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UNITED STATES DEPARTMENT OF JUSTICE 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

MAY 13, 2010 

Serial No. 111–136 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DANIEL MAFFEI, New York 

JARED POLIS, Colorado 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

(III) 

C O N T E N T S 

MAY 13, 2010 

Page 

OPENING STATEMENTS 

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

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

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

of Texas, and Ranking Member, Committee on the Judiciary ......................... 2 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Member, Committee on the Judiciary ................................. 4 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Member, Committee on the Judiciary ......................... 5 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Member, Committee on the Judiciary .................... 5 

The Honorable Daniel E. Lungren, a Representative in Congress from the 

State of California, and Member, Committee on the Judiciary ....................... 6 

The Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress 

from the State of Georgia, and Member, Committee on the Judiciary ............ 7 

The Honorable Darrell Issa, a Representative in Congress from the State 

of California, and Member, Committee on the Judiciary ................................. 8 

The Honorable Pedro Pierluisi, a Representative in Congress from Puerto 

Rico, and Member, Committee on the Judiciary ............................................... 8 

The Honorable Steve King, a Representative in Congress from the State 

of Iowa, and Member, Committee on the Judiciary .......................................... 9 

The Honorable Anthony D. Weiner, a Representative in Congress from the 

State of New York, and Member, Committee on the Judiciary ....................... 10 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Member, Committee on the Judiciary .................................... 10 

The Honorable Maxine Waters, a Representative in Congress from the State 

of California, and Member, Committee on the Judiciary ................................. 11 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Member, Committee on the Judiciary ..................................... 13 

The Honorable Steve Cohen, a Representative in Congress from the State 

of Tennessee, and Member, Committee on the Judiciary ................................. 14 

The Honorable Louie Gohmert, a Representative in Congress from the State 

of Texas, and Member, Committee on the Judiciary ........................................ 14 

The Honorable Mike Quigley, a Representative in Congress from the State 

of Illinois, and Member, Committee on the Judiciary ....................................... 15 

The Honorable Jason Chaffetz, a Representative in Congress from the State 

of Utah, and Member, Committee on the Judiciary .......................................... 16 

The Honorable Judy Chu, a Representative in Congress from the State of 

California, and Member, Committee on the Judiciary ...................................... 17 

The Honorable Gregg Harper, a Representative in Congress from the State 

of Mississippi, and Member, Committee on the Judiciary ............................... 17 

The Honorable Adam B. Schiff, a Representative in Congress from the State 

of California, and Member, Committee on the Judiciary ................................. 18 

WITNESS 

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

Oral Testimony ..................................................................................................... 19 

Prepared Statement ............................................................................................. 22 

Page

IV 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Response to Post-Hearing Questions posed to the Honorable Eric Holder, 

Attorney General, U.S. Department of Justice .................................................. 83 

(1) 

UNITED STATES DEPARTMENT OF JUSTICE 

THURSDAY, MAY 13, 2010 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:09 a.m., in room 

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

Jr. (Chairman of the Committee) presiding. 

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

Lee, Waters, Delahunt, Cohen, Johnson, Pierluisi, Quigley, Chu, 

Deutch, Gonzalez, Weiner, Schiff, Maffei, Polis, Smith, Coble, Goodlatte, Lungren, Issa, King, Franks, Gohmert, Jordan, Poe, Chaffetz, 

and Harper. 

Staff Present: (Majority) Perry Apelbaum, Staff Director and 

Chief Counsel; Elliott Mincberg, Counsel; Renata Strause, Staff Assistant; Brandon Johns, Staff Assistant; (Minority) Sean McLaughlin, Chief of Staff and General Counsel; Richard Hertling, Senior 

Policy Director; Crystal Jezierski, Counsel, Caroline Lynch, Counsel; George Fishman, Counsel; Kimani Little, Counsel; Art Baker, 

Detailee; and Kelsey Whitlock, Staff Assistant. 

Mr. CONYERS. We are always honored to have the chief of law enforcement of the United States visit with the Committee. 

I wanted to note from the outset that Attorney General Holder 

has reinvigorated the Civil Rights Division, which suffered for a 

while from low morale; and under Assistant Attorney General Tom 

Perez the Division is I think doing a good job in protecting the 

rights, including voting, of all Americans. 

There are several issues that I would like to raise for further discussion. The Attorney General has raised the issue of statutory 

modifications to the Miranda public safety exception into the national debate. I would hope that he can go into this in some detail. 

