYERS. Thank you, Attorney General Holder. 

[Recess.] 

Mr. CONYERS. The Committee will come to order. Thank you for 

your patience, Attorney General Holder. 

Returning to my list of questions, we appreciated receiving the 

letter recently from the Office of Professional Responsibility investigation on the Department of Justice lawyers who wrote the Office 

of Legal Counsel memos on waterboarding and other troubling interrogation tactics. 

When do you expect the OPR report to be complete on this matter? 

Mr. HOLDER. I am not sure. I think we are at the end of the process. This has all been reported in the press. I don’t think I would 

want to go into this much detail. But the lawyers had an opportunity to respond to the report. Those responses have been received. I understand that OPR is in the process of—I have not actually seen the report as of yet, but I would think that we are looking at a matter of weeks before it will be complete. 

Mr. CONYERS. And we will hope that you will continue your relationship with this Committee, to arrange for the OPR director to 

testify before us—and possibly along with other former OLC attorneys—after the report is complete. 

Now, it has been said by yourself that you look at the OPR report of course, the facts and the law, to decide whether to appoint 

a special counsel on possible misconduct concerning torture, as 

more than a dozen Members of the Judiciary Committee have suggested. We know that you will make a careful judgment on this 

issue. 

Is there anything you can tell us about how you will make this 

judgment and the factors that you would consider, including whether that will include our international treaty obligations relating to 

prosecuting torture? 

Mr. HOLDER. As the President has said and I have said repeatedly with regard to investigating this matter, that for those agents 

who relied on, and in good faith relied on the statements in the 

bounds of those OLC memorandum, those are not matters that we 

think we would be looking into. Beyond that, as I have said, we 

would allow the law and the facts to take us wherever that was appropriate. So as things are developed, those are the—as matters 

develop, facts become more evident. Those are the kinds of things 

that would obviously flow into that determination. 

Mr. CONYERS. I and others have proposed the creation of an independent blue ribbon commission with subpoena power, more or less 

modeled after the 9/11 Commission, to investigate and report on 

the interrogation and other policies previously undertaken in the 

name of the war on terror. The New York Times, Washington Post, 

Senator Leahy, and many others have endorsed this idea. 

Can we solicit your concurrence this afternoon? 

Mr. HOLDER. I have a hard enough time trying to help run the 

Justice Department. With regard to what Congress is going to do 

20 

with regard to investigating things, I will leave that to you all to 

decide. 

Mr. CONYERS. Yes. But that is why you are here today for us, to 

coordinate more effectively our relationship. You could just say yes. 

Mr. HOLDER. Well, if there were a proceeding, something that 

was put in place, obviously we would coordinate and cooperate. As 

I said, the selection or decision to do such a thing I will leave in 

your good hands. 

Mr. CONYERS. Okay. Now, could you let us in on the reasoning 

involved in your recent decision to reverse course and oppose the 

release of detainee abuse photos, even after your Department has 

promised the Court they would be released? 

Mr. HOLDER. Well, I think the President consulted with the generals on the ground and made the determination that the release 

of those photos would endanger our troops. The concern was that 

the release of those photos could have a negative impact on the situation both in Iraq and in Afghanistan. And I think the President, 

as Commander in Chief, after talking to General Odierno in particular, thought that the posture that he has now put us in was the 

better one. 

We will have to argue that in court and we are prepared to do 

that. But I think the President has made a decision that is consistent with the best interests of our troops. 

Mr. CONYERS. All right. Thank you so much. Lamar Smith is our 

Ranking Member and we would invite him for any questions. 

Mr. SMITH. Thank you, Mr. Chairman. Mr. Attorney General, 

you recently said that the Administration would not bring terrorists into our country and release them. Do you consider individuals 

who were trained at terrorist training camps to be terrorists? 

Mr. HOLDER. Well, I think you have to make individualized determinations about a particular person. That is what we are doing 

with regard to the 241 who are at Guantanamo now. 

Mr. SMITH. If someone were trained at a terrorist training camp 

by a terrorist, say, in the use of weapons against civilians, would 

they be a terrorist? 

Mr. HOLDER. It gets closer to the definition of a person I would 

agree would be a terrorist. Again, you have to look at the totality 

of who the person is, what kind of training the person received, 

whether in making these determinations, where that person was 

intent on using their terrorist training, what country perhaps. 

Mr. SMITH. If the Treasury Department and the United Nations 

designated an organization to be a terrorist organization, would 

you consider members of that organization to be terrorists? 

Mr. HOLDER. Again, it would depend on the connection that that 

person had to the organization. If that person is a leader—— 

Mr. SMITH. So someone could be trained as a terrorist, trained 

in all the capabilities of a terrorist, and yet the Administration 

might not consider them to be a terrorist? 

Mr. HOLDER. I am not saying that. What I am saying is that I 

would want to look at specifics. You are throwing hypotheticals at 

me, and I am not sure I can respond to that as well as if I had 

in front of me a file, like we are putting together on the Guantanamo detainees, and I could look at a file on somebody and tell you 

if that person was in fact—— 

21 

Mr. SMITH. Their membership in a terrorist organization, therefore, is not enough to satisfy the Administration that they are terrorists? 

Mr. HOLDER. I would certainly think that would be an indication, 

a marker, that that person is likely to be considered a terrorist. 

Mr. SMITH. But that alone would not be enough if they were just 

members of a terrorist organization? 

Mr. HOLDER. One of the great Justices of the Supreme Court was 

a member of the Ku Klux Klan at one point. So mere organization 

doesn’t always necessarily take you to a conclusion. I think we 

have to be thoughtful. We have to be careful. We have to be complete in the examinations that we do, to make sure that we are 

going to label somebody as a terrorist, and then treat them accordingly. 

Mr. SMITH. Right. Maybe we just have to disagree. I think someone who has been trained at a terrorist training camp by terrorists, 

has been trained in the use of weapons against innocent civilians, 

I consider to be a terrorist even if they haven’t committed a terrorist act yet. But apparently that wouldn’t necessarily satisfy the 

Administration? 

Mr. HOLDER. Given all the facts that you now have laid out as 

opposed to going through each one separately, I would say we 

agree. I would agree with what you have just said. 

Mr. SMITH. Okay. Good. Because I thought I had asked that just 

a minute ago. But I am glad you agree. 

What if the FBI and the Homeland Security had expressed concerns about the release of individuals at Guantanamo Bay; would 

that be persuasive to the Administration not to release those individuals? 

Mr. HOLDER. That would certainly be factors that we would take 

into account. But understand that in making determinations about 

the release, transfer of the people at Guantanamo, the thing that 

is going to guide this Administration more than anything is the 

safety of the American people. We are not going to do anything, 

anything that would put the American people at risk. Nothing. 

Mr. SMITH. Although the President has said that he can’t guarantee that the people who might be released might not kill Americans. 

Mr. HOLDER. Well, we will go through those files, and the determinations that we make will be based on what we see in the files 

and the predictions that we can make about their future behavior. 

Mr. SMITH. Let me go back to the previous question, because I 

was glad to hear you say that those individuals who had been 

trained at terrorist training camps by terrorists, perhaps in the use 

of weapons against innocent civilians, would be terrorists; because 

that is exactly what I understand the Uyghurs—would apply to the 

Uyghurs and that is how they have been trained. And yet the Administration is considering releasing the Uyghurs. 

Is that the case or is that contradictory? 

Mr. HOLDER. The determination has been made by a court of the 

United States of America that the Uyghurs have to be released. 

That is not a question for this Administration to decide. The courts 

of the United States have looked at that and made that determination. The Uyghurs—the Bush administration approved the release 

22 

of the Uyghurs, I guess, back in 2003. So, again, this is not this 

Administration making the determination. 

Mr. SMITH. But if any of those individuals fit the definition of 

terrorist that you just agreed to, I presume that the Administration 

would object to their being released. 

Mr. HOLDER. Well, in terms of release, we don’t have a choice. 

They have to be released, unless you would ask us to defy an order 

from the United States court. 

Mr. SMITH. Well, either that, or you can provide additional information on their background or training that might persuade a 

court not to release them. 

Just one more question, if I may, Mr. Attorney General. Recently 

you were—— 

Mr. HOLDER. The Bush administration approved the release of 

both of these folks back in 2003. Again, it is not this Administration. It is the courts, the prior Administration, that has made a determination that the Uyghurs have to be released. It is not this Administration. 

Mr. SMITH. Again, I won’t repeat it. But I liked your definition 

of a terrorist that you and I just agreed to, because I think that 

might be applicable. 

You traveled in Europe a week before last, I believe, and asked 

countries to release—or to take individuals who are now incarcerated in Guantanamo Bay. I assume that you provided those governments with information about those detainees. 

Don’t you think that the American people deserve to have that 

same information about those detainees that you provided to foreign countries? 

Mr. HOLDER. My trip was not—as you say, I went and spoke to 

our allies and talked about the need for a unified approach to closing Guantanamo. We did not have any specific conversations about 

numbers of people they would take, specific detainees. The conversation was very general in nature. 

Mr. SMITH. I would take your word for it. But that does contradict what the heads of state said you asked them for. 

Mr. HOLDER. Not heads of state. There was a report that I read 

about somebody who said that I asked Germany to take 10 people 

or something like that. That conversation never happened. 

Mr. SMITH. Did not occur? 

Mr. HOLDER. Did not occur. 

Mr. SMITH. Okay. Thank you, Mr. Chairman. 

Mr. CONYERS. Thank you. Chairman of the Constitution Committee, Jerry Nadler. 

Mr. NADLER. Thank you, Mr. Chairman. 

Mr. Attorney General, in January of last year, John Durham, a 

career Justice Department prosecutor, was appointed by then-Attorney General Mukasey to investigate the destruction of videotapes of CIA interrogations. At that time we asked that the underlying conduct whether U.S. interrogations of detainees complied 

with or violated the law—also be investigated. That request was 

denied by Attorney General Mukasey. 

As you know, we recently renewed our request with your predecessor, more recently with you, for appointment of a special counsel 

to investigate who is responsible for the torture of detainees and 

23 

to hold accountable those who may have violated the law. We continue to believe that appointing a special counsel is not only mandated by the law because the law says that where torture occurred 

under U.S. jurisdiction, which is undeniable, there must be an investigation and, if warranted, prosecutions, if warranted. And 

where there is a possible conflict of interest, there should be a special counsel. And all those conditions seem to be met. 

We continue to believe that appointing a special counsel removes 

any claim that political considerations inappropriately influence 

prosecutorial decisions and may be the only way to remove this as 

a major distraction. 

My first question is: What is the status of Mr. Durham’s investigation, and when can we expect the report on that to be completed? And will the conclusions be shared with us? 

Mr. HOLDER. I am a little reluctant to talk about—I know that 

Mr. Durham is still at work. He is still investigating. He spoke to 

the Deputy Attorney General I believe a couple of weeks or so ago, 

and we had an update on his work. And he is still proceeding with 

his investigation. 

Mr. NADLER. But you have no estimate as to when we might 

have some sort of conclusion? 

Mr. HOLDER. I don’t at this point. He laid out for us certainly 

what he is going to be doing over the next 2 to 3 months or so. But 

I don’t have a sense—I can’t say with any degree of certainty when 

he is going to be finished. 

Mr. NADLER. Let me ask you this. Given that Mr. Durham has 

a team of lawyers and investigators who already have been cleared 

to review classified and sensitive information and are deep into 

this issue, would you think it might be a good idea to expand his 

jurisdiction to include investigation of actual interrogation policy 

and practice and ensure that his status is that of a special counsel, 

subject to the guidelines in your regulations? 

Mr. HOLDER. I think that the decision first has to be whether or 

not that is appropriate. And as I have indicated, no one is above 

the law. We will look at the facts, we will look at evidence, and 

make the determination that is appropriate given the information 

that we have in the Justice Department in making that ultimate 

determination. 

Mr. NADLER. Okay. In a recent press conference, President 

Obama agreed that the state secrets privilege should be modified 

and that, quote, right now it is overbroad, closed quote. 

You have directed your Department to determine when it is legally appropriate to assert privilege. Could we agree that unless 

the case involves the actual parties to a secret espionage agreement, like a spy suing the U.S. for failure to pay for services or 

something like that—which was an actual case a number of decades ago—that that aside, it is never appropriate to raise the privilege to foreclose litigation altogether from the outset, based on a 

claim that the entire subject matter is a secret, and instead that 

the privilege should be asserted as an evidentiary privilege on an 

item-by-item basis? 

Mr. HOLDER. What I have asked to be done, and it is almost complete, is for a review to be done of those cases where we have invoked the privilege, to find out what was the basis for it; could we 

24 

have done it in a more surgical way so that the case did not need 

to be dismissed, and perhaps could have used it in the way you 

have described as an evidentiary one. 

In addition to that, we are working on a proposal about how we 

think we might modify the way in which the privilege is used by 

the executive branch. And once those two things are put together, 

it would be my hope to share that with this Committee to try to 

work on a solution to—— 

Mr. NADLER. You realize that there is legislation pending before 

this Committee, which I am sure you have looked at. 

Mr. HOLDER. I understand that. So I would hope that in connection with that legislation, the other legislation, the other side, that 

we could consider our proposal as well. 

Mr. NADLER. Thank you. In your testimony, you noted the recent 

conviction of Mr. al-Marri, and I applaud the Administration for 

bringing him to justice in our courts. As a result, however, the Administration also avoided Supreme Court review of a critical question, as the Bush administration did in a similar situation in the 

Padilla case. 

The question is: Does the President have the authority, as the 

Bush administration claimed he did, to detain individuals indefinitely without charge? Now, I have two questions. Do you believe 

that the President has this power? 

Mr. HOLDER. To detain people indefinitely? 

Mr. NADLER. Indefinitely, without charge. The Bush administration called it ‘‘enemy combatants.’’ Nobody calls it that anymore. 

But the claim of right was made that the President, under exigencies of Article 2 powers or A(1)(f) powers, has the right to detain 

people even in the United States—American citizens or otherwise— 

indefinitely, without charge, if he thinks they are what he called 

an ‘‘enemy combatant.’’ 

Mr. HOLDER. We have a fundamentally different view than the 

Bush administration did about the Article 2 powers that the President has. There are certain powers that, I guess, the Commander 

in Chief has with regard to detaining people under the laws of war. 

But the notion that a President, in an unfetterred way, not tied to 

some law, has that ability is not something we agree with. 

Mr. NADLER. So you would agree that anyone held ultimately has 

to come to some sort of trial or proceeding of a judicial nature? 

Mr. HOLDER. Well, as I said, with the laws of war, it has been 

traditional that people are held for the length or the duration of 

the conflict. 

Mr. NADLER. It has been traditional that people are captured on 

a battlefield under arms—are labeled prisoners of war and are captured. But picking up somebody in Peoria, Illinois, and saying we 

have secret intelligence that he is an agent of al Qaeda, would you 

agree that any such person must have judicial recourse? 

Mr. HOLDER. That is what we are trying to do with regard to the 

people of Guantanamo; to determine which of those people can be 

released, who can be tried. It is not the position of this Administration that we want to hold people for indefinite periods of time. 

Mr. NADLER. I am asking a more specific question. I understand 

the benevolent intent of this Administration. I do not mean that 

sarcastically. I am asking whether you think the President or the 

25 

executive branch has the authority to hold someone indefinitely 

without judicial recourse. 

Mr. HOLDER. And I thought I answered it. Without being tied to 

some statute, to some international agreement, some custom in the 

way in which this Nation has always conducted itself, I do not believe the President has that power. It has to be tied to something. 

Mr. NADLER. Thank you. 

Mr. CONYERS. The patient, distinguished Chairman Emeritus of 

the Committee, Jim Sensenbrenner. 

Mr. SENSENBRENNER. Thank you very much, Mr. Chairman. 

After hearing that, I was tempted to take the gentleman’s words 

down, but I won’t. 

Mr. Attorney General, thank you very much for coming, and welcome here. As you know, I was the Chairman of the Committee 

after 9/11 and spearheaded the effort to tear down the wall that 

separated intelligence and law enforcement, and updated our laws 

so that intelligence officials had the same tools to combat terrorism 

as law enforcement has had for a number of years to combat drug 

dealers and child pornographers. 

The USA PATRIOT Act was passed with wide bipartisan support. And over 3 years ago, I again spearheaded the effort to reauthorize the PATRIOT Act, a law which the FBI Director and other 

intelligence professionals have all testified has helped save lives 

and to protect our homeland. 

I am a cosponsor of the legislation introduced by Ranking Member Smith to extend the three expiring provisions of the law crucial 

to our intelligence professionals. 

I know you have been the Attorney General for only a very short 

period of time, but long enough to set departmental policies. The 

clock is ticking on this legislative session of Congress, and those expiring provisions will disappear on December 31st unless affirmatively extended before that time. 

When will you submit to Congress the Administration’s proposal 

for the reauthorization of the PATRIOT Act? 

Mr. HOLDER. We want to look at those three provisions. They 

are, I think, important provisions that can be used, I think, effectively in the fight against terrorism. I want to see how they have 

been used, have a better sense of what the field experience has 

been with those provisions before we make a determination. 

I expect that we will support the reauthorization, but I really 

would like to just have some more empirical information about the 

way in which they have been used and their effectiveness. And it 

is possible there may be changes that we would suggest and would 

work with the Committee about with regard to those three provisions. 

Mr. SENSENBRENNER. The concern I have is one of those three 

provisions is the so-called lone-wolf terrorist provision, and that 

was passed specifically to plug the hole in the conspiracy laws 

which have been effective in dealing not only with terrorist conspiracy, but conspiracies that violate other laws and the civil liberties of American citizens. And if there is a gap in that, that 

means that one individual might be able to slip through the net 

and not be indicted before actually committing a crime and placing 

maybe thousands of people at risk. 

26 

Can you give me a commitment of a deadline on when the Administration will submit its recommendations relative to the three 

expiring provisions? 

Mr. HOLDER. Yeah. We will certainly express our views with sufficient time to allow for debate, conversation, the potential for 

modifying them well before they expire, I guess at the end of December. 

