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S. HRG. 111–807 

OVERSIGHT OF THE U.S. DEPARTMENT OF 

JUSTICE 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

APRIL 14, 2010 

Serial No. J–111–84 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

ARLEN SPECTER, Pennsylvania 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MATT MINER, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 216 

Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin ............................ 1 

prepared statement .......................................................................................... 219 

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

statement .............................................................................................................. 221 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 2 

WITNESSES 

Holder, Eric H., Jr., Attorney General, U.S. Department of Justice, Washington, DC ............................................................................................................. 4 

QUESTIONS AND ANSWERS 

Responses of Eric H. Holder, Jr., to questions submitted by Senators Leahy, 

Feinstein, Feingold, Schumer, Cardin, Whitehouse, Sessions, Hatch, Grassley, Kyl, Graham and Coburn ............................................................................. 55 

SUBMISSIONS FOR THE RECORD 

Holder, Eric H., Jr., Attorney General, U.S. Department of Justice, Washington, DC, statement .......................................................................................... 224 

(1) 

OVERSIGHT OF THE U.S. DEPARTMENT OF 

JUSTICE 

WEDNESDAY, APRIL 14, 2010 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 9:34 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Herb Kohl, presiding. 

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

Cardin, Whitehouse, Klobuchar, Kaufman, Specter, Franken, Sessions, Hatch, Grassley, Kyl, Graham, and Cornyn. 

OPENING STATEMENT OF HON. HERB KOHL, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator KOHL. Good morning. Before we begin today’s hearing, 

we will pause for a moment of silence in solidarity with the people 

of Poland as they mourn the loss of their President, Lech 

Kaczynski, as well as so many others in Saturday’s tragic plane 

crash. 

[Pause.] 

Senator KOHL. Thank you. 

We welcome you all to today’s oversight hearing. Regrettably, 

Chairman Leahy is not able to attend because he is at the funeral 

of a good friend back home in Vermont. We will proceed without 

him and, without objection, Senator Leahy’s statement will be 

placed in the record. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Senator KOHL. Attorney General Holder, it has been well over a 

year since you were confirmed, and this will be your third oversight 

hearing before this Committee. We welcome you and thank you for 

making yourself accessible so that we can engage in one of our 

most important responsibilities: oversight of the Justice Department. It is a duty that we take seriously, regardless of the party 

in the White House. Oversight should not be conducted for the sake 

of political gain, but it should be a meaningful discussion about the 

challenges facing the Justice Department and should provide a 

check on its actions and the use of taxpayer dollars. 

Over the past year, the Justice Department has done many good 

things that should be applauded. The Department has renewed its 

commitment to local law enforcement, which has put more officers 

on the beat and made our neighborhoods safer, helping local communities attract business and economic development. It has 

2 

stepped up enforcement on the southwest border to turn the tide 

on the Mexican drug cartels that continue to funnel drugs and 

crime to cities throughout our country. 

The Criminal Division has increased efforts to root out fraud operations that cost the Federal Government and Americans billions 

of dollars—from financial and mortgage fraud to health care and 

Medicare fraud. And as our economy rebounds, the Antitrust Division’s revitalized enforcement has fostered a competitive marketplace that encourages innovation and economic development while 

ensuring consumers have access to high-quality goods at the best 

prices. 

The Justice Department’s tireless fight against terrorism has 

yielded numerous interrupted plots and arrests, valuable intelligence information, and successful prosecutions. We were reminded of our constant struggle against those who wish to do us 

harm on Christmas Day when brave passengers stopped a wouldbe terrorist from taking down a full airplane with a homemade 

bomb, and when the FBI intercepted a sophisticated plan to attack 

the New York subway system. 

Yet there have been legitimate concerns raised—by Democrats 

and Republicans alike—about this administration’s approach to terrorist investigations, detention, and prosecution. Among the many 

issues you will need to address today include the long-overdue need 

to close the prison at Guantanamo Bay, where to hold trials for the 

five 9/11 plotters, and the process we use to detain and interrogate 

foreign terrorists, such as the Christmas Day bomber, who are captured in the United States. Reasonable minds can differ on these 

issues, but we can all agree that the decisions you make will have 

a long-lasting and far-reaching impact on our fight against terrorism and our ability to keep Americans safe. 

The Justice Department is charged with important duties in 

many areas of the law. We thank you and the thousands of employees who dedicate themselves each and every day to the independent and impartial enforcement of the law. We look forward to 

a productive hearing, and we turn now to the distinguished Ranking Member, Senator Jeff Sessions, for his opening statement. 

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

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Chairman Kohl. It is good to be 

with you, and I am sorry that Chairman Leahy could not be with 

us today. 

Attorney General Holder, thank you for being here. It is an important oversight hearing, and it comes at an important time, and 

we have a number of issues to discuss with you. 

After 9/11, our Nation fundamentally re-evaluated its approach 

to terrorism. We recognized that we are at war and that our normal criminal justice procedures were not designed for and not appropriate for the new threat. We then began to establish a military 

commission framework consistent with history for the detention, interrogation, and trial of captured al Qaeda terrorists. We passed bipartisan legislation to put this system in place, and we built a 

multi-million-dollar courthouse at Guantanamo Bay. Much effort, 

including the work of the 9/11 Commission, led to this decision. But 

3 

the President and you as Attorney General have worked to undo 

these policies and gains. It has imperiled, I think, a lot of hard 

work and progress over the years. 

As you know, I supported your nomination, but your actions have 

shaken my confidence in your leadership at the Department of Justice. Immediately after taking office, President Obama’s Executive 

order stopped these military commissions. Then on July 20th, less 

than 6 months after you took office, the Detention Policy Task 

Force, which you co-chaired, reached a stunning conclusion: Captured enemy combatants, including the 9/11 terrorists and others 

held at Guantanamo Bay, would not be tried by military commissions but would be given the presumption of civilian criminal trials. 

Since that time, not one military tribunal has been held. They have 

been stopped. 

On November 13th, you announced that even Khalid Sheikh Mohammed, the alleged mastermind of 9/11, and the other 9/11 plotters would be taken from Gitmo and brought to New York City for 

trial. Five days later, you declared before this Committee that this 

was in the best interest of the American people in terms of safety. 

You cited as support for your views the New York mayor, yet since 

that time the mayor and the Governor have both opposed this decision. You asserted that, ‘‘We know that we can prosecute terrorists 

in our Federal courts safely and securely because there are more 

than 300 convicted international and domestic terrorists currently 

in the Bureau of Prisons.’’ But that was surely an exaggeration. 

When on March 22nd you finally provided a list of those individuals, after much prodding, it was, I think, an inflated list of many 

hundreds of lesser offenses. Many of those cases were only prosecuted before the military commissions became operable. 

In your November testimony, you claimed that civilian courts 

were just as effective at protecting classified material as military 

courts. Yet in those same March 22nd responses, your Department 

of Justice contradicted your statements and conceded that military 

commissions do provide better safeguards. In fact, the responses 

list seven ways military court procedures are superior. On December 25th, Farouk Abdulmutallab, the Christmas Day bomber, was 

captured, but he was questioned less than an hour before he was 

given Miranda warnings and offered a free lawyer. Sometime later, 

you decided this foreign terrorist operative carrying an al Qaeda 

bomb would be detained and prosecuted in the civilian system. 

After the warnings, Abdulmutallab clammed up and did not resume cooperation for weeks. 

On January 20th, the heads of America’s intelligence agencies 

testified they were not consulted on this decision, yet on February 

3rd, you wrote a letter to Congress stating that Abdulmutallab was 

Mirandized ‘‘with the knowledge of and with no objection from all 

other relevant departments of Government.’’ 

In that same letter, you wrote, ‘‘I am confident that the decision 

to address Mr. Abdulmutallab’s actions through our criminal justice system has not and will not compromise our ability to obtain 

information needed to detect and prevent future attacks.’’ 

There can be no doubt that treating terrorists as regular criminals will reduce our ability to obtain intelligence. And 6 years ago, 

you acknowledged that fact. In a Supreme Court brief, a brief you 

4 

failed to disclose as required during your confirmation process, you 

candidly admitted that the civilian criminal system possesses inherent limitations that ‘‘might impede the investigation of a terrorist offense under some circumstances,’’ including our ability ‘‘to 

detain a dangerous terrorist or to interrogate him or her effectively.’’ 

Most recently, on March 6th, you curiously suggested Osama bin 

Laden should receive the same legal treatment as Charles Manson. 

In light of the risks you described as inherent in the criminal justice system, do you really believe that if we capture bin Laden or 

any al Qaeda leaders, the first question we should ask is: ‘‘Do you 

want a lawyer? ’’ Civilian trials for terrorist combatants are not required by law, policy, history, treaty, or plain justice. Yet this policy, it appears, still remains in effect, or at least unsettled. 

There are, however, some important areas on which we do. The 

Department of Justice rightly has asserted state secrets privileges 

in appropriate cases. You have testified to the legality of military 

commissions, and I appreciate that even though they have not been 

used under your tenure. And you have supported the crack cocaine 

sentencing bill that we unanimously passed in this Committee, and 

I appreciate working with you on that. 

But the course you have chosen on national security is steering 

us into a head-on collision with reality. The American people are 

not interested in terrorists being brought from Guantanamo to 

their own communities. Reality is a stubborn thing. Pretending 

that terrorists can safely be treated as common criminals will not 

make it so. 

So I hope you are willing to reconsider those choices. I hope that 

the answers you provide today will help restore my confidence in 

the leadership at the Department, and I look forward to working 

with you toward that end. 

Thank you, Mr. Chairman. 

Senator KOHL. Thank you, Senator Sessions. 

Mr. Attorney General, we will take your testimony. 

STATEMENT OF HON. ERIC H. HOLDER, JR., ATTORNEY 

GENERAL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC 

Attorney General HOLDER. Well, good morning, Mr. Chairman, 

Senator Sessions, and distinguished members of this Committee. I 

am pleased to be here today to discuss the important work of the 

United States Department of Justice. 

One of the things that I pledged during my confirmation hearing 

was that I would be here regularly, and last year I had the privilege of appearing before this Committee three times, not including 

my confirmation hearing. And over the past 14 months since I became Attorney General, I have had the pleasure of working closely 

with many of you. I want to thank you all for your partnership and 

your ongoing support for the thousands of men and women who 

serve the Department and who tirelessly work to protect our country, enforce our laws, defend our interests in court, and ensure the 

integrity of our justice system. 

Now, today I have been asked to report on the Justice Department’s progress, its priorities, and its goals. I am proud to tell you 

what we have accomplished and also what we plan to achieve. 

5 

Even before I took the oath of office last February, I made a 

pledge to every member of this Committee. I promised that under 

my leadership the Justice Department would vigorously pursue 

several critical objectives: combating terrorism, fighting crime, enforcing our laws in a nonpartisan manner, and reinvigorating the 

Department’s commitment to integrity, to transparency, and to results. 

I also promised that in our most important work, the work of 

protecting the American people, the Justice Department would lead 

with strength and by example, and that we would use every tool 

available to keep the American people safe. 

Now, I never expected that fulfilling these promises would be 

easy. After all, ours is a time of growing demands and limited resources. And as we have confronted unprecedented threats, new responsibilities, and tough choices, the Justice Department, I believe, 

has made historic progress. 

Over the last year, in addition to working tirelessly to protect our 

Nation from terrorism and from other threats, we have reinvigorated the other traditional missions of the Department. We have 

strengthened efforts to protect our environment as well as our most 

vulnerable communities. We have reinforced our mission to safeguard civil rights in our workplaces, our housing markets, our voting booths, and our border areas. We have made strides in ensuring that our prisons are secure and aimed at rehabilitation, which 

is not merely humane policy, it is smart policy, because reducing 

recidivism makes all of us safer. And as part of our focus on securing our economy and combating mortgage fraud and financial 

fraud, the Department has launched and is now leading the Financial Fraud Enforcement Task Force that President Obama called 

for last year, using legal tools that have been provided by this 

Committee. 

At the same time, the Justice Department is working to make 

our criminal laws fairer. Last year, we launched one of the most 

comprehensive reviews in the history of the Federal sentencing policy. Our guiding objective—ensuring that sentencing practices are 

smart, that they are tough, that they are predictable, and that they 

are fair—is one that I know that every member of this Committee 

shares. I want to thank this Committee and the full Senate for the 

critical step that it took last month in unanimously approving a 

dramatic reduction in the disparity between crack and powder cocaine sentences. It was enormously heartening to me personally— 

and I mean this in a personal sense—to see the Committee come 

together in a bipartisan fashion to address this longstanding injustice. The 100:1 disparity undermined trust in the criminal justice 

system and diverted resources away from the prosecution of largescale drug organizations. These reforms will serve the goals of law 

enforcement while ensuring fairness in sentencing. 

Looking ahead, I hope the Judiciary Committee will help the Department achieve its goals and meet its responsibilities by confirming the President’s law enforcement nominees more expeditiously. There are currently 19 United States Attorney nominees 

and 17 United States Marshal nominees awaiting Committee action. A backlog of this magnitude is unusual. I have spoken to the 

6 

Chairman and the Ranking Member about this concern, and I am 

hopeful that it will be addressed without further delay. 

Every day the dedicated professionals of the Department of Justice help to fight our ongoing war against an enemy that continues 

to attack us at home and abroad. Over the past year, I am proud 

to say that the Department, working closely with our partners in 

the intelligence and national security communities, was extraordinarily successful in disrupting plots, obtaining intelligence, and 

incapacitating terrorists. We detected and disrupted a plot to attack the subways in Manhattan with explosive bombs that could 

have killed many Americans in what would have been one of the 

most, if not the most deadly attacks since September 11, 2001. 

Najibullah Zazi has already pleaded guilty to terrorism charges in 

this case, and we have also charged several of his associates with 

participating in the plot and related crimes. 

We secured a guilty plea from David Headley for assisting the 

deadly attacks in Mumbai in November 2008 and plotting another 

attack in Denmark. As part of his plea, he has already provided 

valuable intelligence to the Government about terrorist activities 

abroad. 

We have obtained the cooperation of Umar Farouk 

Abdulmutallab, who tried to bomb an airliner landing in Detroit 

last Christmas. Now, although I cannot, obviously, discuss the intelligence that he has provided, I can tell you that it has not just 

been valuable; it has been actionable. 

We convicted Aafia Siddiqui of attempting to murder United 

States military and law enforcement agents in Afghanistan. 

Siddiqui is a Pakistani physicist captured in Afghanistan with explosives and information about nuclear, chemical, and biological 

weapons and descriptions of United States landmarks. She later 

opened fire on United States personnel. The Justice Department 

under the Bush administration indicted her in Federal court in 

2008, and she was convicted several weeks ago in New York. 

Now, most of this work was done by career professionals driven 

by no ideology except a loyalty to our Nation and a commitment 

to keeping our people safe. They work hard and, most importantly, 

they get results. Since September 11, 2001, Congress has provided 

the Justice Department broad authorities and significant resources 

to fight terrorism. I believe the Department has used these resources effectively, obtaining 160 convictions for terrorism offenses 

and 240 convictions for terrorism-related crimes. 

Now, at a time when questions have been raised about the role 

of our courts, it is important to note that most of these convictions 

came during the last administration, which made the criminal justice system an integral component of its counterterrorism strategy. 

The Bush administration used the criminal justice system to interrogate, to prosecute, and to incarcerate terrorists for the same reason that the Obama administration has: It is an extremely effective 

tool to ensure justice and to protect the security of the American 

people. 

Now, let me be clear. This administration will use every tool 

available to it to fight terrorism. Every tool. This includes both civilian courts and military commissions. Indeed, we have already reVerDate Nov 24 2008 09:14 Feb 03, 2011 Jkt 063323 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63323.TXT SJUD1 PsN: CMORC
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ferred six cases for prosecutor in commissions. We will no doubt 

refer other cases as well. 

We have deployed the full extent of our intelligence, military, 

and law enforcement resources to defeat terrorists, and we have 

achieved, I believe, significant results. It would jeopardize those results to prohibit the use of the criminal justice system to prosecute 

terrorists, as some in Congress have proposed, and it would seriously weaken our National security. Instead of pursuing a narrow 

approach to fighting terrorism, we have to be flexible, we have to 

be pragmatic, and we have to be aggressive. And in every circumstance, we must choose the weapon that will be most effective. 

That said, I know you all have questions about the prosecution 

of those charged with plotting the 9/11 attacks. No final decision 

has been made about the forum in which Khalid Sheikh Mohammed and his co-defendants will be tried. As I said from the outset, 

this is a very close call. It should be clear to everyone by now that 

there are many legal, national security, and practical factors that 

have to be considered here. As a consequence, there are many perspectives on what the most appropriate and effective forum is. 

In making this decision, I can assure you that this administration has only one paramount goal: to ensure that justice is done in 

this case. In the pursuit of justice, we will enforce the law, and we 

will protect the American people. 

Today I want you all to know that I continue to value and will 

work to uphold the trust that this Committee has placed in me. I 

also want to reassert my pledge that so long as I have the privilege 

of serving as Attorney General, the Department of Justice will be 

an instrument of our Constitution and a servant of the American 

people, not of any party and not of any political ideology. 

We will continue working to protect our Nation’s security, to advance the best interests of the American people, and to strengthen 

the values that have made our country a model to the world. 