Now the most important thing to me that we are dealing with 

in this country right now is the failure of the so-called war against 

drugs. We have spent more money incarcerating more nonviolent 

people under an antiquated mandatory minimum sentence to less 

and less effect. A million and a half people are arrested every year 

for drug violations. We spend $2 billion a year to imprison people 

who violate Federal drug laws. We incarcerate more people than 

any other nation on the planet Earth, but the drug use in the U.S. 

and around the world is more prevalent than ever. 

If there is one thing that we could accomplish successfully between now and the next time the Committee meets with the chief 

2 

law enforcement officer of the country is that we get on top of the 

drug problem. 

Now, one and a half years after the executive order of President 

Obama, we have still not closed the prison at Guantanamo. The 

plan to try Khalid Sheikh Mohammed and other 9/11 conspirators 

in the Federal Court in New York has been derailed. No institution 

that I know of is better equipped to show the world how America 

deals with miscreants than this Federal Court where the trial was 

originally intended to occur. I hope these plans can be put back on 

track. 

Now the Administration has taken some steps to curb the misuse 

of the state secrets privilege. While the Justice Department has 

issued new guidelines, the privilege continues to be overused, and 

I think that the need for uniform and consistent handling by the 

Court still remains. 

It is true, and I commend the Administration, for ending the 

practice of secret prisons and calling a halt to water boarding and 

enhanced interrogation techniques. These actions tarnish the Nation’s reputation as a beacon of liberty and served as a recruiting 

tool for our enemies. 

The Attorney General has released rejected torture memos and 

brought a much-needed attitude of transparency to the Department 

which has helped us understand the workings of the Office of Legal 

Counsel which had issued secret opinions that may have helped to 

insulate those responsible for torture and inhumane treatment 

from legal accountability; and the Attorney General has also directed an independent review of possible crimes relating to interrogation and torture. 

Clearly, there was, as usual, pressure on all sides within and 

without the Administration to ignore the past and move on, but, to 

his credit, he came down in favor of the rule of law and accountability. And so, after almost a year and a half, we are moving beyond the past, and we are trying to deal with the present and also 

work on the future as well. 

So I join every man and woman on this Committee and welcome 

you and look forward to the discussion that we will have. 

I turn now to Lamar Smith, the Ranking Member of this Committee. 

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

General. 

Mr. Attorney General, in the last year, three serious terrorist attempts, one of which was successful, have occurred in the United 

States. Army Major Nidal Hasan went on a shooting rampage at 

Fort Hood, Texas, killing 14 innocent Americans and wounding 30 

others. Umar Farouk Abdulmutallab boarded a plane headed for 

Detroit with explosives hidden under his clothes. His attack was 

thwarted by a poorly made bomb and alert passengers. And Faisal 

Shahzad, a naturalized citizen, parked a car loaded with explosives 

in New York City’s Times Square. This attack was stymied by his 

ineptness and alert pedestrians. 

Our national security policy should consist of more than just 

dumb bombers and smart citizens, because, sooner or later, a terrorist is going to build a bomb that works. 

3 

As Commander-in-Chief, the President is responsible for protecting the American people. Unfortunately, several of this Administration’s policies have put Americans at greater risk. 

First, the President’s campaign promise to close the terrorist detention center at Guantanamo Bay, Gitmo, has not reduced the 

threat of terrorism. In fact, those transferred to other countries can 

be and are released; and former Gitmo detainees often return to 

terrorism. 

Second, trying Gitmo terrorists in civilian courts is a dangerous 

proposal that has no legal precedent. Once in the U.S., terrorists 

can argue for additional constitutional rights, making it harder for 

prosecutors to obtain convictions. 

Third, treating terrorists like common criminals makes Americans less safe. Giving terrorists the right to remain silent limits 

our ability to interrogate them and obtain intelligence that could 

prevent attacks and save lives. 

According to news reports, Mr. Attorney General, you recently 

said that you now want to work with Congress to limit terrorists’ 

Miranda rights. That is surprising, since it is this Administration 

that has insisted on extending constitutional rights to terrorists in 

the first place. If the Administration treated terrorists like enemy 

combatants and tried them in military commissions at Guantanamo Bay Detention Center, they wouldn’t need to be read a Miranda warning. 

Fourth, the Obama administration’s opposition to REAL ID 

weakens national security. The Administration wants to repeal the 

law which was enacted after 9/11 to prevent terrorists from obtaining legitimate forms of identification. This would give terrorists 

cover to plot and carry out attacks inside the United States. 