Mr. SENSENBRENNER. Well, I point out that, according to the 

schedule that the Majority party has released, that we are supposed to adjourn this session of Congress, sine die by the end of 

October. And that gives us effectively four session months to have 

a bill introduced, go through the hearings, have both houses pass 

the legislation—if it needs to be conferenced, have that happen— 

and to send it off to the President for his consideration. That is not 

a lot of time, particularly given the very ambitious schedule that 

the Democratic leadership has announced for July. And, in fact, we 

have to deal with appropriations. 

I would really strongly urge you to step on the accelerator on 

this, because I just don’t want to see us leave town and leave the 

American public to end up wanting in terms of the importance of, 

I believe, all three of these measures, but particularly the lone-wolf 

terrorist provision. 

Mr. HOLDER. I am confident that we can do this in such a way 

that we will meet all the deadlines, even given the limited amount 

of time you indicated. These are obviously very important provisions that need to be considered in a very serious way. And I think 

we need to take the appropriate action. I don’t want to take anything, any tools away from the very capable men and women who 

defend this Nation. With that in mind, we will be forwarding our 

views to Congress, as I said, as quickly as we can. 

Mr. SENSENBRENNER. Thank you, General. 

Mr. CONYERS. Thank you. The Chairman of the Crime Subcommittee, Bobby Scott of Virginia. 

Mr. SCOTT. Thank you. And thank you, Mr. Attorney General, for 

joining us today. In 1963 there was a march on Washington, one 

result of which was a policy that there be no discrimination in Federal contracts, and that was followed pursuant to President Johnson’s 1965 executive order for decades. 

Now, do you support the ability of those hiring people with Federal money to deny jobs to people solely based on religion? And, if 

so, what would you tell a devoutly religious businessman why he 

can’t discriminate with his own money? 

Mr. HOLDER. Why he can’t discriminate? 

Mr. SCOTT. A devoutly religious businessman cannot discriminate 

in hiring with his own money. He cannot discriminate with his own 

money under Federal law. How can we therefore have a policy allowing people with Federal money hiring people and denying opportunities solely based on religion? 

Do you support the idea that we should allow discrimination to 

take place in Federal contracts? 

Mr. HOLDER. I think that we want to have Federal contracting 

done on a basis of ability, need, and without respect to religion, 

race, gender, sexual orientation. That is the kind of America I 

think this Administration wants to have. 

27 

Mr. SCOTT. Thank you. Mandatory minimums have been studied 

in sentencing, and they have been found often to violate common 

sense, generally a waste of taxpayers’ money. In dealing with the 

100 to 1 crack/powder disparity, there is a consensus that something has to be done. 

Will your recommendations on the crack/powder/cocaine disparity 

consider eliminating mandatory minimums altogether in those 

cases and allow sentences to make sense in each case; especially 

since the mandatory minimums are now based on the total weight 

of the whole conspiracy creating the girlfriend problem, where if a 

girlfriend takes a message or drives a car, technically involved in 

the conspiracy, her sentence is based on the weight of the entire 

conspiracy, resulting in girlfriend getting sentenced to 10, 20, 30 

years or more. 

Will you consider eliminating the mandatory minimums in the 

crack/powder recommendations? 

Mr. HOLDER. I have asked the Deputy Attorney General to head 

up a task force that is looking at Federal sentencing laws to come 

up with a way in which we make them more equitable, we make 

them more effective. The head of our Criminal Division, Lanny 

Breuer, testified on behalf of the Administration in the Justice Department of my strong belief, and the President’s, that we need to 

do away with the disparity that exists between crack and powder 

sentencing. 

And so I think that we want to take all of that together, especially see what David Ogden, who is the Deputy Attorney General, 

comes up with with regards to his look at sentencing, the task 

force, and see how useful are mandatory minimums—are there 

places where they need to be dialed back? That is all for us on the 

table. 

Mr. SCOTT. Thank you. In terms of financial crimes, ID theft, organized retail theft, and of course the mortgage fraud and other financial fraud, we had testimony that FBI agents only had 250 

agents with accounts backgrounds assigned to these cases. The savings and loan crisis, where it was just about one-third the size of 

this problem, they had about 1,000. Do you have sufficient money 

to investigate and prosecute financial crimes? And if not, will you 

let us know what your needs are? 

Mr. HOLDER. One of the things that I told the President was that 

the Department that I come back to is different from the one that 

I left. There is a national security component to the Department 

of Justice that is much larger than existed when I left. And I think 

that is totally justified. We don’t want to do anything to harm that 

effort. 

But I also think that what I call the traditional parts of the Department, and among them the part that you described, this notion 

of looking at financial crimes has not gotten the attention and the 

resources that are necessary. In the 2010 budget we have greater 

amounts of money to allow us to hire more agents and more prosecutors in that field with regard to financial crimes. 

Mr. SCOTT. And, finally, under torture, we have heard in the 

public discourse that it worked. We were scared. We were following 

orders which, frankly, might have been illegal. We know, from after 

World War II, that we tried and prosecuted as capital offenses JapVerDate Aug 31 2005 12:26 Jun 09, 2010 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6601 H:\WORK\FULL\051409\49682.000 HJUD1 PsN: 49682
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anese soldiers that tortured American soldiers, and we prosecuted 

them as capital offenses. If detainees were tortured to death, is it 

possible that no one committed a crime? 

Mr. HOLDER. If somebody were tortured to death, clearly a crime 

would have occurred. 

Mr. CONYERS. Thank you. The Chair recognizes Howard Coble, 

senior Member of the Judiciary Committee, North Carolina. 

Mr. COBLE. Thank you, Mr. Chairman. Mr. Attorney General, 

good to have you with us. 

Mr. Attorney General, as recently reported, President Obama’s 

intelligence chief confirmed that some Guantanamo inmates may 

be released on U.S. soil and receive assistance to return to society. 

And I am quoting now: ‘‘If we are to release them in the United 

States, we need some sort of assistance for them to start a new 

life,’’ said National Intelligence Director Dennis Blair at his first 

press conference. 

General, would the Administration allow and/or encourage the 

use of taxpayer money to be used to provide welfare or social assistance to detainees released from Guantanamo? 

Mr. HOLDER. No final decision has been made with regard to 

what is going to happen to those 241 people who are in Guantanamo, those who would be eligible for release or transferred. No 

final decision has been made as to where they would go, how they 

would be treated. So that is not an issue that we have yet confronted. We are still in the process of trying to make the determination about who is going to be prosecuted, who is eligible for 

transfer or release. That is the focus of our attention at this point. 

Mr. COBLE. I don’t want to be portrayed as an inflexible redneck 

kook, but I believe this would be reckless fiscal exercise to provide 

assistance to that end. 

Let me shift, Mr. Attorney General, to the domestic side. I want 

to continue what Mr. Scott said regarding the retail crime, and it 

is indeed a problem as you know. I am told that the FBI has participated in several successful prosecutions of several organized retail crime rings in North Carolina. And this, as you know, is 

strongly supported by our retail community. 

And to continue your response to Mr. Scott, do you all have the 

wherewithal—that is, the operation and the financial—to make 

this a front-burner issue? 

Mr. HOLDER. I think what we have in the 2010 budget is a down 

payment on restoring—to the extent that I think it needs to be restored—the capability of the FBI in that regard. I think that we 

are capable. I think we can be more capable. And I think with the 

resources that we are getting next year, I think in the out budget 

year, that we will be at a place where I think we will have the capacity, and I think we need to deal with those issues. 

And we are also in the process of working through a proposal 

that we will be sharing with the country about what we want to 

do, I think really generally, with regard to financial crimes. 

Mr. COBLE. The loss that retail merchants are incurring, as you 

know, is substantial. 

Let me shift back to terrorism. Recent press reports indicate that 

the Administration is currently considering releasing Shakir Amir. 

Now, according to one report—and I am quoting again—British auVerDate Aug 31 2005 12:26 Jun 09, 2010 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6601 H:\WORK\FULL\051409\49682.000 HJUD1 PsN: 49682
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thorities are demanding the release of this guy. He is a bin Laden 

confident that trained aspiring terrorists at al Qaeda camps, met 

with the shoe bomber, Richard Reid, and traveled widely in the 

United States, meeting with embedded terrorists and sharing an 

apartment with Zacarias Moussaoui who was convicted in 2006, if 

you recall, for his complicity in the 9/11 plot. 

Do you know if these assertions are accurate that I have just 

quoted, Mr. Attorney General? 

Mr. HOLDER. Congressman, I will be honest with you, I am not 

familiar with that name and that case. I am not in a position to 

answer that question. 

Mr. COBLE. If you will, put that name in the front of your head 

for future reference, because I don’t see how this guy could not be 

classified as a terrorist. 

Mr. HOLDER. I will certainly do that. But I would also emphasize 

that in this review of the people at Guantanamo, the guiding principle is the safety of the American people. And we are not going 

to release anybody, transfer anybody who would pose a danger to 

the American people. That is simply not going to happen. But I am 

not familiar with the name of that person. 

Mr. COBLE. I thank you for being with us, Mr. Attorney General. 

Mr. Chairman, I want you to note that I am—Mr. Chairman, Mr. 

Chairman, I want you to note that I am beating the red light before it illuminates. 

Mr. CONYERS. That has never happened before here, sir. 

Mr. COBLE. I yield back. 

Mr. CONYERS. Thank you. The Chair recognizes another Member 

from North Carolina, the distinguished gentleman Mel Watt, who 

serves on the Finance Committee as a Subcommittee Chairman as 

well as a senior Member of this Committee. 

Mr. WATT. Welcome, Mr. Attorney General. I am a little reluctant to follow somebody who characterizes themselves as—what did 

Howard Coble call himself? 

Mr. WEINER. He said he is not a redneck kook. 

Mr. COBLE. Not an inflexible redneck kook. 

Mr. WEINER. Just a regular redneck. 

Mr. WATT. Just a regular redneck. 

Mr. Attorney General, let me follow up on Representative Scott’s 

question about this crack/powder disparity first, just long enough 

to find out when you anticipate that your task force will be completing its work and reporting to you, and when you will be able 

to report or make a public position known on that? That is an 

issue, of course, that has been hot and heavy, as you are well 

aware, in minority communities because of the substantial disparity between crack and powder sentencing. Can you give us a 

timetable? 

Mr. HOLDER. I would think the task force will be something that 

will take months to do a complete job. But we have already indicated our desire to eliminate that disparity between crack and powder sentences. Lanny Breuer, as I said, testified about that at a 

hearing, I think last week, or perhaps the week before. There are 

other things that we look at, but this Administration has made the 

determination that it is our belief that we have to eliminate the 

disparity with the crack and powder sentencing. 

30 

Mr. WATT. The problem with that is once you make that public 

pronouncement and, then, at the same time, you say you have a 

task force looking at it, then it becomes an excuse for people not 

to do anything until the task force comes back and makes some affirmative recommendations. 

Would you support following prior—at least in the interim—following prior Sentencing Commission recommendations regarding at 

least reducing if not completely eliminating the disparity? 

Mr. HOLDER. I guess what I would want to do is make these 

changes in their totality. And the concern I would have about reducing as opposed to eliminating the disparity is that we might get 

stuck at—— 

Mr. WATT. I am in full accord with you, but that creates a pretty 

strong imperative to push the task force to move in a quick and 

timely fashion, because in the interim between now and then, people are still being sentenced under the guidelines that were in existence, and there is a substantial disparity that continues to exist. 

That really wasn’t my primary line of questioning. 

Mr. HOLDER. I don’t disagree with you. This is a priority for me. 

And we want to try to get this done as quickly as we can. 

Mr. WATT. Let me go off on a subject that the Chair laid the 

foundation for because I do serve on Financial Services and on Judiciary, and last term of Congress actually chaired the Oversight 

Subcommittee on Financial Services and got a lot of public comment about who caused this meltdown and all this criminal activity 

that went on, and when are you going to have a set of hearings in 

the Oversight Subcommittee about how this occurred. 

I think there is a strong belief that something aggressive needs 

to be done to investigate and prosecute people who were part and 

parcel of creating the financial meltdown, creating the credit crisis 

that we are in. And while the Madoff case is a big public case, it 

is a separate kind of thing than the meltdown itself, although it 

was characteristic of what was going on in other elements of the 

financial services industry. 

I guess what I am more interested in is having some assessment 

of the number of cases that your Department is pursuing on an ongoing basis, because the last Administration basically devoted all 

of its resources to the terrorism front. We are not being critical of 

that. But virtually no resources were devoted to this, even though 

it was happening and playing itself out on their watch. 

Could we commit you to just give us regular updates on the number of cases—I know you can’t talk about the details of each case, 

but the kinds of cases that you are pursuing going forward? 

Mr. HOLDER. That is fine. I think that is a perfectly legitimate 

oversight question. I know that, for instance, the FBI has under investigation now—and I might be transposing numbers—either 

1,200 or 2,100 mortgage fraud cases. And that is the kind of information that we can share. And I will clear that up once I have had 

a chance to look at our materials, what that exact number is. With 

regard to the kinds of cases that we are looking at and the numbers of those cases, I would be more than glad to share that information with the Committee. 

Mr. WATT. Mr. Chair, let me make one other entreat to make 

sure. When you say ‘‘mortgage fraud,’’ a lot of the attention has 

31 

gone to the people who are the borrowers and their fraud in the 

process. That is a legitimate concern. But I want to make sure that 

your mortgage fraud universe includes the people that were fraudulently engaging in misconduct on the other side also. 

Mr. HOLDER. The focus of the FBI efforts, when I talk about that 

2,100 or 1,200, is really one of the lender; people who have done 

things in a fraudulent way with regard to lending money as opposed to those who might have done other things in trying to receive money. 

Mr. WATT. Thank you, Mr. Chairman, for your indulgence. I yield 

back. 

Mr. CONYERS. The Chair recognizes Bob Goodlatte of Virginia, a 

senior Member, former Chairman of the Agriculture Committee. 

Mr. GOODLATTE. Thank you, Mr. Chairman. And welcome, Attorney General Holder. 

I would like to ask you about the issue of the use of foreign court 

precedents in decisions in our Federal court system. A particular 

concern is with the Supreme Court. You may be aware that before 

he joined the Department of Justice, Deputy Attorney General 

Ogden represented the defendant in a landmark case of Roper v. 

Simmons, which ultimately held that the death penalty could not 

be used as punishment for criminals under the age of 18. In the 

brief filed by Ogden and others, he asserted that almost without 

exception the other nations of the world would have rejected capital 

punishment of those under 18. 

As the top ranking law enforcement official of the United States 

charged with upholding and defending the Constitution and advising the President of the legality of his actions, do you agree with 

Ogden that the Supreme Court should rely on the opinions of other 

nations when interpreting the U.S. constitution? And will you rely 

on the opinions of foreign nations and foreign bureaucratic tribunals when advising the President on the meaning of constitutional 

provisions? 

Mr. HOLDER. Well, I think—I don’t remember what the number 

was in that case, but at least a couple, I believe, of the justices who 

not necessarily relied on but certainly referred to—— 

Mr. GOODLATTE. They cited it in their opinion. You are correct. 

Mr. HOLDER. They referred to what the state of the law was in 

other countries. And it seems to me that taking into account what 

is going on in other countries is not necessarily a bad thing. I think 

we have to obviously rely—— 

Mr. GOODLATTE. In looking to the meaning of the Constitution, 

though, how could you look to the Constitutions or laws and interpretations of those laws by justices in other countries to find meaning in the U.S. Constitution? 

Mr. HOLDER. That is what I was going to say. But with regard 

to making determinations about what the state of the law in this 

country should be, the primary focus, the first place we go is the 

Constitution of the United States and the laws that you all, Members of Congress, have passed over the years. The notion of looking 

at foreign law, foreign customs, is something that I think can perhaps in some ways be useful but can’t be the primary focus for any 

kind of determination. 

32 

Mr. GOODLATTE. I know a number of the justices expressed some 

concern about that trend of citing foreign court precedents as well. 

But would you ever approve a Justice Department pleading that 

asked a court to rely on foreign laws and precedents in interpreting 

a provision in the United States Constitution? 

Mr. HOLDER. It is hard to answer that question in a vacuum. It 

would depend, I suppose, on the case. Again, my focus always 

would be on what is the Constitution saying, what do our laws say, 

what do we glean from the way in which this Nation has dealt with 

that issue? It may be that there is something about the way in 

which another country has done something—— 

Mr. GOODLATTE. Wouldn’t it undercut the legislative authority of 

the United States Congress and the actions of our executive branch 

and the appropriateness of the judicial decision making process to 

turn to the precedents of another country in telling our Supreme 

Court or lesser court how to interpret our Constitution? 

Mr. HOLDER. Again, I wouldn’t look toward foreign law to tell or 

ask the Supreme Court this is how you should interpret our Constitution based on what some other country has done. The primary 

focus has to be on what our Constitution says, how that Constitution has been interpreted, stare decisis, court opinions, what Congress has done. Those are the things that I think we have to focus 

on, and that has to be the primary emphasis for any position that 

the Department would take. 

Mr. GOODLATTE. Thank you. I would encourage you to take a 

strong stand. 

Let me move to another subject. As you may know, the Judiciary 

Committee has commissioned a task force to investigate the potential impeachment of Judge Thomas Porteous of the Eastern District 

of Louisiana. The gentleman from California, Mr. Schiff, is the 

Chairman of that task force. I am the Ranking Minority Member. 

Do we have your commitment to work with us in a timely fashion 

to investigate this matter? 

Mr. HOLDER. Yes. There are documents, I understand, that are 

contained in the criminal division of the Department of Justice, 

and we will work with you to make materials available so that you 

can do the duties that are incumbent upon you. 

Mr. GOODLATTE. Thank you. We are working in a very bipartisan 

fashion on this and attempting to take it very seriously. And the 

cooperation of the Justice Department which has investigated this 

situation is very, very important to the process of our undertaking 

this task force and determining whether impeachment is an appropriate step. 

And then lastly, let me ask you about section 642 of the Illegal 

Immigration and Reform and Immigrant Responsibility Act of 1996 

which bars State and local governments from restricting their law 

enforcement officers from communicating with the Department of 

Homeland Security about the immigration status of individuals. 

