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[Senate Hearing 106-725]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 106-725
 
    OVERSIGHT OF THE CRIMINAL DIVISION OF THE DEPARTMENT OF JUSTICE

=======================================================================

                                HEARING

                               before the

               SUBCOMMITTEE ON CRIMINAL JUSTICE OVERSIGHT

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                                   on

  THE RESPONSIBILITIES AND ACTIVITIES OF THE CRIMINAL DIVISION OF THE 
                         DEPARTMENT OF JUSTICE

                               __________

                             JULY 27, 1999

                               __________

                          Serial No. J-106-40

                               __________

         Printed for the use of the Committee on the Judiciary

                    U.S. GOVERNMENT PRINTING OFFICE
67-363 CC                   WASHINGTON : 2000

                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina       PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania          JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona                     HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri              RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama               CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire

             Manus Cooney, Chief Counsel and Staff Director

                 Bruce A. Cohen, Minority Chief Counsel

                                 ______

               Subcommittee on Criminal Justice Oversight

                STROM THURMOND, South Carolina, Chairman

MIKE DeWINE, Ohio                    CHARLES E. SCHUMER, New York
JOHN ASHCROFT, Missouri              JOSEPH R. BIDEN, Jr., Delaware
SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama               PATRICK J. LEAHY, Vermont

                     Garry Malphrus, Chief Counsel

                    Glen Shor, Legislative Assistant

                                  (ii)

                            C O N T E N T S

                              ----------                              

                     STATEMENT OF COMMITTEE MEMBER

                                                                   Page

Thurmond, Hon. Strom, U.S. Senator from the State of South 
  Carolina.......................................................     1
Sessions, Hon. Jeff, U.S. Senator from the State of Alabama......     3
Feingold, Hon. Russell D., U.S. Senator from the State of 
  Wisconsin......................................................    22
Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont...28, 30
Schumer, Hon. Charles E., U.S. Senator from the State of New York    33

                    CHRONOLOGICAL LIST OF WITNESSES

Statement of James K. Robinson, Assistant Attorney General, 
  Criminal Division, U.S. Department of Justice, Washington, DC..     7

                ALPHABETICAL LIST AND MATERIAL SUBMITTED

Robinson, James K.:
    Testimony....................................................     7
    Prepared statement...........................................    10

                                APPENDIX
                         Questions and Answers

Responses of Assistant Attorney General James K. Robinson to 
  questions from Senators:
    Leahy........................................................    45
    Hatch........................................................    66
    Feingold.....................................................    70
    Thurmond.....................................................    82

                  Additional Submission for the Record

Letter to Senator Strom Thurmond, from Paul G. Cassell, professor 
  of law, University of Utah, dated July 23, 1999................   162

    OVERSIGHT OF THE CRIMINAL DIVISION OF THE DEPARTMENT OF JUSTICE

                              ----------                              

                         TUESDAY, JULY 27, 1999

                               U.S. Senate,
        Subcommittee on Criminal Justice Oversight,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2:02 p.m., in 
room SD-628, Dirksen Senate Office Building, Hon. Strom 
Thurmond (chairman of the subcommittee) presiding.
    Also present: Senators Sessions, Schumer, Leahy, and 
Feingold [ex officio.]

 OPENING STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM 
                  THE STATE OF SOUTH CAROLINA

    Senator Thurmond. The subcommittee will come to order.
    I am pleased to hold this oversight hearing on the Criminal 
Division of the Department of Justice. The Criminal Division is 
charged with some of the most critical functions of the Justice 
Department. It represents the front lines in the Federal 
Government's fight against crime. It must confront a host of 
serious crimes, including the war on drugs, money laundering, 
terrorism, child pornography, and gun crimes. It enforces over 
900 Federal laws and oversees the activities of the 94 U.S. 
attorneys throughout the country.
    Mr. Robinson assumed the position of Assistant Attorney 
General for the Criminal Division over 1 year ago, after it had 
been vacant since August 1995. We are pleased that this 
essential Division has an able chief to lead it today.
    The Congress has made every effort to support the needs of 
the Justice Department. The Department's budget has risen 
dramatically in recent years. It has almost doubled, from close 
to $11 billion in 1994 to almost $21 billion in 1999. We will 
continue to support the Department of Justice in an appropriate 
manner. However, there are issues of concern that we feel 
should be discussed.
    The Judiciary Committee for some time has confronted the 
Department on the enforcement of the law on voluntary 
confessions. Section 3501 of title 18 was passed by the 
Congress soon after the Miranda v. Arizona decision in an 
attempt to determine when a voluntary confession is admissible 
in court. In the recent case of United States v. Dickerson, the 
Fourth Circuit held that the statute was constitutional, and 
criticized the Justice Department for refusing to permit its 
career prosecutors to use this law against criminals. If the 
Dickerson case is considered by the Supreme Court, the Justice 
Department should urge the Court to uphold this law.
    Earlier this year, this subcommittee held an oversight 
hearing on this matter and heard from Reagan and Bush 
administration officials who told us that those administrations 
did not have a policy against the enforcement of section 3501. 
Unfortunately, the Justice Department chose not to appear at 
that hearing, so I hope we can discuss this issue today.
    Another important issue is the enforcement of the death 
penalty on the Federal level. The American public 
overwhelmingly supports the death penalty. While 38 States now 
permit the death penalty and many routinely use it, the death 
penalty has not been carried out on the Federal level since 
1963. In 1988, the Congress enacted a death penalty provision 
for murder involving drug kingpins, and in 1994 greatly 
expanded the number of death penalty-eligible crimes.
    In response to the 1994 law, Attorney General Reno 
established an elaborate internal review committee to consider 
whether Federal prosecutors are permitted to seek the death 
penalty. The Protocol provides for formal input by the defense 
attorney to the review committee, but apparently not equal 
input from a representative for the victim. I hope that this 
review process at Main Justice does not discourage U.S. 
attorneys from seeking the death penalty in appropriate cases.
    Regarding another issue, this subcommittee, in conjunction 
with Senator Sessions' Subcommittee on Youth Violence, held a 
hearing earlier this year on the lack of gun prosecutions 
during much of the Clinton administration. It is much more 
effective to fight violent crime by separating dangerous 
criminals from guns than to restrict the rights of law-abiding 
citizens to bear arms.
    This subcommittee has also held hearings this year on 
issues that the Department and I agree could be quite 
detrimental to effective Federal law enforcement. Last week, we 
held a hearing on the use of Federal asset forfeiture and its 
critical role in taking the profits out of many crimes, 
including drug offenses. Although reform is needed in this 
area, we cannot do so in such a way that it gives criminals the 
upper hand.
    Earlier this year, the subcommittee discussed the McDade 
legislation, which requires that Federal prosecutors follow all 
State ethics rules in all jurisdictions in which they operate. 
It is important that we continue to review this issue to make 
certain that the implementation of McDade does not interfere in 
areas such as complex undercover investigations or Federal 
grand jury practices.
    As several Senators stated during Mr. Robinson's 
confirmation hearing early last year, it is important for Mr. 
Robinson to appear before the Judiciary Committee frequently to 
discuss the important issues facing the Criminal Division.
    Mr. Robinson, we are pleased to have you with us today.
    Senator Feingold, do you have a statement?
    Senator Feingold. Mr. Chairman, I will wait until the 
question time to make my statement and ask questions.
    Senator Thurmond. Senator Sessions.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman. I am delighted 
to have Mr. Robinson here. I enjoyed talking with him before he 
was confirmed, and recognize the importance of the office that 
you hold. As I noted at the time, you have not had intensive 
experience as a prosecutor, but 3 years as a U.S. attorney. 
Traditionally, the Criminal Division chief has been virtually a 
career prosecutor, but I don't think that is disqualifying and 
I did vote for you. I do believe that in a few areas you have 
shown some progress under your leadership, just having a brief 
opportunity to review some of the numbers in this year's 
report.
    I would like to mention a few things that I think are 
important before we really get down to questions. I believe it 
is important for the Department, something that we as taxpayers 
ought to be concerned with, and I hope that you will focus on 
it.
    I think I have a few charts. Let's look at the Triggerlock 
chart, maybe, first. We had hearings set for a Monday in my 
subcommittee on Project Exile and the work that is done, which 
is sort of like Project Triggerlock in Richmond, that your 
Department of Justice was doing very well, and we wanted to 
highlight that.
    On the Saturday before that hearing, the President made it 
his radio address, the subject, had our witnesses there with 
him, and he directed them to increase prosecutions, work 
together to increase the prosecution of criminals with guns. 
Later within the month, the Attorney General appeared, and I 
frankly did not feel like at all she had instigated any 
significant change in policy.
    Even with this year's numbers--there was a modest 
increase--you can see that the Federal prosecutions of firearms 
laws according to your own statistical data are down about 46 
percent. That is a dramatic drop since 1992, and I think it 
gives us pause when we are told repeatedly we have got to pass 
some new Federal gun law if those laws are not being 
prosecuted.
    The school yard law--don't take a firearm on a school 
yard--we made that a Federal crime, but there were less than 10 
cases nationwide prosecuted under that. So I think the 
Department needs to look at that, as well as look at the 
numbers of persons who are prosecuted who attempt to purchase a 
firearm in violation of the law when they have a prior criminal 
history and are prohibited, the attempt to purchase if they are 
discovered by the instant check process at the gun dealer's 
store. None of those apparently are being prosecuted.
    And frankly I am not of the opinion that ATF can claim they 
are totally capable of investigating that. I think it takes a 
partnership between the Criminal Division and the ATF to 
identify the cases that ought to be prosecuted and set about to 
prosecute them.
    I also was looking at the assistant U.S. attorneys. That is 
your bread and butter, your front-line troops, the people who 
really do the job. Those numbers have gone up in full-time 
equivalents since 1993. One year is a drop, but you are now up 
to 4,600, almost 4,700, a 12-percent increase. And I think you 
as a manager, the person accountable for the taxpayers to 
utilize those magnificent prosecutors, need to make sure we are 
getting good work from them.
    I did notice from looking at your statistical report that 
since 1993, tort-related work hours per attorney have dropped 
significantly, from 309 hours in 1993 to 218 hours in 1998. 
That is a 29-percent decrease in the number of tort-related 
hours worked per attorney, from 309 to 219. So I think you 
really have to look at that and the leadership has got to come 
from the top.
    And I know you should respect U.S. attorneys, and I do, but 
within limits they have got to respond to the national 
leadership of the President. He appoints them and he has a 
right to expect that they aggressively pursue a criminal 
agenda.
    Finally, I would mention to you, and maybe we can talk 
about it later, my concern about bankruptcy fraud as part of 
our bankruptcy bill. There is quite a bit of fraud there. 
Judges tell me there is blatant fraud sometimes and they have a 
difficult time getting those investigated. There are no more 
than one or two prosecutions per district nationwide per year, 
and I think it is something we can improve.
    Mr. Chairman, thank you for your leadership. People care 
about a lot of things, but they are concerned about public 
safety, they are concerned about fraud and rip-off of the 
taxpayers. This Criminal Division is the national agency most 
responsible for dealing with those issues and we need to make 
sure it is as productive as it possibly can be.
    Thank you, sir.
    [The charts of Senator Sessions follow:]
    [GRAPHIC] [TIFF OMITTED] T7363.001
    
    [GRAPHIC] [TIFF OMITTED] T7363.002
    
    Senator Thurmond. Thank you very much.
    The panel consists of Mr. James Robinson, the Assistant 
Attorney General for the Criminal Division. Mr. Robinson earned 
a bachelor's degree at Michigan State University and a law 
degree from Wayne State University. He has been an associate 
and partner in the Detroit law firm of Honigman, Miller, 
Schwartz and Cohn. Mr. Robinson also served as U.S. Attorney 
for the Eastern District of Michigan. Before assuming his 
current position, he was dean and professor of law at Wayne 
State University Law School.
    Mr. Robinson, we are happy to have you with us and would be 
glad to hear from you at this time.