And, fifth, the Administration’s push for amnesty for illegal immigrants makes America less safe. The arrest of the Times Square 

bomber, a recently naturalized citizen, is another reason why we 

must reject proposals to give amnesty to millions of illegal immigrants. If we can’t detect a potential terrorist who submits himself 

to our security process as Shahzad did, how can we identify other 

potential terrorists who will apply for amnesty? Amnesty could legalize many would-be terrorists who are already in the U.S. and 

give them cover to plot attacks against innocent Americans. 

It makes no sense to deny the link between immigration enforcement and national security. If we want to prevent attacks, we need 

to keep terrorists from getting visas and stop them from coming to 

the U.S. and obtaining citizenship. That means enforcing our immigration laws. If we don’t enforce our immigration laws, terrorists 

are not slipping through the cracks, they are coming through the 

front door. 

Success in the war on terror means preventing attacks, not just 

responding to attempts. The goal is to detect and to deter, not just 

make arrests after the bomb is set. 

But to achieve this goal we need to improve our intelligence 

gathering by interrogating terrorists, not reading them their Miranda warnings. We need to end the failed policy of releasing terrorists overseas, and we need to prevent terrorists from using our 

immigration system to enter or stay in the U.S. 

Thank you, Mr. Chairman. I will yield back. 

4 

Mr. CONYERS. Thank you. 

Chair Nadler, Chairman of the Subcommittee on the Constitution. 

Mr. NADLER. Thank you, Mr. Chairman. 

I want to welcome the Attorney General back to the Committee. 

The work of the Department of Justice touches on some of the 

most important matters of life in this Nation, from fighting crime 

and terrorism to vindicating of fundamental rights. We ask a lot 

of the Department of Justice, and we expect a lot. 

I want to commend you, to begin with, for recognizing the success that we have had in prosecuting terror suspects in Article III 

courts. We all want to bring terrorists to justice, and our criminal 

justice system has been an effective tool in doing so. 

Until the recent change in the Administration, that didn’t seem 

to bother my friends on the other side of the aisle. During the Bush 

years, there were no attempts to tie law enforcement’s hand, no opposition to bringing them to trial, no complaints about sending terrorists to jail, no complaints about reading them their Miranda 

warnings so that we can prosecute them successfully. 

I hope to hear from you today about the Department’s continued 

use of the state secrets privilege in particular. As you know, I have 

introduced legislation, along with the Chairman and some others, 

to formalize and regulate the treatment of the privilege in court in 

a matter that will both protect bona fide state secrets and that will 

ensure that individual rights can get vindicated in our courts. 

In order for the rule of law to have any meaning, individual liberties and rights must be enforceable in our courts. There is an ancient maxim in law that there is no right without a remedy; and 

if the Government violates someone’s rights, if it wiretaps your 

phone without a warrant, if it ransacks your house and steals your 

guns or your papers, if it invades and ransacks your house, if it 

kidnaps and tortures you, your only remedy, the only way you have 

to make the rights guaranteed you in the Bill of Rights, the Second 

or the Fourth or the Fifth Amendments, real is to sue the government for an injunction to stop the action or for damages after the 

fact. 

But if the executive can have any case dismissed on the mere incantation of the magic phrase ‘‘state secrets’’ without having to 

prove to a court that the concerns about revelation of sensitive national security information are real and not simply an excuse to 

shield embarrassing or illegal acts or information, then we have no 

remedy and no rights, and the executive can get away with anything, regardless of anything the laws of the Constitution may say, 

and no one will ever be the wiser. There can be no law, no rights, 

and no liberty if the executive can do anything it wants behind an 

impenetrable wall of secrecy. 

I’m aware and I appreciate that this Administration has adopted 

some rules for the exercise of the privilege, but those rules still reserve unaccountable discretion to the executive without any meaningful judicial review. The guidelines still violate the observation 

by the 9th Circuit in the Jepson case that ‘‘the executive cannot be 

its own judge.’’ That is the key. 

5 

*The information referred to was not received by the Committee at the time of the printing 

of this hearing. 

I will submit the balance of my statement for the record.* 

Mr. CONYERS. Thank you very much. 

The Chair recognizes the senior Member of the Judiciary Committee, Howard Coble of North Carolina. 

Mr. COBLE. Thank you, Mr. Chairman. 

General, it is good to have you back on the Hill. 