Despite this law, many so-called sanctuary cities continue to prohibit law enforcement from checking the immigration status of 

criminal aliens that they encounter. The results can be tragic. 

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cies. They were released back into society to murder American citizens. 

Is the Administration committed to enforcing section 642 and 

stopping cities from using these sanctuary policies to refuse to cooperate with law enforcement and the Immigration Service? 

Mr. HOLDER. Well, I think we have to look at—the immigration 

problem is one we have to look at holistically. We have substantial 

numbers of people that are in this country on an undocumented 

basis, because we have not come up with a policy that really deals 

with border security and deals with what the status is of those people who are presently here. 

Mr. GOODLATTE. But we very definitely come up with a very 

clear policy on the requirement that communities cooperate with 

the Department of Homeland Security in their investigation of 

criminal aliens and their access to information so that they can determine, when somebody is charged with a crime, whether they 

should be subject to deportation from the country, and other measures to protect society, and yet some cities are using their own internal policies to flout Federal law that requires their cooperation 

with the Department of Homeland Security and the question 

whether the Justice Department will work to enforce section 642 

and stop cities from using these sanctuary policies when it comes 

to the issue of protecting citizens from criminal aliens. 

Mr. HOLDER. The responsibility that I have as the chief law enforcement officer in this country—and I am very honored to have 

that position—is to enforce all the laws that are on the books. And 

that is obviously what we will do. But I do think, as I said, that 

one has to look at this immigration problem in its totality. And I 

think it is incumbent upon us as a Nation to try to deal with all 

of the issues that make up the immigration issues that we—— 

Mr. GOODLATTE. I agree with you. We do need to address a variety of immigration issues. But would you commit to enforcing the 

law as it pertains to something that the Congress has already 

passed and spoken on and signed into law by President Clinton to 

make sure that there is cooperation with law enforcement, to make 

sure that criminal aliens are not released back into communities to 

commit more crimes? 

Mr. HOLDER. As I said, as the chief law enforcement officer, I 

will be responsible for enforcing the law, do what I can to ensure 

that Federal laws are in fact enforced, use the resources that we 

have to do that. 

Mr. GOODLATTE. Thank you. I appreciate that answer, Mr. Chairman. Thank you very much. 

Mr. CONYERS. Zoe Lofgren, Chairwoman on the Committee of Immigration. 

Ms. LOFGREN. Thank you, Mr. Chairman. And it is good to see 

you, Mr. Attorney General. 

I would just note that I opposed the 1996 reform—so-called Reform Immigration Act. But 642 does not place an affirmative obligation on States and localities to enforce the immigration laws. 

There is a provision, however, I would like to talk to you about, 

287(g), which does allow localities at their option to enforce immigration laws, and it is within the Department of Homeland Security. But it involves your Department because there have been a 

34 

few problems. And I am aware that the Department is investigating a sheriff in Arizona for alleged civil rights violations. 

We recently had a hearing in the Subcommittee and heard a 

number of issues where Americans had been pulled over and harassed because of their ethnicity in an alleged immigration effort. 

What resources does the Department need to make sure that serious civil rights violation allegations are pursued relative to this 

program? 

Mr. HOLDER. Well, I think that the civil rights division is a division that needs additional resources, and in the 2010 budget there 

is a pretty substantial increase in the amount of money that will 

flow to the civil rights division to deal with the issues that you 

have talked about. The division has not gotten the attention that 

it has needed in the immediate past. There have been inspector 

general reports that have talked about the politicization of the division. It is a place that I spent a lot of time and a lot of energy and 

focused on it quite a bit to make it the civil rights division that, 

frankly, has existed under Republican as well as Democratic Attorneys General. And I want to return that division to its proud history. 

Ms. LOFGREN. That is very good news. I saw that the Depart- ment had requested $14 million for an additional 28 immigration 

judge teams, and I am glad that you have. 

I want to explore that further. We actually have one less judge 

today, immigration judge, than we had in the year 2002. And we 

have just had a very substantial increase, as you know, in activity. 

In fact, immigration judges on average receive 334,000 items a 

year. I mean, it was just stunning. Up from 290 in 2002 as compared to district court judges who get about 483 matters a year. 

Not to say that they are equivalent in terms of complexity, but I 

mean it is way off the charts. 

And some of the chief—well, the chief judge for the Second Circuit has said really that he thinks the number of judges, immigration judges, probably needs to be doubled. 

Are you planning a series of requests to get the personnel up to 

the numbers—the numbers up so they can actually handle these 

cases and give proper attention to each matter? 

Mr. HOLDER. There has been a budget increase, as you indicated. 

But I think that is something we will have to look at and make 

a determination about whether additional resources are needed, 

but really be pretty cold and calculating in trying to determine the 

number of matters that these judges are handling. These are obviously important matters, and we want to make sure that they are 

not working in a way that is—the way they are overburdened. 

The numbers you have cited are extremely striking and it may 

be that in the next year’s budget we will have to continue to give 

more resources to that area. 

Ms. LOFGREN. I would encourage you to do so unless there is a 

change in the volume. It is just impossible to pay attention to that 

many matters. 

Along those lines, former Attorney General Ashcroft purged 10 

members of the Board of Immigration Appeals and changed matters in an alleged streamlining effort which resulted in an explosion of appeals to the circuit courts. The circuit courts are very unVerDate Aug 31 2005 12:26 Jun 09, 2010 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6601 H:\WORK\FULL\051409\49682.000 HJUD1 PsN: 49682
35 

happy about this. As I am sure you are aware, they have just been 

swamped. 

Are you going to revisit the Board of Immigration Appeal’s socalled streamlining effort so that we can get proper attention paid 

to these matters and relieve the circuit courts? 

Mr. HOLDER. That is something that I want to look at. It is interesting that my chief of staff is the person who used to run that part 

of the Department. And I think in combination with him and others who are familiar with the needs of that part of the Department, 

we want to make sure that they are adequately funded, that there 

are sufficient numbers of judges, and that they are allowed to do 

the kind of job that we want them to do. That is something I expect 

we will be looking at. 

Ms. LOFGREN. Just before he left, Attorney General Mukasey advised in a January 2009 decision that, contrary to a long history, 

there was no constitutional or statutory right to effective assistance 

of counsel in immigration proceedings. It is a radical departure 

from the state of the law. 

I understand you had indicated an interest in revisiting that policy when you were before the Senate during your confirmation 

process. However, I am advised that Compean is still being cited 

by your lawyers in proceedings today, which is a problem. And we 

are going to end up with litigation around that. 

I am wondering, number one, when we will have your decision— 

I am assuming you will want to go back stare decisis—and if in the 

interim we couldn’t avoid future litigation by settling this with the 

Department’s lawyers? 

Mr. HOLDER. As I indicated during my confirmation hearing, we 

are looking at the decision that was made by former Attorney General Mukasey, and I expect that within a matter of—in a very, very 

short time, I will be issuing the decision I made with regard to 

what we ought to be doing in that regard. We have completed our 

review and we are just working on a release that I will be making 

very shortly. 

Ms. LOFGREN. All right. I have sent you two letters. I won’t go 

through them here today. One has to do with the situation in 

Postville in light of the unanimous Supreme Court decision relative 

to the identity theft issue. The other is a letter signed by a number 

of us in the House on the Wilberforce Act and the efforts that will 

be necessary to fully implement that act. And rather than go 

through them, I am just hopeful that we can get a positive response in the near future. They have just been sent recently. I am 

not complaining about the length of time, but I am eager to hear 

back from you. 

Mr. HOLDER. I will try to get a response back to you as quickly 

as I can. 

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

Mr. CONYERS. The gentleman from Ohio—Iowa. Steve King. 

Mr. KING. Thank you, Mr. Chairman. And I thank you, Attorney 

General Holder, for testifying before this Committee today. And I 

know that there were a lot of people on this panel looking forward 

to this, but I would have wondered if you were actually looking forward to it. 

36 

But I would like to first raise the issue—I have in my hands two 

letters that have been sent to you by Senator Sessions of Alabama, 

one dated April 2nd of this year, and the other one May 4th of this 

year, where he inquires as to your position on especially the 

Uyghurs, the 17 Uyghurs that have been brought up. 

He makes a point that in the case, the District of Columbia Circuit held in the case of Kiemba v. Obama—and that is a 2009 

case—that Federal courts lacked the constitutional authority to 

order the release of the Uyghur detainees into the United States, 

and that it also held that the power to order an alien held overseas, brought into the sovereign territory of a nation, and released 

into the general population has never existed. 

And so with regard to the 2003 case, this appears to overturn 

that 2003 case and put this back in, I will say, your responsibility 

on the Uyghurs. So I would ask you if you are prepared to respond 

to these letters today or if you would like to comment on these unanswered letters from Senator Sessions? 

Mr. HOLDER. I know I have signed or approved a response to at 

least one of the letters that Senator Sessions has sent to me. I am 

not sure if it is one of those two. He is right with regard to the 

Kiemba case, the court said that there was not a basis for the judiciary to order the executive branch to release people into the 

United States. By the same token, there is a court order that requires that either all or 17 of the Uyghurs have to be released, they 

cannot be considered—they cannot held. And as I indicated, the 

Bush administration had made that decision that with regard to 17 

of the Uyghurs, they would not be treated—as they called them— 

enemy combatants. 

Mr. KING. Then within the confines of the definition you have 

given, can you assure this Committee that the Uyghurs will not be 

released into the United States? 

Mr. HOLDER. At this point, we have not made any determinations, any final decisions as to what is going to happen with regard 

to any of the 241 people—— 

Mr. KING. Do you believe you have the power, then, to waive the 

Federal statute that prohibits them from being released into the 

United States that is the subject of this litigation? 

Mr. HOLDER. Well, Kiemba I think really just says that the 

courts cannot order the executive branch to release people into the 

United States. I am not sure the court went so far as to say that 

the executive branch did not have sufficient authority to bring people into the United States. I am not talking about the Uyghurs. 

Mr. KING. But I am asking if you believe you have the authority, 

then, to waive and bring them into the United States, the Uyghurs 

as an example? 

Mr. HOLDER. I think in a letter that I am sure that I think I approved that goes to Senator Sessions, it indicates that there is authority on the—the parole authority that I guess resides in the Secretary for the Department of Homeland Security, that there is a 

basis there for bringing people into the—— 

Mr. KING. The prohibiting statute would have to be waived, and 

we can go into the definitions a little deeper perhaps in a less formal fashion. I was interested in your testimony that you can look 

at the files of the 241 detainees and determine whether they are 

37 

terrorists. And I would ask you then how quickly you might be able 

to review those files; and when that task is accomplished, will you 

announce then to the public how many of the 241 are terrorists? 

Is that something you expect that could happen within the next 30 

to 60 days, since we know the clock is ticking on the January 22nd 

executive order? 

Mr. HOLDER. Believe me, I know better than anybody that the 

clock is ticking. We use this term ‘‘terrorist’’ I think in a way that 

is kind of explosive. It is incendiary. Our focus is on whether or not 

these people are going to present a danger to the American people. 

And that is what guides us, not necessarily how they are labeled, 

though I think there is a value in making a determination. 

Mr. KING. I thank you, Attorney General. And just a quick question as the clock ticks down. There has been a significant amount 

of controversy across this country with regard to ACORN. There 

have been at least investigations in at least 12 States, indictments 

that came down not just against their employees but against 

ACORN itself, in Nevada in particular, I believe also in Pennsylvania, perhaps other States—the hundreds of thousands of voter 

registration forms that are fraudulent, admittedly fraudulent by 

ACORN, and the roughly 8-plus billion dollars of Federal tax dollars that are available to ACORN today in part as they go forward 

with more of the same, as near as we can tell, plus being named 

as an organization to assist in the United States Census. 

Are you committed to those investigations and are you committed 

to reining in this organization that has been getting more and more 

Federal funding, even though the evidence out there is that they 

can’t be trusted with the integrity of the electoral process, let alone 

the Census and the redistricting? 

Mr. HOLDER. Well, I do not know the extent of any investigations 

the Department is doing into that organization. Clearly, if there is 

an investigation ongoing, I will support that. With regard to the 

running of the Census, that is something that Commerce will have 

to do. But I will try to get back to you with regard to whether or 

not—if I can—whether or not ACORN is under Federal investigation. I don’t know. 

Mr. KING. I would thank you on that and I hope the Chairman 

changes his mind on that. And again, I would yield back. 

Mr. CONYERS. Thank you. 

The Chair recognizes Bill Delahunt, former Massachusetts prosecutor and Oversight Subcommittee Chairman on Foreign Affairs. 

Mr. DELAHUNT. Welcome, Mr. Holder. We have heard some reference to the Uyghurs this morning. I think it is important to define the Uyghurs. And it is my understanding that it is a minority 

group that has existed in the past in the northeastern section of 

China. Is that your understanding as well? 

Mr. HOLDER. Yeah. The Uyghurs are from China. And the best 

indication that we have so far as we looked at their files, they went 

to Afghanistan not to take up arms against the United States—this 

is not to excuse that—but to oppose the Chinese Government. 

Mr. DELAHUNT. In fact, the truth is that they have been a suppressed and persecuted minority within China. Is that a fair statement? 

38 

Mr. HOLDER. That certainly is, I think, the view of the Uyghur 

population. They feel they have not been treated fairly by the Chinese Government. 

Mr. DELAHUNT. Have you come across reports that Uyghurs have 

been tortured and actually killed and murdered in Communist 

China? 

Mr. HOLDER. I have certainly seen reports that indicate that 

Uyghurs have not been treated—have not always been treated fairly or appropriately by the Chinese Government. 

Mr. DELAHUNT. In fact, some make the analogy between the Tibetans and the Uyghurs in terms of being persecuted for not just 

simply their political views, but because of their religious beliefs; 

is that a fair statement? 

Mr. HOLDER. I have seen reports of that as well. 

Mr. DELAHUNT. I would indicate to you that, in fact, it would appear to be the belief of the United States Congress, since there was 

a resolution that was passed encouraging a change in attitude and 

behavior by the Communist Chinese Government toward the 

Uyghurs, in the whereas clauses it listed, and enumerated major 

human rights violations directed against the Uyghurs. I think it is 

important to understand who the Uyghurs are. 

You indicated that it is not a threat to the United States. Now, 

I don’t know if you can say the same thing—maybe it is a threat 

to Communist China, I don’t know that, I don’t intend to waste 

my—spend my time defending the Chinese Communist regime in 

Beijing that has a human rights record that at best can be described as abysmal. 

What I am concerned about is the attitude of at least the previous Administration. The Chairman indicated that I chair Oversight on the Foreign Affairs Committee, my Ranking Member is my 

good friend and colleague, Mr. Rohrabacher. We have requested a 

visit to Guantanamo to actually interview the Uyghurs. And this 

was with the understanding that we will have secured releases to 

that effect. The previous Administration denied that request in our 

effort to secure the truth. And yet we discovered that it was the 

previous Administration that allowed Chinese Communist security 

agents to go to Guantanamo and interview the Uyghurs. Is this a 

policy that you intend to continue? 

Mr. HOLDER. Well, I am not aware of any requests that any 

Members of Congress have made to go to Guantanamo. And, obviously, we would look at that and make that determination. I am 

also not aware of any representative of foreign governments who 

have gone into the detention facility there. I am just not aware of 

that. 

Mr. DELAHUNT. Well, I would respectfully request that you review that. I would like to have a report back to this Committee, 

or at least to myself in my position as Chair of Oversight on Foreign Affairs, as to the rationale and the basis for the reported visit 

by Chinese Communist agents that were allowed to go to Guantanamo to interview Uyghurs that were detained down there. 

It is also my understanding that those that were detained there, 

again given the hostility that exists between the Uyghur community and the Chinese Communist Government, were told—were 

threatened and intimidated. I think it is important that we get 

39 

that information out into the larger context of the issue surrounding the Uyghurs. 

I just read recently where a former Speaker of the House of Representatives, Mr. Gingrich, suggested that the Uyghurs be returned 

to China. Can you tell me if that would be an appropriate initiative 

under our treaty obligations on the convention against torture? Because I would submit to you that undoubtedly they would be tortured and persecuted and most likely murdered if they were returned to Communist China. 

Mr. HOLDER. One of the things we have to do in trying to make 

these transfer-and-release determinations is where these people 

can be released to. Your initial reaction is always to return them 

to their home country. And yet as you indicate, one of the things 

we have to take into consideration is how would they be treated 

were they to be returned to their home country. 

I note that five Uyghurs have already been released in 2006, and 

those people were placed in Albania, which perhaps reflects an indication on the part of the prior Administration about the concerns 

that you raised. But it will not be the policy of this—— 

Mr. DELAHUNT. I would suggest, Mr. Attorney General, you contact the Albanian authorities and ask them what the response was 

from the Communist Chinese Government about the resettlement 

of those five Uyghurs, whom by the way I understand are doing 

very well in Albania; one of whom just recently was granted political asylum in Sweden. 

Mr. HOLDER. Right. One thing I would say with regard to the 

Guantanamo question, that is a facility that is run by the Department of Defense. And so in terms of access to Guantanamo, that 

is something that the Secretary of Defense or his subordinates 

would control. 

Mr. DELAHUNT. I would respectfully request that you contact the 

Department of Defense on behalf of myself and Mr. Rohrabacher. 

We would like to visit and interview those people ourselves. If the 

Chinese Communist agents can interview detainees at Guantanamo, then Members of the American Congress ought to. I can see 

my friend from Texas, Mr. Poe, agreeing by shaking his head. 

And with that I yield back. 

Mr. CONYERS. The distinguished gentleman from Virginia, Randy 

Forbes. 

Mr. FORBES. Thank you, Mr. Chairman. 