  STATEMENT OF JAMES K. ROBINSON, ASSISTANT ATTORNEY GENERAL, 
 CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC

    Mr. Robinson. Mr. Chairman, thank you very much. I am 
delighted to be back here, Senator Sessions, with you as well, 
and also happy to talk with Senator Feingold at the appropriate 
time. If it is permissible, I would like to make a brief 
opening statement. I won't read my whole testimony, which will 
be submitted for the record.
    I am pleased to appear before the subcommittee today on 
behalf of the Criminal Division of the U.S. Department of 
Justice, and I thank the Chair and the members of the 
subcommittee for this opportunity to describe the 
responsibilities and activities of the Criminal Division, 
including a number of initiatives we are undertaking to deal 
with new challenges facing Federal law enforcement.
    For the past 13 months, it has been my privilege to serve 
as the Assistant Attorney General for the Criminal Division, a 
post frankly I was interested in securing ever since I was the 
U.S. attorney in Detroit from 1977 to 1980. Because I was a 
Democrat, there was a little drought in between, so my 
opportunity for public service in the Justice Department had to 
wait a while. And although I tried to get the job in 1992, it 
didn't come until later, but I was delighted for the 
opportunity to serve.
    During the period of my service for the last 13 months, I 
have come to respect deeply the commitment, integrity and 
dedication of the career attorneys in the Justice Department, 
the outstanding assistant U.S. attorneys, as Senator Sessions 
has mentioned, and the career lawyers in the Justice 
Department, particularly in the Criminal Division. They are the 
backbone of the Justice Department. They are here day in and 
day out doing the people's work.
    There are five deputy assistant attorneys general in the 
Criminal Division with whom I am privileged to work everyday. 
Among them, they have more than 125 years of combined 
prosecutorial experience, although, as Senator Sessions knows, 
I would have to asterisk that by indicating that Deputy 
Assistant Attorney General Jack Keeney has 48 of those 125 
years. He is a real gem and has made a major contribution over 
a lifetime to the Justice Department.
    When I arrived a little more than a year ago, a number of 
important positions within the Criminal Division were vacant. I 
made it a high priority to seek out outstanding prosecutors to 
fill these positions as head of the Fraud Section, the 
Organized Crime Section, the Office of International Affairs, 
Chief of International Training, one of the five deputy 
assistant attorney general positions, and also the current head 
of the Capital Crimes Unit in the Division. These are 
outstanding lawyers who will serve long after I am gone from 
this position. I am confident that I have made good choices and 
that they will serve the country well during many years to 
come.
    The mission of the Criminal Division, as alluded to briefly 
by the chairman, is to develop, enforce and exercise general 
oversight with regard to the prosecution of Federal criminal 
law, working, of course, with U.S. attorneys in the 94 judicial 
districts throughout the United States. We also work with 
criminal prosecutors in the other divisions of Main Justice 
that have criminal responsibility in Tax and Antitrust and the 
Civil Division as well.
    We oversee the enforcement of over 900 Federal criminal 
statutes, establish national law enforcement policy for the 
Department, and advise the Attorney General on matters 
concerning Federal criminal law. We give priority in the 
Department and in the Criminal Division to crime threats that 
have a Federal or a uniquely national dimension, including, of 
course, drug trafficking, organized crime, terrorism, white-
collar crime, alien smuggling, gang-related violence, and 
crimes occurring in Indian country, among others.
    We also aggressively investigate and prosecute elected and 
appointed officials at all levels of the government who abuse 
their office and the public's trust. Many of our most effective 
law enforcement initiatives involve Federal, State and local 
enforcement working cooperatively together.
    As crime and justice issues increasingly transcend national 
boundaries, our international presence in the Criminal Division 
has grown dramatically in recent years. The Division also 
provides training and technical assistance to foreign law 
enforcement agencies. We negotiate and implement international 
treaties for mutual legal assistance and for extradition, and 
engage in joint law enforcement investigations with other 
countries.
    The Department has taken a proactive approach to developing 
criminal law policy. An excellent example of this is the 
Attorney General's Council on White-Collar Crime, of which I 
serve as the Executive Director. Membership in the Council 
includes representatives from regulatory, investigative and 
prosecutive agencies throughout the Federal Government. The 
Council attempts to identify fraudulent trends, to sponsor 
training and enforcement initiatives, and to develop programs 
aimed at the prevention of fraud.
    Attorney General Reno believes that we should use our law 
enforcement experience and perspectives to assist in preventing 
fraudulent activities, in addition to our important 
responsibilities to respond to crimes after they occur.
    The Department has also been proactive in identifying and 
developing a response to the growing problem of Internet fraud. 
On May 4, 1999, the President announced the Department's 
Internet Fraud Initiative which is aimed at preventing fraud, 
in addition to prosecuting it when we find it. The growth of 
the World Wide Web presents a whole new world of opportunity 
for international and national criminals, and it is something 
that we feel very strongly that the Department needs to get 
ahead of the curve on.
    Throughout the past year, Criminal Division attorneys have 
been instrumental in obtaining important convictions across the 
Nation. Attorneys from the Terrorism and Violent Crime Section 
were instrumental in the indictment and transfer to United 
States custody in June 1998 of Mohammed Rashed on charges 
relating to his alleged bombing in 1982 of a Pan Am flight from 
Tokyo to Honolulu.
    Terrorism and Violent Crime Section attorneys also played a 
key role in the development and indictment of the case against 
two Libyan operatives for the bombing of Pan Am Flight 103. 
They will be heavily involved in assisting Scottish prosecutors 
during the trial of that case which is scheduled to occur in 
the Netherlands.
    Attorneys from our Organized Crime and Racketeering Section 
stepped in when the local U.S. attorney's office was recused in 
a corruption case in Texas and gained the convictions of former 
members of the Houston City Council. They are also involved in 
tracking new and deadly Asian and Russian organized crime 
groups, a growing threat that we are working hard to get in 
front of.
    Another important role fulfilled by the Criminal Division 
is that of national coordinator in major enforcement 
initiatives. The Criminal Division focuses its narcotics 
enforcement efforts and resources to complement the efforts of 
other participating agencies in regional, national and 
international narcotics enforcement initiatives.
    In close cooperation with the U.S. attorneys, the Drug 
Enforcement Administration, the FBI and other Federal, State 
and local investigative agencies, the Criminal Division 
provides guidance, direction and resources at the national 
level for drug investigations and prosecutions.
    Most of the regional and national level investigations and 
prosecutions coordinated and supported by the Department of 
Justice are conducted as part of the Organized Crime Drug 
Enforcement Task Force program. This past year has been the 
single most productive year in OCDETF's history. The number of 
investigations initiated in fiscal year 1998 was 1,356, more 
than the number which were initiated in fiscal year 1996 and 
fiscal year 1997 combined.
    In fiscal year 1998, there were 3,502 OCDETF indictments 
and informations returned, compared to 2,401 in 1997, and 
10,064 defendants were charged, compared to 7,619 in fiscal 
1997. Already, in fiscal year 1999, 1,095 new OCDETF 
investigations have been initiated, and more than 2,109 
indictments or informations have been returned and 5,622 
defendants charged.
    Because criminal groups so often cross jurisdictional and 
geographic boundaries, the level of coordination among Federal, 
State and local law enforcement evidenced by OCDETF is an 
important part of any effective enforcement effort. When 
criminals cross international borders, as seems to be so often 
the case these days, this international cooperation is 
essential.
    As international crime has grown because of the expansion 
of such technologies as the Internet and the relative ease of 
international travel, we in the Criminal Division have been 
working hard to develop effective strategies to deal with 
international and transnational crime. The effort has led to 
unprecedented levels of coordination and cooperation with 
foreign law enforcement. Recently, attorneys from our Child 
Exploitation and Obscenity Section participated in an 
international investigation and prosecution of child 
pornography passed over the Internet.
    In keeping with the idea of no ``safe haven'' for criminals 
outlined in the administration's international crime control 
strategy, we are also involved in encouraging our international 
neighbors to pass laws criminalizing wrongful behavior so that 
criminals will have no safe place to hide. Attorneys from our 
Office of International Affairs negotiate mutual legal 
assistance treaties with foreign countries, and we handle 
extraditions and evidence requests for local prosecutors across 
the Nation. We also are involved in international training with 
foreign prosecutors and foreign law enforcement, and we 
increasingly assign attorneys from the Criminal Division 
throughout the world to assist in these international efforts.
    I want again to thank the chairman and the subcommittee for 
the support for the Criminal Division over many years and this 
opportunity to provide a brief overview of our activities. I am 
proud of what we have been able to accomplish during the last 
13 months on my watch, and confident that the Criminal Division 
will continue its proud history of excellence and dedicated 
service on behalf of the people of this great country.
    The issues that have been raised by the Chair and by 
Senator Sessions are ones that I would have anticipated that we 
would discuss, and I certainly have made an effort to try to 
prepare myself to deal with those issues and hopefully others 
that you may have. To the extent that there are matters, for 
which I can't provide the immediate answer, I would be happy to 
try to get that information to you as quickly as possible.
    I know we said a year ago that it would be a good thing for 
the Assistant Attorney General for the Criminal Division to 
come back, and I appreciate this opportunity. We probably could 
have done it sooner, but I am delighted for this chance and 
hopefully we can continue to have this opportunity for this 
important oversight activity.
    If I could ask the Chair that my written remarks be 
accepted as part of the record?
    Senator Thurmond. Without objection, so ordered.
    Mr. Robinson. Thank you very much, and I would be happy to 
do the best I can to respond to the questions that you might 
have. Since I anticipated Senator Sessions' questions, if you 
would like I would be happy to talk about that issue or any 
others that you would like to raise with me, Mr. Chairman.
    [The prepared statement of James K. Robinson follows:]

                Prepared Statement of James K. Robinson

    Mr. Chairman and Members of the Subcommittee: I am pleased to 
appear before you today on behalf of the Criminal Division of the 
United States Department of Justice. I would like to thank the Chairman 
and the members of the Subcommittee for this opportunity to briefly 
describe the responsibilities and activities of the Criminal Division, 
including a number of initiatives we are undertaking to deal with new 
challenges to federal law enforcement.
    The mission of the Criminal Division is to develop, enforce, and 
exercise general oversight for the prosecution of federal criminal 
laws, in cooperation with the United States Attorneys, except those 
that are specifically assigned to other Divisions. The Division 
oversees enforcement of more than 900 federal statutes; develops and 
facilitates implementation of national law enforcement policy; advises 
the Attorney General on matters concerning the criminal law; monitors 
sensitive areas requiring coordination, such as Title III wiretaps, 
attorney subpoenas, attorney fee forfeitures, and international law 
enforcement; provides leadership for cooperative federal-state-local 
law enforcement efforts; and coordinates law enforcement issues 
relating to national security.
    We give priority attention to crime threats that have a Federal or 
uniquely national dimension, including drug trafficking, organized 
crime, terrorism, white collar crime, alien smuggling, gang-related 
violence, and crimes occurring in Indian country. We also aggressively 
investigate and prosecute elected and appointed officials at all levels 
of government who abuse their office and the public's trust. And as 
crime and justice issues increasingly transcend national boundaries, 
our international presence has grown. We provide training and technical 
assistance to foreign law enforcement agencies, negotiate and implement 
international treaties for mutual legal assistance and extradition, and 
engage in joint law enforcement investigations with other countries.
                             violent crime
    Our strategies in seeking to reduce violent crime, especially 
organized crime and drug and gang-related violence, include efforts to 
fully implement the Violent Crime Control and Law Enforcement Act of 
1994, as well as other relevant statutes. We seek to identify, 
penetrate and dismantle major and emerging organized criminal 
enterprises, including street gangs engaged in illegal activity. We 
also support comprehensive attacks on violent crime through the 
establishment of multi-agency, intergovernmental task forces.
Organized Crime
    With critical assistance from our Organized Crime and Racketeering 
Section (OCRS), John A. Gotti, son of the former boss of the Gambino La 
Cosa Nostra family in New York City, was recently indicted and 
convicted along with a number of his associates. In the last two years, 
RICO and other indictments have been brought against La Cosa Nostra 
bosses and captains in Miami, Boston, Chicago, Detroit, Youngstown, Las 
Vegas, Los Angeles and New York. A number of convictions have been 
already obtained and other trials are pending.
Labor Racketeering
    In January 1999, the Department of Justice extended its agreement 
with Laborers' International Union of North America (LIUNA) to conduct 
a program of internal reform directed at the removal of La Cosa Nostra 
(LCN) from within LIUNA. OCRS continues to closely monitor the program. 
During the three-year period since the original agreement was entered 
into in January 1995, LIUNA has achieved numerous reforms, including 
removal of over 100 persons from LIUNA for barred conduct, the adoption 
of an ethical practice code for union officers, and the creation of a 
permanent internal union disciplinary structure. Thus far, 13 members 
and 29 associates of the LCN have been removed from LIUNA. We achieved 
similar success in connection with a consent order involving the 
leadership of the Hotel and Restaurant Workers Union.
Russian Organized Crime (ROC)
    A defendant named Ludwig Fainberg recently pleaded guilty to RICO 
charges including allegations that he had attempted to purchase a 
Soviet submarine to smuggle drugs from Colombia. Oleg Kirillov, a 
leader of the organized crime group based in Russia's third largest 
city, Nizhny-Novgorod, was convicted after trial on charges including 
RICO, visa fraud, narcotics offenses, extortion, and money laundering 
in the Southern District of Florida. The Nizhny-Novgorad organized 
crime group is considered by law enforcement to be a very significant 
ROC group.
    In the Eastern District of New York several members of the Gufield/
Kutsenko brigade, a group with ties to Vyachaslav Ivankov, the 
incarcerated leader of Organisatsiya and a close associate of 
Solntsevskaya leader Sergei Mikhailov, were indicted for RICO 
extortion, hostage taking, arson, fraud, and trafficking in women.
Asian Organized Crime
    On the West Coast, prosecutions continue relating to robberies of 
numerous computer chip companies. The Los Angeles and San Francisco 
Organized Crime Strike Force Units have brought 12 indictments charging 
over 120 defendants with offenses arising from the robberies of over 
100 computer chip companies resulting in the loss of over $40 million. 
Over 70 defendants have been convicted, and charges against other 
defendants are pending. In a related computer chip robbery indictment 
brought in Seattle, Washington, six of eight defendants have been 
convicted.
    Two members of a Fukienese gang based in New York pled guilty in 
the Central District of California to hostage taking relating to the 
kidnapping of the 17 year old son of a wealthy Taiwanese businessman. 
This case involved significant investigative cooperation between police 
in the People's Republic of China (PRC) and United States law 
enforcement. This cooperation went well beyond the mere sharing of 
information. Aspects of the scheme, including the ransom drop, were 
carried out in the PRC, and defendants were simultaneously arrested in 
the United States and the PRC. The boy was rescued. The PRC will try 
the defendants that were arrested in the PRC, and the prosecutors in 
the PRC and the United States continue to cooperate with each other.
Terrorism
    Our Terrorism and Violent Crime Section (TVCS) is involved in the 
development, implementation, and support of nationwide programs, 
consistent with the Anti-Violent Crime Initiative, designed to upgrade 
violent crime enforcement efforts generally and to address evolving 
violent crime problems. These programs focus priority attention on such 
violent crime issues as gang and firearms violence. Additionally, 
Section attorneys participate directly in a limited number of important 
prosecutions where their expertise can be of particular assistance. For 
example, TVCS attorneys participated in the development and trial of a 
major motorcycle case in Tampa and a major street gang case in Los 
Angeles.
    TVCS is an integral part of the government's extensive efforts 
relating to both international and domestic terrorism, focusing on 
prevention, crisis response, case development, and prosecution. TVCS 
serves as the Department's coordinator of crisis response efforts, 
including managing and handling training for Attorney Critical Incident 
Response Group prosecutors and a designated Crisis Management 
Coordinator for each U.S. Attorney's Office. Within hours of the tragic 
bombing of the Murrah Federal Building in Oklahoma City in 1995, two 
TVCS attorneys proceeded to the scene to assist in the crisis response 
and case development efforts, and subsequently in the prosecution of 
the case. Additionally, TVCS is deeply involved in preparations to 
address the threat posed by chemical, nuclear, and biological 
terrorism.
    Terrorist attacks on U.S. interests overseas must, in most 
instances, be prosecuted in the District of Columbia. TVCS attorneys, 
together with the U.S. Attorney's Office in D.C., have direct 
responsibility for the development and prosecution of such cases. In 
fulfilling this role, TVCS attorneys were instrumental in the 
indictment and transfer to U.S. custody in June 1998 of Mohammed Rashed 
on charges relating to his alleged bombing in 1982 of a Pan Am flight 
from Tokyo to Honolulu. Similarly, TVCS attorneys were involved in the 
1997 prosecution and conviction of Tsutomu Shirosaki for the 1986 
rocket attack on the U.S. Embassy in Jakarta, Indonesia. TVCS attorneys 
also played a key role in the development and indictment of the case 
against two Libyan operatives for the bombing of Pan Am Flight 103, and 
will be heavily involved in assisting Scottish prosecutors during the 
trial of the case in the Netherlands.
    In the domestic terrorism area, a TVCS attorney and a Fraud Section 
attorney have been directly involved in the prosecution of the 
notorious Montana Freemen defendants, who engaged in a series of 
violent and fraudulent acts culminating in a protracted standoff with 
the FBI. Another TVCS attorney co-tried a RICO case against two white 
supremacists in Arkansas, which recently resulted in the conviction of 
both defendants and the imposition of the death penalty against one.
                            nazi war crimes
    The Office of Special Investigations, which handles all cases 
involving suspected participants in Nazi-sponsored acts of persecution 
committed during the period 1933-45, was undefeated in litigation 
during the past 12 months, winning court decisions in twelve of these 
uniquely challenging cases. OSI won 4 denaturalization cases in federal 
district courts, 4 deportation cases in U.S. immigration courts, 2 
appellate cases before the Board of Immigration Appeals, and major 
subpoena enforcement cases in federal district courts in New York and 
Florida against two individuals who refused to testify about their 
wartime activities. The unit also prevailed in an important declaratory 
judgment action in Pennsylvania. During the past year, OSI succeeded in 
removing 4 suspected Nazi criminals from the United States.
    During the past year, OSI also commenced 4 new prosecutions (one 
denaturalization case, which had been set aside by a Court of Appeals 
(Demjanjuk) and three deportation cases). The unit also conducted 
trials in two denaturalization cases, one of which resulted in judgment 
for the government and the other of which has not yet been decided. 
Following the enactment in October of the Nazi War Crimes Disclosure 
Act, OSI's Director was appointed to represent the Department's inter-
agency working group established to coordinate Executive Branch 
compliance with the Act's requirement that the Government locate, 
declassify and make public substantially all records in government 
possession relating to suspected Nazi criminals and to assets 
misappropriated from Holocaust victims. OSI has already provided major 
logistical, historical and financial support to this recently created 
Working Group.
                         narcotics enforcement
    Although most narcotics enforcement efforts in the United States 
occur at the state and local level, the overwhelming majority of 
illicit drugs consumed in the United States originate overseas. The 
vast majority of illicit drugs entering the United States enter across 
our 2,000 mile southern land border and the adjoining coastal areas. In 
support of the goals and objectives of the President's National Drug 
Control Strategy and the Department of Justice Drug Control Strategic 
Plan, the Criminal Division focuses its narcotics enforcement efforts 
and resources to complement the efforts of other participating federal 
departments and agencies, emphasizing regional, national, and 
international narcotics enforcement initiatives.
    Under the leadership of the Attorney General--and in close 
coordination with the U.S. Attorneys, DEA, FBI and other federal, 
state, and local investigative agencies--the Criminal Division provides 
guidance, direction, and resources at the national level for drug 
investigations and prosecutions. The Attorney General's Southern 
Frontiers Committee and its associated initiatives including the 
Southwest Border Initiative and the Caribbean Initiative exemplify the 
Division's role in assisting in the coordination and direction of our 
policies in the fight against drug trafficking and abuse. On an 
operational level, in close cooperation with the U.S. Attorneys' 
Offices, the Special Operations Division, and other investigative 
agencies, the Division coordinates the litigation and enforcement 
activities of the Southwest Border Initiative and oversees the 
Organized Crime Drug Enforcement Task Force (OCDETF) program.
Southwest Border Initiative
    The Southwest Border Initiative (SWBI) was initiated by the 
Criminal Division, the border U.S. Attorneys, DEA, and FBI in 1994-
1995. The original purpose of the SWBI was to develop a regional 
strategy to disrupt and dismantle the most significant factions of the 
Mexican Federation that were importing cocaine, methamphetamine and 
other illicit drugs into the U.S. and that were involved in the 
corruption of public officials at U.S. border crossings in the 
Southwest. Shortly after its inception, other federal law enforcement 
agencies, such as the U.S. Customs Service and the INS/Border Patrol, 
joined in the implementation of SWBI. The initiative expanded in scope 
to include an anti-corruption task force effort and to re-focus 
attention on the strategic use of asset forfeiture as a law enforcement 
tool against the trafficking organizations. The national investigations 
and prosecutions undertaken as part of the SWBI are coordinated and 
supported by the Special Operations Division and the Criminal Division.
    As a result of the successes achieved under the rubric of SWBI in 
the past year or so, we have identified and targeted the emerging 
trafficking threats who use our Southwest border as their gateway into 
the U.S. Participating investigators and prosecutors continue to 
identify and prioritize Colombian and Mexican drug trafficking targets 
subjects and their United States-based criminal counterparts for 
investigation and share rather than compete for resources and 
information. In addition to criminal organizations trafficking in 
illegal drugs, included among the new targets are major international 
criminal organizations specializing in money laundering and trafficking 
in precursor and essential chemicals.
Special Operations Division
    The Special Operations Division (SOD) is a joint national 
coordinating and support entity comprised of agents, analysts, and 
prosecutors from DEA, the FBI, the United States Customs Service, and 
the Criminal Division. SOD coordinates and supports regional and 
national-level criminal investigations and prosecutions targeting the 
major criminal drug trafficking organizations threatening the United 
States. Where appropriate, state and local investigative and 
prosecutive authorities are fully integrated into SOD-coordinated drug 
enforcement operations. The drug investigative databases of all of the 
participating agencies are fully available within the SOD. The Criminal 
Division's Narcotic and Dangerous Drug Section coordinates SOD 
investigations with Assistant U.S. Attorneys across the country to 
ensure that each district involved in a nationwide investigation is 
informed as to the actions taking place in the other districts and the 
interrelationship of each district's targets in the overall criminal 
conspiracy. The Criminal Division ensures agreement on a consensus plan 
of attack, so that large, nationwide trafficking groups are taken down 
in a single, well-timed enforcement action. SOD will soon expand to 
include a Financial Group to focus on the financial activities of the 
criminal trafficking organizations and their ill-gotten assets.
The Organized Crime Drug Enforcement Task Force Program
    Most of the regional and national level investigations and 
prosecutions coordinated and supported by the SOD are conducted as part 
of the OCDETF program. In describing the OCDETF program, I must first 
highlight the dramatic increase in the OCDETF program participation 
over the past year, the single most productive year in OCDETF's 
history. The number of investigations initiated in fiscal year 1998 was 
1,356, more than the number in the past two years combined. The 1998 
investigations targeted those criminal organizations responsible for 
the greatest volumes of drugs and the greatest incidence of violence in 
the United States. Also in fiscal year 1998, there were 3,502 OCDETF 
indictments/informations returned, compared to 2,401 in fiscal year 
1997, and 10,064 defendants charged, compared to 7,619 in fiscal year 
1997. The OCDETF conviction rate was 88 percent, with 58 percent of 
OCDETF defendants receiving sentences of more than five years. Already 
in fiscal year 1999, 1,095 new OCDETF investigations have been 
initiated, and more than 2,109 indictments/informations returned and 
5,622 defendants charged. (OCDETF statistics reported as of July 20, 
1999.)
    This extraordinary growth in the program reflects the Department's 
total commitment to what the Deputy Attorney General calls its 
``premier'' counterdrug effort. The program has seen such growth 
because all the participating federal law enforcement agencies and the 
93 United States Attorneys recognize that the most effective weapon 
against sophisticated drug trafficking organizations is the OCDETF 
approach--multi-agency, often multi-jurisdictional, comprehensive 
investigations.
    OCDETF cases target organizations responsible for the importation 
and distribution of all classes and categories of drugs and target the 
major drug trafficking and money laundering networks in virtually every 
region of the globe. OCDETF investigations initiated in fiscal year 
1998 range from those coordinated by SOD to those focused on street 
corner gangs, which bring homicides, shootings, and fear to our cities' 
neighborhoods.
Money Laundering
    Enforcement efforts against a criminal trafficking organization 
will not succeed unless the organization's financial infrastructure is 
identified and targeted and its proceeds and instrumentalities seized 
and forfeited both at home and abroad. In attacking the financial 
component of drug trafficking, U.S. law enforcement and regulators 
exploit two crucial points of vulnerability for the drug money 
launderers. First, the sheer volume and bulk of the illicit cash 
generated by the sale of illicit drugs in the United States, and the 
need of the traffickers to smuggle this cash out of the United States 
or place it into the legitimate financial system offer U.S. law 
enforcement a large and valuable target to pursue.
    Second, although the international drug traffickers generally 
produce, process, and transport their illicit drugs from and through 
locations with only a limited U.S. law enforcement presence, once the 
illicit drugs are sold in the U.S., the traffickers and their domestic 
or international money launderers, immediately face the full effect of 
the U.S. law enforcement and regulatory anti-money laundering regimes. 
To exploit these potential trafficker vulnerabilities, the Criminal 
Division and United States Attorneys' Offices, working with the 
Department of the Treasury, the U.S. Postal Inspection Service and 
federal regulators, rely upon an interagency and coordinated national 
approach that targets specified sectors of the financial system through 
which drug proceeds are laundered.