General, the alarm that was created by the Administration’s announcement that it was planning to prosecute detainees from 

Gitmo in a New York Federal Court was astounding. I’m relieved, 

however, to hear that this plan has been scrapped, at least temporarily. But it appears that there may be some thinking, General, 

in the Department that the criminal justice system is well suited 

to prosecute terrorism suspects effectively and efficiently; and if 

that is the rule of thumb, I disagree with that. 

Criminal trials give terrorists the upper hand, in my opinion, 

General. They are not ordinary citizens and will use our civil rights 

to undermine our laws. 

Secondly, trials are lengthy and expensive. Why should our citizens pay for additional rights for terrorism suspects? 

And, finally, criminal trials are open to the public and will undoubtedly achieve one of the terrorists’ main objectives, and that is 

to promote their cause against our country. 

With regard to the war on terror, Mr. Chairman, I have been balanced. I have supported the dispatching of troops to Iraq, but I 

subsequently became critical of the Bush administration for what 

appeared to have been a failure to formulate a post-entry strategy. 

I support the rule of law and heartily support it. But simply to 

say that I’m an advocate for the rule of law, therefore, terrorists 

deserve criminal trials in Federal courts is simply illogical. The notion that transferring detainees to another facility in Illinois, which 

at one time was discussed, General, I think that is equally illogical. 

Meanwhile, I’m advised, General and Mr. Chairman, that detainees who have been released would oftentimes return to the battlefield to fight our troops, and that is frustrating at best and infuriating at worst. 

General, these are some issues that bother me, that trouble me, 

and perhaps some illumination can be forthcoming today. Again, 

good to have you here. 

Thank you, Mr. Chairman. I yield back. 

Mr. CONYERS. The Chairman of the Subcommittee on Crime, 

Bobby Scott of Virginia. 

Mr. SCOTT. Thank you, Mr. Chairman; and thank you, Attorney 

General, for being with us today. 

We have been dealing with violent crime for juveniles in such a 

way that we have ended up generally codifying slogans and sound 

bites to the point where we now lock out more people in the United 

States than anywhere on Earth by far. The Pew Research Center 

has suggested that we are locking so many people up that it is actually counterproductive. We are injecting more social pathology 

into the communities than we are solving. 

6 

That is why I’m pleased to be working with you on the Youth 

Promise Act and the Second Chance Act. We had a hearing yesterday where Texas showed that by investing in prevention and early 

intervention programs they are in the process of saving hundreds 

of millions of dollars because they won’t have to build prisons that 

were previously on the agenda. So I appreciate working with you 

on that. 

There are a lot of things we can do without changing the Criminal Code in terms of resources. Many across the country, DNA rape 

kits have not been analyzed, have not been included in the DNA 

system. We could solve a lot of crimes if we would invest the money 

into rape kits. And financial crimes, especially identity theft and 

credit card fraud, could also be solved with more resources. And I 

would be interested in what you have asked for in terms of resources on that level. 

There is an Office of Legal Counsel memo dated June 29, 2007, 

that interpreted the Religious Freedom Restoration Act of 1993 as 

providing a blanket override of statutory nondiscrimination provisions; and I would be interested in knowing the status of that. 

And, finally, I’m looking forward to your comment on the terrorism trials and commenting on how the civilian courts actually 

provide longer and more certain sentences than the military tribunals that have been plagued with constitutional complications and 

been overridden in several court decisions and how we are actually 

better off and more secure by using the civilian criminal courts. 

Thank you, Mr. Chairman; and I yield back. 

Mr. CONYERS. Former Attorney General of California and distinguished Member of the Committee, Dan Lungren. 

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

Mr. Attorney General, when we get time to ask questions, I hope 

to ask you questions about the clash between Mirandaizing terror 

suspects and our ability to gain information that is necessary. But 

something that the Chairman said caused me pause, and that is he 

said that we need to use our civilian criminal justice system in 

order to deal with miscreants. Miscreant, definition, is an evildoer, 

a villain, an infidel, or a heretic. Now that may describe the kind 

of individuals who are involved, but it doesn’t help us in terms of 

our legal analysis of how we deal with these people. 

And, Mr. Attorney General, I am concerned that we treat people 

in these regards more as criminal suspects than as what they truly 

are, which are illegal or unlawful enemy combatants. And I hope 

to ask you about the difference in treatment of Faisal Shahzad and 

the December bomber in terms of the amount of time that was 

given toward interrogating them to seek information that would potentially save this country before either one of them was given Miranda. The disparate treatment suggests to me that there has been 

a different policy by your Justice Department, and I would like to 

find out what that is. 