Mr. Attorney General, thank you for being here today. And I 

would like to revisit the Guantanamo issue again. I have heard 

some of your responses today. As I understand it, you mentioned 

that when you came over to the Department you realized there was 

a larger national security component, I believe you said, than when 

you left. One of the real issues is things changed quite a bit after 

9/11. And when you are looking at some of the detainees, your Department deals with a lot of knowledge and information. Some of 

that is evidence that is factually admissible in a court of law. There 

is a lot of other evidence that you have that are just bits and pieces 

and tidbits that help formulate your assessment of a particular security risk, 

The question for you is this: If you have a Guantanamo detainee 

and you determine from the information that is presented to you 

40 

that an individual or group of individual detainees would, in your 

opinion, pose a threat to the United States based on the totality of 

information you have, but you do not have adequate admissible evidence to accuse them of a crime, and no other country will take 

them, will you release them in the United States? 

Mr. HOLDER. We will not release anybody into the United States 

who we think would pose a danger to the American people. We will 

go through a process to try to make the determination as to who 

can be released, who can be transferred, who can be tried in a variety of places, either in Article 3 court, the military courts, or perhaps the military commissions, with the enhanced procedures that 

I have pretty consistently talked about. 

And then there is the potential for a third category of people 

who, for whatever reason, cannot be tried, but who we make the 

determination cannot be released because they pose a danger to 

this Nation. With all kinds of due process protections, it is entirely 

possible that we could end up with people in that third category. 

But we don’t know that yet. We are looking at—— 

Mr. FORBES. My question is simply this. You feel it would be appropriate, and it would be your position that if you could make a 

determination from the totality of evidence that you had, even 

though that is not evidence that would be admissible in a court of 

law to prove a crime, that you felt one of those detainees or a group 

of those detainees could pose a risk to the United States, you would 

continue to detain them? 

Mr. HOLDER. We are not going to do anything, anything, that 

will endanger the American people. We will use all the tools that 

we have. 

Mr. FORBES. Mr. Attorney General, I just respect—please understand that I respectfully am asking this question the best I can. 

But can you just give me a yes or no? If you determine, you determine and your Department determines, from the totality of evidence that you have, that that individual would pose a risk to the 

United States, to residents in the United States, but you do not 

have adequate evidence to be admissible in a court of law to prove 

a crime, do you believe it would be appropriate to continue to detainee that individual? 

Mr. HOLDER. I think that that possibility exists. That is what I 

was trying to say; that there is that third category of people who, 

if there were a sufficient basis for us to conclude that they posed 

a danger to the American people, to the United States, we would 

not release those people. 

Mr. FORBES. So again, would I be fair to say that you believe it 

would be appropriate if you made that conclusion from the totality 

of evidence that you had, that that individual could pose a risk to 

the United States, that you would continue to detain that individual even though you did not have adequate admissible evidence 

to convict them of a crime? 

Mr. HOLDER. If we had sufficient factual intelligence—I don’t 

know whatever quantum of proof, however you want to describe it, 

to believe that a person posed a danger to the United States, we 

will do all that we can to ensure that that person remains detained 

and does not become a danger to the American people. 

41 

Mr. FORBES. And all you can do, if you have the power to keep 

that person in detention and, and you conclude—you conclude—beyond a reasonable doubt in your mind, from the totality of evidence 

that you have, that that individual posed a risk to the United 

States, can you definitively tell us that it would be your position 

that they should be detained and no released? 

Mr. HOLDER. It is my definitive position that the American people will be protected. Somebody who poses a danger to the United 

States will not be released. I am answering your question directly—— 

Mr. FORBES. But I—— 

Mr. HOLDER. And I am giving you a direct answer. I am telling 

you that the people who pose a danger to the United States will 

not be released by this—— 

Mr. FORBES. Okay, then they will not be released. 

The second question I have as a follow-up, have you made, or 

your Department made, an assessment of the potential risk to localities if we relocate individuals here and put them in detention 

in the United States? 

Mr. HOLDER. We have not gone to that level of analysis because 

we have not made any determinations about where anybody is 

going to be placed. The focus of our emphasis at this point, 3 

months into this Administration, is to look at those 241 people and 

figure out who they are, and then what categories they can go into. 

Mr. FORBES. Mr. Attorney General, with all due respect, you are 

going to close it in 8 months, as I understand. And at this particular point in time, a lot of countries are saying we don’t want 

them. We don’t have exactly a great venue to send them other 

places, so it looks like they are coming to the United States, at 

least some of them. 

At this particular point in time, we haven’t even made an assessment of potential risk that might be posed to a locality if we do relocate them here; is that what you are saying? 

Mr. HOLDER. What I am saying is before any type of determination is made, whether a person is sent to France, Germany, all 

those kinds of things, information will be shared so that determinations can be made, assessments made. We would not foist upon 

anybody, any country, any locality—— 

Mr. FORBES. And the only one I am interested in is the United 

States. But at this particular point in time, we have not made an 

assessment of the risk those localities would face in the United 

States. That is what you are saying at this time. 

Mr. HOLDER. At this point we have not made that kind of determination because we have not had an ability yet to decide exactly 

who will be going where. 

Mr. FORBES. Thank you, Mr. Chairman. I yield back. 

Mr. CONYERS. The distinguished gentlelady from California, Los 

Angeles, Maxine Waters. 

Ms. WATERS. Thank you so very much, Mr. Chairman. I really 

do appreciate this hearing today. And I would like to welcome our 

new Attorney General, Mr. Holder. 

I would first like to thank him for the strong leadership that he 

has already demonstrated in taking this most important position in 

our government. I am particularly appreciative for the direction he 

42 

has signaled already on the crack cocaine issue and getting rid of 

those disparities. Many of us have been working for many years to 

try and deal with this, the Families Against Mandatory Minimums 

that works with me, and we hold a workshop on it every year, and 

one young lady who is in the audience, Ms. Taepa, who has spent 

countless hours working on this issue. And we are so pleased that 

you are there and moving in the right direction. 

I have a few other things I would just like to mention. I am sure 

that it has not come up today, but what you did with Senator Stevens’ case really does define your commitment to justice. It doesn’t 

matter—Democrat, Republican, whomever—have been denied justice. And with the withholding of information by the prosecution, 

you threw that case out. And I want you to know that that really 

is what justice is all about, and I appreciate it very, very much. 

And I hope the people of this country understand that it took 

courage to do that but you did it. But you are here today and let 

me just ask you about a few other things. 

I am very concerned about police misconduct. The last time the 

FBI came, there were 857 cases, 34 of them in Los Angeles. We 

really don’t find out what the outcome is of these police misconduct 

cases. And I am just wondering if there is some way we could get 

updated. I don’t know if anybody else is interested, but my staff 

certainly would like to have the opportunity to get with whomever 

you identify and help us to understand what happens to these 

cases. 

Mr. HOLDER. That is a difficult thing. Once an investigation is 

opened, it becomes difficult to share information outside the Department. But to the extent that we can, you know, we will try to 

do so. I understand your frustration, though, where an investigation is open, perhaps charges are brought or reforms are required, 

but then there are other instances where the case simply seems to 

go away, it gets closed. 

To the extent that we can come up with a mechanism to make 

you and the members of the public and certainly the members— 

the citizens of the locality where the police department is being investigated, to the extent that we can share that kind of information, I will try to find ways in which we can do that, while protecting privacy interest that might exist with regard to specific individuals. 

Ms. WATERS. I appreciate that. I am particularly interested in 

the city of Inglewood where we have made countless attempts to 

have an investigation, and thankfully since you have been there 

there is an investigation going on. And we would like to follow it 

as much as we can, with whatever way that you can share information or whatever. We will be trying to do that. 

Let me just go into mortgage fraud. As you know, some of us that 

have been working on the Financial Services Committee dealing 

with predatory lending, mortgage fraud and the subprime meltdown have discovered there was a lot of fraud that was going on 

by the loan initiators and sometimes by the recipients, the homeowners. But we have seen cases where incomes were inflated and 

that information was placed on the applications without the homeowner’s knowledge, and on, and on, and on, and it just falls 

43 

through the cracks. We see it when we are working loan modifications with the services. 

I understand you are not going to do a task force. But can you 

do something to work with the city attorneys who are trying—who 

have very little resources—to help us deal with this mortgage 

fraud? 

Mr. HOLDER. Yeah. Actually, we are going to be rolling something out pretty soon with regard to how to approach this whole 

question of financial fraud, and a component of that will certainly 

be mortgage fraud and how we are going to be dealing with that. 

And we will be working with our State and local partners in that 

regard. 

Earlier I had said I wasn’t sure about the number of mortgage 

fraud cases that the FBI had under investigation. I wasn’t sure if 

it was 1,200 or 2,100. Just for the record, it is 2,100 cases that the 

FBI has under investigation now. In order for us to be effective in 

those mortgage fraud cases, we need something that is going to be 

pretty extensive and that also involves people at the State and 

local levels. And our hope is—our intention is to work with them. 

Ms. WATERS. Thank you. 

And finally on the crack cocaine issue, I will get back to it. I 

would not like you to answer this, but would you consider taking 

a look at the possibility of pardons for some people who have been 

sentenced under these crack cocaine laws, particularly those who 

have never been involved in crime before, this is a first time offense, have good backgrounds, come from, you know, environments 

with supportive parents and all of that—don’t answer now—will 

you take a look at the possibility of considering this for recommendation to the President of the United States? 

Finally U.S. attorneys. Many jurisdictions are waiting desperately to see what is going to be done. As we understand it, the 

protocol has been that U.S. attorneys would hand in their resignations and would give the new Administration an opportunity to 

make new appointments. We don’t see that happening quite fast 

enough and there are many of these jurisdictions where there are 

real complaints against U.S. attorneys, such as in Louisiana, Mississippi, Alabama. What are you doing about that and how fast are 

you going to move on that? Or have you changed how it is normally 

done? 

Mr. HOLDER. No, we are working as quickly as we can to put new 

U.S. attorneys in place. I expect that we will have an announcement in the next couple of weeks with regard to our next batch of 

U.S. attorneys. I have met with some of the candidates whose 

names I expect we will be announcing pretty soon. They came to 

Washington as part of the process. And so we will have our people 

in place, I think, relatively soon. 

One of things we didn’t want to do was disrupt the continuity of 

the offices and pull people out of positions where we thought there 

might be a danger that that might have on the continuity—the effectiveness of the offices. But it is our intention—elections matter— 

it is our intention to have the U.S. attorneys that are selected by 

President Obama in place as quickly as we can. As I said, our first 

batch will be announced very, very soon. 

44 

Ms. WATERS. I thank you very much. I would just like to say 

there is a danger with some of them being left there, so whatever 

you can do to move them, we appreciate it. Thank you. 

Mr. CONYERS. The Committee will once again stand in a brief recess. 

[Recess,]. 

Mr. CONYERS. The Committee will come to order. The Chair recognizes Dan Lungren, its only ex-attorney general, from California. 

Mr. LUNGREN. Thank you very much. I appreciate that. 

Mr. Attorney General, it is good to see you. I haven’t seen you 

since Selma, Alabama. 

Mr. HOLDER. It has been a while. Good to see you. 

Mr. LUNGREN. I also appreciate the statement that you had on 

page 7 when you talked about the Fraud Enforcement Recovery Act 

which had the language on money laundering that I authored; and 

also the False Claims Act which I think should be a bipartisan approach, starting with the Lincoln law and then becoming the 

Reagan alteration of that when that was necessary, and now. 

But let me get into a couple of other areas of serious concern of 

mine. One following on the questions of Mr. Forbes—and I know 

what your statement is now, and I am not going to ask you to reiterate that—that you believe that you should take all action to ensure that those who pose a threat to the United States who are 

now in Guantanamo would not be released. 

However, if we remove them from Guantanamo and they come 

to the United States, other countries are not accepting them—for 

whatever reason they come to the United States—as you know, 

their being in the United States gives them an attachment to the 

Constitution that they might not otherwise have, and arguably 

they may have the full panoply of constitutional rights. 

That means there is a conceivable scenario in which you would 

take the position, the Administration would take the position that 

people that you have incarcerated in some State in the United 

States, have been coming from Guantanamo; that they are a clear 

and present danger to the United States. But that would be subject 

to a Federal court review, a Federal court review leading to a Federal judge issuing an order that they be released. 

Under those circumstances isn’t it correct under the law that you 

would have no recourse but to release them? 

Mr. HOLDER. It would seem to me that there are a couple of 

things there that I think are kind of missing from the question. 

The first is that we would work with Congress I think to come up 

with a scheme, the means by which we would do anything with regard to the basis for the detention of these people. 

Mr. LUNGREN. You don’t disagree in my argument, though, that 

having them on U.S. soil at least gives them a stronger opportunity 

to argue that they have the full panoply of constitutional rights visa-vis not being held in the United States. At least that has been 

the traditional of the Federal courts, correct? 

Mr. HOLDER. Well, I think they can certainly argue that. But I 

think if you also look at the way in which the courts have progressively dealt with detainees at Guantanamo, the progression there 

was pretty obvious. Although they were not on American soil, they 

45 

were getting more and more rights given to them, starting with habeas and cases like that. 

Mr. LUNGREN. We eliminate that by bringing them to the United 

States, correct, as opposed to staying Guantanamo? 

Mr. HOLDER. I am not sure about that. I am not sure. 

Mr. LUNGREN. Well, they certainly don’t have a weakened position, do they? 

Mr. HOLDER. Put it like this. There is certainly an argument a 

lawyer is going to be able to put in a brief, I suppose. Yeah. 

Mr. LUNGREN. Okay. So you will make every effort you can to 

make sure they are not released, but still you are subject to the authority and direction of the United States courts all the way up to 

the Supreme Court, correct? 

Mr. HOLDER. Yes, as is true now. I mean, we have a district 

court—or I guess we have a court decision now that is indicated— 

for instance, we were talking earlier about the fact that the 

Uyghurs have to be released. 

Mr. LUNGREN. Right. As so you make judgments as to whether 

appeals should be brought when you have things like that, correct? 

Mr. HOLDER. Yeah. I mean, we certainly appealed the decision 

made by district court here, I think, in the District of Columbia, 

that they had to be paroled or had to be placed in the United 

States and that resulted in the Kayumba opinion. 

Mr. LUNGREN. Well, let me ask this question then. The President 

of the United States just made a determination I think it was 

today or yesterday, that he does not believe we ought to release 

pictures showing presumably inappropriate activity by American 

personnel with respect to prisoners that we have held in Guantanamo and other places. And yet it is my understanding that is in 

response to an appellate court decision that you, or at least your 

Department, had made a determination you would not appeal; is 

that correct? 

Mr. HOLDER. I think that what we had made the decision to do 

was before the President had had the opportunity to sit down and 

have, I think, the in-depth conversations that he obviously had 

with the field commanders. And on the basis of his determination 

that it would place our troops at risk, we have now taken a different position in court. 

Mr. LUNGREN. So the original position was not to take an appeal; 

is that correct? 

Mr. HOLDER. I think that is technically right. I am not sure, but 

now—— 

Mr. LUNGREN. Would it be appropriate for us to ask if we could 

see the internal Justice Department memorandum with respect to 

that decision? 

Mr. HOLDER. To not? 

Mr. LUNGREN. Would it be appropriate for this Committee to ask 

that Congress have an opportunity to view the internal Justice Department memorandum which led to the decision not to appeal? 

Mr. HOLDER. I will say as a matter of course that I want to work 

with this Committee, but I have great reluctance in saying I will 

share internal Justice Department memoranda that deal with decision making in particular cases. 

46 

Mr. LUNGREN. Okay. You have made the statement publicly that 

you believe that waterboarding is torture; is that correct? 

Mr. HOLDER. That is correct. 

Mr. LUNGREN. If that is the case, is it currently the position of 

the United States when we submit our Navy SEALs and other special operations military personnel to waterboarding as a part of 

their training, that we are currently subjecting them to torture? 

Mr. HOLDER. No, that is not—not in the legal sense. I think that 

is a fundamentally—fundamentally different thing. We are doing 

something for training purposes to try to equip them with the tools 

to perhaps resist torture techniques that might be used on them. 

There is not the intent to do that which is defined as torture, which 

is to inflict serious bodily or mental harm. It is training, it is different. 

Mr. LUNGREN. My question is: If we are causing them to undergo 

waterboarding, even under the guise of training them, aren’t we 

subjecting them to torture if you have defined waterboarding as 

torture? 

Mr. HOLDER. No, it is not torture in the legal sense, because we 

are not doing it with the intent of harming these people physically 

or mentally. All we are trying do is train—— 

Mr. LUNGREN. So it is the question of intent? 

Mr. HOLDER. Intent is a huge part. 

Mr. LUNGREN. If the intent was to solicit information but not do 

permanent harm, how is that torture? 

Mr. HOLDER. Well, one has to look at—it comes down to a question of fact as one is determining what is the intention of the person who is administering the waterboarding. When the Communist 

Chinese did it and when the Japanese did it and when they did it 

in the Spanish inquisition, we knew then that that was not a training exercise they were engaging in. They were doing it in a way 

that is violative of all the statutes that recognize what torture is. 

When we are doing it to our own troops to equip them to deal with 

an illegal act, that is not torture. 

Mr. LUNGREN. So the context is important? 

Mr. HOLDER. Well, context is important; but it is not context, it 

is what is the intention of the person who is administering the 

technique. 

Mr. LUNGREN. I think my time is up. I appreciate it. 

Mr. COHEN. [Presiding.] Thank you sir. I hope you don’t consider 

the water that we put next to you some type of intimidation. 

Mr. HOLDER. As long as it is not poured down my nose, I think 

I am okay. 

Mr. COHEN. I will recognize myself for 5 minutes. It is my turn 

in the questioning. 

I am very concerned about racial and ethnic disparities that exist 

in the criminal justice system. And I was pleased to see you raised 

this in your testimony. As you noted, these disparities are eroding 

public confidence in the system, not to mention causing injustice, 

which is the most serious grievance. 

I was pleased the Department is convening a working group on 

sentencing policy, which I think will be very valuable. But I think 

it is much larger than simply sentencing. Disparities exist in law 

47 

enforcement policies and prosecutorial decisions and other aspects 

of the criminal justice system as well. 

Shouldn’t we be engaging in a full-scale review of the entire Justice system and not simply the sentencing portion? 

Mr. HOLDER. Well, I want to do that which I think is possible. 

My time as Attorney General is limited. And there are priorities 

that I think we have to set. That does not mean, however, that I 

don’t agree with you that we as a society have to focus, I think, 

on the larger questions that you raise to ensure that our criminal 

justice system, viewed in its entirety, is perceived as fair and actually is fair. 