I thank you again for this opportunity to discuss the Justice Department’s essential work, and I am happy to answer any questions that you might have. Thank you. 

[The prepared statement of Attorney General Holder appears as 

a submission for the record.] 

Senator KOHL. Thank you, Mr. Holder. We will now embark on 

questions in rounds of 7 minutes. 

The Guantanamo Review Task Force recently completed its review of the 240 detainees to determine whether each would be 

prosecuted, transferred to another country, or held indefinitely. I 

am pleased to hear that you thoroughly reviewed each case. However, in your testimony today, you did not mention if and when you 

plan to close Guantanamo Bay. 

Are you still determined to close that prison? If so, can you give 

us an update on your timeline for doing so? And what do you intend to do with the detainees who are too dangerous to release but 

for whom you lack sufficient evidence to prosecute? 

Attorney General HOLDER. It is still the intention of this administration to close the facility at Guantanamo. There was, and I 

think still is—maybe not to the degree that it once existed—bipartisan support for the notion that the Guantanamo facility should 

be closed. It serves as a recruiting tool for those who have sworn 

8 

to harm this Nation. Both of the men who ran for President last 

year supported the closing of Guantanamo, as did President 

Obama’s predecessor. 

We will close Guantanamo as quickly as we can, as soon as we 

can. The work has been done with regard to the disposition of the 

240 people who were there when we took over the facility. I can 

share those numbers with you about where these people should go. 

One of the things that we have in our budget for next year is funds 

in order to come up with another facility to which these people 

might be transferred, those who cannot be repatriated, and we 

would like to move on that plan, but we need Congressional support. 

Senator KOHL. You say you have no timeline. Does that mean it 

might be this year, next year, the following year, the year after 

that? 

Attorney General HOLDER. Well, one of the things that we need 

is an alternative site, and we have identified a place in Illinois, the 

Thomson family, and we have, as I said, in our budget a request 

for funds in order to open Thomson and to place in Thomson those 

who would be tried, either in military commissions or in civilian 

courts, those who would be held under the law of war, of detention, 

and those who might be temporarily housed there until they can 

be repatriated to some other country. 

Senator KOHL. Are you saying you cannot close Guantanamo Bay 

until you have this other site under your control? 

Attorney General HOLDER. Yes, we have to have an option, and 

that will require Congressional support for the funding request 

that we have made. 

Senator KOHL. Mr. Attorney General, at a House appropriations 

hearing last month, you said that Osama bin Laden will ‘‘never appear in an American courtroom.’’ You further stated that, ‘‘The reality is we will be reading Miranda rights to a corpse.’’ In contrast, 

General McChrystal said that the military’s goal is to capture him 

alive and bring him to justice, and CIA Director Leon Panetta said 

that should bin Laden be caught, he would be taken to a military 

base and interrogated by U.S. agents. 

Mr. Holder, would you like to explain that comment and clarify 

what the administration has planned if and when, as we all hope, 

bin Laden is captured? 

Attorney General HOLDER. With regard to Osama bin Laden, 

who is our target one for the United States, our plan is to capture 

him or to kill him. Our hope would be to capture him and to interrogate him, to get useful intelligence from him about the structure 

of al Qaeda, about al Qaeda’s plans. 

What I said in that hearing was an assessment of, I think, the 

likelihood that we are going to be able to capture him alive. What 

I said was that with regard to that possibility, both in our attempt 

to capture him and from what we know about instructions that he 

has given to the people who surround him, his security forces, I 

think it is highly unlikely that he will be taken alive. But our goal 

is to either capture Osama bin Laden or to kill him. 

Senator KOHL. Mr. Attorney General, the last time you came before this Committee, you strongly defended your decision to try the 

9/11 plotters in criminal court in New York rather than in military 

9 

tribunals. Since then, the President has said that he will review 

your decision. Do you still believe that criminal court is the right 

place for their trial? If they are moved to military tribunals, how 

would you address the concerns that critics have about such tribunals? 

One month ago, you said that the administration was ‘‘weeks 

away.’’ When can we expect this decision to be made, Mr. Attorney 

General? 

Attorney General HOLDER. Well, the administration is in the 

process of reviewing the decision as to where Khalid Sheikh Mohammed and his co-defendants should actually be tried. New York 

is not off the table as a place where they might be tried, though 

we have to take into consideration the concerns that have been 

raised by local officials and by the community in New York City. 

We expect that we will be in a position to make that determination 

in a number of weeks. 

Senator KOHL. Thank you. 

Finally, Mr. Attorney General, throughout my own State of Wisconsin, and I am sure all across the country, local law enforcement 

agencies speak about how vital the COPS program is to their ability to keep our communities safe. It is a highly effective program 

that has proven to be one of the most cost-effective ways to fight 

crime. Last year, I joined with Senators Feinstein, Leahy, and others in introducing legislation to reauthorize the COPS program and 

make improvements to the administration of the program. 

Can we count, Mr. Attorney General, on your support for this 

legislation? Will you continue to fight for increased funding for the 

COPS program? 

Attorney General HOLDER. Absolutely. The COPS program has 

historically proven to be one of the most effective ways in which 

the Federal Government can assist its State and local partners. I 

think the historic drops we have seen in crime over the last 10 

years, 15 years, or so is a direct result of the fact that we have put 

more police officers on the street. State and local authorities do not 

necessarily always have the financial capacity to do that, and I 

think the COPS program has been an essential part in allowing 

our State and local partners to deploy more people. 

It would be my hope that even in these tough budgetary times 

we will find a way to make sure that the COPS program remains 

a viable one. 

Senator KOHL. Thank you very much, Mr. Attorney General. 

We turn now to Senator Sessions. 

Senator SESSIONS. Thank you, Senator Kohl. 

Mr. Attorney General, if there is a problem with U.S. Attorneys 

and Marshals, I hope you will keep us posted on that. I think it 

is pretty clear that the administration has been slow in making 

those nominations. I do not believe there are any objections on our 

side to moving good nominees, and I do not believe Chairman 

Leahy has delayed that. So I think if you look at where the delays 

are, it is lack of nominations. 

With regard to the Khalid Sheikh Mohammed decision, you made 

that decision. You declared in this Committee directly that it was 

going to be tried in New York, and you defended that as an appropriate way. It caused quite a bit of controversy at the time. I unVerDate Nov 24 2008 09:14 Feb 03, 2011 Jkt 063323 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63323.TXT SJUD1 PsN: CMORC
10 

derstand now the White House has suggested it would not be tried 

in New York, and I guess it makes me a bit uneasy, having served 

in the Department, to have politicians discussing where the cases 

ought to be tried. That is normally the Department of Justice professional prosecutors. 

So what is your position about where the Khalid Sheikh Mohammed trial should take place? And are you uneasy that the White 

House is leaking statements about where a criminal case should be 

taken for trial? 

Attorney General HOLDER. Well, I am not sure there have necessarily been leaks. I have said myself that the national security 

team is in the process of reviewing where the case might best be 

held. We have to take into consideration in making that—— 

Senator SESSIONS. Who is the national security team? 

Attorney General HOLDER. The national security team includes 

the Secretary of Defense, Secretary of State, people from the intelligence community—the people who meet with the President every 

Tuesday afternoon to review where we stand around the world 

with regard to our terrorist efforts. 

This is a trial that is unique in the sense that it does involve 

very real national security concerns, and I think the involvement 

of the White House—the national security component of the White 

House as well as the national security team in helping to make 

that determination makes sense. 

I am very jealous in guarding the prerogatives of the United 

States Department of Justice. 

Senator SESSIONS. Well, I think you should be, and I was a little—I would expect normally if it is under reconsideration that the 

Attorney General should announce it is under reconsideration and 

not politicians would make their announcement. But there is a 

venue problem, is it not, if the case is tried in civilian courts? The 

Constitution limits venue in criminal cases. But if it is tried by a 

military commission, you are not limited in that way. So to try it 

in Illinois, wouldn’t that raise venue questions, for example? 

Attorney General HOLDER. You are obviously a former United 

States Attorney, and the question that you ask is one that I asked. 

If there were the possibility that we moved this trial, what would 

the possible venues be? And I have received from the people who 

I asked that question a list of places in which the case could be 

tried. 

What I will say is that the Southern District of New York, for 

instance, is a much larger place than simply Manhattan. There is 

also the possibility of trying the case in other venues beyond New 

York. 

Senator SESSIONS. Well, I just think that the simpler and more 

logical decision would be to reconsider fundamentally and try this 

case where it should be, I think, in military commissions. 

Isn’t it true that the protecting of classified information that can 

be revealed during a criminal trial is a priority of our Government? 

In other words, we do not want to have a trial develop in such a 

way that classified information is revealed to the public. And on 

March 20th of this year, your Department answered questions I 

submitted to them about the danger of revealing classified information and the relevancy of that to criminal court or military commisVerDate Nov 24 2008 09:14 Feb 03, 2011 Jkt 063323 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63323.TXT SJUD1 PsN: CMORC
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sions. You testified there was not much difference, but the March 

20 responses from your Department really tell a different story, citing ‘‘key differences’’ in classified evidence protections and military 

commissions trials that are not similarly present in Federal criminal law. Were you aware of this information when you testified before us in November? 

Attorney General HOLDER. Yeah. I do not necessarily agree that 

there are fundamental differences between the protections that are 

available in civilian courts and those that might be available in 

military commissions. The modifications that have been made to 

the secrecy provisions really codify, I think, what judges do as a 

matter of routine in civilian court, with one exception, and that has 

to do with the possibility of interlocutory appeals, which, frankly, 

I think is a good idea and perhaps ought to be incorporated into 

what we do on the civilian side. 

Much of the other enhancements that you see with regard to 

military commissions reflect what judges do on the civilian side. 

Senator SESSIONS. Well, that is not what your responses say. 

They list seven different examples of how the military commissions 

are more effective in protecting intelligence sources and methods 

than a criminal trial. Do you dispute that? 

Attorney General HOLDER. No. Well, I think that those seven instances that are listed—I will take your word that is the number— 

as I said, reflect the kinds of things that judges do, not because 

they are obligated to do them by rule or by statute, but because 

they do them in the way in which they interpret the CIPA statute. 

As I said, I do think that the one enhancement that exists with 

regard to the military commissions, about the possibility of an interlocutory appeal, is something that we ought to consider. And we 

should always be looking at the CIPA statute to see how we can 

make it more effective. 

Senator SESSIONS. Well, I agree with that, but I would just say 

to you, Mr. Holder, that when you try a person in civilian court, 

you have to give the Miranda warning upon taking them into custody. You have to tell them they are entitled to a lawyer, they are 

entitled to a speedy trial, they are entitled to file discovery of the 

Government’s case—all immediately, basically. And when you try 

them, hold them in military custody, you do not have to charge 

them at all because they are a prisoner of war until the war is 

over. But if they have violated the laws of war and committed 

criminal acts, they may be tried, if you choose to try them, in military commissions. It just makes perfect sense to me that these 

cases would be tried there. That is the result of a national consensus after the 9/11 Commission issued their report. Congress has 

passed legislation to that effect, and the President, one of his first 

acts was to set aside and stop these commissions. And you have 

blocked their progress since then, it seems to me. 

So I think you need to re-evaluate this. I do not think the people 

of New York want this trial anywhere in their State or their city 

or the Southern District. There are many legal questions that will 

arise, so I just hope that you will re-evaluate this—apparently, the 

White House is; I hope that you will—and that we will soon have 

clarity about what the policy of the Department of Justice is. 

12 

Attorney General HOLDER. The decision that I made and the decisions that I will make with regard to the placement of any of 

these trials depends on what is best for the trial. I do this on a 

case-by-case basis with regard to the evidence that we would seek 

to admit, concerns about some of the evidence that might have to 

be admitted, depending on the forum that we would use, the impact of the use of certain evidence on the intelligence community 

and what it might do for our ability to interact with our allies. 

There are a whole variety of concepts and of things that have to 

be taken into consideration, and what I have tried to do and what 

we will try to do is make these decisions on a case-by-case basis 

with the aim of being most effective in a particular trial and protecting the American people. 

Senator KOHL. Thank you, Senator Sessions. 

Senator Feinstein. 

Senator FEINSTEIN. General, I think your last sentence was very 

important, and I think that the degree to which this dialog has escalated is really very unhealthy. Democrats did not do to President 

Bush following 9/11 what is being done to this administration with 

respect to their decisionmaking. And I really regret it, and I really 

find it reprehensible. 

I believe that the best interests of the people of this Nation are 

served by the administration—you, Mr. Attorney General, and the 

President—having maximum flexibility as to in which venue these 

defendants should be tried. 

I have served now on the Intelligence Committee for some 18 

years, on this Committee for over 17 years, and I have never seen 

anything quite like this. The record is ignored. It does not matter 

that the Bush administration brought 200 terrorists to justice 

under Article III courts. It does not matter that the military commissions, which have been fraught with controversy, have convicted 

three, two of whom are out. It does not matter that Zazi pled 

guilty. That was a real threat. That was a real threat to the city 

of New York. The FBI did magnificent work. He pled guilty. David 

Headley is a serious terrorist. He pled guilty. And the fact of the 

matter is that Article III courts have other charges that they can 

use if they do not have the evidence to sustain a pure terrorist 

charge. You should have that option. You should also have the option of the military commission. 

I have come to the conclusion that a lot of the attacks are just 

to diminish you, and I do not think you should buy into that at all. 

I think you should remain strong. 

Now, I have had concern about New York City. I am a former 

mayor. I was mayor in the wake of an assassination, a major riot. 

I know what happens inside a city with a lot of scar tissue. And 

that is hard to perceive unless you have been there, done that, and 

understand it. 

So I understand why New Yorkers feel the way they do. I also 

understand why the best interests of our country are served if you 

remain strong and make the decisions based on the legal facts and 

where we best get a conviction. And I just want to urge you to remain strong in that respect. 

The record of the Article III courts in the conviction of terrorists 

in this country is unparalleled, and that is absolute fact. 

13 

I wanted to ask you a question on indefinite detention, if I might. 

The Immigration and Nationality Act and the PATRIOT Act both 

allow different types of indefinite detention under narrow circumstances. I think it is important that the executive branch strike 

the right balance between preserving the rule of law and releasing 

individuals who we know are determined to harm our Nation, and 

this is a difficult area. 

I would like, Mr. Holder, to ask your opinion: In what narrow circumstances can the executive branch hold detainees who continue 

to pose a security threat but cannot be prosecuted for past crimes? 

Attorney General HOLDER. Well, again, we have to look at these 

cases individually. We make these determinations on a case-bycase basis. People who we decide should be held under the laws of 

war have the right to a habeas proceeding, so a judge has the ability to look and make the determination as to whether or not the 

detention that we seek is, in fact, appropriate. We have won some 

cases in that regard. We have not been successful with others. 

Some are under appeal. Some of the people who have been ordered 

released by judges have been released. 

We use that power, again, with the thought that what we want 

to do is to keep the American people safe and not release people 

who would pose a threat to the United States or not release people 

who we do not think can be placed in other countries and where 

remedial measures can be put in place to ensure that they would 

not pose a threat to our people. 

So we use that power only where we think it can be appropriately used. I think if you look at the number of people that we 

had at Guantanamo, the number of people that we would seek to 

detain in that way is, I think, relatively small. 

Senator FEINSTEIN. Thank you. I have a question here that I 

wanted to ask. I cannot find it. 

About a year ago, we passed legislation with respect to the detention of children that are brought to this country not at their request but similar to the Elian Gonzalez case. I learned some time 

ago that we have about 5,000 children who at that time were subject to serious detention in jail facilities, some of them very, very 

young. And we passed a bill a year ago asking you to do certain 

things, and we have had no response to that. 

Would you take a look at that and see if we can get that show 

on the road, so to speak? 

Attorney General HOLDER. Yes, I will look at that. The concern 

that you have is one that I have as well. The detention—— 

Senator FEINSTEIN. These are regulations that have to be implemented. 

Attorney General HOLDER. Right, and we will look at that. The 

concern about children and their detention and what that means 

for their development, their separation from parents, I mean, these 

are all things that are, I think, very legitimate concerns, so I will 

look at those regulations. 

Senator FEINSTEIN. All right. Can you give us any kind of a 

timeline? I have waited a year, and if you could give us a 

timeline—a lot of children out there. This has to do with indefinite 

detention. It has to do with guardianship. It has to do with an ability to return them to the country if there is a place for them. 

14 

Attorney General HOLDER. What I can do is this: Maybe when 

I get back this afternoon to the Department, I will look to see what 

the state of play is, and then if I can, I will promise to get you a 

letter by the end of the week to give you a sense of when it is that 

we can start to do something in a substantive way. 

Senator FEINSTEIN. Thank you. I appreciate it. 

Thank you. 

Senator KOHL. Thank you, Senator Feinstein. 

Senator Hatch. 

Senator HATCH. Well, thank you, Mr. Chairman. 

Mr. Attorney General, you have a very tough job, and I respect 

how difficult it is. My time is limited, so I will only be able to pursue a handful of subjects that I really want to take up with you, 

but I will be submitting several questions for the record. 