                            Asset Forfeiture

    Asset forfeiture is a powerful law enforcement weapon that the 
Justice Department uses in its battle against domestic and 
international drug trafficking organizations. Using asset forfeiture, 
the Department can attack the economic infrastructure of these criminal 
organizations by denying them the profits of their ill-gotten gains. To 
maximize the use of asset forfeiture, the Department is integrating 
forfeiture in its law enforcement plan to strike drug traffickers at 
the source of their economic power.
    Our Asset Forfeiture and Money Laundering Section (AFMLS) has 
participated in the investigation and prosecution of professional money 
launderers for the Cali and Juarez cartels and numerous Mexican and 
Venezuelan bankers who assisted in laundering over $80 million in drug 
proceeds. Three Mexican banks and over forty individuals have been 
indicted on money laundering charges. In a related civil action, AFMLS 
filed a civil forfeiture complaint in the District of Columbia seeking 
forfeiture of approximately $12.3 million in drug proceeds and 
laundered money that was deposited into numerous foreign bank accounts. 
Also after nearly seven years of litigation in the largest global 
forfeiture case, a total of $691 million has been distributed to the 
victims of the BCCI bank fraud.
    In this era of globalization, the Department's efforts to disrupt 
and dismantle drug trafficking organizations mandates international 
cooperation at all levels. While working with other countries to 
develop international forfeiture cases, the Criminal Division actively 
promotes international forfeiture cooperation to halt the flow of 
illegal proceeds across borders and into financial institutions through 
the negotiation of bilateral forfeiture cooperation and asset sharing 
agreements.
    Asset sharing provides both foreign countries and the United States 
with the resources to maximize the law enforcement potential of the 
asset forf6iture laws. The United States has entered into agreements 
with foreign countries that allow for cooperation in tracing, seizing, 
forfeiting, and sharing of assets. Since the beginning of our sharing 
program in 1989 through fiscal year 1998, more than $192.9 million has 
been forfeited by the United States with the assistance from 23 foreign 
countries. Of that amount, approximately $66.7 million has been shared 
with those cooperating countries.
                           white collar crime
    White collar crime not only victimizes our citizens but has an 
insidious and corrupting effect on our commercial and public 
institutions. We are attempting to deter and combat it by identifying, 
investigating, and then successfully prosecuting high priority white 
collar criminal offenses nationwide, as well seeking forfeiture of the 
illegal proceeds and restitution to victims. We are aided in these 
efforts by better use of intelligence that helps us identify emerging 
areas of white collar crime and by enhanced cooperation with foreign 
governments in investigating and prosecuting international syndicates 
engaged in white collar crime.
The Attorney General's Council on White Collar Crime
    The Attorney General's Council on White-Collar Crime (Council) was 
established by Order of the Attorney General in July 1995 as an 
interagency body to coordinate the focus of federal law enforcement 
efforts to combat white-collar crime. It is chaired by the Attorney 
General and the Assistant Attorney General of the Criminal Division 
serves as the Executive Director. The membership of the Council 
includes representatives from regulatory, investigative and prosecutive 
agencies. The Council attempts to identify fraudulent trends, sponsor 
training and enforcement initiatives and develop programs aimed at the 
prevention of fraud. We have focused at different times on 
telemarketing scams, pension fraud, securities fraud by brokers, 
counterfeit aircraft parts, the unlawful sale of CFC for air 
conditioners, criminal tax enforcement, counterfeit software and cyber 
crimes. Currently, the Council is examining the nature and extent of 
problems which are emerging with the growth of the internet. We have 
also greatly improved the training in advanced white-collar crime areas 
of all federal law enforcement agents and prosecutors. The Council 
brought together for the first time the FBI Academy, the Federal Law 
Enforcement Training Center and the National Advocacy Center to develop 
joint modular training opportunities.
    The Attorney General firmly believes that a greater emphasis on 
fraud prevention reinforces the traditional mission of law enforcement 
in combating fraud, since a primary goal of enforcement activity is to 
prevent the occurrence of future crimes. The Council seeks to sponsor 
and publicize fraud prevention initiatives by all its member agencies.
Health Care Fraud
    The prosecution of health care fraud is a major Department of 
Justice priority. Health care fraud siphons billions of dollars away 
from federal health care programs that provide essential health care to 
millions of elderly, low-income, and disabled Americans, as well as to 
the families of the members of our armed services. In addition, health 
care fraud and abuse affects private insurers and--most significantly--
consumers of health care. Fraudulent billing practices may further 
disguise inadequate or improper treatment, by billing for services not 
rendered or rendered by unlicensed and unqualified practitioners. Other 
schemes, such as kickbacks, may corrupt medical providers' decision 
making by placing profit above patient welfare, leading to grossly 
inappropriate medical care, unnecessary hospitalization, surgery, tests 
and equipment. We are particularly concerned about schemes which affect 
the quality of medical care. For this reason we are turning our 
attention to fraud in the managed care and nursing home environments, 
where incentives to save money may result in the ``underprovision'' of 
medical and nursing services, to the detriment of patients' health.
    The Criminal Division's Fraud Section plays a leadership role in 
the Department's health care fraud enforcement effort. In addition to 
handling a docket of significant health care fraud cases, the Fraud 
Section chairs a national level, multi-agency working group, develops 
and provides guidance and advice to other departmental components on a 
range of health care fraud enforcement policy and legal issues, and 
serves in a vital liaison function with other federal and state 
agencies involved in health care fraud enforcement activities.
    The Department's health care fraud enforcement strategy has 
achieved notable success. In the past fiscal year alone, the Department 
obtained criminal convictions of 326 defendants in 219 criminal cases, 
and there were awarded $480 million as a result of criminal fines, 
civil settlements, and judgments. In the past two fiscal years, the 
Department has collected $1.2 billion in criminal and civil judgments 
and settlements in health care fraud cases.
Elder Fraud
    Since 1993, when the Department announced the first nationwide 
undercover operation devoted to telemarketing fraud, Operation 
Disconnect, the Department has demonstrated a sustained commitment to 
investigating and prosecuting those who engage in telemarketing fraud, 
particularly when directed at vulnerable segments of the population. 
Federal prosecutors and agents have seen numerous telemarketing fraud 
cases in which older men and women have been targeted as potential 
victims and suffered devastating financial losses. The Department has 
therefore taken a variety of measures to prosecute telemarketing fraud 
more effectively: conviction of nearly 600 individuals in Operation 
Senior Sentinel (1993-1996); prosecution of nearly 800 individuals in 
Operation Double Barrel (1996-1998); and establishment of a National 
Tape Library that now houses more than 13,000 consensual tape 
recordings of fraudulent telemarketers' ``pitches.'' In addition, the 
Department has developed a number of telemarketing fraud prevention 
projects, including the inclusion of telemarketing fraud Web pages on 
its Web site and the development of a pilot project called Elder Fraud 
Prevention Teams (EFPT). The EFPT project seeks to develop a 
coordinated approach--involving the AARP and federal, state, and local 
law enforcement and regulatory agencies--to outreach and prevention 
programs that focus on various frauds directed at the older population 
in various communities.
Internet Fraud
    The Department of Justice has also been proactive in identifying 
and developing a response to the growing problem of Internet fraud. On 
May 4, 1999, for example, the President announced the Department's 
Internet Fraud Initiative, which involves a six-part approach to 
combating Internet fraud:

    1. Coordination of expanded enforcement efforts. This involves use 
of interagency working groups--such as the Telemarketing and Internet 
Fraud Working Group--and other mechanisms to coordinate law enforcement 
activities against Internet fraud at all levels of government.
    2. Coordinated training on Internet fraud for federal, state, and 
local prosecutors and agents. This involves the Department's funding of 
Internet/telemarketing fraud training for state and local law 
enforcement, and similar training for experienced federal prosecutors 
and agents. The Department is now preparing training for federal and 
local prosecutors through its National Advocacy Center in Columbia, 
South Carolina.
    3. Improving federal analysis and use of Internet fraud 
information. This involves collaboration between the FBI and the 
National White-Collar Crime center to establish the Internet Fraud 
Complaint Center, a national center for analysis and strategic use of 
information on Internet fraud schemes. It also envisions closer ties 
and formal referral procedures for the FTC, the SEC, and other agencies 
for possible criminal violations by Internet fraud schemes.
    4. Developing information on the nature and scope of Internet 
fraud. This involves possible development of a method for reliably 
estimating the volume of various forms of Internet fraud, and sharing 
of information on current Internet schemes with the Department's law 
enforcement and regulatory agency partners.
    5. Supporting and advising on federal Internet fraud prosecutions. 
This involves improving mechanisms for coordination and communication 
among federal prosecutors, and for supporting federal prosecutions with 
prosecutive manpower and other resources.
    6. Public outreach and education. This involves a two-track 
approach in appropriate collaboration with the private sector: seeking 
technological means for reducing the incidence of fraud; and keeping 
the public informed about current schemes and how to handle them. In 
particular, the latter track involves the Department's publication of 
Web pages devoted to Internet fraud, exploring the developing of 
public-service and other information on Internet fraud, and expanding 
on current public-private partnerships to combat the problem.
Public Corruption
    The Department remains deeply concerned about public corruption. An 
excellent example of the kind of complex investigation and prosecution 
of local corruption undertaken by the Criminal Division involved former 
Houston City Councilman Ben Reyes, former Houston Port Commissioner and 
lobbyist Elizabeth Maldonado, and other current and former Houston City 
Council members. Reyes and Maldonado were each convicted of conspiracy 
and federal program bribery after a three-month jury trial in the 
Southern District of Texas. Reyes, a member of the City Council for 16 
years, and a very influential community leader, was the ringleader of 
the conspiracy and the initial target of a lengthy undercover 
investigation conducted by the Federal Bureau of Investigation. This 
matter was the subject of intense media coverage in Houston throughout 
the investigation and trials, and was handled by the Division's Public 
Integrity Section after recusal of the United States Attorney's Office.
    The Criminal Division is also actively involved in international 
efforts to combat corruption, including work with the Organization for 
Economic Cooperation and Development and the Council of Europe. The 
Division also participated in the Vice President's Global Forum on 
Fighting Corruption. The forum included representatives from 90 
governments and examined the causes of corruption and practices that 
are effective to prevent or fight it. The Division has conducted 
briefings and training sessions in a number of different countries.
The Independent Counsel Act
    The Criminal Division's Public Integrity Section was charged with 
assisting the Attorney General in fulfilling her obligations under the 
Independent Counsel Act. This includes conducting initial inquiries and 
preliminary investigations pursuant to the provisions of the Act, and 
then making appropriate recommendations through my office to the 
Attorney General. Since July 1, 1998, the Division has participated in 
more than a dozen independent counsel matters. During the year the 
Division has also assisted independent counsels with their 
investigations. Notwithstanding the expiration of the Independent 
Counsel Act on June 30, 1999, the Division will continue to work with 
the sitting independent counsels to provide support for their ongoing 
investigations.
Computer Crime
    As we enter the 21st Century, we must confront the increasing 
sophistication of criminals and new technologies that expand the 
potential for criminal conduct while at the same time impeding our 
ability to bring criminals to justice. Since being appointed head of 
the Criminal Division a little over one year ago, one of my priorities 
has been to extend the focus and resources of the Division to the new 
methods and types of crimes that are an increasing threat to the 
nation.
    One of those is computer crime. The incidence and complexity of 
computer crime continue to increase rapidly as greater numbers of 
people develop proficiency in manipulating electronic data and 
navigating computer networks, and as worldwide access to the Internet 
continues to skyrocket. As a result of emerging computer technology 
over recent years, significant attention has been focused on the 
vulnerability of our critical national infrastructure to cybercrime and 
cyberterrorist attacks, including electronic espionage. The nation has 
become increasingly reliant on computer networks to support every 
critical aspect of American life, including telecommunications, power 
delivery, transportation, delivery of government services, and banking 
and finance. Cyberterrorists do not have to worry about obtaining a 
visa or smuggling explosives into the country. From any location on the 
planet, they can launch a devastating attack of ones and zeros against 
U.S. networks in a fashion that could shut down telecommunications 
services, power grids, major transportation hubs, or other vital public 
services. As the National Research Council, an arm of the Academy of 
Sciences, recognized several years ago: ``Tomorrow's terrorist may be 
able to do more damage with a keyboard than with a bomb.''
    Consequently, the Department has undertaken a Computer Crime 
Initiative under the leadership of the Computer Crime and Intellectual 
Property Section (CCIPS). This initiative, originally adopted in 1991, 
directed CCIPS predecessor, the Computer Crime Unit, to ascertain the 
scope of the problem, coordinate law enforcement cybercrime efforts, 
provide training to agents and prosecutors, develop an international 
response, propose and comment on legislation, and formulate policies 
relevant to the investigation and prosecution of computer crime. 
Additionally, the Department has designated at least one Assistant 
United States Attorney in each district to serve as a Computer and 
Telecommunications Coordinator, or CTC. These individuals, working 
closely with CCIPS, prosecute high-tech cases and serve as a technical 
resource for their entire office. We have devoted such resources to 
high-tech crime because we recognize the threat of cybercrime and 
cyberterrorism, and we know that no country has more to lose from 
criminals attacking computer networks, or using such networks to 
facilitate traditional offenses.
    As I noted, electronic criminals can cross borders with impunity, 
whereas law enforcement must respect national boundaries. For this 
reason, it is particularly important that law enforcement address such 
cases as quickly and efficiently as possible. There are two issues 
seriously handicapping international law enforcement in the fight 
against electronic crimes: (1) establishing the identity and location 
of network criminals; and (2) acquiring evidence stored on data 
networks that span international borders.
    To address these problems, for the last several years, the U.S. has 
been active in the Subgroup on High-Tech Crime of the G8 countries and 
in the Cybercrime Committee of the Council of Europe. The G8 subgroup 
focuses on practical solutions, with an emphasis on tracing 
communications, outreach to industry, and expanding the network of 
high-tech law enforcement experts available 24 hours a day to respond 
to urgent requests in cases involving electronic evidence. The 
Cybercrime Committee of the Council of Europe, in which the U.S. 
participates as a deeply-involved observer country, is drafting a 
convention focusing on cyberspace offenses, international cooperation, 
the 24/7 emergency network, and related issues. The U.S. will remain 
actively engaged in these arenas.
Intellectual Property Rights Initiative
    We are also undertaking an Intellectual Property Rights Initiative, 
which will give greater priority to intellectual property crime. In the 
last several years, the magnitude, severity, and impact of intellectual 
property crime has grown dramatically. It is now widely reported by law 
enforcement officials around the world that criminal syndicates are 
exploiting the high profits and low risks from copyright and trademark 
piracy to finance other criminal enterprises, including narcotics 
trafficking. As a world leader in intellectual products, the United 
States has become the target of choice for thieves of material 
protected by copyright, trademark or trade secret designation, and the 
economic loss to American industries is enormous.
    Our initiative calls for giving increased priority to prosecution 
of high-quality intellectual property cases in selected districts, as 
well as increased training for investigators and prosecutors and 
support of the Custom Service's border efforts in this area. We also 
are working for changes in the Sentencing Guidelines to recognize the 
seriousness of intellectual property crimes and to calculate more 
accurately the economic loss caused by such crimes.
                    child exploitation and obscenity
    The Child Exploitation and Obscenity Section regularly works with 
the Federal Bureau of Investigation and its Innocent Images national 
initiative, the U.S. Customs Service and its Cybersmuggling Squad, and 
the U.S. Postal Inspection Service on child pornography projects. The 
Section has been actively involved with the Innocent Images Project 
since its inception and has worked for many years with the Customs 
Service on its child pornography projects, most recently on Operation 
Cheshire Cat, an international child pornography ring investigation.
    As we approach the new century, it is becoming increasingly 
apparent that we need to work together with other countries to develop 
a global approach to combat the victimization of children from child 
pornography and trafficking for criminal sexual exploitation. Toward 
that end, the Child Exploitation and Obscenity Section has become more 
involved in international law enforcement training and policy 
development in both of these areas, in addition to the work the Section 
does domestically on these issues. At the end of September, the United 
States, along with the European Union and Austria, will sponsor a 
global conference on combating child pornography on the Internet in 
Vienna, Austria. The Section is working toward developing international 
protocols for the investigation and prosecution of child pornography 
cases.
    To assist the law enforcement personnel and the prosecutors in the 
United States Attorney Offices, the Section worked with the Executive 
Office of the United States Attorneys to implement a toolkit that 
includes a laptop computer and assorted software to enhance the 
capabilities of investigators and prosecutors to work these cases 
successfully. Attorneys from the Section serve as legal advisors to the 
Internet Crimes Against Children Task Force Program. Ten jurisdictions, 
involving local and state law enforcement agencies, have established 
task forces with grants from the Office of Juvenile Justice and 
Delinquency Prevention in the Office of Justice Programs to investigate 
Internet crimes against children in their respective communities. Funds 
are available this year to establish task forces in additional 
communities.
    Also the Department has become more active in combating trafficking 
in women and children. Our expanded efforts include working with other 
agencies to address these problems, including the Departments of the 
Interior and Labor to investigate trafficking issues in the 
Commonwealth of the Northern Marianas. As in the area of child 
pornography, the Division provides training, both domestically and 
internationally, on the issue of trafficking. For example, training was 
provided for the Baltic countries in Warsaw last spring. Another 
training session is scheduled for later in the year for representatives 
from the Czech Republic and Bulgaria. We are working on training 
programs to address these issues in other parts of the world, 
particularly Asia and Latin America.
    Our experiences investigating and prosecuting these child 
exploitation issues domestically enable us to share our knowledge with 
other countries to help them better address these situations in their 
countries. The Internet knows no boundaries, nor should our efforts to 
protect children be limited to our borders.
                          international issues
    Modern technological advances and the ease of international travel, 
communication, and access have also made the problems of transnational 
crime and international fugitives priorities for the Criminal Division. 
The Office of International Affairs (OIA), which is responsible for 
negotiating and handling all incoming and outgoing international 
extradition and mutual legal assistance requests, involving state and 
local as well as federal authorities, has seen an extraordinary 
increase in activity in recent years as criminals have become ever more 
mobile and creative in their search for safe havens from justice for 
themselves and their assets and their manipulation of legitimate trade 
markets and transnational institutions to their own illicit advantage. 
OIA has responded with a program to modernize our bilateral treaties 
and international conventions to enhance their flexibility and ability 
to deal with increasing and increasingly sophisticated patterns of 
international criminal activity.
    In addition to expanding the network of Mutual Legal Assistance 
Treaties, OIA is working to modernize extradition between nations as 
the most logical, effective, and equitable mechanism for ensuring that 
the interests of justice are served in the international arena. This 
includes acceptance by other nations of the principle of extraditing 
their own citizens for serious crimes. Consistent successes have been 
realized in the last year in this regard, including recent notorious 
cases involving the surrender by Mexico of Jose Luis Del Toro, Jr., 
alleged hired killer of the mother of quadruplets in Florida, and the 
arrest in the United Kingdom of three Egyptian nationals charged with 
involvement in the terrorist bombing of our Embassies in Kenya and 
Tanzania last summer. Successes in spreading the word on the benefits 
of extraditing nationals have been achieved with Israel, Colombia, and 
the Dominican Republic involving changes or clarification of their 
domestic laws to allow such extraditions; the European Union endorsing 
and encouraging the proposition; and such countries as Bolivia, 
Argentina, and Paraguay signing or implementing new bilateral treaties 
that make no exception to extradition on the basis of the fugitive's 
citizenship.
    As its caseload and responsibilities have expanded, OIA and the 
Criminal Division have found that merely having treaty relationships 
are not enough in a number of foreign jurisdictions and that it has 
become extremely important to our success in dealing with our 
international counterparts and in assisting our U.S. law enforcement 
colleagues posted abroad to station Department of Justice attorneys at 
certain Embassies and Missions overseas. We currently have such 
judicial attache positions in Rome, Bogota, Mexico City, and Brussels 
(for the European Union) and detail positions in London and Paris. Due 
to the perceptible advantages to our extradition and mutual legal 
assistance relationships from having a ``hands-on'' Justice Department 
attorney in-country, we also plan, and hope to obtain authorization 
for, new positions in Asia, Latin America, the Caribbean, and the 
Middle East. Using such well-located resources, the Criminal Division 
will be far better equipped to deal with the enormously increasing 
problem of international crime and its devastating effects on the 
citizens and residents of this country.
International Criminal Investigative Training Assistance Program
    The International Criminal Investigative Training Assistance 
Program (ICITAP) was created in 1986 to train criminal investigators in 
Latin America. Today, ICITAP is a comprehensive law enforcement 
development program that works in more than 20 countries world-wide. 
ICITAP currently provides two kinds of assistance programs: technical 
assistance to develop entire police forces during peace operations and 
specialized training to improve existing police forces in emerging 
democracies. ICITAP utilizes of the skills of state and local police 
officers as well as federal agents. Assistance programs promote 
internationally accepted principles of human rights, the rule of law 
and democratic police practices.
    ICITAP is involved in a number of challenging new assignments. At 
the request of the Department of State, ICITAP will assist the 
Organization for Security and Cooperation in Europe to train 3,000 new, 
local police in Kosovo. To fulfill U.S. commitments under the Wye River 
Accords, ICITAP is assisting the Palestinian police to collect illegal 
weapons in the West Bank and Gaza. In Albania, ICITAP will train the 
Rapid Intervention Force that polices Albania's sensitive border with 
Kosovo. In Indonesia, ICITAP is providing technical assistance in civil 
disorder management. In El Salvador, an ICITAP ``911 emergency response 
program'' has significantly reduced crime in the country's second 
largest city. ICITAP is also involved in important assistance programs 
in the former Soviet republics, South Africa and Latin America.
Overseas Prosecutorial Development, Assistance and Training (OPDAT)
    The Division provides Overseas Prosecutorial Development, 
Assistance and Training (OPDAT) rule of law assistance in Africa, 
Central and Eastern Europe, Latin America and the Caribbean, and in the 
Newly Independent States, including the Russian Federation through 
reimbursement from the Department of State. In Africa, OPDAT efforts 
first assessed the criminal justice systems in Rwanda and Liberia and 
then placed a resident legal advisor in Rwanda and will shortly place 
one in Liberia. Our assistance programs focus on the enormous problems 
of backlogged felony cases and the pretrial detention of 130,000 
accused in Rwanda and will improve the competence and efficiency of 
prosecutors and judges in Liberia. In Central and Eastern Europe, OPDAT 
activities complemented its on-going, criminal justice technical 
assistance and training programs in Poland and Latvia, run by resident 
legal advisors, by placing legal advisors in Romania and Bosnia, and 
also by initiating assistance activities in Lithuania and Bulgaria. 
Through OPDAT we began a skills development program for Albanian 
prosecutors and judges, and assistance with the development of 
organized crime strike forces for Hungarian prosecutors and 
investigators. In Latin America and the Caribbean (Haiti), the OPDAT 
program concentrated on the training and deployment of new prosecutors, 
magistrates, and judges and provided development assistance to seven 
model prosecutors offices. A joint US-Mexican training program for 
prosecutors and investigators involved in counter-narcotics operations 
was started and thus far two joint training sessions have been held, 
one in Mexico and the other at the Department's training center in 
Colombia, South Carolina. The model of justice sector institution 
building underway in Colombia, run by a resident legal advisor, was 
replicated through the commencement of OPDAT programs in Argentina, 
Brazil, Mexico, and Venezuela. In the Newly Independent States, we 
expanded our criminal justice assistance program, already underway in 
the Russian Federation where we have a resident legal advisor, by 
commencing assistance activities in Armenia and Moldova, as well as in 
Georgia and Ukraine, where resident legal advisors have begun their 
duties. In addition, we started programs which will address criminal 
justice sector development needs in Kazahkstan, Kyrgyzstan, and 
Uzbekistan.
    The OPDAT program also provided a forum for comparative law 
dialogue to promote international legal assistance by hosting more than 
600 international visitors from countries throughout the world who came 
to the United States to gain an appreciation of our legal system. We 
provided professional programs in the form of specially tailored 
discussions and workshops, enhanced in numerous cases by presentations 
in foreign languages by our multi-lingual attorneys.
                               conclusion
    We will face all the challenges that I have described today 
recognizing that the Department of Justice is a crime-fighting partner 
with other federal, state and local agencies, and that we must work 
together strategically to define our roles and coordinate our efforts 
so that our scarce resources can have the greatest impact toward 
reducing crime and violence across America.
    Mr. Chairman and Members of the Subcommittee, I hope that this 
overview is helpful to your understanding of the work of the Criminal 
Division. I would be pleased to answer any questions that you may have.