I tried to chop off those parts that I think we can get done during 

the time that I am Attorney General. 

Mr. COHEN. Possibly this Committee could look at some of those 

other factors and we could work hand in glove. I hope that we can, 

and that won’t be looked as ‘‘render unto Caesar,’’ et cetera, and 

we will work together. 

Mr. HOLDER. I will be glad to work with you on that. 

Mr. COHEN. Thank you, Mr. Attorney General. 

The issue of deferred prosecution is one that comes within the 

bailiwick of my Subcommittee, Commercial and Administrative 

Law, and also is one that comes to me as an attorney and as one 

who has a company within my district that has been the subject 

of one of the major deferred prosecution cases in New Jersey, in the 

medical field. 

Many issues have been raised. The New York Times had an article by Mr. Ashcroft, I think on the 5th of this month, and there 

were three letters to the editor on the 11th of May really condemning this practice. And it raises many issues. 

And I guess the big issue I would like to ask you is: Do you plan 

to continue this policy of having deferred prosecutions and having 

what I understand the benefits are to corporations, but also it is 

a double—it seems like a double type of justice where corporations 

get to continue on and not have to plead guilty, while individuals 

get sent to the gulag. 

Mr. HOLDER. Well, I think we want to keep open to ourselves the 

full range of tools that we have in dealing with corporate wrongdoing. Very frequently if you prosecute a corporation, you end up 

punishing innocent people who did not engage in that wrongdoing; 

shareholders, other employees. And so I think you want to have a 

full range of possibilities. 

There are guidelines that we have in the United States Attorneys 

Manuals as to when a deferred prosecution or a decision not to 

prosecute is appropriate. And as long as we follow those guidelines, 

I think it is good to maintain that tool. 

Mr. COHEN. Are those the guidelines that were issued in August? 

Mr. HOLDER. I am not sure exactly when they issued, but they 

reside in the U.S. Attorneys Manual. 

Mr. COHEN. I think Mr. Mukasey had something in August that 

was certainly an improvement on deferred prosecutions. How is it 

determined on who gets to be the prophet of the monitor? The monitors have been very lucrative. And Mr. Christie, I think, a former 

attorney general in New Jersey, who was, I think, was one time 

hired by Mr. Ashcroft, employed Mr. Ashcroft. And Mr. Ashcroft’s 

48 

bill in that case came to, I believe, $54 million—$52 million for 

Zimmer Holdings in the case where he was appointed. 

Should there not be some type of neutral and detached individual 

to oversee and to act as an ombuds-type person to make sure that 

the corporation isn’t subject to any type of charges that may be levied by these monitors? 

Mr. HOLDER. Well, typically, the person who makes the decision 

is the person who was in charge of the case, perhaps the U.S. attorney, maybe the head of the criminal division at the Justice Department, but ultimately it seems to me the Attorney General is responsible for who is picked. And so I think that to the extent that 

we have concerns about who is being picked as a monitor, what 

charges the monitor is incurring, it is incumbent upon me to investigate, to look into those things and to come up with systems so 

that we ensure that we are picking the right people and they are 

acting in an appropriate way. I mean, this is something that you 

raised with me earlier. And I think the concern that you raised is 

a legitimate one and one that I will look into. 

Mr. COHEN. I have a bill, I am an original cosponsor of H.R. 

1947, the Accountability in Deferred Prosecution Act of 2009. It requires among other things that the Department use guidelines providing for judicial oversight of the agreements. And I think that is 

a really important thing to have the judiciary involved, and it requires public disclosure of deferred prosecution agreements and 

any agreement or understanding between independent monitoring 

and the organization monitors. 

So the Department would support that, I presume, because it 

promotes transparency, uniformity, and accountability in deferred 

and non-prosecutions? 

Mr. HOLDER. Well, I want to look at the bill and will work with 

you on it. I wouldn’t want to preclude or in any way circumscribe 

the ability of the Department to be as creative as we can in formulating or using these tools. 

Mr. COHEN. The New York Times reported in May that 30 of the 

41 monitors appointed in deferred prosecutions since 1994—which 

goes back to the time I guess when you were at the Justice Department with Mr. Clinton—were government officials, and 23 were 

prosecutors. 

Why is it the former prosecutors and government officials are 

more likely to be named monitors and receive lucrative monitoring 

contracts? Should that be the case? 

Mr. HOLDER. I don’t think—that is an interesting statistic, one 

that I was not aware of. I don’t think we should be favoring one 

class of person, one class of lawyer over another. On the other 

hand, it may be that people who have—you want people who have 

the relevant experience, knowledge of the industry. So I think you 

want to look for people who are qualified, people who are going to 

understand the serious nature of their jobs. But I do not think that 

we should kind of reflectively look to one group of lawyers or a 

group of lawyers who have only one kind of professional experience. 

Mr. COHEN. And let me ask you one last question. The hate 

crimes law which has passed through this Committee, there have 

been questions posed as to whether or not it could in any way infringe upon a minister’s ability to preach against sexual conduct, 

49 

particularly homosexuality or other sexual conduct they may find 

abhorrent. 

Is there anything in the bill that you have seen, or any time in 

history of hate crimes laws that have been on the books for years, 

and decades and decades, even involving sexual orientation, that 

have ever seen a preacher taken for his words and prosecuted; or 

for that matter, during the civil rights days, when preachers used 

to preach against civil rights or against integration or for integration or against Loving v. Virginia and all that? 

Mr. HOLDER. I am not aware of anything like that. And obviously 

there are first amendment issues that you run into when you come 

to making those kinds of determinations. You also have to have 

prosecutors who are going to use the tools that are given to them 

in an appropriate way. Prosecutors have a great amount of discretion. But just looking at the statutes that I think the House has 

passed and the Senate has passed, I don’t see that situation that 

you have described as being problematic. 

Mr. COHEN. First amendment, that is good. Thank you, sir, Mr. 

Attorney General. 

The gentleman from Texas State, a distinguished former judge, 

is recognized. Mr. Gohmert. 

Mr. GOHMERT. Thank you. And I appreciate that, and thank you 

for subjecting yourself to this torture. The intent is not to torture 

you there, so apparently it is not. 

I will follow up on the hate crime issue. You are aware of 18 

U.S.C. 2(a) that basically says if you aid, encourage, induce someone to commit a crime—‘‘induce’’ is one of the verbs in that statute—then you are as guilty of the crime as the one who actually 

committed it. You are familiar with the law of principle surely? 

Mr. HOLDER. Yes. 

Mr. GOHMERT. And so you may not be aware, but after the Matthew Shepherd killing, in which I would have been open to the 

death penalty as appropriate in that case, but they got life sentences, so there is nothing the hate crime bill proposed would do 

to affect that case, or the James Byrd case where the two main 

guys got the death penalty. But after the Matthew Shepherd case, 

there were mainstream media people like James Dobson who had 

said homosexuality was wrong, had actually—and they used the 

word ‘‘induced’’ this crime. 

So it is possible, and even under the definition or the provision 

in the hate crimes bill that says you can’t use constitutionally protected speech in a prosecution under this act, there is a comma, 

and it says unless it applies to the underlying offense. 

If the underlying offense is inducing someone to commit the 

crime, then certainly a preacher’s sermons would be used in evidence if it was deemed by the prosecutor that that was evidence 

that he induced someone to commit a crime, correct? 

Mr. HOLDER. It seems to me that that inducement is a little attenuated. The notion that you would go after - the prosecutor 

would go after a preacher who was saying things that I would not 

agree with, hateful things about somebody’s sexual orientation, I 

don’t see how that in and of itself is going to be enough to bring 

that—— 

50 

Mr. GOHMERT. Even if the shooter said, I was induced by the 

preacher telling me these things in his sermon, and even if the sermon were based on the Bible, the Tanaka, or the Koran. 

Mr. HOLDER. Again, that seems a little attenuated to me. 

Mr. GOHMERT. But it could happen, couldn’t it? 

Mr. HOLDER. It is hard for me to imagine a fact situation where 

that could happen. 

Mr. GOHMERT. So you are saying as Attorney General there is 

not a case where you could see use of 18 U.S.C. 2(a) against anyone 

who is alleged to have induced someone else to commit a hate 

crime? 

Mr. HOLDER. I am not saying that at all. If somebody is on the 

scene, for instance, and says get that, use a negative word, and kill 

him, shoot him, do that, that is a fundamentally different thing 

than a preacher expressing a religious view on a Sunday. 

Mr. GOHMERT. So someone would have to be on the scene before 

you would use the law of principles? 

Mr. HOLDER. No, I am not saying you would have to be on the 

scene. 

Mr. GOHMERT. You said on the scene. 

Mr. HOLDER. I gave that as an example. Just an example. There 

are a variety of ways in which speech can be used to induce crimes 

that might be criminally cognizable, but the example that was 

used—— 

Mr. GOHMERT. Well, the example I used is the one I am asking 

about. And if you wanted to determine whether a preacher did induce someone, you would have to subpoena sermons and see if 

there was language that you felt was inflammatory enough to induce someone to commit the crime, correct? 

Mr. HOLDER. It might be as part of the case that you were bringing against the person who actually committed the act, and you 

wanted to show the intent. 

Mr. GOHMERT. Now you are back to—but I am not talking about 

them, I am talking about one who may be considered an investigative—or inducing another to commit a hate crime. 

Mr. HOLDER. As I said, I just—I find it hard to believe that a 

good prosecutor would go after a preacher on a Sunday, spewing—— 

Mr. GOHMERT. So you are not aware of preachers being arrested 

in Norway for supposedly using language from the Bible about homosexuality? You are not familiar with that? 

Well, let me move on. In your testimony you said that you are 

establishing direct ties and personal relationships so that our counterpart law enforcement agencies may use them, talking about foreign legal policies and procedures. Are foreign law enforcement 

going to be allowed access to our FBI files? The procedure you are 

talking about here? 

Mr. HOLDER. We share intelligence with our foreign counterparts 

on a regular basis. 

Mr. GOHMERT. But my question is about the FBI files. I just 

don’t know the extent to which you are willing to share. 

Mr. HOLDER. There is information that comes from the FBI that 

we share with our allies and with our foreign law counterparts on 

51 

a regular basis; not only intelligence but other law enforcement information. 

Mr. GOHMERT. Well, I was just trying to determine what the pronoun ‘‘them’’ included, when you may use ‘‘them,’’ what records 

that includes. You are saying they are not going to come in and peruse the FBI files; you will provide them just such information as 

necessary, correct? 

Mr. HOLDER. Yeah. Typically we don’t let law enforcement people 

from other countries, or even from other States or from State and 

locals, come in and just look at files at the FBI. We make determinations as to what we can share with them. 

Mr. GOHMERT. And I ask for unanimous consent for the extra 21⁄2

minutes, like the Chairman had, for one more question? 

Mr. COHEN. With unanimous consent, I will give you an extra 30 

seconds like the Chairman had. It is the former prosecutor from 

California who had the extra 21⁄2 minutes. 

Mr. GOHMERT. Whether waterboarding is torture, you say, is an 

issue of intent. If our officers, when waterboarding, had no intent 

to do permanent harm, and in fact knew absolutely they would do 

no permanent harm to the person being waterboarded, and their 

only intent was to get information to save people in this country, 

then they would not have tortured under your definition; isn’t that 

correct? 

Mr. HOLDER. No, not at all. I mean, it depends—intent is a fact 

question; it is a fact-specific question. 

Mr. GOHMERT. So what kind of intent were you talking about? 

Mr. HOLDER. Well, what is the intention of the person? In doing 

the act, was it logical that a result of doing the act would have 

been to physically or mentally harm the person? 

Mr. GOHMERT. I set that out in my question; the intent was not 

to physically harm them, because they knew there would be no permanent harm; there would be discomfort, but no harm, they knew 

that for sure. So is the intent—are you saying it is in the mind of 

the one being waterboarded, whether they felt they were being tortured, or is the intent in the mind of the actor who knows beyond 

any question that he is doing no permanent harm, that he is only 

making them think he is doing harm? 

Mr. HOLDER. The intent is in the person who would be charged 

with the offense, the actor, as determined by a trier of fact looking 

at all of the circumstances. That is ultimately how one decides 

whether or not the person has the requisite intent. I mean, I am 

speaking to a judge so I say that with due respect. 

Mr. GOHMERT. But—I am speaking to the Attorney General with 

complete respect—but you know that prosecutors bring cases to 

grand jury, so it is what is the intent of the prosecutor as far as 

going forward. And if it is your intent that someone has to believe 

that they are doing harm to someone in order to be torture, then 

if your intent—and in fact you knew without any question there 

was no harm being done, then there is no torture, correct? 

Mr. HOLDER. No, I wouldn’t say that. You know—— 

Mr. GOHMERT. Then what was the intent? 

Mr. HOLDER. You can delude yourself into thinking that what I 

am doing is not causing any physical harm or is not causing any 

mental harm. And somebody, a neutral trier of fact—— 

52 

Mr. GOHMERT. I didn’t say mental harm, because you want them 

to think that there is harm. 

Mr. HOLDER. Physical harm. For that matter. You can think that 

that, in fact, is what you were trying to do or trying not to accomplish. And, in fact, a trier of fact could look at that and make the 

determination that in spite of what you said, that what you have 

indicated is not consistent with the facts, not consistent with your 

actions, and therefore you are liable under the statute for the harm 

that you caused. 

Mr. GOHMERT. Thank you, Mr. Chairman. I feel sorry for our 

guys out in the field trying to discern their actions based on what 

you just said. Thank you, though. 

Mr. COHEN. You were accurate, I went 21⁄2 minutes and you went 

31⁄2, so we went beyond fairness. 

Mr. HOLDER. One thing, just to respond, I mean, the concern you 

raise is a good one in the sense that we want to make sure we are 

clear with those men and women who serve us in the field, that 

we are clear to them about what the standards are and what we 

expect of them. And I think that is one of the reasons why President Obama, early on, ruled off the table certain interrogation techniques. And we have tried to be very clear about the way in which 

we would view their conduct so that they would have an ability to 

know what is on the right side and what is on the wrong side. So 

we tried to be clear. 

Mr. COHEN. The gentleman from the broad shoulder city is recognized, Mr. Quigley. 

Mr. QUIGLEY. Thank you. The President’s hometown. 

Mr. HOLDER. That would be correct. 

Mr. QUIGLEY. An issue of great interest to my hometown, the 

President’s hometown, gun violence, particularly as it relates in recent days, recent months, automatic weapons. So this harkens back 

to I believe was your February statement relating to the interest 

and reinstituting the ban on assault weapons. 

Can you tell us if you know where the sequencing is as you made 

reference to at this point? 

Mr. HOLDER. Well, I think that what we want to do is look at 

all the ways we can reduce gun violence in this country. One of 

things I think that we have done in our budget is to give our State 

and local counterparts really sufficient amounts of money so that 

they can enforce their laws. We want to share information, we 

want to enforce the laws that we have on the books. I think there 

are a whole variety of ways we can get at the problem of gun violence. And we are determined to do that in conjunction with our 

partners and in conjunction with Members of Congress. 

Mr. QUIGLEY. There is still an interest out there to address assault weapons in particular. 

Mr. HOLDER. Well, I mean we have to look at those tools that are 

being used by criminals and try to come up with ways with which 

we keep guns out of the hands of criminals, certainly guns that are 

flowing into Mexico; assault weapons, we have to figure out ways 

in which we stop that. I mean, there is a particular problem in Chicago just from what I see on the television about young people who 

are the victim of gun violence. And I think we have to look at what 

53 

is driving that issue, that problem in a particular city, and then 

come up with ways in which we deal with that. 

Mr. QUIGLEY. You mention Mexico and, again, the Secretary of 

State talked about the violence as it relates to Mexico and the 

United States in terms of the insatiable use of—demand for drugs 

in this country, and the fact that most of the crimes that are taking 

place in that confrontation are purchased here in the United 

States; obviously, a second purchaser, or an automatic weapon that 

has been passed on. So I am just not sure if the general notion of 

keeping it out of people’s hands is going to do it. If you can buy 

machine guns, they are going to get down there. 

Mr. HOLDER. You mean in Mexico? 

Mr. QUIGLEY. If you can buy them here, they are going to be— 

that is where they are coming from. So if you can buy automatic 

weapons here in the United States, they are going to be in Mexico 

and they are going to be used against our citizens as well. 

Mr. HOLDER. Yeah. At least some of the research indicates that 

store purchasers purchase these weapons and then transfer them 

in some form or fashion. The Department of Homeland Security is 

working with our Mexican counterparts, as well as the Justice Department, to come up with ways in which we monitor the traffic 

from the United States to Mexico. 

We think a large number of these weapons are carried in cars, 

and there are tools that DHS has that are going to be employed 

at the border crossings to try to make determinations as to what 

is actually in these cars, have the ability to inspect them. 

And so we have also moved resources, ATF agents, to the border, 

100 or so, in an attempt to stop that flow of weapons into Mexico. 

Mr. QUIGLEY. I appreciate that. 

I guess, in conclusion, to the extent the President can help push 

toward a reinstitution of the ban on assault weapons, automatic 

weapons, we in Chicago would appreciate it. 

Thank you for your time. I yield back my balance. 

Mr. COHEN. I now recognize the other distinguished jurist from 

the State of Texas—that is just the way it is—Mr. Poe. 

Mr. POE. Thank you, Mr. Chairman. And there are probably only 

two distinguished jurists in Texas, be that as it may. 

Thank you, Mr. General, for being here. I have been to Guantanamo Bay I know you have been as well, and seen the prison there. 

I tell you this. There are Texas sheriff’s that wish they had that 

type of facility in their jail because of the way that inmates seem 

to have amenities that aren’t in other places in the State. 

Have any States asked you to send detainees from Guantanamo 

to their State? 

Mr. HOLDER. Not that I am aware of. 

Mr. POE. Have any told you, don’t let them come to our State? 

Mr. HOLDER. I think I might have read some things in the newspaper. I am not sure about—I have not had any official—anything 

officially sent to me, but I think I have read things in the newspapers about that. 