One of the questions I will be submitting to you is why you felt 

the need to issue a memorandum to revise prosecutorial guidelines 

for Federal marijuana prosecutions. Congress enacted the Controlled Substances Act, the CSA, with the specific intent of making 

dangerous drugs illegal. Now, I want to make sure that you, as the 

highest legal law enforcement official in the land, are clear on what 

Congress’ intention was with respect to the CSA, not the White 

House’s vision or agenda of how the Controlled Substances Act 

should be enforced. So I will be looking for a timely response to 

that question. 

But, briefly, I am sure that you are aware of the impending 

deadline for States to comply with the provisions of the Adam 

Walsh Act. As you know, I take a great interest in that Act. Recently, the President sat down with my good friend John Walsh on 

‘‘America’s Most Wanted’’ to discuss getting States to comply with 

the Adam Walsh Act. Right now I would like to get your pledge to 

work with me and my colleagues on getting the States and 

SMART, the S-M-A-R-T, on the same page before the July deadline 

without weakening or watering down the Adam Walsh Act. Is that 

OK? 

Attorney General HOLDER. I will pledge to do that, but one thing 

I would say, Senator, is that we have to work also with the State 

Attorneys General who want to comply with this Act and, when I 

met with them, they expressed concerns about their ability to do 

so. I think we have to make them a part of the conversation as 

well. 

I share your concern. I think that is an Act that we have to have 

fully implemented as quickly as we can and certainly within the 

deadline. But I also think that a part of that conversation ought 

to be the State AGs. 

Senator HATCH. I have no problem with that. That Act is very 

important. It was a tough slog here to get that done and, I think, 

very, very important to have it done. 

Now, before I move to the attempted terrorist attack that transpired aboard Northwest Flight 253, let me briefly ask you about 

obscenity enforcement. How is this administration enforcing Federal law prohibiting sexually explicit material that meets the Supreme Court’s definition of obscenity? 

Attorney General HOLDER. Well, there is a section within the 

Justice Department, the Child Exploitation and Obscenity Section, 

15 

that handles these matters. The people who are there are career 

employees who have worked under Republican as well as Democratic Attorneys General and I think who do a good job. The—— 

Senator HATCH. Well, I ask you this question—I asked this of 

your Republican predecessors because, in my judgment, they took 

a misguided and narrow approach to law enforcement in this area, 

so I am concerned. Sorry to interrupt you. 

Attorney General HOLDER. No, I was just saying that the responsibility for the enforcement lies in that area, and I think they are 

quite aggressive in the prosecution and detection of these materials 

with a focus on, I think, child obscenity, which does not exclude 

other forms of obscenity that they can look at. 

Senator HATCH. Yes, but there has been a pattern at the Department of Justice to prosecute only the most extreme obscene materials. Now, this particular type of material may virtually guarantee 

a conviction, but it is not the most widely produced or consumed 

and, therefore, its prosecution may have very little impact on the 

obscenity industry. So that is what I am concerned about. This approach of moving the prosecution line out to the fringe signals that 

material that is just as obscene, though less extreme, is let off the 

hook. I believe that approach is misguided and contributes to the 

proliferation of obscenity that harms individuals, families, and 

communities. 

So I am very concerned about it, and I hope you will really take 

a real look at it because currently there is an Obscenity Prosecution Task Force at the Department of Justice. Now, will you allow 

the director of that task force to enforce Federal obscenity laws 

without restricting them to the most extreme obscene material? 

Attorney General HOLDER. We will certainly enforce the laws 

using the limited resources that we have and go after those cases 

that, as we always do, have the potential for the greatest harm. 

There are First Amendment considerations that have to be taken 

into account, but it does not mean that we will not be serious about 

the enforcement of those laws. 

Senator HATCH. OK. Let me transition and call your attention to 

the Christmas Day bombing attempt of Northwest Flight 253. On 

January 26th, I joined in sending a letter to you regarding the decision to charge Umar Farouk Abdulmutallab in Federal court. In 

your response letter back to me dated February 3, 2010, you laid 

out an explanation defending your decision to charge this terrorist 

in Federal criminal court. You further explained that you alone 

made this decision, but you referenced the previous administration’s decision to charge Richard Reid and noted the similarity of 

these two cases. 

Now, I would point out that in the Reid case, which occurred in 

December 2001, the military detention system did not yet exist. Attorney General Ashcroft did not have the option of military detention. However, you do because of the Military Commissions Act. 

In the Military Commissions Act of 2009, Section 950(t), that defines crimes that can be prosecuted under the military commission. 

One of those crimes listed under 950(t) is hijacking or hazarding 

a vessel or aircraft. Clearly, the actions of this man jeopardized the 

lives of passengers and hazarded the aircraft. 

16 

Now, did you pursue the feasibility of prosecuting Abdulmutallab 

under a military commission based on Section 950(t) of the Military 

Commissions Act? 

Attorney General HOLDER. Well, one thing I would say is that although the military commissions were not in existence at the time 

that Richard Reid was apprehended, law of war detention authority 

certainly did exist at that point. 

With regard to the decision, it was a decision that I made after 

consultation on December the 25th. There were a couple of conversations that occurred with members of the intelligence community. And then on January the 5th, in a meeting that we held in 

the Situation Room, I laid out for members of the intelligence community as well as the defense community the decision, the thought 

that I had about pursuing this in the criminal sphere, and there 

were no objections raised to that. 

The decision that was made with regard to Mr. Abdulmutallab 

was to place him in an environment, in a forum in which we could 

most effectively try the case. I think the decision that was made 

has been shown to be the right one given the fact that we had the 

ability to get information from him in that 1 hour interaction immediately after he was apprehended and then the information that 

he has since provided as a result of his decision to cooperate with 

the Federal Government. 

Senator HATCH. Well, Mr. Chairman, my time is up. I appreciate 

your service and I appreciate your answers. I will submit a number 

of questions for you. 

Attorney General HOLDER. Thank you. 

[The questions of Senator Hatch appears under questions and 

answers.] 

Senator KOHL. Thank you, Senator Hatch. 

Senator Feingold. 

Senator FEINGOLD. Thanks, Mr. Chairman. 

The Committee is well aware of my support for Federal court 

trials, let me simply echo what Senator Feinstein said so well. Continued strength on your courageous actions in this regard. I have 

a statement that discusses that issue, and I would ask that it be 

placed in the record so I have time to discuss other topics. 

Senator KOHL. Without objection. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

[The prepared statement of Senator Feingold appears as a submission for the record.] 

Senator FEINGOLD. Let me also take a moment to compliment 

you and Assistant Attorney General for Antitrust Christine 

Varney. Under your and her leadership, the Antitrust Division of 

the Department has made it clear, after many years of neglect, 

that enforcement of our antitrust laws is a priority for the Department, and I am especially grateful for the Department’s focus on 

agriculture issues in partnership with the USDA, and I was very 

pleased to hear the Department will be holding a dairy workshop 

in Wisconsin in June. It means a great deal to our producers and 

others in the State of Wisconsin. 

Let me turn to a couple other things. 

Senator Kohl asked you about the COPS program. As you know, 

I strongly support that program and other Federal law enforcement 

17 

assistance grant programs. I hear repeatedly from law enforcement 

in Wisconsin just how important these grant programs are, particularly during tough economic times. The COPS hiring grants in the 

Recovery Act allowed my state to hire or rehire 58 police officers, 

and these were certainly needed in the jurisdictions where they 

were provided, but I do think it is important that these dollars are 

distributed fairly between cities and counties. In meetings I have 

had recently with Wisconsin law enforcement, it was brought to my 

attention that Wisconsin’s sheriffs received zero COPS hiring 

grants through the Recovery Act. 

Law enforcement everywhere is forced to do more with less these 

days, but this struck me as a bit of an unfair outcome for counties 

in my State. It is my understanding the Department is looking at 

possible changes to the grant methodology. Just a bit, sir, on the 

status of that review. How quickly can we expect it to be modified 

and sort of updated on that effort? 

Attorney General HOLDER. Well, quickly, before I go through 

that, you are absolutely right that there is a focus in our Antitrust 

Division on the whole question of agricultural concerns. I will be 

attending, with Secretary of Agriculture Vilsack, a number of forums around the country. I think we have five scheduled; we have 

done one already in Iowa with Senator Grassley. 

With regard to the question of the allocation of COPS funds, I 

think sheriffs—I think my numbers are correct here—got about 17 

percent of the money that was awarded last year. We are in the 

process of looking at the allocation formula that we use. It was generally based on what the economic condition was in a particular jurisdiction, what the crime rates are in that same jurisdiction. 

I have talked to representatives of the sheriffs’ communities, and 

they raise, I think, very legitimate concerns. And so as we construct the methodology that we are going to be using next year, we 

will take that into consideration. And I would expect that we will 

probably have a determination made over the next few weeks as 

to what exactly the formula is going to be. 

Senator FEINGOLD. Thank you. 

Prosecutors and public defenders in Wisconsin have been telling 

me that they are having a harder and harder time attracting and 

retaining qualified attorneys in their offices. Many of these public 

servants have had to resort to taking a second job to pay off their 

law school debt. I am told that local prosecutor and public defender 

offices typically have attrition rates between 30 and 50 percent. 

This is obviously a serious problem in our criminal justice system 

and one of the many reasons I was a supporter of the John R. Justice Prosecutor and Defender’s Incentive Act, which created a much 

needed student loan repayment program for prosecutors and public 

defenders. It was enacted in 2008 thanks in large part to the leadership and hard work of Senator Durbin, but DOJ has yet to issue 

guidelines to enable the States to solicit applications for loan assistance. 

Can you tell me a bit about, update me on the status of our efforts to launch this? When do you expect that prosecutors and public defenders will be able to start applying for assistance? 

Attorney General HOLDER. Well, even in these difficult economic 

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18 

atively obvious. I have been concerned about the state of indigent 

defense. We have talked about that on a great many occasions. I 

am also concerned about what I hear from people who work on the 

other side, from prosecutors at the State and local levels. To the 

extent that we can come up with ways in which we can be of financial assistance to these groups, I think we need to do so. 

So let me get back to the Department and see where we stand 

with regard to our loan assistance programs and regulations, and 

I will assure you that this is something that for me, given the travels that I have had a chance to do over these past 14 months, this 

is really a priority. I am really concerned about the state of our 

local criminal justice system and the ability to hold onto good people who only want to serve their communities. There are economic 

considerations that are driving good people out of the system. 

Senator FEINGOLD. Thank you for that statement, and I will have 

a continued interest in this. 

Law enforcement and corrections staff have long known that people with mental illness are significantly overrepresented in our 

prisons and jails. Our jails and prisons were never intended and 

are not equipped to be treatment facilities for the mentally ill, but, 

unfortunately, that is what they have often become. 

Wisconsin has started looking at this issue and recently convened a task force of law enforcement officers, corrections staff, district attorneys, State legislators, and social service providers with 

the goal of developing a strategic plan to improve Wisconsin’s responses to people with mental illness in the criminal justice system. This initiative would not have been possible without the leadership of our Chief Justice in Wisconsin, Shirley Abrahamson, who 

was able to obtain some funding for the Council for State Governments to organize this task force. 

As I understand it, the council received Department funding for 

this and other mental health initiatives as a result of the Mental 

Illness Offender Treatment Crime Act. And while I was pleased 

that Wisconsin received some assistance for this initiative, it was 

one of just four States that received the aid out of more than 30 

States that applied for assistance. We have historically allocated 

few resources to deal with this complicated problem, yet funding 

for mental illness programs is one of the most competitive grant 

programs in the Department. 

Despite the high demand, the President’s budget proposes consolidating this important program with the drug courts program, 

and I am concerned that that will mean not enough resources for 

either program. 

Sir, why was that recommendation made? 

Attorney General HOLDER. Well, I think what we have tried to 

do is, again, in these very difficult economic times, to come up with 

ways in which we can be most effective in distributing the limited 

funds that we have. The concerns that you raise are indeed very 

legitimate ones. We are very concerned about the way in which we 

have de-institutionalized our facilities and put so many people who 

I think would do much better in institutions that were well funded 

and well run, and instead we put them in the criminal justice system. I saw that as a judge here in Washington, DC. 

19 

What we have tried to do and what we continue to try to do is 

to come up with ways in which we can help our State and local 

partners and help our fellow citizens deal with issues that they 

have to confront. 

Putting those two together, it seemed to us to identify ways in 

which we could consolidate those people who have drug problems 

and come up with alternatives to simply trying them and incarcerating them and to also deal with people who have mental issues 

and come up with ways in which we can help them other than by 

incarcerating them. 

We will do the best we can with the resources that we have, but 

the concern that you raised I think is a very legitimate one and one 

that I think as a society we need to focus more attention on. I have 

witnessed this, as I said, as a judge, and I am very, very concerned 

about the way in which we treat the mentally ill and the desire to 

put them in the criminal justice system. 

Senator FEINGOLD. Thank you very much. 

Thank you, Mr. Chairman. 

Senator KOHL. Thank you, Senator Feingold. 

Senator Grassley. 

Senator GRASSLEY. I thanked you privately and I want to thank 

you publicly for having the hearings that you are having around 

the country on enforcement of antitrust or review of antitrust and 

agriculture. That is not the point of my questions, but I thought 

I ought to start out there on a very positive note. 

[Laughter.] 

Attorney General HOLDER. That is always appreciated. 

Senator GRASSLEY. At the last oversight hearing, I asked you for 

a list of political appointees who previously represented detainees 

or advocated on their behalf. I think it was a very simple request, 

and you said, quote-unquote, that you would consider it. Since 

then, we have had a back-and-forth exchange with two letters 

signed by all Republicans on this Committee. Your staff has refused to provide the information, and yet the Justice Department 

managed to verify or provide names to Fox News. 

You said this inquiry has called into question the integrity of political appointees at the Department, so I want to make clear that 

I am not here to call into question the integrity of any employee 

of the Department. In fact, I agree with the Department’s view that 

personal attacks on the Department employees are inappropriate. 

My inquiry, though, seeks to understand who is advising you on 

these decisions given the serious impact these issues have on our 

National security. These questions are about transparency, about 

openness, and about accountability. The platform positions President Obama ran on in 2008 and which culminated in a Presidential 

Memorandum on Openness and Transparency in Government that 

he assigned January of last year. 

So a very simple yes-or-no question: Would you provide the 

names of political appointees at the Department who have previously represented detainees or advocated on detainee issues? 

Attorney General HOLDER. With all due respect, Senator—and I 

know that your request comes from what I will call a good place. 

Yours was an honorable request, and the hesitance that I had I 

think has been borne out by what I have seen. 

20 

There has been an attempt to take the names of the people who 

represented Guantanamo detainees and to drag their reputations 

through the mud. There were reprehensible ads used to question 

their—in essence, to question their patriotism. I am not going to 

allow these kids, I am not going to be a part of that effort. And 

so, with all due respect, their names are out there now; the positions that they hold are out there. That has all been placed in the 

public record. I am simply not going to be a part of that effort. 

I will not allow good, decent lawyers who have followed the 

greatest traditions of American jurisprudence, done what John 

Adams did, done what our Chief Justice has said is appropriate, I 

will not allow their reputations to be besmirched. I will not be a 

part of that. 

Senator GRASSLEY. Well, remember that this is a request from 

this Committee, and I think all the people on it were very sincere 

about it. So I will move on. 

You recently said that attorneys representing unpopular clients 

are patriots. I want to comment, though, that I doubt that you 

would share the same feeling for lawyers who represent the Mafia, 

and I doubt that you would hire them in the Justice Department. 

The Department’s response said that the Department of Justice 

does not keep a centralized data base of recusals, and it is the 

honor of the employees to recuse themselves. 

Now, you know that large law firms like ones you have served 

in have conflict committees and procedures in place to ensure that 

rules are followed. Why shouldn’t the Department of Justice, not 

just under your leadership but under leaderships before you, have 

some centralized system, a conflict system as private firms have? 

Attorney General HOLDER. I think that is actually a legitimate 

concern that you raise, and that is something that I think is worthy of consideration, because you are right that there is within certainly the law firm that I was a member of such a data base. And 

that I think is something that we can consider at the Department. 

Senator GRASSLEY. I want a Freedom of Information question 

and discussion with you. On January 21, 2009, President Obama 

issued a Presidential memorandum to the heads of all executive departments and agencies regarding Freedom of Information. That 

memorandum stated, ‘‘All agencies should adopt a presumption in 

favor of disclosure,’’ and then directed you to issue new FOIA 

guidelines, which you issued March 19th last year. Your guidelines 

stated that, ‘‘An agency should not withhold information simply because it may do so legally.’’ They also limited when the Justice Department would defend the denial of FOIA requests. I believe the 

guidelines were a good step in opening up Government and honoring President Obama’s pledge for transparency. 

However, when the Department posted the annual FOIA report 

back in March, the facts, I think, painted a very different picture. 

An analysis by the Associated Press found that in fiscal year 2009 

Government agencies cited FOIA exemptions 468,000 times compared to 312,000 times in fiscal year 2008. One exemption, (b)(5), 

was used almost 71,000 times in fiscal year 2009 compared to 

47,000 times in fiscal year 2008, and all of this occurred despite a 

total decrease in FOIA requests in fiscal year 2009. These numVerDate Nov 24 2008 09:14 Feb 03, 2011 Jkt 063323 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63323.TXT SJUD1 PsN: CMORC
21 

bers, I think, ought to be shocking to anybody that talks about 

transparency. 