    Senator Thurmond. Mr. Robinson, it is widely known that 
Attorney General Reno is personally opposed to the death 
penalty, while at the same time she personally decides whether 
to seek the death penalty in any Federal case. I understand 
that the Attorney General has authorized the death penalty to 
be sought in less than 30 percent of the over 400 cases that 
she has reviewed.
    The question is: has her personal opposition had any impact 
on the number of death penalty cases that have been sought?
    Mr. Robinson. Mr. Chair, I believe it has not, and I think 
your numbers are right. As I understand it, there have been 417 
decisions made after the Death Penalty Protocol was developed 
in death-eligible cases. The Attorney General agreed with the 
recommendations in U.S. attorneys in 377 of those 417 cases.
    I know that a letter was submitted to the Chair on June 24 
that provides additional information as to the breakdown of the 
ones where there might have been disagreement. My understanding 
is that the Attorney General decided to seek the death penalty 
in 19 of the cases in which there was disagreement and decided 
not to seek the death penalty in 18 cases in which there was 
disagreement.
    So my sense is that the Attorney General has kept her 
undertaking by making the calls on the basis of the record 
before her and the very careful process that is followed in 
these extraordinarily important cases that obviously need great 
attention.
    Senator Thurmond. The Attorney General has established a 
formal Protocol that requires that a review committee at Main 
Justice independently evaluate each case that is eligible for 
the death penalty, and receives formal input from defense 
counsel. As a former member of the review committee has 
written, ``Federal prosecutors wishing to prosecute a death 
penalty case must now consult with and suffer intense review by 
Main Justice at the highest levels.''
    The question is: do you think this procedure may have the 
effect of discouraging some Federal prosecutors from seeking 
the death penalty?
    Mr. Robinson. It is my sense, Mr. Chair, that it does not. 
I think everyone involved in this decision, investigators and 
prosecutors, realizes that the ultimate decision as to whether 
to seek the death penalty is a very different kind of decision 
than any other a prosecutor can make. It has serious 
consequences. The decision, to the extent the penalty is 
carried out, is final, as final as any could be.
    I think the process followed by the Department, which we 
have tried to continue to improve upon, is to assure a sense of 
uniformity in the approach and that these decisions receive 
very careful scrutiny. But, nevertheless, as I indicated when I 
appeared before the committee in my confirmation hearing, I 
think in certain cases the death penalty is an appropriate 
penalty.
    The process is designed to see to it that the decision is 
made fairly, but there should be no deterrence of Federal 
prosecutors to seek the death penalty in appropriate cases. I 
certainly haven't seen instances in which prosecutors have 
indicated to me that they were disinclined because of the 
process to seek the death penalty in appropriate cases. And I 
think most people would expect there would be a very careful, 
deliberative process in making this most important decision.
    Senator Thurmond. Under the Protocol, the U.S. attorney 
consults with the lawyer for the defendant before submitting a 
case that is eligible for the death penalty to the Justice 
Department for review. Then the defense lawyer has the 
opportunity to make a formal presentation to the review 
committee at Main Justice to try to convince it not to 
recommend the death penalty.
    The question is: do you think that most State prosecutors 
provide for such formal involvement by the defense counsel 
before the prosecutor decides whether to seek the death 
penalty?
    Mr. Robinson. I have to say I would be glad to try to get 
an answer to that. I am not sure I could speak on behalf of all 
of the States, or express full knowledge of what is done in the 
various States throughout the United States. But I would expect 
that every State that makes this kind of a decision would have 
a process by which they would conduct a very careful review.
    And because the Federal death penalty is relatively recent, 
I think the sense is that we are entering into a process that 
is new. For example, when I was a U.S. attorney 20 years ago, 
obviously with a very few exceptions the death penalty was not 
available. So this is a process the Justice Department wants to 
approach by making this decision in a very careful way. I think 
that is the intent and I think it is appropriate that we be 
careful.
    Senator Thurmond. Does the review committee hear from a 
representative for the victim in the same manner as it hears 
from the lawyer for the defendant? In other words, does the 
victim side have the opportunity to make an argument to the 
review committee just as the defendant does?
    Mr. Robinson. I think the answer is no. Input is sought 
from the victims, and appropriately so when Federal prosecutors 
make this kind of a decision. But I don't believe that there is 
a formal process where representatives of the victims actually 
appear before the review committee. But I will double-check to 
make sure that is the case, but I think the answer is no, 
certainly not in the same way that this process applies to 
defense counsel.
    Senator Thurmond. Thank you.
    Senator Feingold.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Thank you very much, Mr. Chairman.
    Mr. Robinson, thank you for being with us today. Although I 
come at the issue from quite a different perspective, I am 
pleased that the chairman has raised the issue of the death 
penalty, and that is what I would like to ask you about during 
my time.
    I am a strong opponent of the death penalty. I believe it 
is a form of cruel and unusual punishment, and I believe it is 
wrong for a civil society to rely on such a harsh punishment no 
matter what the gravity of the offense committed. I hope 
someday we can join the majority of nations in the world that 
have abolished the death penalty in law or in practice. In the 
interim, however, it is vitally important that those States who 
use the death penalty, as well as the Federal Government, do so 
in a fair manner, free of even a hint of capriciousness or 
arbitrariness.
    So, Mr. Robinson, my first question is it is my 
understanding that the Attorney General established a review 
committee in 1995 to review and recommend whether she should 
authorize a Federal prosecutor to seek the death penalty when a 
death-eligible Federal crime is committed, and the chairman 
already talked about that. This review apparently includes some 
opportunity for defense counsel to argue against authorization 
of the death penalty.
    In an article dated June 14, 1999, entitled ``Who Lives, 
Who Dies: DOJ Seeks Consistency in Capital Cases But Defense 
Bar Cites Vagaries,'' the Legal Times discussed this process. 
The Legal Times noted that since 1995, the number of cases 
reviewed has skyrocketed from 28 in 1995 to 166 in 1998. With 
the rise in the number of cases reviewed, Attorney General Reno 
has also increased incrementally each year the number of cases 
she has authorized for death penalty prosecution.
    In 1998, the Attorney General authorized Justice Department 
prosecutors to seek the death penalty for 44 of the 166 cases 
brought before her, or 27 percent of the cases. Since 1998, 
more than half of the federally authorized prosecutions in 
which the death penalty has been sought have been against black 
defendants and 75 percent against minorities.
    Since 1995, however, the Justice Department appears to be 
authorizing the death penalty against white defendants at a 
higher rate than against minority defendants. From January 1995 
to August 1998, the Attorney General authorized the death 
penalty for 41 percent of the white defendants and only 23 
percent of the minority defendants. This disparity may indicate 
that the death penalty is being applied in an arbitrary and 
capricious manner.
    How do you explain these numbers and the disparity in the 
race of persons who are subject to death penalty prosecution?
    Mr. Robinson. Senator, the one thing I want to point out is 
that the race of a death-eligible defendant in a capital case 
is not made available to the capital review committee. I am not 
suggesting they never learn of it, but intentionally that 
information is withheld from the capital review committee.
    There are situations in which that information comes to the 
attention of members of the committee either because counsel 
raises it or in situations in which racial animus is a specific 
element of the case involved. But there is a conscious effort 
to try to remove the issue of race from the case-specific 
evaluation of whether or not in a particular case, given the 
mitigating and aggravating circumstances present, the death 
penalty is appropriate to seek on behalf of the Department of 
Justice.
    Senator Feingold. Let me ask you as a follow-up, have there 
been any conversations within the Justice Department to address 
this disparity in the application of the death penalty? Is this 
something that is of concern to the Department?
    Mr. Robinson. Well, there is no doubt that these issues are 
appropriate to look at and appropriate to try to understand. 
This has been a subject of concern in the sense of wanting to 
be absolutely sure that any kinds of arbitrary factors are not 
creeping their way into the decisionmaking process. It 
certainly would be inappropriate for race or other arbitrary 
factors to play any part in the decisionmaking process.
    Senator Feingold. So in that spirit I do think it is vital, 
and I am sure you agree, that we monitor and maintain data on 
the application of the death penalty. I would like to know more 
about the Federal death penalty authorization and prosecution 
process, so I have a series of questions that I will submit to 
you that ask for data on the number and race of the defendants 
that have come before the Attorney General's review committee, 
as well as the eventual outcome of the cases broken down by 
U.S. attorney jurisdiction.
    I will submit those questions and ask that you respond in 
writing at your earliest convenience. They will include 
questions, as I have indicated, having to do with the number 
and race of the defendants who have come before the committee, 
the eventual outcome of the cases, the number of death-eligible 
crimes committed in each U.S. attorney's jurisdiction in which 
U.S. attorneys have requested authorization to use the death 
penalty, and so on. So I would submit those to you and ask for 
a response later.
    [The questions of Senator Feingold are located in the 
appendix:]
    Senator Feingold. What portion of the defendants before the 
review committee--and this is something the chairman was 
alluding to--are represented by defense counsel? And for those 
that are not represented by counsel, why are they without 
counsel?
    Mr. Robinson. I would have to double-check. I would expect 
in a death-eligible case it would be a very rare circumstance, 
and I am not aware offhand of any of those that would be 
appearing without any counsel at all, but I will double-check.
    Senator Feingold. I would appreciate that, and you could 
hopefully submit it with the other answers, or even perhaps 
sooner.
    On a follow-up on that, what is the Justice Department's 
actual position on whether a defendant has a right to counsel 
during the committee review process?
    Mr. Robinson. When you say a right to counsel, obviously 
they have a right to have counsel there. You are talking about 
a right to be represented by counsel during that process. I 
would be very surprised if they aren't represented by counsel, 
and if the Senator is aware of situations that I am not 
thinking of where somebody has gone through this process--this 
is at the charging stage, this is early in the process. They 
have a right, obviously, to counsel and would be represented by 
counsel in any criminal proceeding.
    Senator Feingold. Well, I am taking that answer as saying 
that the Justice Department does believe that a defendant has a 
right to counsel during the committee review process. If that 
is not the case, I hope you will let me know right away.
    Mr. Robinson. I certainly will get back to you.
    Senator Feingold. Finally, I am going to shorten this, Mr. 
Chairman, and ask to put the whole set of written questions in 
the record. All I want to do is point out that there is a great 
deal of activity around this country in State legislatures. In 
some of the States, you would almost be surprised where this is 
happening, calling for at least a moratorium on the death 
penalty in a number of States, including the State of Illinois, 
where a number of clear, almost tragic mistakes have been made 
where it has become clear that certain individuals who were 
under the death sentence could not have committed the crime and 
they are now free, fortunately. I am afraid the same thing has 
not happened in other cases.
    So I will spare you all the verbiage, except to say what 
effort, if any, has been made by the Justice Department to 
review death row inmate cases and ensure that not a single 
innocent person sits on Federal death row?
    Mr. Robinson. I think it is a very legitimate concern and 
we look at this very carefully, but I will get back to you on 
the details of these matters. One of the things I did is to 
make sure that the Capital Review Unit was made up of people 
who are not only experienced in cases involving the death 
penalty, but also approached the subject in a way that 
appreciated the seriousness of death as a penalty, and that 
this is not to be done without extraordinary care.
    And it would be, I think, a nightmare for all of us to have 
a Federal defendant put to death and for us to determine 
conclusively later that that person did not commit the crime 
for which he or she was executed. And I think that means that 
everybody involved in the process has to be extraordinarily 
careful to do everything we can to see to it that that doesn't 
happen.
    Senator Feingold. Thank you for your answers, and thank you 
for your time, Mr. Chairman.
    Senator Thurmond. Senator Sessions.
    Senator Sessions. Thank you. On that death penalty review 
committee I would just observe, and I think you would agree, 
that this is a non-statutory, non-required initiative of the 
Attorney General to give heightened review to the procedures.
    Mr. Robinson. That is true.
    Senator Sessions. Traditionally, the prosecutor and the 
grand jury who has to hear the indictment--and make no mistake, 
grand juries take death penalty cases very seriously.
    Mr. Robinson. No doubt about it.
    Senator Sessions. That is where it is normally decided, but 
she has taken an extra step.
    With regard to these numbers, like 166 in 1998 and 44 
approved, these 166 were those recommendations by the U.S. 
attorney that the death penalty be sought?
    Mr. Robinson. I think not. We will double-check, but all of 
these death-eligible cases come up, and there are situations in 
which the recommendations are not to seek the death penalty. 
And in a number of those cases, the Attorney General has 
decided notwithstanding the recommendation of the U.S. attorney 
that the death penalty not be sought the Attorney General of 
the United States has decided it should be sought.
    Senator Sessions. Well, you know, you can go too far in 
this matter to some degree. If the definition of who has to 
undergo the death penalty charge and be taken to a jury for 
it--and that is all we are talking about here--is totally to 
the discretion of the Attorney General and her personal 
theories about the matter, you do implicate the power of 
Congress.
    This Congress has passed a death penalty law. The President 
of the United States says he supports the death penalty, and in 
my observation has not criticized the matters which Congress 
has set forth as appropriate for the death penalty. I think you 
ought not to forget that it is not all totally up to the 
Attorney General, and she ought not to arrogate to herself 
total power to decide which cases go because the Congress has 
said certain kinds of crimes require the death penalty, or are 
appropriate.
    Mr. Robinson. I understand your point, Senator, and I do 
think that what is happening here is an effort to try to make 
sure that the death penalty process is conducted in a uniform 
way so that we don't have a situation where the Federal system 
is attacked because there are wildly different approaches in 94 
U.S. attorneys' offices.
    You and I as former U.S. attorneys know how jealously U.S. 
attorneys guard their prerogatives in this area. But I have not 
found that U.S. attorneys who frankly are not anxious to have 
Main Justice review many things--I haven't seen a concern on 
their part about such review. Now, there has been appropriate 
dialogue about making sure the process isn't unduly burdensome, 
and those things we have been working on. And we will continue 
to do so.
    Senator Sessions. Enough said, I suppose, about it. I just 
think that the law ought to be considered in this process to a 
significant degree.
    As I understood Senator Feingold's comments, he was 
suggesting that from 1995 to 1998 a higher percentage of cases 
were recommended for the death penalty for whites, 41 percent 
to 23 for minorities, but that number changed this year. I 
would just say to you--and I respect the Senator; he is 
straight up front. He does not believe that the death penalty 
is an appropriate penalty in America today. The Supreme Court 
and the American people have not agreed with that for the most 
part, but that is a legitimate view.
    I would just say to you that I hope you are not driven by 
numbers.
    Mr. Robinson. I expect we should not be driven by numbers 
at all. It would be inappropriate to be driven by numbers.
    Senator Sessions. You may have a situation in one year in 
which 44 cases come up and are approved and they are all of one 
race. I hope that if each one met the Attorney General's 
criteria, which I assume are fairly objective in many ways----
    Mr. Robinson. Yes.
    Senator Sessions [continuing]. That you would recommend the 
death penalty and would stand before the world and say you did 
it for race-neutral reasons based on justice and the facts of 
the case.
    Mr. Robinson. I share that view and I subscribe to it. It 
ought to be based upon what ought to be done on the individual 
case, regardless of race.
    Senator Sessions. And the numbers are never going to 
satisfy the people who don't believe in the death penalty. They 
will always find numbers that are not perfectly consistent with 
demography and we will have a fuss that it is unfairly applied. 
I would just point out that the death penalty procedure now 
requires two counsel be appointed for any person charged for a 
death offense, one of which shall be experienced in capital 
cases, and puts several other burdens.
    Back on the prosecution of gun cases, can you tell me what 
action you have taken, if any, subsequent to the President's 
radio address this spring in which he directed the Secretary of 
the Treasury and the Attorney General to improve the handling 
of these cases? Increase prosecution of criminals, I believe is 
what he said.
    Mr. Robinson. What was the date of the radio address? I 
didn't catch it.
    Senator Sessions. March 19.
    Mr. Robinson. In June, the Secretary of the Treasury and 
the Attorney General sent a memorandum to all U.S. attorneys 
and special agents-in-charge at ATF on the development of an 
integrated firearms violence reduction strategy, and I think it 
is directly related, Senator, to this.
    And I have to say we did speak about this during my 
confirmation process. I have inquired into this matter 
carefully because I know the Senator is very concerned about 
this issue and believes strongly in the subject of Federal 
enforcement of firearms statutes particularly with regard to 
violent criminals. And so I have been looking into that issue, 
as I said I would. I have looked at the numbers.
    I think you are right in terms of the fact that there are 
fewer firearms prosecutions from 1992 to today. And these 
numbers, I think, come out of the U.S. attorneys' statistics. I 
think that you could quarrel a little here and there with the 
numbers, but not the trend, and I wouldn't take issue with 
that.
    I have talked to the career prosecutors in the Criminal 
Division that were involved in the evolution of the Triggerlock 
project and the continuation of that, and particularly with 
regard to the current approach that is being taken by the 
Department. I know that it is one that you don't agree with 
entirely, and I would just say the following things about this 
and these are things you have heard before, I know.
    I think a combination of the fact that the 1994 violent 
crime initiative expanded the Department's work in the area of 
violent crimes beyond guns to gang-related violence and the 
continuing evolution--something that I know that you agreed 
with as U.S. attorney--of trying to work cooperatively with 
State and local law enforcement, has produced some rather good 
results. And I understand your position that they could be even 
better and the notion of continuous improvement is appropriate.
    But as I understand it, as of 1996, when you combine 
Federal, State and local efforts in this area, there are 22 
percent more criminals incarcerated on Federal and State 
weapons offenses than there had been before, which means the 
States are doing a better job. And we are trying to work 
cooperatively with them. In addition to efforts like Project 
Exile, I think you will see that people are being encouraged to 
use best practices in their individual judicial districts.
    Also, the number of Federal offenders serving sentences of 
5 years or more in the Federal system is up 25 percent since 
1992. There is another important factor--and I am not 
suggesting that the Justice Department is entitled to take 
credit for it. It is a combined issue of demographics and a lot 
of hard work by Federal, State and local law enforcement. But 
the fact is that we have had a 27-percent decline in violent 
crimes committed with guns between 1992 and 1997 and that the 
homicide rate is at a 30-year low, is encouraging, but doesn't 
mean we can be complacent.
    The Senator has made a contribution by keeping the Justice 
Department and the rest of Federal and State law enforcement 
focused on the need to concentrate our efforts. And we can do 
more. I think the Senator's efforts in this area continue to 
remind us that we need to be looking at these numbers, looking 
at ways to do a better job, such as encouraging U.S. attorneys 
to diagnose these problems and take a look at the laws in their 
own jurisdictions and work out solutions so that serious cases 
involving violence, involving guns, do not fall between the 
cracks.
    So my sense is that the current balance is working well, 
and I haven't sensed in the people that I have talked to in our 
Terrorism and Violent Crimes section and others who have been 
involved in Triggerlock all along, are uncomfortable with this 
mix. But that doesn't mean that it isn't appropriate to ask 
ourselves whether we can do a better job. I understand the 
Senator's views and I think they are appropriate to continue to 
remind us of the need to do better.
    Senator Sessions. Well, I know the time is out, but I know 
the U.S. attorney and the chief of police in Richmond who 
testified believe that enhanced prosecutions of Federal gun 
violations in Richmond substantially reduced the violent crime 
rate. The murder rate went down 40 percent, and I believe that 
could be replicated around the country.
    The Federal Government has the ability to detain people 
prior to trial with criminal records better than most States. 
They have a prompt trial within 70 days. There is certain 
punishment if the defendant is found guilty. Police appreciate 
it and I think it does work. And I think there are people not 
alive today because we haven't used it aggressively enough. 
People like Senator Schumer are most eloquent in asking for 
more and more gun laws, but I am asking what about the ones we 
have got?
    Thank you, Mr. Chairman.
    Senator Thurmond. Thank you, Senator.
    Mr. Robinson. Thank you, Senator.
    Senator Thurmond. Senator Leahy.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Well, Mr. Chairman, I think the Senator from 
Alabama will probably not be overly surprised to know that much 
of what he said I agree with. I feel if we are going to put 
these gun laws on the books, then let's enforce them. I 
understand the U.S. attorneys may determine, a lot of them, 
that they would rather the local prosecutors do it. But if some 
of these are going to be Federal laws, I think we ought to 
prosecute them, and we ought to prosecute them effectively and 
strongly.
    I find it very difficult to understand why somebody who has 
had three or four prior felonies, and each one involving a 
weapon, why they are still walking on the street, somebody who 
has had three or four prior felonies and they go in to buy a 
gun, why they are not nailed for that. Just as I find sometimes 
local police departments round up people and confiscate their 
guns; they have all got felonies and nothing happens to them. 
So the Senator from Alabama and I are not too far apart on this 
issue.
    I would note, though, on another issue, the death penalty, 
first, I come from a State that does not have the death 
penalty. We don't have many gun laws either. We don't have much 
crime. Maybe they are all related. I am not sure. We do have 
one gun law. During deer season, if you are using a semi-
automatic rifle, you are limited to the number of rounds you 
can have in the weapon because the deer should be given some 
kind of a chance. Other than that, just about anybody can carry 
a loaded concealed weapon. We don't have any permit process, so 
there are no permits. We do have laws, of course, on the sale 
of firearms.
    But we also found long ago that we did away with the death 
penalty because in most instances it was not a deterrent. 
Perhaps in some rare ones, but most murders tend to be family 
murders or people who know each other. We found it was not a 
deterrent, but we also had a concern that the wrong person 
might get picked up.
    Since 1976, when capital punishment was reinstated, we have 
had 558 people executed. During that same time, 80 people who 
were on death row who had been sentenced to death and who were 
about to be executed were suddenly found innocent and set free. 
For every seven executions, they found somewhere somebody who 
had been convicted through the whole system was a mistake. That 
is three innocent people sentenced to death each year.
    In the first half of 1999, seven innocent capital prisoners 
have been released from death row after they spent a combined 
total of 61 years on death row. Randall Dale Adams might have 
been routinely executed if his case had not attracted the 
attention of a film maker, Earl Morris. The movie ``The Thin 
Blue Line'' shredded the prosecution's case and cast the 
national spotlight on Adams' innocence.
    But probably a better case is Anthony Porter. He spent 16 
years on death row, 16 years waiting for execution. In 1998, he 
came within 2 days of execution. He got cleared, not by the 
criminal justice system doing its job, but by a class of 
undergraduate journalism students at Northwestern University 
who took it on as a class assignment. We are finding now with 
DNA more and more people saying, I wasn't the guy there. And it 
turns out, guess what? They weren't the guy there. So I would 
hope that you would supply for the record just what steps are 
taken to make sure we don't get the wrong person.
    I would also like you to look at what the Supreme Court has 
said about the extent to which crime-fighting can be conducted 
at the Federal rather than the State or local level. I know 
that some of my colleagues have worried about the Supreme Court 
being activist, and I assume they meant Chief Rehnquist and 
Justice Scalia and Justice Thomas and some of the others who 
have given the States carte blanche to violate Federal patent 
and trademark laws. They have made it impossible for State 
employees to enforce their federally protected right to get 
paid for overtime work. I assume that is what my Republican 
colleagues meant about this activist Supreme Court. So I would 
hope we are going to work closely together to make sure we have 
legislation that will survive Supreme Court scrutiny.
    I am going to have some questions I will submit to you 
about CALEA. CALEA has been implemented at an extremely slow 
pace. The Department of Justice issued its final notice of 
capacity requirements over 2 years late. The FBI has dragged 
its feet and delayed it even further by challenging before the 
FCC the sufficiency of an industry-adopted standard for 
compliance with the law.
    As one who helped write that law, I am concerned that 
implementation of CALEA has been subverted. We tried to 
maintain a balance among privacy rights, law enforcement 
interests, and innovation in the telecommunications industry. 
Now, we find the costs soaring and we find that suddenly the 
FBI has decided they want a lot more than anybody ever intended 
them to have. I want to know what the Justice Department is 
doing on that.
    There are a number of pieces of legislation and I want to 
know whether you will work with me on those. Again, I will put 
that in the record.
    [The prepared statement of Senator Patrick Leahy follows:]