Mr. POE. But you don’t know of any States that want detainees 

from Guantanamo Bay? 

54 

Mr. HOLDER. I have not asked or talked to any Governors or Senators or Congressmen. I know that there are a fair number of 

Members of your party who have indicated what their desires are. 

Mr. POE. But nobody has told you that they want them? 

Mr. HOLDER. I am sorry? 

Mr. POE. Nobody has told you they want them. No State, no official, nobody, no government agency has said let them come to our 

place. 

Mr. HOLDER. No, I have not asked anybody that question. 

Mr. POE. And no one has volunteered that information. What is 

your personal definition of a terrorist? 

Mr. HOLDER. That is an interesting question. I guess a person 

who uses violent means to inflict harm upon innocent people or 

uses the threat of violence to achieve unlawful ends. With a little 

more time, I would probably come up with a better definition, but 

I think that is about the way I would describe a terrorist. 

Mr. POE. Okay. I would request that you come up with your definition and submit it to the Chairman of the Committee. 

Mr. HOLDER. That is fine. 

Mr. POE. Thank you. 

Last month several top secret security papers were released to 

the public, and apparently in them we learned that Khalid Sheikh 

Mohammed, the 9/11 individual, after being waterboarded, started 

talking. And he claimed that there was going to be an airplane 

cash into a skyscraper in Los Angeles; disclosed a 17-member terrorist cell; and he also talked about a terrorist cell in New York 

plotting to destroy the Brooklyn Bridge; is that correct? Is that information correct? 

Mr. HOLDER. I feel a little uncomfortable. I don’t necessarily 

think I am in a position, given the forum in which we are open, 

to answer questions that might involve the disclosure of classified 

information. 

Mr. POE. Well, somebody disclosed this information. I read this 

in the Washington Post. 

Mr. HOLDER. Well, someone probably shouldn’t have. 

Mr. POE. That is a different issue. 

If that information is true, and he started talking only because 

he was waterboarded, do you think maybe waterboarding was a 

good idea to save American lives in those two cases? 

Mr. HOLDER. The question really is, you can’t—— 

Mr. POE. No, I don’t want your question; I want my question answered. 

Mr. HOLDER. I was going to answer. 

Mr. POE. My question is simple. Assume that is true, assume it 

is true hypothetically, and he was waterboarded; and, but for being 

waterboarded, we would have never known about this. Do you 

think maybe waterboarding was a good idea in that case or not? 

Mr. HOLDER. I think the question is whether or not other techniques might have gotten the same result that may have taken us 

down the road that I think is inappropriate, and that is the use of 

a technique that I consider to be torture. 

Mr. POE. No other—— 

Mr. HOLDER. No question about that. 

55 

Mr. POE. No other techniques appeared to work, if they were 

used; this one did. So you would just rule it out automatically because it is waterboarding, even if it saved American lives? That is 

my question. 

Mr. HOLDER. The question is how are we going to save American 

lives. 

Mr. POE. No, excuse me, I am sorry. My question is real simple. 

But for waterboarding, we would not have known this information. 

Assume that is true. Do you think waterboarding should have been 

used or not used in this example? 

Mr. HOLDER. I reject the hypothesis. There is not a basis for anyone to conclude that, but for the use of waterboarding on a particular person, you could not have gotten the same information 

from that person. We heard testimony from a very sophisticated 

and experienced FBI interrogator just yesterday about the success 

that he had using non-waterboarding techniques on Abu Zubaydah. 

Mr. POE. Of course he didn’t get this information by talking to 

him and telling him to give us the information. The only way we 

got the information was by waterboarding. 

Mr. HOLDER. The testimony of the person who testified yesterday 

was that he got information that was very useful, including the 

identity of Khalid Sheikh Mohammed and including the identity of 

Jose Padilla, using non-waterboarding techniques, techniques approved by the FBI. That was the testimony of the person yesterday. 

Mr. POE. Well, but for waterboarding, there is absolutely no evidence in your Department or by anybody in your agency that you 

control that you would have received this information that there 

were two planned attacks on America; and, but for waterboarding, 

they did not occur. 

Mr. HOLDER. Well, actually you do have testimony from somebody who was formally a member of the organization that I now 

head. That is an FBI agent who is part of the Justice Department. 

He testified in the contrary way yesterday. 

Mr. POE. So we would have gotten this information anyway is 

your position? 

Mr. HOLDER. I don’t know if we would have gotten it anyway, but 

I certainly know that I have great faith in the techniques that the 

FBI uses. And the testimony of that FBI agent yesterday, also consistent with interactions I have had with retired intelligence officers from the military who have indicated that you don’t have to 

go to techniques such as waterboarding in order to get good, useful 

intelligence from detainees or from suspects. 

Mr. POE. So you would take the risk that we wouldn’t get this 

information, because you are so hellbent on not using 

waterboarding; is that what you are saying? 

Mr. HOLDER. No. I would never put the American people at risk. 

Nor would I put what is great about this country, and that is the 

values that defines us and separates us from the very people who 

we are trying to fight. That is something also that I will not put 

at risk: the safety of the American people and who we are as Americans. 

Mr. POE. So you would use whatever means was necessary to not 

put Americans at risk? 

56 

Mr. HOLDER. I will use means that are consistent with our values. George Washington in 1776, when he won the Battle of Trenton at Christmas, told the people who were taking British prisoners 

that regardless of how the British treated our prisoners, we will 

not treat British prisoners in the same way. We are better than 

that. That is our Founding Father. 

Mr. POE. I understand that. Excuse me, I yield back the balance 

of my time. 

Mr. HOLDER. If we are looking for a guide, I think that is where 

I think we should start. George Washington, faced with a similar 

question, came up with that answer. 

Mr. POE. Well, that is a completely different scenario. This is 

preventive medicine, and people have been apparently saved by 

waterboarding. And it is not the same as the situation you mentioned. I yield back. 

Mr. HOLDER. We will have to disagree about that. 

Mr. COHEN. We now recognize a gentleman who skates on frozen 

water and intimidates goalies, the gentleman from New York, Mr. 

Weiner. 

Mr. WEINER. Thank you. I am not sure I want to get used to 

these little introductions you have been doing, Mr. Chairman. 

Mr. Attorney General, do you share the views of your five predecessor Attorney Generals that the COPS program has been a success? 

Mr. HOLDER. Yes, I certainly believe it has been a success. 

Mr. WEINER. Do you want to expand on that at all? I see there 

is a billion dollars in the stimulus program that you mentioned in 

your testimony. And I know that the President is committed to hiring 50,000 additional police officers in the COPS program. Yet in 

the budget that was released last week or the week before, only 

funds—funds were only put in sufficient to hire 1,500 police officers. Is that going to change? Is this going to be, I guess, a 15-year 

program as opposed to the way it has been reauthorized? What is 

the position of the Justice Department and the Administration on 

the COPS program? 

Mr. HOLDER. I think as you look at the budget, I think the number actually is about 5,500 for that first batch of hiring. I think the 

COPS program has been successful, something that I know you 

have supported a great deal, something that I think we learned 

from the New York City experience. So our ultimate aim is to have 

50,000 new officers on the street over time. 

Mr. WEINER. Over what period of time? 

Mr. HOLDER. I would have to get back to you on that. I am not 

sure exactly. 

Mr. WEINER. Because I don’t want to confuse the two things. One 

is the stimulus bill that has a billion dollars in it. The other is the 

language that is in the President’s budget that refers to 50,000 police officers and has $298 million for fiscal year 2010. Those numbers only give us enough for 1,500 police officers, and the bill that 

we passed out of this Committee and passed on the floor envisioned 

$1.8 billion a year. So if you do the math, we are not going to get 

to the 50,000 cops in your first term. 

And I just want to know—and the President mentioned on Tuesday, again, in the ceremony honoring police officers, his intention 

57 

to hire 50,000 police officers. So I am not sure how we make those 

two numbers meet. 

Mr. HOLDER. What I would like to do, then, is perhaps get back 

to you with the precise information and how it breaks down in 

terms of money expended and the time frame, the timeline in 

which it would take to get to that 50,000 officers. But it is certainly 

the intention of this Administration to put 50,000 additional police 

officers on the streets. 

Mr. WEINER. Before I change the subject, do you want to say 

anything gratuitously complimentary of the sponsor of that reauthorization? 

Mr. HOLDER. Yes, I do. I think the person who did that viously 

should be commended. 

Mr. WEINER. Thank you. 

Mr. HOLDER. And of great intelligence. 

Mr. WEINER. That is quite enough. You can submit any additional remarks for the record. 

Can I talk to you a little bit about DNA and the backlog of evidence? You know, it seems that we have had some great success 

in that we have gotten the Federal Government into the game of 

helping States and localities clear out some element of the backlog 

that existed in some police departments. 

But we still have, it seems to me, some structural problems as 

we, with the help of Mr. Schiff and others, as we now expand the 

number of offenders that are going into the database, more evidence is being collected, that we still seem to be having a problem 

keeping up; meaning that we are not producing an enough labs 

that are certified, the cost is not what it should be. 

We heard testimony yesterday about some of the problems with 

DNA collection that still needs to exist—that still exists. We know, 

for example, that the turn-around for rape kits in the United 

States is about 30 weeks, and it is about 33 days in England. 

Is this going to be an era of emphasis for your Department to try 

to figure out how we take the next step in making this tool—which 

everyone, as you know, looks at DNA evidence and collection 

through their own lens. Some people see it as a way to put bad 

guys in jail. Some people see it as a way to exonerate those who 

are innocent. It is a valuable tool, and I am concerned that we are 

reaching a point that we have got a choke now. We have so many 

evidence kits, so many offenders being put in the database, if we 

are not careful it is going to lose its value because we are unable 

to process all that information. 

Mr. HOLDER. You are exactly right. And we have to come up with 

a system, and that is why there is contained in our budget, money 

to try to get at that backlog. But we have to be mindful of the fact 

that as we do the necessary tests to establish a basis to use this 

wonderful technique, we have to not only deal with the backlog, we 

have to come up with ways in which we stay current. 

When you have statistics, as the one that you have cited, as compared to what is going on in England, there is no reason why there 

should be that disparity. So I think we should focus on using the 

limited resources in the way that we can be most effective, and I 

think the uniformity the people have of the view of the value of 

58 

DNA testing, that is a place where we should be spending our limited resources. 

Mr. WEINER. And one final question. Do you support having anyone that is arrested for a Federal crime having to submit their 

DNA for a match? Arrestees. 

Mr. HOLDER. I think that is certainly something that we ought 

to consider. We take fingerprints from people who are arrested. 

And in some ways I think DNA is a 21st century fingerprint. The 

tests that we can now do in order to get DNA samples are not necessarily intrusive as they once were. You don’t have to take blood 

from somebody, for instance, in order to get necessary samples. 

And so I think that that is something that we certainly ought to 

consider. 

Mr. COHEN. [Presiding.] Thank you. 

Mr. WEINER. Thank you, Mr. Chairman. 

Mr. COHEN. I have been instructed that I need to be more like 

Bud Collier on Beat the Clock, because in 15 minutes we are going 

to be back for votes. 

Mr. Chaffetz from Utah, you are recognized. 

Mr. CHAFFETZ. Thank you. And thank you, Mr. Attorney General, I appreciate it. It is a privilege and I appreciate you being 

here. 

As we get going, I just want to pass on the word that I have 

spent considerable time in ride-alongs with the United States Marshals, in particular the JCAT program, the Joint Criminal Apprehension Team. I would encourage you to continue to push for that 

program. It works wonderfully within the State of Utah. I appreciate the good work those men and women are doing and just want 

to add a vote of confidence and support to that program as it moves 

forward. 

I had the opportunity, as I know you did, to go to Guantanamo 

Bay. I was very fortunate to go there. I appreciate the great work 

that the men and women are doing there. But I do have some questions and concerns about the Administration’s policy as it relates 

to terrorism and terrorists. I just can’t, for one, see what possible 

benefit the American people would have by bringing one of these 

terrorists to the United States of America. 

Mr. HOLDER. Well, I mean, the focus that we have is on closing 

Guantanamo which has served as a recruiting tool for al Qaeda 

around—— 

Mr. CHAFFETZ. But my question is, what is the benefit—what 

possible benefit could there be to bringing any one of those people 

to the United States of America? 

Mr. HOLDER. You see, I think the question—the focus is on what 

we do with Guantanamo. That is—— 

Mr. CHAFFETZ. My question is, what benefit—you said that you 

would not implement anything, anything that would pose a risk to 

the United States of America. Now, it seems to me that there 

would be zero risk if we brought zero of the people to the United 

States of America. So what possible benefit is there to the American people to bring one of those detainees to the United States of 

America? 

Mr. HOLDER. You have to look at the question in a larger sense. 

The question really, from my perspective, is what benefit do the 

59 

American people get by emptying the cells in Guantanamo, a facility that is now run I think in an appropriate way, but I think that 

has, as I said, served as a recruiting tool for al Qaeda and it has 

alienated us from many of our allies. And then once we empty 

those cells, we have to find places for these people to go. And so 

I think that is the benefit that the American people get from closing Guantanamo. 

Mr. CHAFFETZ. So it is a PR effort, right? Is that right? Is that 

a fair—it is a public relations effort, right, to try to persuade the 

world that we are more humane than what we have done in the 

Bush administration years; is that accurate? 

Mr. HOLDER. It is not a PR effort. It is a return to, I think, practices and values that have always defined this Nation. And I mean 

that under Republican as well as Democratic Presidents. It is a recognition or a signal to the world that the United States is back in 

a substantial way. And I don’t think we can underestimate the impact of that, as I have been to other countries—— 

Mr. CHAFFETZ. My time is so short. My apologies for cutting you 

off. Can you assure the American people that no one who is currently detained in Guantanamo Bay and who has received military 

training at a camp run by known terrorists will be released in the 

United States absent an order to do so by the Supreme Court of 

the United States? 

Mr. HOLDER. What I can assure the American people is that nobody from Guantanamo who would pose a danger to the United 

States will be admitted into—— 

Mr. CHAFFETZ. If we want to have the smallest risk and the 

smallest amount of danger, wouldn’t that mean bringing zero of 

them to the United States of America? 

Mr. HOLDER. I think if we want to maximize the benefit that we 

get, we want to close Guantanamo in the timetable that the President has given us, and then use the enhanced relationships that 

we will have around the world as a result. 

Mr. CHAFFETZ. But if we want a lower risk—you answered it 

with a question about maximizing benefit. I am saying what are we 

going to do to make sure that the risk is at its absolute lowest. 

Mr. HOLDER. We do that by what we are doing now, which is to 

go into those files, 241 of them, painfully, one by one, and make 

sure we make determinations that the only people put up for release or for transfer are people who will do no harm to the citizens 

of this country. 

Mr. CHAFFETZ. But the lowest risk would be if none of them 

came to the United States; am I wrong in that? 

Mr. HOLDER. I think the lowest risk is really looking at these 

people, making those determinations, and then figuring out where 

they can best be placed. 

Mr. CHAFFETZ. But what benefit would there be for placing any 

one of them anywhere within the United States of America? What 

is the benefit? 

Mr. HOLDER. Again, as I said, I think the benefit comes from the 

closing of Guantanamo. That is where the benefit comes. You cut 

out a recruiting tool and you start up—you end the alienation of 

our relationship with our allies. 

60 

Mr. CHAFFETZ. I happen to disagree with that assessment, having been to Guantanamo. I would ask unanimous consent, Mr. 

Chairman, to be able to submit a letter I sent to the President after 

my return from Guantanamo Bay, and I would appreciate if I could 

submit that for the record. 

Mr. COHEN. Without objection. 

Mr. CHAFFETZ. I am sorry. I can’t see the clock. I hope—is it red? 

Mr. COHEN. It is red. Thank you for yielding back your time. 

Thank you, sir. 

Mr. CHAFFETZ. Thank you. Thank you. I appreciate it. 

Mr. COHEN. He is good on that. He is a field goal kicker, so he 

is used to kicking in the last few seconds. 

I now recognize the lady from Texas, the distinguished Ms. Sheila Jackson Lee. 

Ms. JACKSON LEE. Mr. General, it is a pleasure. Thank you very 

much. I had double duty today in the Homeland Security Committee and in here, and it shows how much of our work overlaps. 

I wanted to applaud the Administration for its work, since part 

of it was court-involved, of the release of the young reporter from 

Iran. I think the strategy was effective and I am glad that she has 

returned back to her family. In that instance, was it a combination 

of lawyers going to a court, obviously after the court had been softened, if I can use in quotes? We know that she was sentenced to 

a very long sentence, and it was in essence a level of finality. 

But with the, I think, appropriate statements by the Administration, it shows that the bully pulpit is appropriate. It also shows 

that people do watch what the United States does. 

Let me again pose, very quickly, questions dealing with 

waterboarding, simply to say that as I understand it, it has been 

defined internationally as torture. Is that not correct? 

Mr. HOLDER. I am not sure about whether it—there is a list of 

techniques internationally and waterboarding would be one of 

them. 

Ms. JACKSON LEE. How would you characterize it? 

Mr. HOLDER. As I look at the definition of torture and, given the 

history of the use of that technique, it seems clear to me that 

waterboarding is torture. 

Ms. JACKSON LEE. And in the assessment and defining aspects 

of treatment that might be considered torture, you don’t in any way 

discard the ultimate responsibility of securing the United States of 

America? 

Mr. HOLDER. Not at all. That is the primary responsibility I have 

as the Attorney General of the United States. It is something that 

I wake up thinking about. It is something that I think about as I 

go to bed at night. And I will use all the tools that are at my disposal. 

Ms. JACKSON LEE. Sorry, just for the time. And if it was to come 

to your attention, either by various intelligence agencies, the FBI, 

your military consultations, which I know—and because of the 

President’s sort of bringing together the National Security and 

Homeland Security team, you would not hesitate in any way to 

first, of course, brief the President and then, of course, if congressional action was needed to approach us and brief us for action? 