So what is the reason—I am going to ask two questions. What 

is the reason for the substantial increase in the use of FOIA exemptions by this administration? And if the use of exemptions continues to increase in fiscal year 2010, what will you do to personally ensure that agencies are more transparent and responsive to 

the public’s right to know and to what the President says he wants 

his executive branch of Government to do? 

Attorney General HOLDER. The President has been clear, and I 

think in the regulations that I issued I was clear, that FOIA and 

the release of information, the desire for transparency is something 

that is critical to this administration. The statistics that you have 

cited are indeed troubling. I am not exactly sure what the reason 

is, but I think it requires some further examination to ensure that 

those people who are responsible for making FOIA decisions are 

doing so in a way that is consistent with the desires of the President and the directions that I have issued. 

We will review that and see what has happened. I can assure 

you, though, that the President is sincere, I am sincere, in trying 

to make sure that we are responsive—or more responsive to FOIA 

requests. 

Senator GRASSLEY. I hope you will send your message to all the 

agencies from the President. I am done. 

Senator KOHL. Thank you, Senator Grassley. 

Senator Durbin. 

Senator DURBIN. Mr. Attorney General, thank you. 

In response to Senator Grassley’s inquiry—and I respect the Senator from Iowa very much—I want to thank you. I think it was a 

courageous position you have taken, and the right one. History tells 

us that it was the Supreme Court that ruled that the Guantanamo 

detainees had the right to file petitions of habeas corpus. It was the 

Bush administration which said that they had the right to counsel. 

And the argument being made from the other side of the aisle, and 

their inspiration in Fox News, is that if anybody decides to represent a Guantanamo detainee, they disqualify themselves from future Government service because they cannot be trusted. 

You know, if that is the premise of our system of justice that 

legal representation or possible inclinations toward one party over 

another disqualify you, where does it end? Does it end with prosecutors who fail to prosecute? Does it end with judges who may 

rule in favor of a defendant? I think you are standing up for a very 

fundamental principle and rule of law here that does go back to 

John Adams and the earliest days of this Nation, and I thank you 

for doing this. The men and women who have had the courage to 

stand up as professionals who have taken an oath to represent not 

only their clients but defend our Constitution and laws have the 

right to that kind of a defense, and I thank you for the courage to 

do so. 

And I hope the record will reflect it was the Bush administration 

that said Guantanamo detainees have the right to counsel. This 

was not a decision made by the Obama administration. It was the 

right decision by the Bush administration. Let me add that, too. 

22 

On Miranda warnings, I think you are well aware—and we 

should say on the record—there is a lot of question here about 

using Article III courts for fear of giving a Miranda warning to a 

person. What was the policy of the Bush administration when it 

came to Miranda warnings for suspected terrorists arrested in the 

United States? 

Attorney General HOLDER. I do not think it was fundamentally 

different from the policy that we now have in place, and one thing 

I think people have to understand is that the giving of Miranda 

warnings does not necessarily mean that the flow of information 

stops. In fact, I think a good case can be made that once people 

get Miranda warnings, the information flow continues, or that if it 

stops temporarily, once a lawyer is introduced, a defense lawyer is 

introduced into the mix, that lawyer then counsels his client, especially in terrorism cases, and given the really lengthy sentences 

that somebody faces in an Article III proceeding, that lawyer works 

to convince the client to cooperate with the Government. So Miranda warnings are not necessarily ones that have a negative impact on our ability to gain intelligence. 

Senator DURBIN. Let us go back to a well-known case that has 

resulted in all of us taking our shoes off at airports: Richard Reid, 

the Shoe Bomber. How long after he was detained by the Bush administration’s Department of Justice was it before he was given a 

Miranda warning? 

Attorney General HOLDER. I think it was within a few minutes. 

I am not exactly sure. 

Senator DURBIN. Five minutes is what the record reflects. Under 

the Bush administration, the Shoe Bomber within 5 minutes was 

given his Miranda warnings. That was the standard. And now to 

argue that a Miranda warning is somehow unwise, unsafe for 

America, is to ignore the obvious. 

And what about the intelligence leaks? That is the second argument made about Article III courts, that you cannot successfully 

prosecute a terrorist in court without running the risk, if not in 

fact disclosing sensitive intelligence. What was the record under 

the Bush administration? 

Attorney General HOLDER. The administration I think did quite 

well in trying cases in Article III courts and used CIPA to prevent 

the dissemination of information, of secret information from any of 

those proceedings. 

Senator DURBIN. And one of the leading prosecutors in America, 

the U.S. Attorney for the Northern District of Illinois, Patrick Fitzgerald, who was in charge of the prosecution in the Southern District of New York of the African terrorist, said afterwards that he 

can do this without disclosing intelligence information following the 

law, backed up by others who had been through the same experience. 

Have you had complaints from U.S. Attorneys when you have 

considered Article III prosecutions that somehow that may jeopardize and disclose intelligence information? 

Attorney General HOLDER. No, I have not had that complaint, 

and I think our history shows that Article III courts are capable 

of trying cases without putting at risk intelligence sources and 

methods. The same is true, I think, of military commissions. 

23 

Senator DURBIN. Well, and that would be an option that you 

would protect, if you could make the choice. 

Attorney General HOLDER. Right. 

Senator DURBIN. Let me ask you this for the record, and it has 

been said by others: If you look at the scorecard since 9/11, how 

many successful prosecutions and convictions of terrorists have 

taken place in Article III courts under the Bush administration and 

Obama administration, and how many have taken place in military 

commissions? 

Attorney General HOLDER. Well, I think we have had close to 400 

successful prosecutions on the Article III side and three in the military commission side. 

Senator DURBIN. So those who are arguing that we should shift 

all of these prosecutions to the military side would have to stop and 

explain why this dramatic record of success in Article III courts 

should be rejected at this point. 

Now, let me ask you about the sensitivity of the people of New 

York with KSM. Tell me what is going through the mind of the administration and your mind when you think about that prosecution 

in that city after all that it has been through. 

Attorney General HOLDER. Well, one thing I think we have to remember is that, contrary to what somebody said, there was an initial negative reaction to that decision, it is quite the contrary. I 

think when one looks at the initial reaction from people in New 

York, the reaction actually was a positive one. 

That being said, as we are making this determination, we want 

to take into consideration what we have heard from the mayor, 

what we have heard from elected officials in New York City, what 

we glean from the people of the city that is evidenced in a number 

of ways, and try to come up with a way in which we can come up 

with a forum that will be most effective with regard to that case, 

whether it is a military commission or an Article III trial in New 

York City or in some other place. 

Senator DURBIN. I want to make it clear that I am not creating 

or trying to cast any kind of negative impression about military 

commissions. I know Senator Graham and others have worked 

closely, and I do believe that it is a viable alternative that you 

should have at your disposal. 

Is it not true, though, that under the procedural rules of military 

commissions there are some limitations compared to Article III 

courts, for example, when it comes to capital offenses? 

Attorney General HOLDER. Yes. In an Article III court, you can 

certainly—a person can plead guilty to a capital offense. That is 

not allowed in the military commissions. 

Senator DURBIN. There would have to be, in fact, some trial even 

if they wanted to plead guilty under those circumstances. 

Let me ask one last question, or I suppose I have run out of time 

here, but let me thank you and let me try to reiterate what Senator 

Feinstein and Senator Feingold have added. I do not believe that 

our system of justice should be driven by fear and anger, and that 

appears to be a driving force among some political camps in this 

country. If we are going to be strong as a Nation, we will not be 

quivering in fear and reacting irrationally in anger. We are going 

24 

to stand by the rule of law and stand by principles that have guided us for a long time. 

I thank you for your leadership. 

Senator KOHL. Thank you, Senator Durbin. 

Senator Graham. 

Senator GRAHAM. Thank you, Mr. Chairman. 

Thank you, Mr. Attorney General, for coming. This has been a 

very good discussion about some difficult issues, but one thing I 

would like to reiterate is that President Obama said the Nation 

was at war with al Qaeda. Do you agree with that? 

Attorney General HOLDER. Yes. 

Senator GRAHAM. I would just urge you to remain strong in that 

thought process because some people do not believe we are at war. 

Some people are just as patriotic as I am, but they believe we 

should be using the law enforcement model exclusively, and I think 

that is a formula for disaster. And there are some people who say 

you can never use Article III courts, and I disagree with them. 

Quite frankly, there could be times when an Article III court would 

be a superior forum. In my view, a financier of al Qaeda, you might 

want to take them to an Article III trial because you have more 

charging possibilities. Every al Qaeda operative is not at the same 

level as the next, so I agree with the idea of flexible, pragmatic, 

and aggressive. That is your standard. So I am one Senator on the 

Republican side who has not objected to Article III courts being 

used in a flexible, pragmatic, and aggressive fashion. 

Now, when one is at war, we have to realize that the rules are 

different than fighting crime. Do you agree with that? 

Attorney General HOLDER. That the—— 

Senator GRAHAM. The law of war is different than normal criminal law in certain aspects. 

Attorney General HOLDER. In certain aspects, yes. 

Senator GRAHAM. When we capture someone on the battlefield, 

under the law of war we have no obligation to read them their Miranda rights. Is that correct? 

Attorney General HOLDER. That is correct. That is not typically 

done, but even in the Bush administration, a small, small number—— 

Senator GRAHAM. I totally agree that if you are going to charge 

someone under domestic criminal law, you should read them their 

rights. I would just urge my colleagues to understand that when 

you are fighting a war and you capture people on the battlefield— 

and the whole world is the battlefield, in my view—the primary 

goal is to find out what they know about enemy operations, get 

them off the battlefield, then reserve prosecution decisions later. So 

I hope we do not criminalize the war and we will remain flexible, 

pragmatic, and aggressive. 

There are 48 people at Guantanamo Bay, I believe, that this administration has identified that are going to be held under the law 

of war on an indefinite basis because they present a national security threat, but the evidence is such you would not take them to 

a criminal proceeding with a military commission or Article III 

courts. Is that correct? 

Attorney General HOLDER. Yes, I am just checking the numbers 

here. That is correct that there are 48 detainees who we have deVerDate Nov 24 2008 09:14 Feb 03, 2011 Jkt 063323 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63323.TXT SJUD1 PsN: CMORC
25 

termined are too dangerous to transfer and not feasible for prosecution. 

Senator GRAHAM. I want to, one, stand by you in that decision. 

I think it is a rational, logical decision, not generated out of fear 

or revenge, but out of necessity. We are not fighting crime. We are 

not fighting the Mafia. We are fighting an international, sometimes 

unorganized, organization called al Qaeda who is bent on our destruction, and some of these people need to be held under our values, under the law of war, with due process, but we should not 

view what they did as a common crime but as a military threat. 

And it is my understanding that every detainee, whether held 

under the law of war or not, will have their day in an Article III 

court. There is a habeas proceeding available to every detainee at 

Guantanamo Bay. Is that correct? 

Attorney General HOLDER. That is correct. 

Senator GRAHAM. And one of the judges recently granted a habeas petition to an alleged member of al Qaeda who confessed to 

being a member of al Qaeda, who swore allegiance to al Qaeda in 

the 1990’s, but the judge decided to grant the habeas petition because the Government could not prove on the day of capture in 

2001 they were still a member of al Qaeda. 

It is my view, Mr. Attorney General, that we need to reform our 

habeas procedures and that a presumption should follow the detainee that once you are a member of al Qaeda, proven that on the 

day of capture, there would be a presumption that you are still a 

member of al Qaeda, and the court could hear evidence otherwise. 

This is just an example of why the Congress, in my view, ladies 

and gentlemen, needs to get more involved. So hang firm, stand 

strong, be fair, be aggressive, be pragmatic, but do not lose sight 

that we are at war. 

Now, when it comes to confinement facilities, I share the President’s concern that Guantanamo Bay has become an iconic image 

used against our troops in the field, and it would be preferable, in 

my view, to have a new facility that starts over and is not tainted 

by the past of Guantanamo Bay even though it is a well-run, secure facility now, and I would like to work with you in that regard. 

And I am losing the audience, apparently, but that is OK. 

Now, when it comes to future captures, where would we put 

someone that was captured in Yemen that we believed to be a 

member of al Qaeda? Where would they be detained? 

Attorney General HOLDER. Well, that is one of the issues, I 

think, that we have to wrestle with. It depends on, you know, what 

we ultimately want to—— 

Senator GRAHAM. Since my time is short, we are basically a Nation without a viable jail. This President is probably not going to 

send new people to Guantanamo Bay. Is that a fairly accurate 

statement? 

Attorney General HOLDER. That is certainly something we would 

try to avoid. 

Senator GRAHAM. Right. And if you send these people to Bagram 

Air Base, you are going to bring the Afghan Government down. So 

to my colleagues who think that we can close Guantanamo Bay and 

send them to Afghanistan and the Afghan Government becomes 

26 

the American jailer, I think you are making a serious mistake in 

the war on terror. Do you agree with that? 

Attorney General HOLDER. I think we have to come up with options, and I think we need to work with the Congress to try to develop what those options might be. 

Senator GRAHAM. This is music to my ears because I think we 

do, also, because we are fighting a war, we do not have a viable 

jail. Some people say use Guantanamo Bay, it is safe and secure. 

I would argue listen to the commanders, see if we can find a better 

jail that would meet the needs of this unique war on terror. 

So at the end of the day, I think the decision to prosecute KSM 

in civilian court was a mistake. The fact that you are being flexible, 

pragmatic, and aggressive is the right track to take. And I would 

urge you to work with the Congress to see if we can fashion detention policy that allows us to be at war within our values, allows 

you to use Article III courts when appropriate, but never lose sight 

of the fact that if you are a member of al Qaeda, you have not violated our immigration laws; you are a continuing threat to the 

world. And the idea of holding someone with due process who is a 

member of al Qaeda until they die in jail is OK with me, because 

we have done it in every other war. But this is a war without end, 

so I am willing to do more than we have done in past wars, as long 

as we do not lose sight of the fact we are at war. 

Thank you for your service, and I look forward to working with 

you as we solve these very difficult problems. 

Attorney General HOLDER. Right. Thank you, Senator. 

Senator KOHL. Thank you, Mr. Graham. 

Senator Schumer. 

Senator SCHUMER. Thank you, Mr. Chairman, and thank you, Attorney General, for your service. 

I just want to go over a little bit. I know New York came up in 

questions. Senator Durbin and then Senator Feinstein said something. And I just agree with what she said from her experience as 

a mayor, how difficult it would be handling a trial in a densely populated area. I know you have said you have not yet ruled it out. 

I hope you will. The overwhelming consensus in New York, as you 

know, is that it should not be there, and I just strongly urge you 

to make sure that that does not happen and to find a better alternative. 

Attorney General HOLDER. Senator, if I could just interrupt, 

what I said was that it has not been ruled out but that we would 

take into consideration obviously the expressions of the political 

leadership there as well as what we are able to glean from the population in making that determination. So I want to make sure that 

that is a part of what I have said. 

Senator SCHUMER. OK. I appreciate that. I am going to move on 

here to other areas in New York which are having other kinds of 

problems. 

What we have found throughout the country, I think, the Gang 

Intelligence Center’s 2009 Gang Threat Assessment found that 

gangs are increasingly migrating from urban areas to suburban 

and even rural communities. Unfortunately, there are two communities in New York that are all too familiar with this problem: 

27 

Newburgh in the Hudson Valley and Brentwood, Suffolk County, 

on Long Island. 

The situation in Newburgh has become shocking over the past 

year. There are reports of shoot-outs in the town streets, strings of 

robberies and gang assaults with machetes. Homicides are up, rape 

is up, robbery is up, gun crimes are up, and anecdotal evidence 

suggests that the gangs in the area have started to target the 

schools, which is what gangs often do, to recruit new members. So 

Newburgh could very much benefit from increased Federal help 

and resources. 

So my question is: Would you agree to go to Newburgh yourself 

or send a high-level official with expertise in this area to meet with 

local law enforcement and community leaders to work on decreasing this increasing gang presence? 

Attorney General HOLDER. Yes, I would agree to have somebody, 

if not myself, go to Newburgh for the purposes that you indicated. 

But I would also want to make clear that the United States Attorney for the Southern District of New York has been focusing attention on the problem in Newburgh, has been working with the local 

officials there as well. And I think that we will see shortly some 

of the results of that work. But I will not preclude—— 

Senator SCHUMER. I think we need all levels. The U.S. Attorney 

obviously, I have been—you know, our office has been in touch with 

his. But we need some Washington presence as well. 

Attorney General HOLDER. That is fine. 

Senator SCHUMER. I appreciate your agreement to either you or 

a high official expert in this to come and help us. 

The second question, related: A local newspaper in the Hudson 

Valley, the Times Herald-Record, reported that the FBI has 

brought Newburgh’s violent gang situation to the attention of the 

White House because it was a serious example of what is happening with gangs. Will you commit to having the appropriate 

agencies in your Department examine the violence in Newburgh to 

determine whether increased Federal resources are warranted, as 

I believe they are? 

Attorney General HOLDER. Yes, we are committed to that. I think 

that you will see that we have, in fact, been doing that. The problem that you note in these two communities is, as you say, acute 

and is worthy of Federal attention and Federal assistance to the 

local authorities who are trying to do the job but I think need some 

help. 