              Prepared Statement of Senator Patrick Leahy

    This is the first occasion, since we held a hearing on the 
nomination of Jim Robinson to head the Criminal Division in April 1998, 
to hear directly from him. This hearing is long overdue, and I commend 
the Chairman and Ranking Member of the Subcommittee for focusing our 
attention on how the Criminal Division is handling a number of issues 
critical to enforcement of our federal criminal laws.
                               federalism
    As we consider federal law enforcement issues, we must be cognizant 
that the Supreme Court has launched a cautionary shot across our bow 
about the extent to which crime fighting may be conducted at the 
federal, rather than the state or local, level. This year's crop of 
state's rights decisions continues what many consider the Court's 
activist efforts to whittle down the legitimate authority of the 
federal government. In 1995, for the first time in more than half a 
century, the Court invalidated a federal law as beyond the Commerce 
Clause, involving children and guns in our schools. This year, the 
Court gave the states carte blanche to violate federal patent and 
trademark laws, and made it impossible for state employees to enforce 
their federally-protected right to get paid for overtime work.
    The maintenance of state sovereignty is a matter of great 
importance. For this reason, I have been critical of the increasing 
intrusion of federal regulation into areas traditionally reserved to 
the states. But it is one thing to say that Congress should forbear 
from interfering in areas that are adequately regulated by the states; 
it is quite another thing to say that Congress may not exercise its 
constitutional authority to enact legislation in the national interest.
    We are in danger of becoming the incredible shrinking Congress, and 
not to preserve legitimate local autonomy, but instead on the altar of 
a strange abstraction of ``state dignity.'' As we work together to 
produce effective national legislation to combat crime, we will have to 
work even harder to ensure the legislation will survive Supreme Court 
scrutiny as a proper exercise of congressional power.
                  digital telephony law implementation
    As the primary Senate sponsor in 1994 of the Communications 
Assistance for Law Enforcement Act (CALEA), I have been disappointed 
with the pace at which this important law has been implemented. For 
example, the Department of Justice issued its final notice of capacity 
more than two years late. This delay produced additional delays in the 
ability of telecommunications carriers to achieve compliance with the 
four capability assistance requirements established in CALEA.
    The FBI has also challenged before the Federal Communications 
Commission the sufficiency of an interim standard adopted in December 
1997 by the industry for wireline, cellular and broadband PCS carriers 
to comply with the capability assistance requirements. The FBI wants 
additional surveillance functions built into our telecommunications 
system. For example, the FBI wants access to mobile phone location 
information, to credit card and banking information transmitted over 
phone lines under a low standard, the ability to eavesdrop on 
conference calls when the persons named in the court order are not on 
the call, and so on. I have been concerned that those additional 
surveillance functions raise significant privacy interests and are 
being demanded by law enforcement without any regard to the cost.
    Uncertainty over the outcome of the disputed industry-adopted 
standard has resulted in further delays in developing technical 
solutions that would bring our carriers into compliance. Indeed, the 
FCC was compelled to extend the compliance date of the law by almost 
two years, until June 30, 2000. Moreover, concerns over the costs of 
the FBI demands have prompted the House of Representatives to pass on 
two occasions legislation that would extend the so-called ``grandfather 
date'' under CALEA and make the government responsible for bearing more 
of the costs of CALEA compliance. The most recent version of this 
legislation, H.R. 916, passed the House on July 13, 1999, and extends 
the ``grandfather'' date from January 1, 1995, for five years until 
June 30, 2000.
    In short, implementation of CALEA has been subverted: The balance 
we tried to maintain in CALEA among privacy rights, law enforcement 
interests and innovation in the telecommunications industry is being 
threatened, compliance with the law is being delayed, and the costs 
continue to soar. I want to hear what Assistant Attorney General 
Robinson is doing about this situation.
                          e-rights act, s. 854
    I introduced privacy legislation earlier in this session to clarify 
the standards and procedures governing when law enforcement may use the 
surveillance capabilities the FBI is seeking from the FCC. For example, 
my bill would require a probable-cause court order before the FBI is 
authorized to use a cellular phone as a tracking device. The E-RIGHTS 
bill would also require the FBI to obtain court approval before 
eavesdropping on a conference call of persons not named in a wiretap 
order. This bill contains a number of other reasonable provisions 
designed to restore and protect our privacy rights in our phone, fax 
and computer communications. I want to hear whether Assistant Attorney 
General Robinson is willing to work with me in this important area--
which will become even more critical should the FBI be granted by the 
FCC all the additional surveillance capabilities it has requested.
                       senior safety act, s. 751
    Seniors are the most rapidly growing sector of our society. It is 
an ugly fact that crimes against seniors are a significant problem. To 
address the unyielding rate of crimes against seniors, in March I 
introduced S. 751, the Seniors Safety Act, to provide a new safety net 
of laws to combat these crimes. This is a comprehensive bill that 
addresses the crimes to which seniors are most vulnerable--from 
combating health care fraud and abuse and protecting nursing home 
residents to safeguarding pension and employee benefit plans from 
fraud, bribery and graft.
    I know that the Administration has been working on its own 
legislative proposals in this area, including provisions to allow the 
use of administrative subpoenas for access to health records for fraud 
investigations. My legislation would authorize the use of such 
subpoenas but under circumstances that would protect against the 
further disclosure of personally identifiable health records. The 
Administration's draft proposal does not have any such protections 
included. As this legislation moves forward, I would hope that the 
Department, and the Criminal Division in particular, will find common 
ground on authorizing reasonable standards for access, use and 
disclosure by law enforcement of personally identifiable medical 
records in ways that do not hinder fraud investigations, but also in 
ways that ensure these records are accorded privacy protection.
                          death penalty cases
    People of good conscience can and will disagree on the morality of 
the death penalty. But I am confident that we can all agree that a 
system that sentences one innocent person to death for every seven that 
it executes has no place in a civilized society, much less in 21st 
Century America.
    Yet that is what the American system of capital punishment may have 
done for the last 23 years. A total of 558 people have been executed 
since the reinstatement of capital punishment in 1976. During the same 
time, 80 death row inmates have been found innocent and set free. That 
is one exoneration for every seven executions. That signifies that more 
than three innocent people are sentenced to death each year. The 
phenomenon is not confined to just a few states; the 80 exonerations 
since 1976 span more than 20 different States. And the rate seems to be 
increasing: In the first half of 1999, seven innocent capital prisoners 
have been released from death row, having spent a combined 61 years on 
death row.
    This would be disturbing, if their eventual exoneration was the 
product of reliable and consistent checks in our legal system. It might 
be comprehensible, though not acceptable, if we as a society lacked 
effective and relatively inexpensive means to make capital punishment 
more reliable. But many of the freed men owe their lives to fortuity 
and private heroism, having been denied common-sense procedural rights 
and inexpensive scientific testing opportunities. Consider the case of 
Randall Dale Adams, who might have been routinely executed had his case 
not attracted the attention of a filmmaker, Earl Morris. His movie, The 
Thin Blue Line, shredded the prosecution's case and cast a national 
spotlight on Adams' innocence. Consider the case of Anthony Porter, who 
spent 16 years on death row and came within two days of execution in 
1998; he was cleared this year by a class of undergraduate journalism 
students at Northwestern University. Now consider the cases of the 
unknown and unlucky, whom we may never hear about.
    By reexamining capital punishment in light of recent exonerations, 
we can enact provisions to reduce the danger that people will be 
executed for crimes they did not commit, while increasing the 
probability that the guilty will be brought to justice. We can also 
help to ensure that the death penalty is not imposed arbitrarily or out 
of ignorance or prejudice. I would hope that the Department of Justice 
would join me in developing legislation to reduce the risk of mistaken 
executions.
              anti-atrocity alien deportation act, s. 1375
    The recent events in Kosovo have been a graphic reminder that 
crimes against humanity did not end with the Second World War. 
Unfortunately, war criminals who wielded machetes and guns against 
innocent civilians in countries like Haiti, Yugoslavia and Rwanda have 
been able to gain entry to the United States through the same doors 
that we have opened to deserving refugees. Once these war criminals 
slip through the immigration nets, they often remain in the United 
States, unpunished for their crimes.
    We need to lock our door to those war criminals who seek a safe 
haven in the United States; and to those war criminals who are already 
here, we should promptly show them the door out.
    Senator Kohl and I recently introduced S. 1375, ``The Anti-Atrocity 
Alien Deportation Act,'' to close loopholes in current law to 
accomplish this task. The Act would (1) bar admission into the United 
States and authorize the deportation of aliens who have engaged in acts 
of torture abroad; (2) provide statutory authorization for and expand 
the jurisdiction of the Department of Justice's specialized Office of 
Special Investigations (OSI) to investigate, prosecute and remove any 
alien who participated in torture and genocide abroad--not just Nazis; 
and (3) authorize additional funding to ensure that OSI has adequate 
resources to fulfill its current mission of hunting Nazi war criminals.
    Little is being done about the new generation of international war 
criminals living among us, and these delays are costly. As any 
prosecutor knows, such delays make documentary and testimonial evidence 
more difficult to obtain. Stale cases are the hardest to make.
    This is one of the mistakes we made with Nazi war criminals: 
waiting for more than 30 years after the end of World War II before 
creating OSI within the Criminal Division to hunt for Nazi war 
criminals. Let us not repeat the mistake we made with Nazi war 
criminals of waiting decades before tracking down those war criminals 
who settled in this country. I invite the Department of Justice to work 
with me as this legislation moves through Committee to make any 
refinements necessary to address this problem.
                computer crime enforcement act, s. 1314
    I recently introduced this legislation to establish a Department of 
Justice grant program to support state and local law enforcement 
officers and prosecutors to prevent, investigate and prosecute computer 
crime. Senator DeWine, with whom I worked closely and successfully last 
year on the Crime Identification Technology Act, and Senator Robb, who 
has long been a leader on law enforcement issues, also support the bill 
as original cosponsors.
    Computer crime is quickly emerging as one of today's top challenges 
for state and local law enforcement officials. A recent survey by the 
FBI and the Computer Security Institute found that 62 percent of 
information security professionals reported computer security breaches 
in the past year. These breaches in computer security resulted in 
financial losses of more than $120 million from fraud, theft of 
proprietary information, sabotage, computer viruses and stolen laptops. 
Computer crime has become a multi-billion dollar problem. I invite the 
Department of Justice to work with me and my colleagues to provide our 
crime-fighting partners in the States with the resources necessary to 
combat computer crime.
                  crime victims assistance act, s. 934
    Finally, I note that the Senate remains in neutral when it comes to 
providing greater protection and assistance to victims of crime. For 
the last several years, I have sponsored comprehensive legislation on 
this important matter with Senator Kennedy. Others in the Senate are 
insistent on consideration of a proposed constitutional amendment 
first. We can make significant improvements now, without delay. I will 
be interested to hear from the Assistant Attorney-General about what 
the Department is doing to protect the rights and dignity of victims of 
crime.
    These are just a few of the important criminal justice issues 
confronting us today. I look forward to hearing from Mr. Robinson about 
his views on these and other issues.

    [The questions of Senator Leahy are located in the 
appendix:]
    Senator Leahy. I would ask you this question. I recently 
introduced S. 1375, a bill that would bar admission into the 
United States and authorize the deportation of aliens who have 
engaged in acts of torture abroad. S. 1375 would expand the 
jurisdiction of OSI, the Office of Special Investigations, to 
investigate and prosecute and remove any alien who participated 
in torture and genocide abroad, as we have with those from the 
Holocaust.
    But now we find that genocide and these types of war crimes 
go on, whether it is in Rwanda, Central America, Bosnia and 
elsewhere. And then these people who commit the crimes, some of 
them, come and hope they can hide in a nation of 250 million 
people and utilize our laws. We owe the Department of Justice 
support for the expansion of OSI so we can go after these war 
criminals.
    Mr. Robinson. I saw the article actually in the Legal Times 
today--I don't know if you have seen it yet--on your 
legislation, and we will be happy to look at it. I obviously 
support the work of the Office of Special Investigations in the 
Criminal Division.
    Senator Leahy. As do we all.
    Mr. Robinson. When I was U.S. attorney, that Unit was 
created by then Attorney General Civiletti and one of the early 
important cases was in the Eastern District of Michigan. So we 
will be happy to take a look at that, Senator.
    Senator Leahy. Well, look carefully.
    Mr. Robinson. We will look carefully.
    Senator Leahy. I think it is long overdo.
    Mr. Chairman, I am delighted to have a chance to be here. I 
am delighted to have a chance to discuss what some of you have 
said has been an activist Supreme Court, and to talk about 
Vermont. Of course, Mr. Chairman, you are always welcome to 
come there. Even Senator Schumer is welcome to come any time he 
wants.
    Senator Thurmond. Thank you very much.
    Senator Leahy. Thank you, and we will get simultaneous 
translation for either one of you guys if you come.
    Senator Thurmond. Senator Schumer.

 STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 
                       STATE OF NEW YORK

    Senator Schumer. Well, thank you, Mr. Chairman, and I thank 
you for holding this hearing which is part of our job of 
oversight. And I thank Senator Leahy for gracing us with his 
presence. It is always good to see Senator Leahy whether it is 
in Washington, DC, New York State, or Vermont. But it is 
usually in Vermont that I see him and he is always talking 
about Vermont, which is great.
    My questions are these. First, I know Mr. Sessions talked 
about gun prosecutions, which I want to talk about in a minute, 
but I would just make two points. The two are not mutually 
exclusive. Tightening the laws on controls and enforcing the 
existing laws are not inconsistent. I know that some people 
want to say it is an either/or situation.
    I remember in the House when I was a leader on gun control 
I sort of confounded many of the people on the other side 
because they said, well, you are not tough on crime. And that 
was not my position. I am a strong advocate for gun control. I 
also have supported punishment--three strikes and you are out, 
capital punishment, things like that. And they always get in a 
tizzy about me because they used to go after the gun control 
advocates saying, well, you are not for punishing people, just 
for taking the guns away. I happen to be for both.
    One of the things I would say--I am sorry my colleague from 
Alabama isn't here--you know, they say, well, we have plenty of 
laws on the books. Well, many of the pro-gun advocates make 
sure that those laws are so riddled with loopholes that they 
don't work. The one that is most notorious is the Brady law 
which required a background check. The NRA worked hard to put 
in a loophole on gun shows. Now, we are here coming to gun 
shows.
    Every time they try to make sure the law doesn't work and 
then they say, see, it didn't work. So I will leave that at 
that and I will continue the conversation with my good friend 
from Alabama. I don't agree with him on this issue, but I 
appreciate his considerateness and his steadfastness on the 
issue.
    My question is this on gun prosecutions. As you know, I 
have been a strong supporter of Project Exile which I think has 
done a very good job, and a lot of the spade work for it 
occurred in my State of New York, particularly in the Western 
District over in Rochester and in Buffalo. One of the issues in 
Project Exile is whether gun prosecutions should be brought in 
Federal or State court, and there are a whole bunch of sub-
issues that make that decision, where the sentences are longer, 
where the Federal prosecutors have the resources to play a 
prominent role, the opportunity costs.
    Those are important questions, but there is one point that 
is sort of left out and that is the fact that some firearms 
offenders have moved through county and State jails many times 
before their latest firearms offense. They know the system, 
they know the jail crowd. Their buddies are there. It is almost 
as if the county and State criminal justice systems are a 
second home for these individuals, particularly when they get 
shorter sentences.
    In Rochester, NY, Exile means Federal prosecution and 
incarceration in a far-away Federal facility or a far-away 
county facility under Federal contract. The repeat offenders 
under Exile no longer know the ins and outs of the system. 
Their relatives can't visit them that easily. The consequences 
for a gun crime become truly life-changing for the offender.
    I would just ask your opinion, Mr. Robinson, about this 
often ignored aspect of Federal firearms prosecution projects.
    Mr. Robinson. I think your point is well taken, Senator, 
and I think every U.S. attorney ought to be sitting down with 
his or her State attorney general and county prosecutors, and 
those individuals ought to be identified for the strictest 
possible treatment, whether it is in the Federal system or the 
State system. And because of the debate in this area, we are 
now seeing that there are States that have tough sentences.
    But what we hope will happen, and I think should continue 
to happen and has been happening is that every judicial 
district, every U.S. attorney, ought to be sitting down and 
carefully targeting in his or her own district, often on a 
community-by-community basis, what it needs to get at the 
problem of gun violence in America.
    So I think those kinds of considerations ought to be 
brought right down to the communities and to the districts, and 
U.S. attorneys ought to be encouraged to take those cases and 
to work with State and local prosecutors to see to it that that 
kind of syndrome that you describe does not repeat itself.
    Senator Schumer. And could we get some assurance from 
Justice that you will pass the word out on this issue to the 
U.S. attorneys throughout the country, those in jurisdictions 
with Project Exile that is ongoing? As you know, in this 
budget, in the Commerce-Justice-State budget, Exile was 
expanded rather significantly.
    Mr. Robinson. I do understand that, and we do think that 
this ought to be a matter of discretion within the U.S. 
attorneys. But I think the objectives are--I think we all agree 
on the objective, which is to get the job done in 
identification, prosecution, and putting people away who are 
engaged in gun violence activities, all kinds of serious 
violent activities. But guns are a serious problem and we 
understand that.
    Senator Schumer. OK, thanks. Next is on cyber crime and 
cyber terrorism, something I have become concerned about in 
recent years because of the vulnerability of our computer 
networks to attack. We worry a lot about bombs, biochemical 
weapons of mass destruction. Computer terrorism can be just as 
deadly because our critical infrastructures are almost entirely 
computer-dependent.
    We are hearing almost daily of hacking incidents into a 
military or government system. Just yesterday, the newspapers 
reported on security flaws that have been discovered in the 
UNIX operating system, and that is the most common operating 
system used by servers on the Internet. So I believe that this 
effort to fight cyber crime and cyber terrorism ought to be one 
of the Justice Department's highest priorities, and so I have a 
few questions in this regard.
    First, I understand that the people in the Computer Crimes 
Section work very hard. I have tremendous respect for them. But 
are there enough prosecutors assigned to that Section, and are 
those prosecutors getting the technical support they need to 
accomplish their mission?
    Mr. Robinson. There is no question that you are absolutely 
right about the concern that we ought to have for the future in 
the area of cyber terrorism and cyber crime. The Computer Crime 
and Intellectual Property Section, as you know, was created 
relatively recently, in 1996, and I can say that the people of 
the United States, and the Justice Department in particular, 
are blessed to have some of the brightest, most able Federal 
prosecutors in this area.
    The chief of the Computer Crime Section is an outstanding 
individual who could walk out the door tomorrow and quadruple 
his income, I am sure. And we have dedicated people working 
very hard. Can we use more? Yes. We are trying actually within 
our own resources to move people into that area. Increasingly, 
that Section gets called upon by all the other sections in the 
Criminal Division and in the field.
    The Section has designated computer and telecommunications 
coordinators in every U.S. attorney's office. We are trying to 
get the word out and provide training for investigators and 
prosecutors. This is where the wave of the future is in terms 
of the threat to our national security and the threat to crime 
activities generally. So you are right on the money. We know 
that we have got to really put the resources into this field 
and so we are working hard to try to get that done.
    Senator Schumer. Next question: do you think sentences for 
computer crimes need to be enhanced?
    Mr. Robinson. Yes, and there are a variety of things that 
we can provide some additional detail on. One that occurs to me 
offhand is in the intellectual property area, but there are a 
few others in which it might be appropriate. We certainly don't 
want things falling between the cracks because laws that were 
created before the avalanche of this new technology may not 
have been thinking about some of these issues. We need to stay 
on top of those as well.
    Senator Schumer. Finally, because so many of these crimes 
are being committed by younger and younger people who may not 
even be aware that they are crimes--they may think, oh, this is 
fun or something like that, I don't know what--is the 
Department doing any outreach to inform juveniles of the 
consequences of computer crime?
    Mr. Robinson. I think there are some efforts afoot, but 
probably there should be more. We have some of these problems 
we see with juveniles who are playing around. But we are trying 
to get the message out by the swift investigation and 
prosecution of those cases, some even involving juveniles, that 
this is not an area you can play around with and get away with 
it.
    Senator Schumer. And one final question, Mr. Chairman--I 
see my time is up.
    Senator Thurmond. Go ahead.
    Senator Schumer. Thank you, Mr. Chairman.
    Just on biological terrorism, another real threat 
particularly in heavily populated areas such as New York City, 
my question is that since a biological attack would require 
unprecedented coordination between the medical establishment, 
local and State law enforcement and Federal authorities, what 
is Justice doing on this front?
    Secretary of Defense Cohen has said the question is not if, 
but when a biological attack will occur. I want to make sure 
that your Department and other agencies are doing all they can 
to prepare for such an incident.
    Mr. Robinson. We would be glad to provide greater detail, 
but you are absolutely right that this is something that there 
needs to be an interagency approach to. I have been involved in 
serious meetings and planning in this area. We have got plans 
in the works and protocols to deal with this, but obviously we 
have got to do everything we can. I will be glad to assimilate 
the material we have that can be made available to you and get 
those to you, Senator.
    Senator Schumer. Thank you, Mr. Chairman. Thank you, Mr. 
Robinson.
    Senator Thurmond. I would like to turn to 18 U.S.C. 3501, 
the law that the Congress passed to govern the admissibility of 
confessions in Federal court after the Miranda v. Arizona 
decision.
    During an oversight hearing in 1997, Attorney General Reno 
informed the committee that she would apply section 3501 in an 
appropriate case. In United States v. Dickerson, in the Fourth 
Circuit, the trial court found that the defendant had 
voluntarily confessed his crime but that the Miranda warnings 
were not read to him beforehand.
    Why was Dickerson not an appropriate case for the Justice 
Department to raise section 3501?
    Mr. Robinson. This is another area I anticipated you might 
want to get into. Although I didn't testify at your hearing, I 
did submit a statement before the subcommittee in connection 
with this issue on the May 13 hearing which explained what the 
position of the Department is and has been with regard to 3501 
and Dickerson.
    Miranda v. Arizona was decided in my first year of law 
school, 1966, and when I graduated from law school in 1968, 18 
U.S.C. 3501 was passed. So I find it not only interesting, but 
also very momentous to be in a situation in which we have the 
very serious possibility that the U.S. Supreme Court will, in 
the context of Dickerson, if certiorari is applied for and 
granted--and our response to the application, I think, is 
currently pending--that this issue may then be a situation in 
which we would be before the Supreme Court.
    As I said during my confirmation hearing, this is an issue 
that I think is a very important one for us to look at 
carefully, particularly in this context that we find ourselves 
in at the moment. I can explain briefly the reason why the 
Department has taken the position that it has. It is set out in 
my statement that was submitted for the hearing, and that 
simply is that in a situation in which Miranda v. Arizona has 
not yet been overruled by the U.S. Supreme Court, there is an 
apparent conflict between Miranda v. Arizona and 18 U.S.C. 
3501. The issue obviously presented is whether Miranda is 
constitutionally based.
    And if it is, is it predicated on the Supreme Court's 
determination that the Miranda warnings are compelled by the 
reading of the Supreme Court of the U.S. Constitution. To the 
extent that 18 U.S.C. 3501 conflicts with Miranda v. Arizona, 
we find ourselves in a situation in which under Supreme Court 
law you cannot lightly assume that the U.S. Supreme Court 
decision which has not been overruled is no longer good law.
    So the Department has taken the position, as it did in 
Dickerson, that it has been inappropriate to do that. By a 2 to 
1 decision of the court of appeals in Dickerson, two judges had 
a different view, and en banc the court of appeals let that 
decision stand. So it appears that there will be an opportunity 
to address that issue, and I think that the way in which this 
issue is now teed up provides an opportunity for the Justice 
Department, in the context of the position it takes in response 
to the petition for certiorari and then, if granted, in the 
briefs to be filed in the U.S. Supreme Court, to determine 
whether there ought to be an effort to deal with Miranda in a 
way different than the way it has been dealt with until now.
    The U.S. Supreme Court undoubtedly has the capacity to 
change Miranda v. Arizona to agree with the principles that are 
enunciated in 3501 and could do that.
    If the Supreme Court were to say that the Miranda warnings 
are simply prophylactic rules not compelled by the 
Constitution, then 3501 could, be constitutional and we could, 
in fact, reinstate ourselves to a pre-Miranda situation.
    But I think there will be an opportunity to address this. 
We are looking hard at the whole question in terms of making a 
recommendation to the Solicitor General, who has the final say, 
subject to the Attorney General, on what the Department's 
position is on this. But we are looking at it hard, and frankly 
we are looking at all the alternatives as to what the 
Department's position should be and whether Miranda v. Arizona 
ought somehow to be modified.
    That is an ongoing process. Ever since Dickerson was 
decided, we have been gathering the appropriate information and 
having those issues carefully examined. The big problem is that 
as long as the U.S. Supreme Court continues to apply Miranda v. 
Arizona to the States, and could only do that if it is 
constitutionally based, we have ourselves in a situation in 
which I am not sure a congressional enactment can trump a 
decision on constitutional law by the U.S. Supreme Court.
    That is an issue we discussed when we were here before, but 
that argument may actually not be the key issue if the Supreme 
Court grants cert in the Dickerson case because the Court then 
will have an opportunity to say exactly what the current state 
of the law is and what the majority of the Court currently 
feels on the subject of whether the exclusionary rule should 
apply in situations where the warnings were not given.
    So we are looking at it and we don't have a predetermined 
position. Of course, I couldn't speak for the Solicitor General 
in any event, but we will be making recommendations to the 
Solicitor General on the Criminal Division's view. We are 
consulting with U.S. attorneys and trying to get the view of 
law enforcement because we have two decisions to make, a policy 
decision and a legal decision, and that process is ongoing as 
we speak.
    Senator Thurmond. The executive branch has a constitutional 
duty to faithfully execute the laws, and I understand that the 
traditional policy of the Justice Department is that it will 
defend laws of the Congress as long as a reasonable argument 
can be made that they are constitutional.
    Regardless of one's views about the constitutionally of 
3501, the Fourth Circuit has upheld the statute in Dickerson 
and the Tenth Circuit has upheld it in United States v. 
Crocker. No circuit has directly held section 3501 to be 
unconstitutional. In this situation, why does the Department 
not have a duty to defend section 3501 before the lower Federal 
courts?
    Mr. Robinson. Well, I think the question is the Department, 
as Congress has an obligation to follow the law of the land as 
articulated with regard to the Constitution by the U.S. Supreme 
Court. And I think the position that has been taken in these 
cases that have been articulated in the testimony that I 
submitted previously has been that as long as the U.S. Supreme 
Court has not seen fit to overrule Miranda v. Arizona in any 
case that the Department has to follow the last word of the 
U.S. Supreme Court.
    And as was indicated in the Felton case in 1997, the lower 
Federal courts, and this has been the Department's position 
have an obligation to follow the teachings of the U.S. Supreme 
Court.
    But the issue is the exact position that the Solicitor 
General will take on 3501, and the principles that underlie 
3501, and that is the question of whether or not there ought to 
be an exclusionary rule for Miranda violations. The Supreme 
Court can certainly change that rule and they could do it in 
the context of the Dickerson case.
    I think we have an obligation to approach this issue from 
the point of view of what is best for law enforcement, and that 
is the way I feel about it in terms of the Criminal Division. 
We are certainly going to be articulating the law enforcement 
perspective on what the Department's position ought to be on 
this issue as we review it in this context now that we have a 
specific case that tees it up.
    Senator Thurmond. It is important the Senate learn as soon 
as possible what the position of the Department will be in 
Dickerson. If the Supreme Court hears the Dickerson case, the 
Senate should defend the law if the administration will not. 
Will you cooperate with this committee so that Senate Legal 
Counsel will have the opportunity to defend section 3501 before 
the Supreme Court if the administration will not?
    Mr. Robinson. Speaking on my own behalf, and I can only go 
as high as the second floor, I would say the answer is 
absolutely yes. We will cooperate with this committee with 
regard to obviously keeping the committee advised as we can 
when that determination is made, and I think in plenty of time 
for there to be an opportunity if the Senate feels it needs to 
take a different view because it is not satisfied. We would be 
glad to keep the Senate advised of that, Senator.
    Senator Thurmond. Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman, for raising that 
issue. It has always been completely circular, the logic of the 
Department of Justice on this matter. When you say the lower 
courts have a duty to follow the Supreme Court and Miranda and 
the Department will never take up 3501 and the voluntariness 
position, unless the Court, as in this case, really just on its 
own motion takes it up, it doesn't get up. Isn't that correct?
    Mr. Robinson. Well, it could come up any minute in the 
context of a State case, obviously, because----
    Senator Sessions. Well, there is a case out of Virginia--is 
that Dickerson--that you all refused to argue the issue on?
    Mr. Robinson. The consistent position of the Department has 
been that at least in recent years--and my understanding is 
that there have been over the years some efforts to address 
this issue in various administrations--has been that we are 
bound by Miranda, that district judges and courts of appeals 
cannot overrule Miranda. We think, frankly, Dickerson on the 
face of it was incorrectly decided as a matter of 
constitutional law. That is the Solicitor General's position.
    Senator Sessions. This is through the looking glass land, 
really. I mean, the Supreme Court in Miranda said it was 
prophylactic; it was not constitutionally mandated. The 
Congress comes along with a voluntariness exception and you 
won't even defend it, and the Court is going to have to on its 
own, apparently. I don't think there is any need to argue about 
it. I don't think it is a matter of law; it is a matter of 
policy.
    The Attorney General's policy is not to take this matter 
up, not to enforce 3501. And I am glad the chairman raised it 
and I think this Congress is going to have to intervene, or 
somebody will, if the Department won't argue the case.
    Mr. Robinson. Senator, we are going to have an opportunity 
to address this very issue and there is no getting around it 
even if somebody wanted to. The Dickerson case presents this 
squarely and the Criminal Division is going to make a 
recommendation to the Solicitor General. We are looking at it 
with an open mind with regard to what position--I wasn't here 
before, but we have got an opportunity to deal with it now and 
we are doing it.
    Senator Sessions. It is a big deal. I think it is a much 
bigger deal than most people realize. Professor Schulhofer has 
repudiated his 1987 article in which he argued Miranda has no 
impact on crime clearance rates. That is clearly false. I mean, 
anybody that knows what is going on out there knows that that 
is true.
    You say, well, there are not many reversals based on it. It 
is because cases are not even brought. Defendants are never 
even taken to trial because the fundamental evidence was the 
confession voluntary obtained and perhaps some technical 
Miranda violation.
    Mr. Robinson. Well, I will undertake this, Senator. We are 
going to look at this issue, and look at it carefully and look 
at it from a law enforcement perspective. And I don't think--
perhaps I could be wrong about this--I am not sure that the 
Senator--it wouldn't matter whether the Supreme Court reversed 
Miranda and went a different way or did it in the context of 
applying 3501.
    The issue is the excludability or not of confessions, 
unwarned confessions, that we are all dealing with here in 
terms of the law enforcement context. And so I think we are 
going to have an opportunity to have the U.S. Supreme Court 
speak definitively on its view of Miranda.
    Senator Sessions. Well, I guess you are right, and I would 
just say this: Miranda was wrong-rendered. The Constitution 
does not require a police officer to read the Constitution to 
the person he arrests before he asks him any questions. He has 
a right not to incriminate himself, but he does not have a 
right to not answer questions. He can't be forced to 
incriminate himself. One day, we will see.
    Mr. Robinson. Perhaps sooner than later.
    Senator Sessions. Let me ask you on a more substantive 
subject, the bankruptcy matters. I am on the bankruptcy 
committee. We have been struggling with how to improve 
bankruptcy. Just as a matter of personal experience, I have had 
bankruptcy judges come to me and say, Jeff, there have been no 
prosecutions. The word is out; if you cheat on your bankruptcy 
forms, you flat out lie--and, Mr. Robinson, so much of what is 
done in bankruptcy is in total reliance on the honesty of the 
forms and statements submitted. People are pretty regularly 
lying on those, and what can we do about it?
    So I came up with a little idea. We got the bankruptcy 
administrator, trustee, and the FBI agreed to assign an agent 
to it and to have an assistant U.S. attorney to develop some 
expertise, and they have done a good job. Ours is a small 
district, but I understand there will probably be eight or more 
convictions this year in the Southern District of Alabama for 
bankruptcy fraud. I know the lawyer who prosecutes them.
    I would just say to you that if you did that, instead of 
200 cases nationwide, you would probably have over 1,000 cases 
nationwide. And in the course of that, it could change the 
mentality of bankruptcy courts. Lawyers would have to advise 
their clients, because it is a fairly close bar, that if you 
lie on these forms or if you testify in blatant disregard of 
the truth, they will prosecute you. Somebody was prosecuted 
just last week or just last month, so you better tell the 
truth. And I think it would raise the level, and this is a 
Federal court.
    Mr. Robinson. I agree with you entirely and I think we have 
got to do more. A year ago, the Attorney General approved the 
creation of the bankruptcy fraud training and identification 
program. We need to get the word out. We need to do a more 
effective job. We have some things in the works that I would 
like to get back to you on that do exactly the kinds of things 
you are suggesting we should do.
    I think it is a growing problem. I share your concern about 
it. In the white-collar crime council, we had the U.S. 
bankruptcy trustee represented, and so I think we need to get 
at this. The growth in the number of bankruptcies is a national 
concern and a national problem and I think we want to address 
it. Our Fraud Section is working on this issue and we would be 
glad to work further and get further information to you, 
Senator, about it. I agree.
    Senator Sessions. We have got 1.4 million bankruptcy cases. 
If 1 percent of them were fraudulent, what would that be, 
10,000 prosecutions, 1,000 prosecutions? I don't know which. 
That is a lot more than we have got now, and I think what we 
are basically doing is sending a signal that the Federal 
Government and the FBI are not interested in fraud. You can go 
down there and unless you get run over by a truck, nobody is 
going to prosecute you.
    Now, in the bankruptcy bill that is pending now, it 
requires that the Attorney General designate individuals to 
have primary responsibility for carrying out law enforcement 
responsibility in addressing the violations of bankruptcy, and 
should require that there would be a U.S. attorney and the 
agent for the FBI be involved in those cases.
    Have you been able to take a position on that? I think the 
Department has been basically supportive of that language. Can 
you give us an official answer on whether you can support that 
language, section 158 as now constituted?
    Mr. Robinson. I am not sure the Department's submission has 
gone in. The one concern that we would have would be anything 
that--I mean, I am sure you remember, getting directions as to 
how you run your U.S. attorney's office is problematic. But I 
do think that the problem is there and let me just double-check 
to see if something has gone in.
    I certainly support the notion of upping the ante in this 
area. The question of what position the Department has taken on 
that specific language--let me check and get back to you, 
Senator.
    Senator Sessions. Well, it is a matter that I have raised 
early on with Deputy Attorney General Holder and others in the 
Department, and I think it is a matter that just saying we are 
going to do something about it may not be enough. Nothing has 
been done. The numbers are still, I think, far too low. This 
wouldn't require a single case to be prosecuted, but it would 
require a mechanism to be established. And they could have 
other duties. It doesn't say that is the only duty this 
bankruptcy attorney could have.
    Mr. Robinson. I understand.
    Senator Sessions. But they would, after handling just a few 
cases, become much more comfortable, much more familiar with 
how to prosecute them. And I think you would see a dramatic 
increase, with no extra funding required.
    How do you feel about the asset forfeiture law that has 
cleared the House, and do you believe it would undermine in a 
significant way the ability of police and prosecutors around 
the country to take the ill-gotten gains from criminals, mainly 
drug dealers? Are you supporting reform?
    Mr. Robinson. I expect you and I are in a hundred-percent 
agreement on this subject of asset forfeiture. We have concerns 
about H.R. 1658. In fact, we did a little piece that was 
published in the Criminal Justice Weekly that just came out. It 
was a point/counterpoint between myself and a criminal defense 
lawyer, former NACDL co-chair of their--they call it their 
Forfeiture Abuse Task Force.
    We believe that asset forfeiture is one of the most 
effective ways of removing ill-gotten gains from criminals. And 
while we think some reform is appropriate and we could live 
with it, we are not looking to take money unfairly from people. 
We think there ought to be due process. But you mentioned, 
Senator, that I had been a Federal prosecutor for 3 and a half 
years, but I also did a fair amount of white-collar criminal 
defense work. I can say that I represented people in that area 
that ended up doing some time, but ended up with money they 
shouldn't have had at the end of the day.
    And I think we have got to make sure that crime does not 
pay, and one of the most effective ways of deterring criminal 
activity is to make sure that we go after that money and get it 
all, and get all that we can, and have a fair process, but a 
process that doesn't allow somebody to do a cost/benefit 
analysis and say, well, I might spend a few years in jail, but 
when I get done I am going to have this huge amount of money to 
live on the rest of my life.
    I think asset forfeiture is a critical tool for law 
enforcement. We appreciate the support of people who know about 
this with your background to help us and we would be happy to 
work with you in this area.
    Senator Sessions. I think you are right. Chairman Thurmond 
was responsible for that law actually being passed, and Senator 
Biden also was involved in that. And we are willing to be open 
to reasonable improvement, but as I see the legislation that 
came over from the House, it is a major reduction of the 
ability of the Government to do its work.
    And I thank you for debating that issue in those kinds of 
publications. Only one side has been getting out. It is hard 
for us to do that. I hope that you and your staff will get the 
word out to our brethren in the criminal bar that we can 
eliminate some of their worst problems, but we need to preserve 
the Act.
    Mr. Robinson. I will leave a copy of this, Senator.
    Senator Sessions. Thank you.
    Mr. Robinson. I appreciate your support and the support of 
the chairman in this important area.
    Senator Sessions. Thank you.
    Senator Thurmond. I just have about two more questions. I 
am extremely concerned about the possible damage to our 
national security that may have been caused by the compromise 
of nuclear weapons design codes at Los Alamos National 
Laboratory. News reports indicate that in 1997 the Department 
did not permit the FBI to establish a wiretap on the telephone 
and computer of Wen Ho Lee, the scientist suspected of 
compromising these codes. Should the Department have requested 
that the court grant a wiretap for Mr. Lee in 1997?
    Mr. Robinson. Senator, because that is a pending matter, 
and I know there has been a written request that is working its 
way through as a response and that is being worked on by others 
at the Department, I would appreciate an opportunity to defer 
the answer to that to the response to the request that I know 
has been made.
    Senator Thurmond. The Department has been investigating Mr. 
Lee regarding potential criminal charges since at least April. 
Recent news reports indicate that the Department is considering 
charging Mr. Lee with mishandling classified nuclear 
information rather than espionage. Can you confirm this, and 
when do you expect the Department to finish its review of Mr. 
Lee's case?
    Mr. Robinson. I think it would be inappropriate to comment 
on a pending criminal matter, and therefore I think it wouldn't 
be appropriate to comment on the timing of any of this or the 
status of a pending criminal matter.
    Senator Thurmond. Senator Sessions, do you have any more 
questions?
    Senator Sessions. No. I thank you for asking that question 
and I would just like to point out that I am very troubled 
about those matters. Sooner or later, the truth is going to 
come out, I suppose. If we entered into plea bargains with a 
number of these individuals and they get little or no sentence 
and have provided little or no beneficial information to the 
Government, the Department of Justice is going to have to 
answer to that.
    The Attorney General steadfastly, over the objection of the 
FBI Director and Mr. LaBella, did not appoint a special 
prosecutor. See, the thing is the crux of handling one of those 
cases is often rooted in negotiating that plea bargain. And you 
could either insist on the absolute truth, no matter who it 
leads to, and get it, and sometimes you have to be firm about 
that, or you can enter into a plea too quickly and never get 
the truth of what happened.
    So I hope that we don't have a situation in which the 
Department of Justice is embarrassed, I really do. I love the 
Department. I spent 15 years there and I don't want to see its 
integrity damaged on this case. The extent to which you are 
involved in that, and you should be, you ought to review every 
one of those plea bargains and be absolutely sure that it is 
legitimate because I frankly am troubled by it from what I have 
seen so far.
    Thank you, Mr. Chairman. Mr. Robinson and I have discussed 
a number of issues before he took office. The Department has 
shown some increase in prosecutions in several areas. I pointed 
out some in which I still believe more improvement clearly 
needs to be done, but there has been some movement in a number 
of areas. And I think perhaps you need to figure out what you 
did in those areas and maybe replicate it in some others.
    Mr. Robinson. We are working hard at it. I managed to 
persuade my chief assistant when I was U.S. attorney to come 
back from private practice to join me as my chief of staff and 
we love being back at the Justice Department. We are working 
awful hard, you know, night and day at it, but it is wonderful, 
important work and we appreciate the support of alums of the 
Justice Department for the mission. I appreciate the 
opportunity to be here and am happy to come back and talk 
further about other issues.
    Senator Thurmond. Senator Sessions, thank you again for 
your fine participation.
    Senator Sessions. Thank you, sir.
    Senator Thurmond. There are many other issues in which I am 
interested, such as the impact that drastic changes in our 
civil asset forfeitures could have on law enforcement. However, 
I will ask those questions in writing to you, if that is 
agreeable.
    [The questions of Senator Thurmond are located in the 
appendix:]
    Senator Thurmond. I appreciate your appearing here today 
and I thank you, Mr. Robinson.
    Mr. Robinson. Thank you very much, Mr. Chairman. Thank you, 
Senator Sessions.
    Senator Thurmond. We will leave the hearing record open for 
one week for additional materials to be placed in the record 
and for follow-up questions.
    Now, if there is nothing further to come before the 
subcommittee, the subcommittee is now adjourned.
    [Whereupon, at 3:43 p.m., the subcommittee was adjourned.]
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                  Additional Submission for the Record