Mr. HOLDER. In terms of—— 

61 

Ms. JACKSON LEE. If in any way you felt the actions we have just 

taken or will be taken as we define what we will continue to do 

or not do in securing intelligence, if you were to be briefed to determine that our national security was in jeopardy, you would respond 

accordingly, first to the President, I would hope, and then of course 

to the appropriate congressional oversight committees? 

Mr. HOLDER. Yes. One of the task forces that the President created in his January 22nd executive order is a detention and interrogation—an interrogation task force that is charged with the responsibility of looking at what techniques are effective, what techniques should be used by our government beyond perhaps those 

that are contained in the Army Field Manual. And that group is 

supposed to report back in July of this year. 

Ms. JACKSON LEE. I am aware of that and you are being constantly vigilant. I know you were down in Guantanamo Bay. I was 

down in Guantanamo Bay. We know that the President still has as 

his position that that facility will close. 

Again, let me ask the question on Guantanamo Bay, and of 

course I have been there a number of times, I have watched interrogation. So the question is: If you were to determine ultimately— 

not projecting your final determination—that there was some jeopardy to the Nation’s national security, in your role as Attorney 

General would you then provide, as you have been asked to do, the 

appropriate briefing and ensure that the national security of the 

United States would not be jeopardized? 

Mr. HOLDER. I would obviously bring any concerns I had to the 

President, would brief the appropriate committees to the extent 

that I had concerns, and then try to work with those committees 

to try to alleviate the concern. 

Ms. JACKSON LEE. So we are somewhat precipitous in suggesting 

that our national security is at a collapse, because we do have individuals who have been tasked to determine that? 

Mr. HOLDER. Yeah. I mean, that is one of the things I swore to 

do, as did the President, as did all the Members of this Committee, 

to preserve, protect and defend the United States. 

Ms. JACKSON LEE. And I thank you. Let me quickly move to Harris County where I have submitted a number of letters regarding 

a 10-year period in Harris County Jail where about 100 people 

died; comments being made by individuals that were custodians 

when someone was bleeding, an inmate, and they said, do you want 

me to get a Band-Aid? 

I believe we have entered into an investigation after many, many 

letters and calls. I would appreciate that if we have a newly elected 

sheriff, we are attempting to put in place the kind of procedures 

that would incarcerate people but allow them to live and leave. Can 

I find out when you might have some report on that investigation? 

Mr. HOLDER. I will try to get back to you with that. It is always 

difficult to report on ongoing investigations. But I think, as I indicated earlier, to the extent that we can share information that will 

result in better practices being instituted, we want to share that 

information and we will find a way that we can do that. 

Ms. JACKSON LEE. Might I take you up on that offer, separate 

and apart from the investigation, to be able to have the new sheriff 

and small numbers of his team visit on best practices or be able 

62 

to work through those issues? I think that would be enormously 

helpful. Let me if I can—— 

Mr. HOLDER. I would glad to work with you. 

Ms. JACKSON LEE. I would appreciate it. 

Let me just conclude on this issue of drug addiction and the 

abuse of drugs, the border, et cetera. I hope that I can get the same 

sort of complementary approach as my good friend did on his authorization bill on COPS. 

But I have H.R. 265 which talks about one-to-one, and I know 

there are many different discussions on this, but also to the highvalue cartel, actors if you will, enhances their sentencing. So it sort 

of balances the question. 

I would raise this question about the Department of Justice’s interests in a broader discussion about the impact of drugs as relates 

to internationally—you have an international component, Afghanistan, the border, the drugs here in the United States—so that we 

can look at the big picture. And then the response to the question 

of working with the little guys that are one-on-one, but yet not ignoring the bad actors who continue to fuel and to kill and to 

produce and to see no ending to their bad acts that now impact all 

of, or a large part, of the United States. 

Mr. HOLDER. That is exactly the approach that we would take. 

You and I have talked about this for years. In focusing on street 

crime and what happens in our communities, we can never lose 

sight of the fact that there are these big players, both within this 

country and outside this country, who make millions of dollars, billions of dollars, on the backs of people in this country, people who 

are addicted to drugs. So our focus has to be not only on keeping 

our streets safe, but also interdiction and punishing those bringing 

narcotics into our country. 

Ms. JACKSON LEE. Let me thank you. Don’t forget the Community Relations Office that I said could be a great asset. It was not 

used properly in Gina 6. It was not listened to. And I would like 

to discuss with the Department of Justice about some enhanced requirements that when there is conflict, either tied to Federal funding as relates to the district attorney or local law enforcement, that 

the community relations vehicle be an asset and be utilized. It was 

not used there. It turned into a crisis, and I think you know the 

whole story of Gina 6 where some youngsters were incarcerated 

and others were not, and the community relations person was there 

but was not listened to. 

I thank the gentleman, Chairman, for his kindness. And, Mr. 

General, maybe we can follow up on that conservation. Maybe you 

want one sentence about that as I close. I yield back, and maybe 

you could just—— 

Mr. COHEN. Thank you, thank you. We are going to have to limit 

everybody to 5 minutes to get everybody in. So thank you, sir. 

Mr. Franks from Arizona, you are recognized. 

Mr. FRANKS. Well, thank you, Mr. Chairman. Thank you, Mr. 

Holder, for being here. 

Mr. Holder, I am a Member of both the Judiciary Committee and 

the Armed Services Committee, so I get a lot of information about 

Gitmo. And some of the hearings, you know, we talk about the 

enemy combatants from both directions in heavy doses. 

63 

And I have got a couple of questions about what is commonly 

known as lawfare. Not warfare, but lawfare. The term ‘‘lawfare’’ describes the growing use of legal claims, usually bogus in my opinion, that are used as tool of war. The goal is to gain the moral advantage over one’s enemy in the court of public opinion and, potentially, legal advantage in international tribunals. And I guess I 

would like to get your perspective on this. 

As was reported by Jed Babbin in Human Events in June 2008, 

you gave a speech to the American Constitution Society where you 

spoke of the Supreme Court’s decision in Boumedienne v. Bush, 

which for the first time granted habeas corpus rights to terrorist 

detainees held at Guantanamo. Justice Scalia in his dissent said 

the decision, quote, will almost certainly cause more Americans to 

be killed. 

In your speech you said of the Boumedienne decision, quote, the 

very recent Supreme Court decision by only a 5-to-4 vote concerning habeas corpus in Guantanamo is an important first step, 

but we must go much further, unquote. 

Now, Boumedienne in my judgment was a radical departure even 

from earlier Supreme Court decisions on the subject and from the 

law of war, going back to the founding of the United States. 

So I would like to ask you, sir, how much farther specifically— 

how would you like the law to go much farther in that regard; specifically, what more constitutional rights should we grant to terrorist detainees? 

Mr. HOLDER. In that speech I was talking about—when I said 

going further, it meant not with regard to the detainee; I was talking about a whole range of things that I disagreed with what that 

Administration was doing with regard to unauthorized surveillance 

of American citizens, the interrogation policies in place. That is 

what I was talking about in terms of where we needed to go farther. 

Mr. FRANKS. Okay. Well, during the hearing before the House 

Armed Services Committee in 2007, witnesses identified many dangers associated with allowing terrorists to wage lawfare against the 

United States from within the United States judicial system. 

One expert witness testified before the Committee, and he was 

Associate Deputy Attorney General Greg Katsas. In speaking at 

one point about the proposals for habeas corpus rights for detainees, Mr. Katsas opined as follows: Quote, if you have the enemy 

combatant determination being done by a court in this country, 

where there would be stronger arguments on the other side for the 

application of full constitutional protections, then we would be in 

the nightmare world of arguing about Miranda warnings for Mr. 

Mohammed before his interrogation and the, quote, knock-and-announce rules before we go into caves in Afghanistan. Those are all 

risks attendant with habeas corpus. 

So is the President’s Department of Justice prepared to extend 

Miranda rights to terrorists on the battlefield or before interrogations? 

Mr. HOLDER. We have not said that that is our position. And 

when it comes to picking people up off the battlefield, I think you 

are looking more to the laws of war than the criminal laws of the 

United States. I do note that as you indicated, that a Supreme 

64 

Court, not a liberal Supreme Court, ruled that the right of habeas 

corpus did attach to people who were detained at Guantanamo. 

And in spite of what Justice Scalia said, five of his counterparts 

disagreed with him. 

Mr. FRANKS. Last question. Al Qaeda’s training manual, seized 

by British authorities in Manchester, England, openly instructs detained al Qaeda fighters to claim torture and other types of abuse 

as a means of obtaining a moral advantage over their captors. That 

advice has been routinely followed by detainees at Guantanamo 

Bay who have succeeded in generating incessant demands from 

international actors or for the base’s closure, for their own liberation, unquote. 

That is what was in their manual. 

So Mr. Rivkin laid out the al Qaeda lawfare game plan, and 

there are two objectives, and it seems to be coming to pass, just as 

the terrorists had planned. 

Isn’t the Administration’s closure of Gitmo and the removal of 

enemy combatants, possibly to the United States, a complete victory of lawfare for al Qaeda? I mean, what else could they possibly 

ask for if this is in their book and we are following to the letter? 

What more could they ask for us to do? And what is our plan next? 

Mr. HOLDER. I don’t think it is a victory. I think it will be a victory for our country and a victory for the causes that we fight for 

by closing Guantanamo and taking from al Qaeda the ability to recruit and point to that place as a place where inappropriate things 

happened, true or not. I mean, that has become a symbol of practices that this Administration has decided not to use. 

As I said also, it will allow us to interact with our allies in a way 

that we presently cannot if we close Guantanamo. So I don’t see 

the closing of Guantanamo as a victory at all for al Qaeda. I think 

it is going to be a victory for the American people and for our allies. 

Mr. FRANKS. I am out of time. But I certainly think al Qaeda 

sees it as a victory. 

Mr. COHEN. Thank you. I recognize the gentleman who represents the Rose Bowl, Mr. Schiff. 

Mr. SCHIFF. Thank you, Mr. Chairman. And thank you, Attorney 

General, for the superb job you are doing. None of these questions 

are easy or they would have been answered already. And what I 

find remarkable about some of the comments and questions that 

have been made about Guantanamo today is my colleagues on the 

other side of the aisle seem to assume there is no risk inherent in 

keeping Guantanamo open; that somehow you can assure the 

American people that we can keep it open, we can detain people 

indefinitely, we can torture them if necessary, we can ignore the 

courts if possible, and somehow this won’t have any adverse impact 

on the American people, what we stand for, or serve as a recruiting 

tool for people who want to attack us. 

There is no simple answer here, and I appreciate the methodical 

way that your Department and the Defense Department are going 

through each, detainee by detainee, to figure out what the proper 

recourse is procedurally and what forum, et cetera. And I don’t 

hear any suggestion, frankly, coming from my colleagues on the 

other side, any constructive suggestion about what ought to be 

65 

done with these people. So anyway, I reiterate my interest in working with your—with you and your office on these issues. 

Today I wanted to just follow up a little bit on the DNA issue. 

When the FBI Director testified last year before the CJS Appropriations Committee, where I also said—I expressed concern that 

the existing backlog would increase with the new law that was requiring more samples to be taken before, and I was assured that 

the fiscal year 2009 request of 30 million would eliminate the backlog. In subsequent meetings with the Justice Department last year, 

I was assured that that was all that they needed, the backlog 

would be gone. I think we may have even made a wager over lunch 

or dinner; or maybe I said I would simply eat my hat if we didn’t 

have a backlog a year later. 

The backlog is much worse than I think it was a year ago, and 

I think it is going to require serious resources to get it under control. I appreciate the fact that the Department has resumed funding backlog in terms of State and local governments which are also 

having this problem. But I would like to work with you also on addressing the DNA backlog, but also addressing a broader issue that 

a lot of the forensics capacity in the country, certainly on the State 

and local level, maybe on the Federal level as well, is also hurting—fingerprint labs, ballistic labs. 

So it is not just the DNA issue. I think we are facing an aging 

infrastructure in terms of forensics, certainly an aging workforce, 

not a whole lot of people going into the field. I would love to work 

with you on those issues. 

I have one very specific question in terms of the government’s 

handling of DNA, and that is I am from Los Angeles. We have 

probably the biggest backlog anywhere. And in the case of rape 

kits, we have thousands of untested rape kits in Los Angeles, 

maybe as many as 10,000 between LAPD and LA Sheriff’s Office. 

Some of those now are beyond 10 years old, and even if the evidence identifies the rapist, may be barred by the statute of limitations. That is just an unthinkable situation. 

They are now adopting new policies of testing every kit, and not 

saying, well, we will test some and not others. I know that the incidents of rape on military facilities or on tribal lands, the jurisdiction of the Federal Government is limited. But I wanted to ask 

whether the Federal Government has a policy of testing every rape 

kit for rapes committed on Federal lands, and I don’t know if you 

know the answer for you don’t. I would love to follow up with you 

and make sure that kind of policy is instituted. 

Mr. HOLDER. I think it is a good policy. I don’t know, frankly, if 

it is the policy of the Federal Government. But I will look into that 

and get you a written response, get a response back to you. 

But I think the point you make is, in fact, a good one. Given the 

power of DNA evidence, you can—just by doing that, you can solve 

crimes. So I think that the testing of those kits makes an awful lot 

of sense. 

Mr. SCHIFF. And we have seen, unfortunately, where there has 

been a delay in testing in particular rape kits. Where they are tested and you are able to make a positive ID, we learn that in the 

interim between the time the kit was taken and the time, years 

later, when it was tested, the suspect has gone on to rape other 

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women. Had you tested it promptly—and I don’t mean you-you— 

but had law enforcement, it would have meant rapes not occurring 

and murders not occurring. 

And given the fact that the DNA is converted to a unique numeric identifier that doesn’t betray information about hair color or 

propensity for colon cancer or carry anything like that, I think the 

privacy interests are much less, frankly, than the privacy interests 

of someone not to be raped or murdered. And I look forward to 

working with you on it. 

Thank you, Mr. Attorney General. 

Mr. HOLDER. I look forward to working with you as well. 

Mr. COHEN. Thank you, sir. Lawyers, rape kits and money. 

I recognize the gentleman from Florida, Mr. Rooney. 

Mr. ROONEY. Thank you, Mr. Chairman. You know, one of the 

advantages of being a freshman is that I get to listen to all my colleagues, and get butt in front of about 30 times, before it is actually 

my turn. But thank you for your testimony and for your service to 

our country. 

My questions are kind of open-ended. And the one thing that I 

am concerned about is you made the statement that we have only 

been here for a few months, and that the President has ordered the 

closure of Guantanamo Bay within 8 months. Where are we exactly? I know you talked about possibly Article 3 courts, possibly 

military courts. Where are we with regard to criminal procedure? 

And, by the way, I want to thank you for offering that you would 

work with Congress to help you with any of these procedures, and 

I want to express my willingness to help as we move forward. 

But where exactly are we? Because time is—8 months is not that 

long. When you are talking about 241 people that need to be moved 

by that closure, where exactly are we with regard to procedure? 

Mr. HOLDER. Well, we are moving along with regard to those reviews. I don’t have the precise number that we have completed at 

this point. But I think we are on track to have this done within 

the time frame that the President has given to us. But he has also 

given us an indication that to the extent I need—we need more 

people to do the job that he has set out before us, that we have 

that ability. So we have about 80 lawyers now, 80 lawyers—people, 

I guess, altogether who are involved in this process with regard to 

the detention review process. But we need to put more people on 

it. We are prepared to do that. 

Mr. ROONEY. When that is established and we are moving forward, whatever that procedure may be, do you—will you assume 

or speculate today that that standard, whatever criminal procedure 

we use there, will be the same standard—I am just trying to get 

some kind of response that there won’t be this sort of haze or fog 

about where we are when we move forward. If there are detainees 

taken off the battlefield that we pose a threat in Afghanistan or 

wherever, and they are not taken to Gitmo, wherever they are 

used, what due process are they going to get? Is it going to be this 

same due process or do you foresee this is sort of a fluid—— 

Mr. HOLDER. That is actually an excellent question, and one of 

the things that the President anticipated in forming that detention 

review committee task force. One of the things they are charged 

with doing is coming up with what are the standards going to be 

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for people who are detained going forward, be it in Iraq, Afghanistan other places, how are we going to deal with those people, how 

are they going to be detained, what are the appropriate ways in 

which we should interact with them? 

So that task force has a responsibility of reporting back in July. 

But that is something that, as I said, I think that is an excellent 

question and one that has caused the formation of a separate task 

force. 

Mr. ROONEY. And finally, you know, I was down in Guantanamo 

Bay recently, as have you been, and one of the things that kind of 

dawned on me as we were driving around there was that there is— 

they are actually still building there. There are still dollars appropriated. And you saw the facility and what it is capable of. 

And I understand what your argument is about the recruitment 

tool and the stigma that Guantanamo Bay, Cuba has psychologically, worldwide, and I am not going to debate on that. But one 

of the things that kind of dawned on me is one of the reasons for 

the stigma is possibly that, as the gentleman from the other side 

of the aisle pointed out, that they are detained indefinitely, I believe, as he was inferring, without due process. 

Assuming they do go through the due process in the next year, 

inevitably some of them are going to be found guilty or need continued detainment. Is there any consideration given to the possibility 

of Guantanamo Bay, Cuba being reopened as a prison—I think that 

there is one person down there that is actually considered a prisoner out of the 241. Is there any consideration to Guantanamo Bay 

as a prison after due process, or is that stigma so crippling that 

is not even in the cards either? 

Mr. HOLDER. That is not something that has been discussed. I 

think that all the negatives that are attached to Guantanamo, inconsistent I think with kind of the Guantanamo that now exists— 

I think that stigma, as you put it, probably will still be attached 

to the facility. But as I said, we have not discussed the possibility 

of the continuing role for Guantanamo after January of next year. 

Mr. ROONEY. Thank you, Mr. Chairman. I yield back. Thank you, 

sir. 

Mr. COHEN. Thank you, sir. I recognize Mr. Sherman from California, the golden State. 

Mr. SHERMAN. Thank you. Five and a half hours of talking about 

Gitmo under the lights in this building in this room strike me as 

well beyond what the Army Field Manual will allow. And so I am 

going to ask you questions on a completely different subject; and 

that is the subject of what your relationship with the other departments of the Federal Government, your colleagues in the Cabinet, 

and what you should do or would do if you saw that those other 

Cabinet departments were clearly violating the law. 