Senator SCHUMER. Yes. I am not being critical. 

Attorney General HOLDER. And I am not either. 

Senator SCHUMER. I am just saying they need additional help. 

Let me go to Brentwood, just similar problems: 50 arrests of 

gang members since December, 9 violent killings last year—in a 

small community, that is a heck of a lot-–5 killings since this January in Brentwood and the surrounding areas. And the FBI did recently brief my staff on gang activity in Brentwood. I was pleased 

to hear that the FBI and other Federal partners are working closely now with local law enforcement. They have met with the community leaders. They are increasing resources significantly to fight 

gangs in the area. 

28 

So could you please elaborate on the work and involvement of the 

Department in Brentwood? Could you speak to what you are learning from those efforts? And, finally, given the gang threat assessments area of increasing gang migration to non-urban areas, would 

you elaborate on the work of the Department to increase Federal 

resources generally to fight gangs in these non-traditional areas? 

Attorney General HOLDER. I think the gang problem is a very serious one. We have seen gangs that were centered in one city become national in their scope, national in their reach. We have seen, 

as you have indicated, a migration of gang activity from cities to 

rural and to suburban areas. And we in law enforcement have to 

adapt to that and break old models, old ways of thinking. Gangs 

are not simply an urban phenomena anymore. 

With regard to Brentwood, I know that the FBI has given attention to that problem, as you have indicated. Our hope is that 

through our cooperation with the local authorities there, we could 

have a meaningful impact on the problem that has unfortunately 

afflicted the Brentwood area. 

Newburgh and Brentwood are—you know, I am a New Yorker— 

two wonderful communities, and I think what we have seen there 

is unfortunately too typical of what we are seeing, increasing numbers of—— 

Senator SCHUMER. Anything specific you can let us know about 

Brentwood? 

Attorney General HOLDER. Well, there are operational concerns 

I have with regard to revealing too much other than to say that 

the FBI is involved in a meaningful way with regard to the Brentwood problem. And, again, I think this is something that will bear 

fruit in a relatively short period of time. 

Senator SCHUMER. If my office could get a briefing on some of 

those, that would be very helpful. 

Attorney General HOLDER. Sure. 

Senator SCHUMER. I do not have any more questions, so I will 

yield back my time. 

Senator FEINSTEIN [presiding.] Thank you very much, Senator. 

Senator Kyl. 

Senator KYL. Thank you, Madam Chairman. 

I, too, am going to first address some local issues, Mr. Attorney 

General. I am very disappointed that the administration appears to 

be putting a very low priority on securing our southern border. Violence there is escalating exponentially. Thousands of people have 

been killed just south of the border by drug cartels. Last week, Arizona buried a very fine citizen, a rancher in Cochise County, Robert Krentz. The violence is spreading, and yet action that I have 

requested from you and from the Secretary of Homeland Security 

is lacking. 

Let me back up. I am talking about Operation Streamline for 

which both the Department of Justice and the Department of 

Homeland Security have responsibility. Last Friday, I visited the 

Yuma sector of the border and heard the tremendous success that 

Operation Streamline has brought to that sector of the border, 

similar to the Del Rio, Texas, sector. There is virtually no illegal 

immigration occurring there now. Part of it is because of a double 

and in some cases triple fence with adequate Border Patrol agents. 

29 

Part of it is the deterrent effect of Operation Streamline, which 

puts even first offenders in jail for at least a couple of weeks, and 

it can be up to a month or maybe even longer, depending on how 

many times people have crossed the border. 

Now, this takes some resources from the Department of Justice, 

and I have asked you, when I met with you before your nomination 

hearing in 2009, about the funding for that. I discussed it again 

with you at your nomination hearing on January 15, 2009. We discussed this because the Department of Justice needs to provide the 

funding for certain elements of it. I asked you what resources were 

necessary for the Marshals Service, the courthouse renovations 

that may or may not be necessary, certain administrative costs— 

criminal clerks and those kinds of things, potentially additional 

judges, some additional detention spaces, though there appear to be 

plenty of opportunities to rent detention spaces. All of this would 

fall under the Department of Justice jurisdiction. I have gotten no 

response to these repeated requests. 

So, finally, I attached an amendment to the fiscal year 2010 Department of Homeland Security appropriations bill that requires 

collaborative—the Department of Justice and the Department of 

Homeland Security to provide a report to us on what these costs 

are. That report was due from you and Secretary Napolitano on 

December 27th of last year. 

In a response to me in March from questions I submitted on December 9th of last year, Secretary Napolitano wrote that, ‘‘The report is in the final stages of review process, and we anticipate Congress will receive it in the near future. Still have not received the 

report. 

It is my understanding—and I would love for you to be able to 

verify that this is not true—that the Department of Justice has not 

been fully cooperative in providing the information necessary to 

complete the report. The Department of Justice is the chief law enforcement agency of the country responsible for seeing that the 

laws are obeyed, and that would assume also itself complying with 

laws, which has not been done here. 

When can we expect to get the report, No. one? Second, do you 

support Operation Streamline or not? Will you support funding 

necessary—will you identify the things that would need to be done, 

and will you support that funding, including by making requests 

for the next budget of the administration to provide for funding 

necessary to both expand Operation Streamline to other sectors, including the Tucson sector of the border, where just about half of 

all of the illegal immigration is now coming through the southern 

border? 

Attorney General HOLDER. Well, first I would express my condolences for the citizen in Arizona. That happened while I was in Arizona for a U.S. Attorneys conference. 

It is, in fact, a priority for this administration to ensure that our 

borders are secure, and especially the border we are talking about, 

the southwest border. We have tried to work with our partners at 

DHS to be effective in that regard. I will check and see what the 

status is of that report. It is certainly not anything that has been 

brought to my attention by anyone either at DHS or within the DeVerDate Nov 24 2008 09:14 Feb 03, 2011 Jkt 063323 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63323.TXT SJUD1 PsN: CMORC
30 

partment of Justice that we have been dragging our feet in the creation of that report. 

There are a variety of mechanisms, I think, that we need to use 

in order to be effective at reducing the flow of illegal immigration 

and all that that implies, all the collateral problems that it tends 

to breed. And Operation Streamline is something that, you are correct, you and I have certainly discussed in the past. 

We will look at all of the possibilities, I will look at all of the possibilities, and I will be supportive of, within the interagency process and dealing with the folks at OMB, supportive of those things 

that I think have proven to be effective so that we can use our 

money efficiently and so that we can be responsive to the citizens 

along the southwest border. 

What I think we too often think of is that that is a local problem, 

and it is not. It is a national problem. What happens along the 

southwest border has an impact in Chicago, Washington—— 

Senator KYL. Could I just interrupt you? I agree. I have just got 

7 minutes, as you know. Would you ask your staff to respond to 

my staff to set up even a telephone call between the two of us— 

it does not have to be a meeting—to further discuss this, especially 

after you have been able to verify the information and provide it 

to me, please? 

Attorney General HOLDER. Sure. We will do that. 

Senator KYL. Totally different subject. On February 26th, the 

House passed the Intelligence Authorization Act for this fiscal year. 

Just before that, it stripped a provision that would have 

criminalized cruel, inhuman, and degrading interrogations, which 

was a staggering provision in its breadth and ambiguity. A CIA 

agent, for example, could have been punishable with a prison sentence for up to 15 years if a court concluded that the agent blasphemed an individual’s religious belief during the course of an interrogation. 

Does the administration support adding such a provision to the 

Criminal Code? 

Attorney General HOLDER. I am not familiar with that provision. 

Torture is certainly a violation of our law. When it comes to cruel, 

inhumane, and degrading treatment, I would want to look at that 

statute and see exactly what the intent was in trying to criminalize 

that. I am not familiar with that. 

Senator KYL. Would you respond to me in writing as to what the 

Department’s position on that would be? Because I suspect the 

issue will arise again. 

Attorney General HOLDER. That is fine. I will do that. 

Senator KYL. I thank you very much. 

Senator FEINSTEIN. Thank you very much, Senator Kyl. 

Senator Cardin. 

Senator CARDIN. Thank you, Madam Chair, and, General Holder, 

it is always a pleasure to have you before our Committee. We 

thank you very much for your service. 

I want to follow up on the points that many of my colleagues 

have raised in regards to Guantanamo Bay and the handling of the 

detainees that are there. I recently was in Guantanamo Bay. I had 

a chance to visit there 2 weeks ago, and it was my second visit, 

and the type of facility there is certainly one that is world class 

31 

from the point of view of how it treats detainees, the type of physical facilities, et cetera. 

It was constructed in order to be able to obtain intelligence information from detainees. Its purpose was also to detain individuals 

and then, third, for pre-trial and trial purposes. Well, the actionable intelligence information is no longer as relevant as it was 

when it was first constructed. The number of detainees is far below 

its capacity. And it has not been used very much for pre-trial or 

trial cases. So as a practical matter, as a budget issue, and certainly from a symbol, Guantanamo Bay has to close. 

Now, we have talked a little bit today about what do we do about 

the people that are there, how do we try them, do we use our Article III courts, do we use the military commissions. I support what 

some of my colleagues have said. I want to give you maximum 

choice. I do not want to restrict the way to get the most effective 

results. I do not want to give the detainees more rights than they 

should have, and that is, why restrict the venue in which we 

should try them? 

But I want to deal with those that we cannot release now and 

we cannot try. You inherited this problem, but it is an issue that 

we have to deal with. On previous occasions, you have said that 

there will be a process for review to make sure that basic rights 

are afforded. How far along are we in making that type of review 

process public in order to get international recognition and hopefully support for how we are dealing with those that will continue 

to be detained without trial? 

Attorney General HOLDER. Well, that is something that we are 

still working on. I think that there certainly needs to be a process 

by which an initial determination is made, and that has already occurred with regard to the task force and in the principals Committee that voted on making the decision to detain these 48 people. 

Obviously, there is a right for them to challenge that determination 

in Federal court, but as I have talked about with Senator Graham, 

there has to be, and the administration agrees with this, some kind 

of ongoing review mechanism put in place to ensure that somebody 

who is detained on this basis continues to be a danger. 

It is something that we are still working through in the interagency—and, frankly, working with Senator Graham as well. My 

hope would be that we would have something that we will be able 

to share, and put in place, more importantly, in a relatively short 

period of time. But this is something that has been focused on. 

Senator CARDIN. Let me just repeat the 9/11 Commission’s recommendation that the United States engage its friends and develop 

a common coalition approach toward detention and humane treatment of captured terrorists. I guess my point is that it is fine for 

us to internally develop a review process, but if we do not put sunlight on it, if we do not open this process up, if we do not engage 

the international community, and if we do not engage the international community on how we are going to deal with detainees in 

the future, this war is not going to end anytime soon. And we are 

apprehending people today, and we still have yet to have a real 

international accord as to how these detainees should be handled. 

Should we have another Geneva-type convention to deal with this? 

32 

I think we are looking forward to some broader recommendations 

rather than trying to deal with this internally in this country. 

Attorney General HOLDER. I agree with you. I do not think that 

review mechanism can be done entirely—it must be done in as 

transparent a way as we can. There is a symbolic significance to 

this review process in the same way that there is a symbolic significance to the continued existence of Guantanamo. We have to 

deal with this not only on a substantive level, but also on a symbolic level. And it would seem to me, again, taking into account a 

variety of things, that we want to make sure that this review process, the existence of this review process, is something that is widely 

known. 

Senator CARDIN. When should we expect some specifics as to how 

these procedures are being handled? I have heard you say frequently as soon as possible, but it is getting late. 

Attorney General HOLDER. It is a priority. We have now gotten 

to the point where we have made the determination; that very able 

testify made its recommendations, unanimously agreed to by the 

principals, that 48 people should be held in this way. Before, we 

were talking about something that was theoretical. Now it is real. 

We have identified who those people are, and I think it is now incumbent upon us to develop as quickly as we can what the review 

mechanism is going to be and how transparent we can make that. 

Senator CARDIN. Sometime this year? 

Attorney General HOLDER. I would certainly think that is—I certainly think we can do that. 

Senator CARDIN. Sometime this month? 

Attorney General HOLDER. I am not sure we can do that. 

[Laughter.] 

Senator CARDIN. I would just urge you—this is an issue that is 

difficult for us to defend when we do not have anything to defend, 

we do not have a policy to defend. So I would just urge you to get 

that to us as quickly as possible. 

Let me turn to a separate subject dealing with our juvenile justice system. There have been recent reports that have been released showing that many of the individuals in our juvenile justice 

system have been victimized. I would hope that you are acting on 

that report, and the Department of Justice has significant responsibility in regards to how juveniles are handled in this country, not 

only from the Federal point of view but our States. And I would 

think this should be a very high priority, and I know our Committee is looking at legislation here, but we certainly welcome your 

thoughts as to what we should be doing in regards to improving 

our juvenile justice system. 

Attorney General HOLDER. We would like to work with you in 

that regard. The reports that I have seen from a variety of contexts 

are very disturbing about how juveniles are treated, how they are 

victimized too often in facilities where, frankly, they should not be 

held. I think that the purpose of the juvenile system is rehabilitation, and if that is to occur, we have to have a juvenile system that 

is capable of doing that. And so I will look forward to working with 

you in trying to make our juvenile system what it can be and it 

too frequently is not. 

Senator CARDIN. Thank you. 

33 

Thank you, Madam Chair. 

Senator FEINSTEIN. Thank you, Senator Cardin. 

I would like to take this opportunity to put in the record National Security Division statistics on unsealed international terrorism and terrorism-related convictions and also a letter dated 

February 18th from the Department. 

[The information referred to appears as a submission for the 

record.] 

Senator FEINSTEIN. Senator Cornyn. 

Senator CORNYN. Thank you, Madam Chairman. Good morning, 

General Holder. 

Attorney General HOLDER. Good morning. 

Senator CORNYN. In the short time we have together, I want to 

ask you a little bit about the financial crisis and what the Department is doing to investigate and prosecute criminal activity there, 

the violence in Mexico and the work that the administration is 

doing to deal with that, and also what the administration is doing 

and what the Department is doing with regard to health care 

fraud, and I have some specific questions there. 

I suspect you will agree with me that criminal prosecution can 

be an effective deterrent to those who might be tempted to commit 

future crimes. 

Attorney General HOLDER. It is the most effective deterrent. 

Senator CORNYN. I agree, and that is why, as we have seen the 

investigation of the financial collapse that reached its nadir with 

Lehman Brothers and AIG and this massive infusion of taxpayer 

money to help prop up our financial system and to get the economy 

going again, we are looking at financial regulatory reform coming 

out of the Banking Committee and the like. But one thing I have 

noticed that has been missing is show trials. We simply have not 

had the people who were guilty of criminal conduct brought to justice and tried in public and punished for committing crimes that 

the American people are paying for. 

Can you sort of summarize for me what is happening so the 

American people can have some confidence that this ultimate deterrent will be utilized, where appropriate? 

Attorney General HOLDER. Well, the President has created the 

Financial Fraud Enforcement Task Force, and that task force is 

looking at a variety of matters, and a variety of matters are under 

investigation. These are difficult cases to put together. They are 

complex by their nature. They are paper driven. They are not easy 

to put together. 

I think over time we will see more of these trials, and I hope that 

they will have the deterrent effect that I think they are capable of 

having. 

Having said that, there have been some successes. There have 

been indictments brought against Stanford, obviously the Madoff 

case. There have been some other high-profile matters. But I think 

the work—I would focus on the work of the Financial Fraud Enforcement Task Force, which is pretty comprehensive in its scope. 

It involved not only Federal prosecutors but State and local prosecutors as well, regulatory agencies, the SEC is an integral part of 

this. And I would think that you will see coming out of the work 

34 

of that task force the deterrent kinds of things that I think you and 

I both agree ultimately needs to be emphasized. 

Senator CORNYN. Who is coordinating for the executive branch 

the investigations and prosecutions of those guilty of bringing our 

financial system into crisis 18 months ago? Because, of course, you 

have all these, an alphabet soup of different Federal agencies—the 

FDIC, the SEC, obviously the Fed, Treasury. Who is coordinating 

all that? Is it the Financial Fraud Enforcement Task Force, or is 

it a higher level and more specific to the financial crisis? 

Attorney General HOLDER. It is coordinated by the Justice Department, and coordinated by me as the head of the Financial 

Fraud Enforcement Task Force. It is an unprecedented effort to 

take, as you put it, the alphabet agencies, Federal prosecutors together so that we can be efficient in the investigtion of these matters and bring to bear the various expertises that exist in these different insttutions, and then bring to justice as quickly as possible 

the people who are responsible for the frauds that were 

prepetrated. 

Senator CORNYN. General Holder, turning now to health care 

fraud, some experts have estimated that as much as $460 million 

is stolen from the Medicare program each year, and that is out of 

a $425 billion annual program. Health and Human Services Secretary Sebelius has told me in a letter in response to an inquiry 

I made that there is as much as a 10-percent wrongful payment 

rate for Medicaid payments, 10 cents out of a dollar that could be 

applied to helping provide health care for low-income individuals. 