                                    The University of Utah,
                                                     July 23, 1999.
RE: Performance of the Current Administration in
Supreme Court Criminal Cases

Senator Strom Thurmond, Chairman,
Subcommittee on Criminal Justice Oversight,
Senate Committee on the Judiciary,
Senate Dirksen Office Building,
Washington, DC.
    Dear Chairman Thurmond: I understand that you are interested in the 
performance of the current Administration in defending the interests of 
effective law enforcement. I write to provide some statistical 
information that bears on this question.
    As you may recall, on November 14, 1995, I testified before the 
Senate Judiciary Committee concerning the performance of the 
Administration in criminal cases before the United States Supreme 
Court. That testimony collected statistics on amicus briefs filed by 
the United States in state criminal cases. (More information about this 
methodology is set out in an attachment to this letter.) One set of 
statistics showed that such filings in all criminal cases had fallen 
sharply when the current Administration assumed control of the Justice 
Department. During the Court Terms 1989 to 1992, when political 
appointees in the Bush Administration reviewed such filings, the United 
States filed supportive amicus briefs in 53 percent of all criminal 
cases. In Court Terms 1993 and 1994, when appointees in the Clinton 
administration made the decisions, such briefs were filed in only 29 
percent of all cases. I tentatively concluded from data that the 
current Administration was, contrary to its public promises, in fact 
less committed to supporting the states in criminal cases was than its 
predecessor.
    When I testified in 1995, I cautioned that it would be informative 
to continue to follow the data and see whether this pattern continued 
in subsequent years. I have recently updated my data and can report 
that the problem of lower support for the states persists. In the three 
most recent years the current Administration has filed briefs in a far 
lower percentage: 38 percent in 1995, 36 percent in 1996, and 23 
percent in 1997 (the most recent year for which data is available). 
Over all, compared to the Bush Administration's record of supporting 
the states in 53 percent of the criminal cases in front of the Supreme 
Court, the Clinton Administration has supported them in only 29 
percent.
    A similar picture emerges if one narrows the focus to an important 
subset of criminal cases: death penalty cases. During the Bush 
Administration, supporting amicus briefs were filed in 37 percent of 
all capital cases. For the five years of the Clinton Administration for 
which data is available, such briefs have been filed in only 17 percent 
of all cases.
    Based on this expanded data, the differences between the two 
Administrations have become even clearer than when I testified earlier. 
As a result, I feel even more confident that the current Administration 
is less interested in supporting effective law enforcement than was its 
predecessor.
    The methodology for all of these calculations is precisely the same 
as that elaborated in my earlier testimony. If I can provide any 
further information on this subject, please do not hesitate to contact 
me.
            Sincerely,
                                           Paul G. Cassell,
                                                  Professor of Law.
                                 ______
                                 
                attachment--methodology for calculations
    To gather information on the subject of supporting the states in 
``criminal cases,'' the following methodology was used. Because 
defining ``criminal'' cases could be the subject of debate, I used a 
neutral source for my data base: the annual United States Law Week 
``Review of the Supreme Court's Term,'' which summarizes the Supreme 
Court's opinions in the area of ``criminal law.'' For each of the last 
nine Court terms (four during the Bush Administration and five during 
the Clinton Administration \1\), my research assistant then identified 
the cases in which a state was a party and, if so, whether they had 
been supported (or opposed) by the United States as an amicus curiae. 
Because the number of criminal cases varies from year to year,\2\ 
statistics based on absolute numbers might be questioned by some. To 
avoid that issue, my research assistant derived a percentage of 
criminal cases in which the state was supported by the United States. 
This was determined through an electronic search of a legal database 
for an amicus brief filing by the Solicitor General's Office. For 
purposes of this computation, consolidated cases were treated as one 
``case.''
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    \1\ It appeared that most of the briefs for cases argued during the 
transitional October Term 1992 were filed during the Bush 
Administration.
    \2\ See 64 U.S.L.W. at 3127 (summarizing the Supreme Court's 1994 
to 1995 Term and concluding that the Court's ``output of criminal law 
cases declined for the second year in a row'').
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    After all of the state criminal cases were compiled and verified, 
the number of Solicitor General amicus briefs filed for one given 
Supreme Court term was divided by the total number of state criminal 
cases decided for that same term; the number from this calculation is 
the percentage of amicus briefs filed by the Solicitor General's Office 
in support of the states for that given year/Supreme Court term.
    The same procedure was done regarding state death penalty cases--
namely, the number of Solicitor General's amicus briefs filed in state 
death penalty cases for a Supreme Court term was divided by the total 
number of state death penalty cases decided for the same term; the 
number from this calculation equals the percentage of amicus briefs 
filed by the Solicitor General's Office in support of the states in 
death penalty cases for the given Supreme Court term.

                                

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