There are a couple of instances I want to bring to your attention 

and that I hope that you would have your lawyers review to see 

if you agree with me that these are violations of the law. 

The first is the Iran Sanctions Act, which among other things requires the State Department to name those oil companies and others that are investing in the oil sector in Iran. Now, for 10 years, 

the State Department has refused to do so, explaining to me that 

our friends in Europe would be offended if they were to follow that 

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statutory requirement. It seems to me a deliberate failure to carry 

out the law would be something that the Justice Department would 

be concerned about. 

The second issue is of more recent vintage and deals with the 

TARP, the bank bailout bill, in which the Secretary of the Treasury 

has announced that whatever moneys are repaid by the banks will 

then be recycled into other bailout expenditures or investments, 

even though the statute is very clear that that money is supposed 

to go into the general fund of the Treasury. 

And so my questions for you are: Will you have the Justice Department look at these two legal issues and get back to me, and 

will you inform your colleagues of the results of that review? And 

what action should your Department take if it is not, in your opinion, a grey area, but you see another Cabinet official, in the view 

of you and your lawyers, just clearly failing to follow the law? 

Mr. HOLDER. I will certainly look at the two fact situations that 

you described and we will get back to you with regard to an answer. And if there is a problem that we identify, then share that 

concern or do more, whatever is appropriate, with the two other departments. 

With regard to your larger question, to the extent that we in the 

Justice Department see a deficiency that another department—a 

legal deficiency that another department has, we would certainly 

share that view with them. Obviously, to the extent that we saw 

crimes occurring in other departments, we would investigate them. 

And that is why—I think that is—— 

Mr. SHERMAN. If a Cabinet officer or subCabinet officer just 

takes money that is appropriated for one purpose and spends it on 

another purpose or takes funds that are supposed to be in the general fund or returned to the general fund, and just decides to do 

something else with it, obviously if they are in the grey zone—I 

mean, different lawyers can differ on some things, but we have to 

agree that some things are clear enough that you can say something is clearly a violation—what penalties are imposed on a Cabinet officer? And is Congress basically just an advisory body where 

Cabinet officers can just do what they want and face no penalties 

for violating or failing to follow statute? 

Mr. HOLDER. Every Cabinet officer is responsible for, obviously, 

following the law, the regulations that exist. And to the extent 

there is a grey area in the questions, the Office of Legal Counsel 

at the Justice Department is, I think, entrusted with the final say 

as to what the law is. If there is a dispute between State, for instance, and the Interior Department and Justice—I don’t know— 

the dispute can be—it is a legal question. The Office of Legal Counsel can view the fact, apply the law, and then come up with a determination and issue an opinion. 

Mr. SHERMAN. But if somebody just ignores the opinion, or if in 

the predecessor Administration there were people who did things 

that were clearly illegal and spent money that was clearly not appropriated by Congress for that purpose, are they civilly liable, 

criminally liable, or do we just sweep it under the rug? 

Mr. HOLDER. A lot of it is—so many of those questions are factspecific. You have to know—there is the possibility, I suppose, of 

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ity. There is the possibility of personal civil liability. There are potentially institutional issues that just have to be worked out. If, in 

fact, one of the institutions of government is conducting itself, and 

has for years, in a way that is inconsistent with statutes or regulations, and that is brought to my attention, then the President will 

ultimately have to get involved. Congress has the ability to conduct 

oversight hearings. 

Mr. SHERMAN. Well, oversight hearings don’t actually force anybody to do anything. As to the two issues you are going to resolve, 

I realize that the Administration can waive imposing sanctions on 

companies that invest in the Iran oil sector, but they have to be 

publicly named. And as to the TARP legislation, I will get you my 

legal analysis and you can tell me whether it is right or wrong. 

Mr. HOLDER. That is fine. 

Mr. COHEN. Thank you. Mr. Jordan from Ohio will graciously ask 

one question, and then we are going to run up and vote, do the 

votes immediately, and if you are so inclined and willing to stay, 

the people will run back here immediately, like Bob Hayes and get 

it over with. 

Mr. HOLDER. Thank you. 

Mr. JORDAN. Thank you, Mr. Chairman. And, Mr. Attorney General, thank you. I know you have been here long. I appreciate that. 

Congress passed a defense—I am only just going to read this, but 

I edited out some of the—passed the Defense of Marriage Act in 

1996, a solid bipartisan vote, 342-to-67 in the House, 85-to-14 in 

the Senate. President Clinton signed it. 

Look, the act makes clear that marriage is what marriage has always been. But this definition has been challenged in Federal district court by GLAAD. They filed suit in March. We sent you a letter, 77 House Members, including the Ranking Member of this 

Committee, myself, many other Members of this Committee. The 

Minority Leader sent you a letter back in March of this year, seeking your assurance that you would vigorously defend the law in its 

entirety in accordance with the responsibilities of your office. 

So in light of what we have seen happen recently in Iowa and 

in Maine, just last week here in the District with what the Council 

did relative to the institution of marriage, and frankly, in light of 

President Obama’s expressed opposition to this legislation, I just 

wanted to ask you about will you defend the constitutionality of 

this act? Will you vigorously defend it? And if you so choose, your 

thoughts on the institution of marriage? 

Mr. HOLDER. Well, I think we have—there is a case—I have to 

search my memory. We have a case that we are presently engaged 

in. I have to look at that. I might have to get back to you on that 

one. I am not sure what the status of that case is. And so I am 

not sure I am able to answer the question about where the Department stands with regard to the enforcement of the act. But I think 

we have a pending case. 

Mr. JORDAN. Right. The case that was filed in March by the Gay 

and Lesbian Advocates and Defenders, the GLAAD case? 

Mr. HOLDER. I am not sure. 

Mr. JORDAN. If you wouldn’t mind—we sent you the letter March 

of this year—responding to that letter and getting back to me on 

this question, we would appreciate that. 

70 

Mr. HOLDER. Okay. 

Mr. JORDAN. Okay. Thank you, Mr. Chairman. 

Mr. COHEN. Thank you. And in the interest of domestic tranquility, we will not ask you to give your personal definition of marriage. 

And we will return here, if you would be so kind to stay with us, 

in about 12 minutes. Thank you, sir. 

Mr. HOLDER. Thank you. 

Ms. WASSERMAN SCHULTZ. [Presiding.] I would like to call the 

meeting back to order. I am going to recognize myself for 5 minutes. 

Mr. Attorney General, it is a pleasure to be with you. First of all, 

let me tell you that I truly believe that there is no one more qualified to serve as Attorney General of the United States of America 

than you. 

Mr. HOLDER. Thank you. 

Ms. WASSERMAN SCHULTZ. And I was thrilled when you were 

nominated and feel confident that you can bring the Department 

of Justice back from ruin and politization that we have endured for 

the last number of years. 

In your prepared remarks you said that the Department will 

serve the cause of justice and not just the fleeting interest of politics. And I know that you have mentioned that you are committed 

to reinvigorating the traditional missions of the Department, which 

includes fighting crime, and I couldn’t agree with you more about 

both of those items. 

What I would like to talk about and ask you about is the Department’s commitment to pursuing child exploitation, particularly the 

exploding crisis of child pornography trafficking. Last year in this 

Committee we heard evidence that law enforcement is able to identify more than 500,000 unique computers in the United States 

alone that are actively engaged in distributing videos and photographs of the rape and torture of children, and those images include young toddlers and infants. 

Conservative estimates indicate that at least one in three of 

these pornography trafficking suspects is also a hands-on abuser 

with real local child victims. I mean, these are crime scene photos, 

not the traditional pornography as you know. We are talking about 

real children that are out there waiting to be saved. And we have 

the technology to prevent child sexual abuse on a massive scale 

just by tracking child pornography traffickers. 

We also heard that last year fewer than 2 percent of those cases 

are actually being investigated, and that was due both to the lack 

of resources as well as the failure of the Justice Department to 

make it a priority. In 2008, I was proud to work with then-Senator 

Joe Biden to pass the Protect Our Children Act into law, and that 

was signed into law last October. And there are a few key provisions that I would like to focus on with you, if you could help me 

with the Department’s plans. 

The law authorized increased appropriations to the Internet 

Crimes Against Children task forces from the 2008 levels of $15.9 

million to $60 million. And as you know, the ICAC task forces are 

the backbone of our national capacity to combat this crisis. In the 

2009 appropriations bill, the ICAC funding was included in the bill 

71 

for $70 million for NCMIC. Only $21 million of that, though, was 

allocated by Justice to the ICAC program. 

Now in fiscal year 2010 that actually dropped from 70 million— NCMIC’s budget was cut from $70 million to $60 million, and it is 

unclear how much of that is going to be dedicated to the ICAC 

funding. But knowing how poorly we are doing in investigating 

these crimes with 15.9 million, clearly if we have less than 15.9 

million or we have flat funding, to me that seems like the Administration is also not going to make the Protect Our Children Act and 

pursuing child pornographers and child exploitation a priority. 

So could you tell us where you are on that issue? And in particular, the law also requires the creation of a National Strategy for 

Child Exploitation Prevention as well as the appointment of a highlevel official within DOJ for child exploitation prevention. So if you 

can tell us where you are on the appointment of that official and 

the development of the national strategy as well. 

Mr. HOLDER. Thank you for your kind remarks. First, with regard to the appointment of that official, the Protect Our Children 

Act 2008, we are in the process of doing that and I am hopeful that 

I will have somebody relatively soon for that position. 

The area that you have described is a priority of the Department—it is a priority of mine. When I was the Deputy Attorney 

General, one of the things that I kind of carved out as a responsibility of mine was the whole question of children and how they are 

impacted by—frankly, ignored by our criminal justice system. And 

one of the things I want to do as Attorney General—I have only 

been there about 3 months or so and there has been a lot of stuff, 

a lot of incoming. As we get things more in place with more of our 

people in place, that is certainly one of the areas that I want to 

continue my work. 

And it is interesting because I think you really hit an important 

point, that it is different from the issues that were of concern to 

me when it came to children 9 years or so, 10 years or so, when 

I left the Department are different than the ones that exist. The 

Internet, a wonderful tool, is something that now has been used to 

perpetrate, foment, keep going child pornography. And it is something that we have to dedicate ourselves too. 

Ms. WASSERMAN SCHULTZ. We can’t just think about child pornography in a bland, general sense. When we are talking about 

trafficking of child pornography, these are real child victims. The 

resources that we don’t spend are the children that we do not save. 

Mr. HOLDER. I don’t disagree with you. And you know, I think 

that too often we focus on these Internet images without giving 

thought to the fact that these are images of real live human beings, 

real live children. The question is—you certainly have to focus on 

the Internet component, but you also to have determine where is 

that child, what is happening to the welfare of that child? And that 

is something that, as I said, will be a priority for this Justice Department. 

Ms. WASSERMAN SCHULTZ. Can I ask whether you will be committed to making sure that we can fully fund the Protect Our Children Act going forward and make sure that that we can get the resources? Because literally it is the resources that are going to make 

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ment investigations going. We know that we can rescue a child 30 

percent of the time if they are given the resources to investigate. 

Mr. HOLDER. I will fight. Lots of people have different priorities. 

But when I identify as my small list of priorities the things that 

I need to have fully funded, and if I make this one of them—and 

I will—my hope that I will have a response of OMB listening to me. 

Ms. WASSERMAN SCHULTZ. Thank you. And just before—my time 

has expired but there is one more piece of this—it is nice to Chair 

the Committee—but the last piece of my question is on the national 

ICAC data network. Part of the law called for the creation and 

proper funding ofthat. It is a law enforcement controlled platform. 

We don’t want to let the ICAC data network move into the private 

sector; we need it to remain as a public backbone. 

And right now what has occurred, apparently, is that the Department—the Office of Juvenile Justice and Delinquency Prevention 

put out a solicitation to create the system before the appointment 

of a high-level official and prior to the appointment of the steering 

committee that is mandated by the law. We are going to move forward with that before there is any coordination or development of 

a plan or a high-level official is in place. 

Is there any way to delay that so that we can have the other 

thing in place first, so this can be the coordinated effort that we 

intended when we passed the law? 

Mr. HOLDER. That is actually a good point. Let me look into that. 

There is obviously a responsibility on my part to appoint that person, and we will do that as quickly as we can. And you raise a legitimate concern about not putting in place the very things that 

person is supposed to coordinate. 

Ms. WASSERMAN SCHULTZ. Exactly. 

Mr. HOLDER. Let me look into that and we will get back to you 

both with regard to the name of the person and how we are going 

to proceed in formulating the plan. 

Ms. WASSERMAN SCHULTZ. Thank you so much. The gentleman 

from New York is recognized for 5 minutes. 

Mr. MAFFEI. Thank you very much, Madam Chairman. Mr. Attorney General, I also want to echo my colleagues in thanking you 

for your service at a very crucial time. We needed an Attorney General with your kind of background who would be able to reestablish 

accountability and veracity in the office. And I very much appreciate you being here today, also. I know it is late. 

One thing that has been brought to my attention by a number 

of constituents is the issue of some of the immigration raids that 

have occurred across the country. And I know that this is mainly 

the Immigration and Customs Enforcement and therefore falls 

mostly under the Department of Homeland Security’s jurisdiction. 

However, some of these reports have been quite disturbing and 

do have aspects that might concern the Department of Justice. I 

have been told of a number of cases in which ICE agents have 

boarded buses in Syracuse, Rochester, Buffalo, and other upstate 

New York communities and targeted people based on their ethnicity or skin color for searches. In some cases agents waited outside the bus station and singled out those who appeared to be Hispanic. These people are often detained and questioned. In some 

some cases they are taken into custody. A large number of these 

73 

people are legal immigrants and many searched and detained are 

citizens of the United States, entitled to the same constitutional 

protections that you or I are. 

Are you at all aware of this practice either occurring now or having occurred in the prior Administration? 

Mr. HOLDER. I am not aware of those specific procedures you 

have talked about. On the other hand, there is, I think, clearly a 

need for vigilance in that area, and there is also a need for coordination between DHS and DOJ with regard to this whole question 

of immigration enforcement. 

Too frequently in the past, I think DHS has done things without 

regard to the impact it has on Justice Department resources. The 

Justice Department has not maybe communicated as well with 

DHS as it should have. Secretary Napolitano and I have tried to 

sit down and talk about a whole variety of immigration issues: 

work site enforcement; how ICE conducts itself. And I think we are 

going to be in a better place. But the concerns that you raise about 

the procedures you mention are very legitimate and inappropriate. 

Mr. MAFFEI. Certainly that would not be the policy of this Administration? 

Mr. HOLDER. No, it would not. 

Mr. MAFFEI. I appreciate that answer and work with Homeland 

Security particularly in this area. If it comes to my attention that 

these raids are still occurring, how should I proceed? Should I get 

in touch with Secretary Napolitano only, or because of some civil 

rights concerns is it also under the auspices of the DOJ as well? 

Mr. HOLDER. I will leave to you, Congressman, how you decide 

to do that. But I would suggest on the basis of what you said in 

the latter part of your answer about the civil rights concern, that 

perhaps a letter that went to both of us might be appropriate, because I think it is the kind of thing that Secretary Napolitano and 

I would want to discuss. She and I go back a long ways to when 

we were U.S. attorneys together in the Clinton administration. I 

think it would be something that we probably would both want to 

look at at. 

Mr. MAFFEI. I appreciate that. I too believe that this Administration will be taking a very, very different approach in terms of tactics. I believe a more effective approach, by the way, both for reducing undocumented immigrants, but also preserving American civil 

liberties and also people’s human rights. 

However, I am concerned just about bureaucratic inertia. So I 

would appreciate any help you and your office would provide us in 

the Congress as we try to help identify and let you know in the Administration about these instances. 

Mr. HOLDER. That would be fine. I look forward to working with 

you on that. I hope there will not be other instances along the lines 

that you described, but to the extent that you come into possession 

of that kind of knowledge I hope you will share it with me and also 

Secretary Napolitano. 

Mr. MAFFEI. Thank you. I thank you for your answers. I yield 

back the balance of my time. 

Mr. COHEN. I want to thank Mr. Attorney General for your courtesy and your time that you spent with us, which has been quite 

generous. And that concludes our questioning. 

74 

Without objection, Members will have a minimum of 5 legislative 

days to submit additional written questions as if you need such. 

And we would appreciate you being kind enough to answer those 

as promptly as you can. They will be made a part of the record. 

Without objection, the record will remain open for 5 legislative 

days for the submission of any other materials. 

This has been useful in our efforts to ensure that the Nation’s 

premier law enforcement agency is dedicated to being a shining example not only of how effectively it pursues its case, but equally 

how it respects the fundamental questions and issues of freedoms 

and law in our country. Like Caesar’s wife, the Justice Department 

should be and will be beyond reproach. 

With that, this hearing is adjourned. 

[Whereupon, at 4:35 p.m., the Committee was adjourned.] 

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MATERIAL SUBMITTED FOR THE HEARING RECORD

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PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND MEMBER, COMMITTEE ON THE JUDICIARY


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LETTER FROM THE HONORABLE JASON CHAFFETZ, A REPRESENTATIVE IN CONGRESS

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RESPONSE TO POST-HEARING QUESTIONS FROM THE HONORABLE ERIC HOLDER, 

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E-15.eps
110 


E-16.eps
111 


E-17.eps
112 


E-18.eps
113 


E-19.eps
114 


E-20.eps
115 


E-21.eps
116 


E-22.eps
117 


E-23.eps
118 


E-24.eps
119 


E-25.eps
120 


E-26.eps
121 


E-27.eps
122 


E-28.eps
123 


E-29.eps
124 


E-30.eps
125 


E-31.eps
126 


E-32.eps
127 


E-33.eps
128 


E-34.eps
129 


E-35.eps
130 


E-36.eps
131 


E-37.eps
132 


E-38.eps
133 


E-39.eps
134 


E-40.eps
135 


E-41.eps
136 


E-42.eps
137 


E-43.eps
138 


E-44.eps
139 

Æ 


E-45.eps