I know that we have talked about this before, but my experience 

as a State Attorney General—and I would be surprised if yours is 

different—in that the pay-and-chase way of addressing Medicare 

and Medicaid fraud does not seem to work very well because you 

have limited resources, and that the detect-and-prevent approach 

has a lot to commend itself in terms of a supeior approach. And I 

would just ask for your comments on that and ask hopefully for 

your commitment to work with us to sort of change the paradigm 

to make it a fairer fight between the good guys and the bad guys. 

Senator CORNYN. General Holder, I would agree. We have 

worked, I think, in an unprecedented way—that is, the Justice Department with HHS—in trying to get at this problem. The amounts 

of money that are essentially stolen from the American people are 

astronomical. If we look at the last fiscal year, we have $1.19 billion in criminal and civil settlement collections during fiscal year 

2009. That is just a huge amount of money. 

We have put together this HEAT effort, Health Care Fraud Prevention and Enforcement Action Teams that we have placed in 

seven cities—we are going to try to expand those I think to 13 this 

year—that have been particularly helpful, particularly useful in 

identifying places where we see this health care fraud. And we certainly need to detect it and hold people accountable where it occurs, but I think you are right, we have to come up with 

mechanisms—that probably means auditors and people like that— 

to prevent this from happening in the first place. These fraudsters, 

once they are detected, what we have found is that they move from 

one city to another. And so what we have to do is make it impossible for them to make money off these kinds of frauds. We have 

35 

even seen instances where we are now hearing that drug dealers 

are getting out of dealing drugs and into health care fraud because 

it is less dangerous and more lucrative, and that simply cannot be 

allowed to stand. 

Senator CORNYN. General Holder, I commend the efforts that you 

have made and that you described, although I think we would have 

to all admit that it is just a tiny fraction of the money lost to 

health care fraud. So I would look forward to working with you to 

try to get into this detect-and-prevent mode rather than the payand-chase mode. 

Let me just close on a question about the Merida Initiative and 

the violence in Mexico. The Chair and Senator Kyl and I all represent border States, but as you appropriately stated earlier, what 

is happening in Mexico and along the border affects our entire 

country. 

As we know, there is a war basically going on now between the 

drug cartels and the Mexican Government. President Calderon is 

heroically taking on this challenge. We do not know how it is going 

to come out yet, and that worries me a lot. We have put a lot of 

money and a lot of effort into the Merida Initiative, and I believe 

you and Secretary Clinton, Secretary Napolitano, the Director of 

National Intelligence, and others traveled to Mexico City recently 

to visit with the Mexican Government. But why is it that what we 

are doing now does not appear to be working? And are you as concerned as I am that this violence will not result in a peace treaty 

between the Mexican Government and the cartels? One is going to 

win, and the other is going to lose, and we do not know what that 

outcome will be right now. 

Attorney General HOLDER. Well, just for the record, I did not accompany them on the trip to Mexico. I was actually supposed to be 

before this Committee to testify, but it got postponed. So the Deputy Attorney General actually went in my place. 

The work of our Mexican counterparts has been courageous. 

They have literally put their lives on the line. When one looks at 

the number of law enforcement officers, soldiers, civilians who have 

lost their lives in connection with this battle, it is indeed alarming. 

I spent over 2 hours in Phoenix when I was down there at the 

U.S. Attorneys conference speaking with my Mexican counterpart, 

the Mexican Attorney General, about the progress that we are 

making. And I think progress has been made in Mexico. 

It would be my hope that they will continue this effort. They 

need the help of the United States in a number of ways. The 

Merida Initiative is certainly one of the ways in which we can do 

that. I think we also need to focus on what they call the Iron River 

and the flow of illegal weapons that go from the United States into 

Mexico and that are then trained on very courageous Mexican soldiers and innocent Mexican citizens. We have used our DEA, our 

ATF, our FBI to try to help in that regard. 

I think the battle of this is very much in the balance, and without continued American attention and continued American support, 

I think we decrease the chances that the Mexican Government will 

ultimately be successful. I am confident that President Calderon is 

committed to this fight, but I think we have to show ourselves to 

be good allies in that regard. 

36 

Senator CORNYN. Well, I appreciate your efforts there and look 

forward to continuing to work with you. I have some other questions, but I will have to submit those in writing. I would note that 

the latest estimate I saw is that 18,000 people have lost their lives 

as a result of this violence since 2006. I am not sure the American 

people have fully digested that and comprehended the scope and 

the severity of the threat occurring right on our southern border, 

and so we have a lot of work to do. 

Attorney General HOLDER. Yes. I agree. 

[The questions of Senator Cornyn appear under questions and 

answers.] 

Senator CORNYN. Thank you. 

Senator FEINSTEIN. Thank you very much. 

I have on my list next in the following order: Senator Klobuchar, 

Senator Coburn, Senator Kaufman. Senator Franken, you are up. 

Senator FRANKEN. Thank you, Madam Chairman, and, General 

Holder. 

I am very concerned about the potential merger of Comcast and 

NBC Universal. I know that you are not allowed to discuss the specifics of the merger, but I want to delve into this a little bit with 

you today. 

I am concerned because I see the potential here for consolidation 

of media in a way that is to me very frightening. You know, I 

worked at NBC a long time. I want the best for NBC. Jeff Zucker 

came to me and said this is good for NBC, and I said, ‘‘I know it 

is good for NBC.’’ That is not the issue. The question is: Is it good 

for the American people? 

And to me, what we have is a situation where—if this goes 

through, are we going to have a situation where Verizon and AT&T 

see the need to buy networks and studios? And are we going to get 

all our information—because Comcast is the largest cable provider 

and the third largest Internet provider. Are we going to be seeing 

a situation where five companies are controlling all the information 

that we get? And I think that is a very dangerous situation. 

Are you familiar with fin-syn, what happened with the financial 

syndication laws in the early 1990s? 

Attorney General HOLDER. Somewhat, yes. 

Senator FRANKEN. You remember that basically the networks 

were prohibited from owning their own programs. 

Attorney General HOLDER. Right, OK. 

Senator FRANKEN. And that was reversed. During the testimony 

of that, all the different networks said why would we buy our 

own—you know, favor our own programs? We are in the business 

of getting ratings, and we just buy the best programs. Well, obviously, what has turned out to be the case is that has not happened 

at all. They favor their own programs. And this set the scene for 

Disney buying ABC, and for Paramount and Viacom buying CBS, 

and NBC merging with Universal, and Fox, of course, owns Fox. 

So right now we have incredible concentration, and most of the 

shows are owned by whoever owns that. And it has reduced competition for independent producers. 

Now, what we are seeing with Comcast is that Comcast is—yes, 

it is a vertical integration, but it is also horizontal because they 

both have sports programming that anybody who is carrying—has 

37 

a cable network has to carry and would be really in bad shape if 

they do not. 

My question is: How does the Department of Justice determine 

whether a merger is horizontal or vertical or both? And how does 

that impact the Department’s analysis of this merger? 

Attorney General HOLDER. Well, I am somewhat restricted in 

what I can say about the investigation that is underway with regard to the Comcast-NBC merger, but I can assure you that the 

Department is conducting a thorough investigation of that proposed 

transaction. And if a determination were made that Comcast’s acquisition of NBC would substantially impact competition in violation of the antitrust laws, we are committed to taking very serious 

enforcement action. 

I am not really at liberty to talk about it much because it is an 

ongoing investigation, but the Antitrust Division that has shown 

itself to be aggressive, appropriately aggressive, headed by Christine Varney; they are looking at this transaction. 

Senator FRANKEN. Well, Mr. Varney, when he testified in front 

of the Commerce Committee last month, he testified about previous 

DOJ antitrust actions and discussed some of the significant conditions that DOJ imposed on the parties. I am skeptical, but I am 

still open to imposing conditions on a potential Comcast and NBC 

merger, but I have problems with imposing conditions. First, it is 

hard to enforce them since someone has to know a condition has 

been violated and then report that to DOJ. And, second, conditions 

almost inevitably expire after a few years. So I want to make sure 

that the Department of Justice—make sure that conditions, merger 

conditions would actually have enough teeth and have a long 

enough life that they would really impose real conditions to prevent 

the very thing I am fearing. 

Attorney General HOLDER. Well, again, maybe I can just take 

myself away from the NBC-Comcast situation and simply say that 

when we look at these matters, we have a wide range of things 

that can be done, from barring, stopping the merger itself, to putting into place a variety of conditions that the parties have to agree 

to in order to allow the merger to proceed—again, not speaking 

about NBC-Comcast, but just more generally. And we can, I think, 

make those conditions ones that are enforceable, and have a degree 

of transparency there. Obviously, it involves having on the staff or 

having access to people who are experts in the field, not simply 

good antitrust lawyers at the Antitrust Division, but people who 

understand the particular field that we are trying to regulate. And 

I am confident that we do have that capacity. 

Senator FRANKEN. Well, I would hope that I could in my office 

and the folks over at DOJ who are looking at this can have an exchange of ideas on this because this is something that affects people in ways they do not understand, including just your cable bill. 

So I want some kind of assurance that I will be able to do that. 

Attorney General HOLDER. Well, now I care. I am a Comcast subscriber, and the fact that you point out it could have an impact on 

my cable bill has awakened—— 

Senator FRANKEN. I knew I could reach you somehow. 

[Laughter.] 

38 

Attorney General HOLDER. That is right. You have got the AG 

more than interested than I was going into this. But, seriously, we 

will be glad to—— 

Senator FRANKEN. The way to Holder is through his pocketbook. 

I know that. 

[Laughter.] 

Attorney General HOLDER. We would be glad to work with you, 

to listen to the concerns that you have and the observations that 

you have, given the experience that you have in the industry. 

Senator FRANKEN. Thank you. 

Thank you, Madam Chair. 

Senator FEINSTEIN. Thank you very much. 

I see that Senator Klobuchar has returned. Senator, you are up 

next. 

Senator KLOBUCHAR. OK. Thank you very much, Madam Chair. 

Thank you, Attorney General Holder. I first wanted to commend 

your Department, the Department of Justice, and specifically the 

U.S. Attorney’s Office in Minnesota for the fine job it did on the 

Petters case, which, as you know, is I think second to Madoff in 

terms of loss and really affected a lot of people in our State, a lot 

of nonprofit groups that got ripped off. And he just received a 50- 

year sentence, and so I wanted to commend Todd Jones, the U.S. 

Attorney, as well as all of the great experienced line attorneys that 

worked on that case, so thank you. 

Attorney General HOLDER. Thanks for sending Todd our way. 

Senator KLOBUCHAR. All right. The second thing I wanted to 

focus us on is just what I have considered the elephant in the room 

when it comes to crime that is affecting people’s lives, and that is 

crime on the Internet, that is cybersecurity issues that go way beyond individual people, but are going to, I think, at some point be 

a major problem for our country if we do not get on the front end 

of this and become as sophisticated as the crooks or even the terrorist groups that are trying to hurt our country or rip us off. 

I was concerned on the more micro level for what affects people 

in their individual lives. A recent report from the Office of the Inspector General suggests that DOJ should be doing more to combat 

identity theft. The report stated that DOJ needs to ensure that its 

efforts to combat identity theft are coordinated and given sufficient 

priority. And it talked about the fact that there is not a person assigned with the responsibility to coordinate these efforts, and by 

some estimates, identity theft was the fastest-growing crime in 

America, in 2008 10 million estimated victims, up 25 percent from 

8 million victims in 2005. We have heard the FBI has stopped collecting data on identity theft. That was in this report. Could you 

comment on this report and what your efforts will be to remedy it? 

Attorney General HOLDER. I think you identified not only a problem that exists now but one that I think, if unchecked, is potentially the crime of the future. As many benefits as the Internet 

brings to us, we see criminals migrating to the Internet and using 

it as a basis to do a whole variety of cyber crimes, everything from 

identity theft to retail fraud. 

The Department takes this very seriously. I think we have a 

good section within the Criminal Division that is effective. These 

people are experts at this. I think they could use more resources, 

39 

but they certainly have the attention of the Assistant Attorney 

General, Lanny Breuer, who runs the Criminal Division, and certainly of this Attorney General. 

I think this is an area of crime that we have to get ahead of. 

There are ways in which we can do that, and we are committed to 

doing that. 

Senator KLOBUCHAR. And I am now exploring this myself, but do 

you know why the FBI has stopped collecting the data on identity 

theft? 

Attorney General HOLDER. I am not familiar with that, but I can 

examine that. 

Senator KLOBUCHAR. It was in the report. I just introduced a bill 

with Senator Thune, and a piece of this is on peer-to-peer marketing and what is happening where people innocently go on a 

computer and maybe their kid has downloaded a P2P program, and 

then all their stuff gets stolen. We had a landscape company in 

Minnesota where the employee goes home, does their work at 

home, and the whole employee stuff, all of their company stuff is 

out on the market. Everyone is getting identity theft problems, individuals who just happened to access. I mean, I just—it is unbelievable to me. And the 2009 Internet crime report by the Internet 

Crime Complaint Center was released in mid-March. Complaints of 

Internet fraud were up 25 percent over a year ago, and the total 

dollar loss more than doubled from 2008. And so just where do you 

think we should go with this? Local law enforcement does not have 

the resources to figure this all out. A lot of it is international. Are 

there things we should be doing with other countries and their law 

enforcement? How do we get a handle on this? 

Attorney General HOLDER. Well, I think that you have really hit 

on something, and I think this is not something that can be done 

on a local basis or even a national basis. One of the things that the 

Internet allows is for criminals in far-off places to almost be in 

your living room, bedroom, wherever it is that you have your computer. And the problem of identity theft and other kinds of cyber 

crime requires the cooperation of not only a concentrated effort 

here within our own country, but also with like-minded countries. 

I was in Madrid last week talking to the EU Justice Ministers 

there and the whole question of cyber crime and how the Internet 

is used—one of the focuses we had there was on child pornography, 

but other things as well—is something that we are committed to 

working together to do. It means that we have to reach out not 

only to our allies but also to other countries that have been, frankly, somewhat reluctant to be cooperative. We have to use diplomatic pressure to make them be partners in this effort. 

Senator KLOBUCHAR. OK. I was one of the sponsors on the Fraud 

Enforcement Recovery Act that the President has signed into law, 

and you talked about the forming of this task force. Could you talk 

about what has happened with that sense, what are the priorities, 

and talk about how the voices of local law enforcement will have 

a place at the table? 

Attorney General HOLDER. Yes, I think it has been a good effort 

so far, and I think that as time passes—and not too long a period 

of time—the results will become manifest. What I think is really 

important about this is that this is not a Federal effort. This really 

40 

is one that involves our State and local counterparts, and they are 

involved in various subcommittees. They have leadership roles 

throughout the task force. The needs that they identify we try to 

deal with. The ideas that they have are, I think, excellent ones, 

and we try to incorporate them into the enforcement strategy. 

I really think this is a model for the way in which we can work 

with our State and local partners. They are not junior partners. 

They are equal partners in this effort. 

Senator KLOBUCHAR. OK. Then last, and I know Senator Cornyn 

brought this up, but just the health care fraud issue, and you and 

Secretary Sebelius announced the HEAT group. We have had discussions. One of the things that I have been most shocked by is 

that areas that tend to have more disorganized health care systems, like Miami, Florida, also tend to have more fraud, because 

not only are there issues of the Government watching over it with 

the $60 billion loss a year, but also that no one else is watching 

over each other, like we might have in Minnesota where we have 

a more organized system so you cannot just set up a storefront and 

get the money sent there because then the money is not going 

somewhere else so someone notices it. 

Could you talk about the progress—I know you have these hot 

spots including such as the one in Florida, but we just cannot afford to have the money bleeding off into this Medicare fraud anymore. And people always talk about it. It is a popular thing to talk 

about it, but if we do not really get something done, we are not 

going to help the American people. 

Attorney General HOLDER. Well, I think with the use of these 

HEAT task forces, we actually are getting something done. I think 

we have measurable results. We have tried to identify the places 

where we have the greatest instances of health care fraud, and 

those are the places where we put the task forces. As I said, we 

have seven now, and I think we are supposed to go to 13 or 14 next 

year. But you are right. There are certain localities that have certain ways in which they conduct themselves, certain ways in which 

they organize themselves that make them more susceptible to this. 

And these fraudsters understand that, and they move from one city 

to another identifying those cities that are most vulnerable. 

But I think Senator Cornyn’s point is actually a good one, that 

we cannot simply be chasing these people, we have to come up with 

ways in which we prevent this fraud from occurring in the first 

place. So I think it has to be actually a dual effort. 

Senator KLOBUCHAR. And then last—and I am not going to take 

any more of my colleagues’ time here because I am over mine, but 

I will talk to you about this separately. Senator Durbin and I have 

a bill on organized retail crime. Organized retail crime costs retailers approximately $30 billion per year, and, again, it is computer 

related because it is then being sold on eBay and other places. And 

so I think that there are some good ideas of how we can work to 

track and have those online marketers stop selling goods that they 

believe are stolen. And so I am going to talk to you about that 

later. Thank you. 

Attorney General HOLDER. But just shortly, I think the point 

that you raise is a really good one. It is one thing for an individual 

to shoplift, take something. This is bad. You know, take it out 

41 

under their coat, take it out of the store. But when you have a 

whole bunch of people doing that and then using the Internet essentially as a way, a means by which you fence this material, you 

really kind of multiply the possibilities for these people, and you 

have what could be in the old days seen as a local problem become 

a truly national one with consequences for our economy, not just 

the local economy but for our National economy. 

Senator KLOBUCHAR. Well, we would love to have the Department of Justice help on this bill and to get it done. Thank you. 

Senator SPECTER. [presiding.] Thank you, Senator Klobuchar. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman Specter. 

First of all, welcome, Attorney General Holder. I would like to 

begin by saying that I am very proud of and would like to associate 

myself with the remarks that Senator Feinstein made and to observe that the emblems of American justice, which is something 

that is admired and revered around the world and is a national 

asset in which we justifiably take great pride, are the blindfold and 

the balance, not the torch and the pitchfork. And I want to applaud 

your steadfast defense of the principles of American justice as Attorney General. 

There has been considerable discussion about health care. I 

would like to let my colleagues know that Senator LeMieux and I 

are working on a piece of bipartisan legislation to look at predictive 

capabilities in health care fraud, and we will, of course, follow up 

with Senator Cornyn and Senator Klobuchar. And perhaps we have 

the beginnings of a good, strong piece of noncontroversial, anticrime, bipartisan legislation, and I hope your office, Attorney General, will work with us on reviewing that legislation. But I think 

we could make some good progress off this hearing. 

I wanted to go back to the question of military commissions 

again. When you and I were in a different hearing, you said that 

one of the values of Article III courts is the experiential base that 

they provide, that prosecutors going in can know what the answers 

are going to be to a whole array of questions and, therefore, can 

model out how the case is going to play out and can produce it 

more effectively. 

We have already noted that there have been hundreds of Article 

III terror prosecutions versus only three military tribunal prosecutions, and it is my understanding that of those three military tribunals, a number of them were actually plea agreements and, therefore, did not contribute to the experiential base of those military 

commissions. Is that correct? 

Attorney General HOLDER. I think that is correct. I am not sure 

exactly what the number is. I think there might have been two 

pleas, but I am not sure about that. 

Senator WHITEHOUSE. Yes, that is my understanding as well. 

And, you know, that leads me to—here is a statement signed by 

Jack Goldsmith, who was the head of Office of Legal Counsel during the Bush administration. He said, ‘‘The legal and political risks 

of using the ill-fated military commission system are significant. 

Serious legal issues remain unresolved, including the validity of 

the nontraditional criminal charges that will be central to the commissions’ success and the role of the Geneva Convention. Sorting 

42 

out these and dozens of other novel legal issues raised by commissions will take years and might render them ineffectual. Such 

foundational uncertainty makes commissions a less than ideal 

forum for trying’’—in this case, Khalid Sheikh Mohammed. 

So you seem to have good support from the Bush administration 

in your view, and it is one that I share from my time in the prosecution world, that that experiential base is very important. 

I would note that John Bellinger, who was top legal adviser to 

the National Security Council and the State Department under 

President George W. Bush, has said publicly that the rush to military commissions is based on premises that are not true. And Ken 

Wainstein, whom we have had before this Committee regularly, 

who was the Assistant Attorney General for National Security 

under the Bush administration, has said that, ‘‘Denying yourself 

access to one system in favor of the other could be counterproductive. I see the benefit of having both systems available. That 

is why I applauded the Obama administration when they decided 

to retain military commissions.’’ 

Now, you have made the decision to go with both Article III 

courts and military tribunals as the circumstances justify. I wanted 

to ask you what role you think the legislature should have in that 

exercise of prosecutorial discretion. Again, 4 years as Attorney General, 4 years as United States Attorney, my view on this is that the 

legislature really has no proper business in the exercise of prosecutorial discretion. It is one of those areas—it is not in my interest 

now as a Senator to say so, but I believe that on principle it is one 

of those areas that the Constitution commends exclusively to one 

branch of Government, and that is yours, the executive branch. 

Attorney General HOLDER. Well, as I indicated in a letter that 

I sent, I think, to this Committee, signed by me and by the Secretary of Defense, Robert Gates, that is the position that we took. 

This is, we believe, an inherently executive branch function to 

make the determinations as to which of those two forums should 

be used. We are in possession of the greatest amount of information. It is the way in which our Constitution, I think, has set up 

our system of Government. And the letter that we sent indicated 

that attempts by Congress, well meaning though they might be, to 

inject Congress into that role we think is inappropriate. 

Senator WHITEHOUSE. Is just not the right place, yes. Well, I 

agree with you on that, and I want to also associate myself with 

Senator Graham’s remarks. I think his standard that we should be 

flexible, pragmatic, and aggressive in making those decisions is a 

good one, and I have confidence in leaving that decision to you and 

to the people that surround you in our National security establishment. 

On the question of interrogations and the use of Miranda warnings, it is my—I have been on the Intelligence Committee for a couple years, and my exposure to the problem of interrogations, the 

question of interrogations, is that if you are going to do this effectively, you have to begin an interrogation with an interrogation 

strategy, and that that strategy is developed by trained professionals who are expert in this particular area. And the information 

that I have is that that strategy can include and on numerous occasions actually has included the provision of Miranda warnings to 

43 

the subject of the interrogation as a part of the experts’ best practice of interrogation in that particular case. Is that not true? 

Attorney General HOLDER. I think that is exactly right. If you 

talk to these FBI interrogators, these very good FBI interrogators, 

they talk about the need to establish a bond, some level of trust. 

And one of the things that at least a couple have talked about with 

me is that the giving of these warnings indicates to that person 

that you are going to be fair. They become more trusting and perhaps more desirous of sharing information. And I think what we 

have seen is that the giving of Miranda warnings does not necessarily mean that the information flow stops. I think quite the 

contrary, what we have seen over this past year with regard to 

Zazi, Abdulmutallab, Headley, all of whom were given Miranda 

warnings, the information flow was substantial and beneficial to 

our country. 

Senator WHITEHOUSE. So whether and when to give Miranda 

warnings is something that should be left to the professional interrogators to develop as part of their professional interrogation strategy case by case. 

Attorney General HOLDER. I think so. One of the things that the 

people on the ground had to determine in Detroit when 

Abdulmutallab tried to blow up that airplane, they had to make an 

almost instantaneous decision. How are we going to deal with this 

person? And they decided initially that they did not need to and 

should not give Miranda warnings to him so that they could, under 

the public safety exception, determine whether or not there were 

other people on the plane they needed to be concerned about, 

whether there were other people in other planes that they needed 

to be concerned about. And then afterwards, they decided, after 

consulting with people back here in Washington, that it was appropriate to give Miranda warnings that ultimately proved successful 

in getting more information out of them. 

Senator WHITEHOUSE. Mr. Chairman, my time has expired. I 

have a number of questions that I will be asking as questions for 

the record. They relate to the cybersecurity issue, and I would like 

to ask, if I may, the cooperation of the Attorney General in assuring rapid responses to those questions. I am the Chairman of a 

task force on the Intelligence Committee that is performing a report for the Committee on cybersecurity, and I have promised my 

colleagues that I will have that report done by the end of June. 

And I would like to have your input soon, and I know that questions for the record can sometimes take weeks, months. They can 

sort of drift off into eternity. And if you could mark these as ones 

for a quick response, I would be very grateful. Thank you, Chairman. 

[The questions of Senator Whitehouse appear under questions 

and answers.] 

Senator SPECTER. Thank you, Senator Whitehouse. 

We will go to round two after I finish my first round. 

Mr. Attorney General, there will be another opportunity to test 

the constitutionality of the warrantless wiretaps through the appellate process and hopefully to the Supreme Court of the United 

States and from the decision made by Chief Judge Walker recently 

in the San Francisco case holding that the warrantless wiretaps 

44 

were unconstitutional, saying that the requirements of the Foreign 

Intelligence Surveillance Act precluded warrantless wiretaps; that 

there had to be probable cause and a warrant. 

There was an opportunity to have a review by the Supreme 

Court of the United States in the case arising out of Detroit, in 

which the Federal court there declared the warrantless wiretaps 

unconstitutional. The Sixth Circuit decided there was no standing. 

I thought the dissent was much stronger than the two judges in 

the majority. It is well-known that standing is frequently used as 

a way of avoiding deciding tough questions, and the Supreme Court 

of the United States denied cert. 

So at this point, after a lot of speculation, a lot of discussion, we 

do not know dispositively whether the President’s power as Commander-in-Chief under Article II justifies warrantless wiretapping 

or whether the explicit provisions of the Foreign Intelligence Surveillance Act cover. 

Would you press to have the case coming out of the San Francisco Federal court go to the Supreme Court for a decision there? 

Attorney General HOLDER. We have really not decided what we 

are going to do at this point with the decision that was made by 

the judge. The focus there had really been not necessarily as much 

on the legality of the TSP as on the protection of sources and methods. And a determination as to what we are going to do with the 

adverse ruling that we got from the chief judge, the district court 

judge, has not been made as yet. We are considering our options. 

Senator SPECTER. What do you think? 

Attorney General HOLDER. Well, I think that I have not made up 

my mind yet. I think that we have to see what the impact will be 

on this case with regard to a program that I guess ended in, I 

think, 2007, 2006. My view is that to the extent that—I cannot get 

into too many operational things here, but the support of Congress, 

the authorization from Congress to conduct these kinds of programs, is the way in which the executive branch should operate. 

The executive branch is at its strongest, we have the firmest foundation when we work with Members of Congress to set up these 

kinds of programs, and especially when one looks at, as you point 

out, the requirements under FISA. 

So I think that we will have to consider what our options are and 

try to understand what the ramifications are of the judge’s ruling 

in the Al Haramein case. 

Senator SPECTER. Well, since you have not made up your mind, 

I would urge you to make it up to get a decision. I filed a bill to 

compel the Supreme Court to take the warrantless wiretap case. 

Congress obviously cannot tell the Supreme Court how to decide a 

case, but we can deal with the jurisdictional issue. And as we look 

to the next round of nominations, I think one of the big areas of 

failing by the Court has been its refusal to take up cases and make 

decisions. They denied cert in the case involving the question of 

sovereign immunity where the survivors of victims of 9/11 were 

suing in tort with very strong evidence going very high up into the 

government of Saudi Arabia, and the Congressional determination 

on sovereign immunity was that it would not apply in that kind of 

a situation. And the Court, by deciding not to decide, is very deferential to Executive power. 

45 

I think that when we are looking for nominees to the Court, we 

are really looking to the standard of Chief Justice Roberts not to 

jolt the system, to follow the precedents. And we have not gotten 

that, notwithstanding assurances not to jolt the system. The system has been jolted very roughly. The Citizens case allowing corporations to advertise in political campaigns is illustrative. 

I want to pick up one of the questions which Senator Whitehouse 

had asked about the Miranda warnings. The impact of not giving 

the Miranda warnings is widely misunderstood. If Miranda warnings are not given, all that it means is that the statements made 

by the subject of interrogation cannot be admitted into evidence 

against him in an Article III court. But when you dealt with somebody like the Christmas Day bomber, caught red-handed, you did 

not really need admissions or a confession. The evidence was overwhelming. And when we talk about the subtleties of interrogation, 

I find it hard to accept that the assistance of establishing a rapport 

and a bond by the interrogator with the subject would be sufficiently enhanced to warrant giving the Miranda warnings as a discourager for making statements. By the time you get through saying, ‘‘You have a right to remain silent, anything you say’’—there 

are five of them, and then you get express waivers, you go back. 

But that is a big discouraging factor. 

So that it would be my hope that the warnings would not be 

given. The most important thing in dealing with a terrorist is to 

get information to prevent future acts of terrorism, even if it means 

not convicting the individual. If you had to make—in my view, if 

you had to make a choice between convicting and getting information which might preclude a subsequent terrorist attack, the balance would all be on getting the information. 

But is what you are saying that the policy of the Department is 

to make a judgment on the specific case as to whether to give Miranda warnings or not; that you leave it up to the interrogator if 

his judgment is that this rapport will be established, but you are 

not determining in all cases, are you, to give Miranda warnings? 

Attorney General HOLDER. That is correct. There are overall exceptions, as you know, to the Miranda rule, and you can take advantage of those in interacting with the terrorists. I am not saying 

that they should be given in all circumstances. And one of the 

things you very correctly point out is that in interacting with these 

terrorists, suspected terrorists, you want to gain intelligence from 

them. That in some ways may be more important than trying to 

protect a potential criminal case. 

So I think we have to have, again, this flexibility to decide what 

is it that we want to do. I mean, we look back on the Detroit incident, and we can say in retrospect that it was pretty obvious what 

happened on the airplane. But that is not necessarily what those 

agents had when they had this guy in front of them, his pants perhaps still smoking, and they do not know exactly what is going on 

at that point. But even so, they did not give Miranda warnings in 

that initial interaction with him. 

So I am looking for flexibility, but with the thought that when 

it comes to terrorism, the gathering of intelligence is of critical importance. 

46 

Senator SPECTER. Well, I am glad to hear that, that you are not 

doing it automatically, and with the gathering of intelligence as the 

more important factor than the conviction. 

Round two, Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman. It is good to see 

you in that chair even though from a different side of the aisle 

than I am familiar with. 

Senator SPECTER. The chair is not on an aisle. 

[Laughter.] 

Senator SESSIONS. It is in the middle, isn’t it? 

I think your comments about Miranda are right, except I would 

have two little cautionary comments. One is Senator Graham 

asked you what was going to happen if somebody arrested bin 

Laden, would they be giving Miranda rights? You could not give a 

clear answer, but that person is not likely to be able to check with 

you at that moment. We need a policy, No. 1. 

No. 2, according to the Miranda rule, as soon as a person is 

taken into custody, they are supposed to be advised of their rights 

before questions are asked, and that is the FBI policy. It is in their 

manual, and that is what they are going to do unless somebody explicitly tells them otherwise. 

And, No. 3, there is no doubt in my mind, as Senator Specter has 

suggested, that when you tell an individual their right to have a 

lawyer, they have a right to remain silent, and that you will appoint them one and bring them one, you are going to get less actionable intelligence than if you did not do so. And, in fact, the first 

thing a good lawyer is going to say is, ‘‘Don’t talk.’’ 

Now, you may have to make a plea bargain with them later and 

other things may happen, and the fact that some people do cooperate ultimately does not affect the rule. The basic fact is realistically 

you are going to get less information from that procedure, and that 

is why that is a big part of the reason that many of these cases 

need to be handled through military commissions and military custody. 

Attorney General HOLDER. Well, Senator—— 

Senator SESSIONS. I will let you respond to that. 

Attorney General HOLDER. OK. Senator, first off, maybe I was 

not clear. With regard to bin Laden, there would be no need to give 

bin Laden Miranda warnings. And if I was not clear there, I meant 

to be; that if he were captured, I cannot foresee any reason 

why—— 

Senator SESSIONS. Mr. Holder, the presumption is in your own 

report that they would be tried in civilian courts. And why wouldn’t 

you give Miranda warnings? What basis—— 

Attorney General HOLDER. Miranda warnings—— 

Senator SESSIONS [continuing.]—Is there not to do so, unless you 

are going to try them in military commissions? 

Attorney General HOLDER. Well, the concern with Miranda warnings is only whether or not the information that you would get 

from that person might be excluded. We have sufficient information, statements from bin Laden, so that there is no reason to 

Mirandize him at all, and you can still bring his case in the—— 

Senator SESSIONS. You could do that, all right. I acknowledge 

that that is possible. 

47 

Attorney General HOLDER. Right. 

Senator SESSIONS. But for Abdulmutallab on Christmas Day, like 

you said, what did the agents know about the strength of their 

case? And there is a doctrine that says if the improperly obtained 

information as a result of not giving Miranda warnings can poison 

the entire prosecution and raise questions and create many defenses that would not otherwise exist. So I think the rule to me 

simply would be that you expect these terrorist individuals to be 

tried and taken into military custody. Isn’t is true and isn’t it appropriate that after they have been taken into military custody, if 

you chose to try them in civilian court, you could still do so? 

Attorney General HOLDER. I suppose that is true, but I think 

there is—— 

Senator SESSIONS. We have done that a number of times, have 

we not? 

Attorney General HOLDER. We have done it on at least a couple 

of—— 

Senator SESSIONS. What about Khalid Sheikh Mohammed? He 

has been in military custody, has he not? And you have declared 

him ready to go to trial in civilian courts. 

Attorney General HOLDER. Right, and we have done that I guess 

with—— 

Senator SESSIONS. Well, that is the fact. You take them into military custody, and then you can try them at your option in civilian 

courts. 

Attorney General HOLDER. Well, what I have been trying to say 

is that there is not—— 

Senator SESSIONS. Why wouldn’t that be the right way to start 

the case and have a policy for every FBI agent, every police officer, 

every TSA airport official to begin—to not give Miranda warnings 

and not provide free attorneys to people who are attacking the 

United States of America? 

Attorney General HOLDER. Well, but let us look at what happened with regard to the Detroit bomber, Abdulmutallab. The FBI 

agents, who have a policy, as you correctly—they are supposed to 

when people are taken into custody give Miranda warnings. They 

had the presence of mind, given their experience and given the concerns that they had and given their knowledge of the law, to understand that in that initial interaction they did not have to give him 

his Miranda warnings, and the information they got from him can 

be used in a trial against him under the Quarles exception, the 

public safety exception. And putting—— 

Senator SESSIONS. Well, I do not know if the public safety exception goes to 50 minutes. Have you had any case that has ever gone 

that long? 

Attorney General HOLDER. Well, I think—— 

Senator SESSIONS. In other words, where you say to somebody, 

‘‘Do you have a gun? ’’ or ‘‘Do you have a bomb? ’’ But after a while, 

that exception ends. 

Attorney General HOLDER. Well, I am going to say as a former 

judge, given my experience, given that set of facts, I would think 

that the Government has acted appropriately here, and that statements from that gentleman would be admissible in a trial. 

48 

Senator SESSIONS. Well, I would just say that it would be—a defense lawyer would make that point, I am sure. 

Attorney General HOLDER. Oh, I am sure they would. But they 

would lose in Holder’s court. 

[Laughter.] 

Senator SESSIONS. This is really significant, the whole thing is. 

Let me just say about how we got to this point. And my friend Senator Durbin, the Democratic Whip, is so eloquent, but President 

Bush—the first case that came up was Padilla, and that was before 

military commissions had been established. He established military 

commissions, and the Supreme Court found them lacking, and the 

Defense Department stopped and had to rewrite the rules. And 

during that period of time up through 2006, the Congress passed 

legislation to effectuate military commissions in late 2006, and 

then it took some time for the rules to all be written and moving 

forward. But the plan was to try the several hundred people at 

Guantanamo that were going to be tried—all of them did not have 

to be tried—that they would be tried by a military commission. 

And Khalid Sheikh Mohammed’s case was already proceeding as a 

military commission, was it not, until President Obama, when his 

first act was to stop that? 

Attorney General HOLDER. Well, the case had been proceeding in 

a military Commission in a very halting fashion, and the decision 

that the Obama administration made was to put a halt to those 

things so that the commission procedures could be amended, and 

Congress actually passed those, I guess in 2009. 

Senator SESSIONS. You had a commission, you co-chaired the 

commission to decide what to do, and you concluded that even 

those who had already been arrested and already are detained at 

Guantanamo, there would be a presumption that they would be 

tried in civilian court and not by a military commission. Has that 

been changed? 

Attorney General HOLDER. That has not been changed. The presumption that we use—that is, I use, along with Secretary of Defense and all the people who worked with us, the protocol that we 

were given did have that presumption in it. 

Senator SESSIONS. Well, so I would just say that there is not exactly a clean slate and you decide each case based on the facts of 

that case. You have got a presumption in favor of civilian trials. 

Attorney General HOLDER. But it is a rebuttable presumption, 

and there are a variety of other factors that we take into account, 

not the least of which is, at the end of the day, in which forum can 

we be most effective, and I think the test is what I have actually 

done, which is to say that with regard to, I think it is five or six 

cases, that military commissions are the best places for them to be 

tried. 

Senator SESSIONS. Well, we have a letter that came in on March 

16th, a few weeks ago, from the Department of Defense, the Deputy Director, that there were no military commissions in 2009 pursuant to an order of the Secretary of Defense issued January 20, 

2009. That is changing the policy by President Obama as soon as 

he took office. And prosecutors then sought continuances in each 

case that were already referred to a military commission. And the 

49 

convening authority ceased referring new charges to military commissions. And to my knowledge, that has not been changed, has it? 

Attorney General HOLDER. No, but I believe that we are going to 

be making determinations as to where these cases ought to go. It 

is our intention to use military commissions as well as Article III 

courts, again, with that whole notion of being flexible, pragmatic, 

and aggressive. 

Senator SESSIONS. Well, I think that is fair to say you would 

make some individual determinations on cases. Some of these are 

record cases, financing of terrorism, support of terrorism cases that 

could be easily handled in these courts. But it is pretty clear to me 

that you made a firm decision to go the other way, to civilian 

courts, with virtually all of these cases, and it is in error. And I 

hope that you will review that, and I hope the New York case will 

be the beginning of a re-evaluation of that policy. 

Attorney General HOLDER. Well, I actually think that in terms 

of the decisions that I made back in October and November, that 

in terms of the number of individual cases as opposed to the number of defendants, that we actually sent more cases to the military 

commission than I did to the Article III court. 

Senator SPECTER. Thank you, Senator Sessions. 

Senator Graham. 

Senator GRAHAM. Well, thank you, Mr. Chairman. And I think 

the exchange between the two Senators has been a pretty good 

flushing out of the complexities of the situation we find ourselves 

in. But I want to try to, if I can, you know, use some scenarios here 

to reassure people that the system needs to be improved, but is not 

completely by any means broken. If a military member stumbles on 

Osama bin Laden or some high-value target in Afghanistan, Pakistan, or you just name the location, no one is arguing that that moment in time they are going to read him his rights. 

Attorney General HOLDER. No. 

Senator GRAHAM. What they would do, as I understand it, is they 

would capture him pursuant to a military operation, which does 

not require Mirandizing the enemy prisoner, and they would obviously turn him over to some intelligence organizations. That would 

be the case, right? 

Attorney General HOLDER. We have this High-Value Interrogation Group, the HIG, that is designed especially for those highvalue—— 

Senator GRAHAM. And this goes to Senator Sessions’ point. I 

think he is right on point here. The HIG is—I want to compliment 

you. I think it is a great organization to have. As I understand it, 

it is a collaborative group of people who will be the primary interrogation team when a high-value target is captured, whether in the 

United States or outside the United States. 

Attorney General HOLDER. That is correct. These mobile interrogation teams would go to the place and do the interrogation. 

Senator GRAHAM. Right. And they will—their primary purpose is 

intelligence gathering, and they will be able to assess what the individual knows about enemy operations. 

Attorney General HOLDER. That is correct. 

Senator GRAHAM. Then they will decide if and when to 

Mirandize, which is absolutely fine with me. 

50 

Attorney General HOLDER. That will be a part of the process. 

Senator GRAHAM. Right, as long as we start with the idea that 

the initial purpose is to gather intelligence. And I think that is 

your policy with the HIG, is that they will get to assess the detainee in terms of what they know about the war. Is that correct? 

Attorney General HOLDER. Yes, these high-value detainees are 

people who we think their primary value to us is to gain intelligence, to learn about targeting, structure, a whole variety of 

things. 

Senator GRAHAM. Right. And under the law of war, it is lawful 

to interrogate someone. Obviously, we are not torturing these people, but we will have authority to do that. So I think that is, quite 

frankly, a pretty good set-up. 

Now, when it comes back to—and I do not want to micromanage 

from Congress, you know, to tell an agent what to do and when to 

do it, as long as we are viewing these suspects not as a normal 

criminal threat but as part of a military threat, trying to find out 

what they know. What additional rights would a detainee have, if 

any, if they were transferred from Guantanamo Bay, Cuba, to, say, 

Illinois? Would the transfer of location create more rights for the 

detainee than if they were just left in Guantanamo Bay? 

Attorney General HOLDER. That is a question that I think has 

not really been answered yet, one that we are not sure about. I 

think that certainly as an advocate I would argue that there are 

not other rights that would necessarily appertain, but it is not clear 

to me how the courts are going to rule. 

Senator GRAHAM. I think that is a very good point, and this is 

a situation where Congress could help give the courts clarity. Is 

that correct? 

Attorney General HOLDER. I think that is correct. 

Senator GRAHAM. And as a matter of fact, I think most judges— 

Judges Lamberth and Hogan have been in their opinions, habeas 

opinions, have been asking for Congressional help. Have you been 

reading those opinions? 

Attorney General HOLDER. Yes, I have been reading those opinions. 

Senator GRAHAM. I have never seen a judge so open about Congress needs to help, because if a detainee is ordered released by the 

judge, the habeas petition is granted, what happens next? Do we 

have to release them in the United States? And if we cannot find 

a third country, what do we do with them? 

Attorney General HOLDER. There is no requirement that they be 

released into the United States, and in those instances where we 

have decided not to appeal and release has occurred, they have 

typically been taken to a third country. 

Senator GRAHAM. What if you cannot find a third country who 

will take one of these people? What do we do? 

Attorney General HOLDER. They do not have to be released into 

the United States, and they would remain in custody while our efforts to try to find a location would continue. 

Senator GRAHAM. But let us play this out. A habeas petition is 

meaningless if it cannot eventually result in release. Is that true? 

51 

Attorney General HOLDER. Well, I would not say that. It gives 

the possibility to a detainee, a possibility that he can be relocated, 

and that would not exist before the judge made that determination. 

Senator GRAHAM. Could we go 10 years in trying to relocate that 

detainee? 

Attorney General HOLDER. You would hope not. You would hope 

that you would be able to come up with a place for them to go. 

Senator GRAHAM. Would you agree that it would be helpful if 

Congress spoke about a case like this to give some guidance to the 

judges? 

Attorney General HOLDER. Well, I mean, I think it could be helpful, though I think I have a cautionary note that Congress can provide guidance except in those areas where a judge makes the determination that what the judge is doing is of constitutional dimension. Congress in that area cannot—— 

Senator GRAHAM. I totally agree, and we are in a dilemma as a 

Nation here, and I do worry about the international community. I 

want them to be more open to the idea of what we are doing makes 

sense. But Great Britain has changed their criminal laws to allow 

people to be held for up to a year without trial. Is that correct? 

Attorney General HOLDER. Yes, though I think the courts have 

kind of pushed back a little bit with regard to their—I forget what 

kind of orders they are called, but—— 

Senator GRAHAM. I totally agree, and I think we have the right 

theory here, that if you are an enemy combatant, then the law of 

war takes over, because there is no provision in domestic criminal 

law to hold anyone indefinitely without trial. Is that correct? 

Attorney General HOLDER. Yes, without trial and held incommunicado, the various—you know, even with regard to—the courts 

have not really come down—— 

Senator GRAHAM. And nor do I want such a rule. I mean, if you 

are going to be charged with a crime, I think you need to have your 

day in court. But if you joined the enemy force, I am willing to give 

you your day in court, but it is not a crime you are fighting. You 

should not have joined al Qaeda. 

As I understand it, every member of al Qaeda that you hold as 

an enemy combatant will appear before a Federal judge in the habeas proceedings. 

Attorney General HOLDER. Right, if they seek habeas review. 

Senator GRAHAM. Right. It is up to them. But if they want their 

day in court, the judge has to agree with the Government that the 

evidence is compelling, reliable, and legally obtained to hold them 

as an enemy combatant. Is that correct? 

Attorney General HOLDER. That is correct, under the AUMF, 

right. 

Senator GRAHAM. Right. And both of us are trying to work with 

the system that gives ongoing review because enemy combatant determination could be a de facto life sentence. 

Attorney General HOLDER. Well, the—— 

Senator GRAHAM. OK. If the judge rules for the Government, we 

believe that you should have an ongoing review process. 

Attorney General HOLDER. OK, yes. 

Senator GRAHAM. An annual review process. And I want to compliment the administration. I think what you all are doing there 

52 

makes sense so that there is an annual review of this person’s status, because the enemy combatant determination could be a de 

facto life sentence because this war is not going to end anytime 

soon. There will never be a formal surrender. So it is an accommodation we are trying to make, sort of a hybrid system. 

So what I would like to do is try to get this Committee to work 

with you to deal with what happens when a habeas petition is 

granted, institutionalize an ongoing review process so we could look 

anybody in the world in the eye and say no one in an American 

military prison is held arbitrarily, they have independent judicial 

review, and every military commission verdict is appealable to the 

civilian system. Is that correct, under the laws we have, the military commission laws? 

Attorney General HOLDER. Every military finding is appealable 

to the civilian—— 

Senator GRAHAM. Yes, every verdict. 

Attorney General HOLDER. I believe that is correct. 

Senator GRAHAM. It is. So there is Article III review of our military commissions. There is Article III review of our enemy combatant determinations, and obviously if you go into Article III court, 

you have Article III ownership there. So what I am trying to establish with your help is that there will be an independent check and 

balance throughout every lane, no matter what lane you use. But 

when it comes to closing Guantanamo Bay, 59 percent of the American people now object to it. There has been about a 20-point shift. 

And I know I am over my time, but I think this is important. Why 

do you think that has happened? 

Attorney General HOLDER. I honestly think that there has been 

a lot of misinformation placed out there, and without casting aspersions on anybody in this room, I think there has been unnecessary 

politicization with regard to national security issues that I do not 

think have served this Nation necessarily well. 

Senator GRAHAM. Can I give you an alternative theory? And 

there is probably some truth to that. I am not saying that you are 

all wrong. I think there are a lot of people in this country worried 

about we do not have a coherent policy. And as I have tried to discuss with you, this is hard. This is sort of new areas. And the 

Christmas Day bomber probably highlighted it to people. It was a 

bit unnerving because they saw this guy as not a common criminal 

and Miranda warnings—we all watch TV—are associated with 

‘‘Dragnet’’ and all this other stuff. 

So I think it would be helpful not only to focus on our allies but 

also the American people and assure them that as we go forward 

in this war on terror, we are going to live within our value system, 

but we are going to have a legal system that will protect you and 

your family against people who are committed to our destruction. 

It will not include torture. It will be transparent; it will be open. 

But it will be based on the principle, as Senator Specter said, this 

is not a normal criminal operation. 

I think if we could do that, Mr. Attorney General, not only would 

you serve the moment well here in America, you would serve the 

future well. And I look forward to helping make that happen. We 

have got to assure the American people, not just our allies, that we 

have a good system that will protect us against what I think is an 

53 

enduring threat. We will be fighting this war long after you and 

I have left the political arena. I wish it were not so, but I believe 

it to be so. So let us park some of the rhetoric and see if we can 

find a solution. 

Thank you for your service. I really admire what you are trying 

to do for the country. 

Attorney General HOLDER. I think the point that you last made 

actually is a very good one, and I think that it is incumbent upon 

people like myself to be more forthcoming, perhaps more clear with 

the American people about what our intentions are, and to explain 

to them in ways that perhaps we have not done, that I have not 

done effectively to date, so that there is a degree of assurance that 

they have, because I think you are probably right that in addition 

to whatever I have mentioned, the factors that you have mentioned 

are also probably some factor in why that approval, or that approval notion, of closing Guantanamo has dropped. 

Senator GRAHAM. I think the Congress could be a good partner 

for you, and if the Congress and the executive branch were working 

together, I think it would help us in court, and I think it would 

help the American people be reassured. Thank you. 

Senator SPECTER. Thank you, Senator Graham. 

Before yielding to Senator Grassley for his second round, I intend 

to turn the gavel over to Senator Cardin in a few moments. In lieu 

of a second round, just a couple of comments. 

On the pending nomination to the Supreme Court, I may be consulted on the subject. I am sure you will be. Just a word or two 

of my thinking on it. I believe the President ought not to be concerned about a filibuster, but ought to face squarely the fact that 

the Supreme Court is an ideological battleground and the lines are 

drawn. Chief Justice Roberts testified extensively in his confirmation hearings that he was going to try to draw a consensus and 

narrow the issues. Well, that certainly has not happened. It has 

been anything but that. 

Chief Justice Roberts was very forceful in saying that he would 

not jolt the system. Well, Citizens United is one hell of a jolt. It is 

hard to figure a jolt harder than that one on 100 years of precedent. And the theory which has been advanced about finding a 

judge who will be a consensus judge, be the fifth vote and not the 

fourth vote, and some specific comments about bringing Justice 

Kennedy over into the fifth vote with the new appointee plus the 

three others on the Court I think is highly unlikely. 

The precedent which is cited in the Rasul case, where Justice 

Stevens wrote an opinion identifying habeas corpus as a constitutional right going back to the Magna Carta, and then inexplicably 

in Boumediene the Court of Appeals for the District of Columbia 

said that it was decided on statutory grounds, statutory habeas corpus and constitutional habeas corpus, is about as far-fetched as an 

interpretation can be. And then when the petition for cert was filed 

in Boumediene, there were only three Justices. Everybody was surprised that Justice Stevens did not vote to grant cert, but as it has 

been speculated, and apparently with some real foundation, Justice 

Stevens did not want four Justices to grant cert and have 

Boumediene upheld, but waited until there was some disclosures 

about major failings in the commissions which on a petition for reVerDate Nov 24 2008 09:14 Feb 03, 2011 Jkt 063323 PO 00000 Frm 00057 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63323.TXT SJUD1 PsN: CMORC
54 

consideration for cert it takes five Justices, not four. And then 

there were five, and Justice Kennedy wrote the opinion in 

Boumediene. 

But I think it is fanciful thinking looking for that kind of 

collegiality to carry the day, so that I would hope that the ideological battleground would be recognized. And President Obama is not 

halfway through his second year. He may have an opportunity for 

other Supreme Court picks which would line up with Breyer and 

Ginsburg and Sotomayor. So that if you have an opportunity, if the 

President is not watching this Judiciary Committee session, pass 

on the word. 

Attorney General HOLDER. Well, I am sure, Mr. Chairman, you 

are going to have that opportunity yourself, but I will pass along 

what you said. 

Senator SPECTER. Well, that concludes the hearing. Thank you 

very much, Mr. Attorney General. 

Attorney General HOLDER. OK. Thank you. 

Senator SPECTER. Let me join Senator Graham’s commendation 

to you for doing a very good job. 

Attorney General HOLDER. Thank you, sir. 

[Whereupon, at 12:31 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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