The suggestion that your Department is going to bring forward 

legislation to in some ways amend Miranda brings up an entire 

host of issues. That is, what is the capacity of the Congress to 

change statutorily that which is a rule that has been imposed 

under constitutional obligations by the Congress? And, further, 

with that limitation, does it make more sense for us to deal with 

7 

this in an entirely different vein, that is, recognizing we are at war, 

we are dealing with someone who has been captured on the battlefield, as it has been extended by reality, and whether or not that 

would be in the greater protection of the American people? 

Thank you very much, Mr. Chairman. 

Mr. CONYERS. Thank you. 

The Chairman of the Subcommittee on Courts, Magistrate Hank 

Johnson from Georgia. 

Mr. JOHNSON. Thank you, Mr. Chairman, for holding this hearing today; and I appreciate your efforts in ensuring that Members 

of this Committee have these opportunities to conduct oversight of 

the Justice Department. 

General Holder, I welcome you; and I thank you for making yourself accessible so that we can engage in one of our most important 

responsibilities and that is oversight of the Justice Department. 

Congressional oversight is a key component of the system of 

checks and balances. While you have been Attorney General, the 

Justice Department has done many things well; and you should be 

applauded. Most importantly, you have taken steps to depoliticize 

the Department; and, to a notable degree, you have restored public 

confidence in the ability of the Department to fulfill its mandate, 

which is equal justice for all. 

We still have a ways to go in removing the strain—or the stain 

left by the previous Administration on the operations of your Department, however; and I look forward to working with you to do 

just that. 

The Justice Department has renewed its commitment to local 

law enforcement, also; and that has resulted in putting more officers on the street, which has made our communities safer. This has 

helped local communities attract business and spur economic development. 

I thank the Department for its commitment to the Byrne Justice 

Grant Program and the COPS Hiring Recovery Program, which are 

vital sources of funding for police departments. 

Further, the Justice Department has fought tirelessly to combat 

terrorism. The attempted Christmas Day bombing on a Northwest 

Airlines flight and the FBI’s interception of a recent plan to attack 

the New York subway system reminds us of the constant struggle 

against those who wish to harm Americans. In that regard, I’m 

eager to hear what the Justice Department may propose in the way 

of legislative changes regarding the public safety exception to the 

Miranda warnings. Being a staunch advocate for the preservation 

of constitutional rights, I will be looking carefully at that. 

In addition, I want to thank you for revitalizing the Antitrust Division. You have made it clear that the antitrust laws are going to 

be enforced, and this means improved competition and real price 

protection for consumers. As Chair of the Subcommittee on Courts 

and Competition Policy, I’m grateful for your focus on antitrust 

issues. 

General Holder, I look forward to hearing your testimony today, 

and I appreciate the Justice Department’s efforts in protecting the 

safety and constitutional rights and resources of the American people. 

I yield back the balance of my time. 

8 

Mr. CONYERS. Darrell Issa, Ranking Member on the Oversight 

Committee and the person who may hold more copyrights than 

anybody on this Committee, except perhaps our newest Member, 

Jared Polis. 

Mr. ISSA. Thank you, Mr. Chairman; and, Jared, welcome. We 

now have two nonlawyers who are, in fact, holders of the Entrepreneur of the Year award. So I would say that we definitely have 

the edge over all these guys with law degrees now. 

General Holder, I believe that members of the Administration 

should never be surprised when they come to hearings, nor do they 

often walk away happy that it was an easy experience. Today I expect will be no exception. 

On April 21, I wrote to you about a serious allegation of multiple 

crimes. Under title 18 of the U.S. Code, section 211, which deals 

with bribery of public officials; section 595, which prohibits interference by government employees into nominations or elections of 

candidates for office; and section 600, which deals with corrupt government officials who use Federal jobs for political purposes, General Holder, I will be asking you, and hopefully you have brought 

all the people necessary to answer a series of questions. 

First of all, do you recognize these as felonies? 

Second of all, when those allegations come and are repeated by 

a Member of this body, a United States Congressman, a former 

Navy admiral, and when the White House has not denied these 

claims but rather says, and I quote, ‘‘I have talked with several 

people in the White House. I have talked with people who have 

talked to others in the White House. I am told that whatever conversations have been had are not problematic. I think Congressman Sestak has discussed that—this is whatever happened is in 

the past and he is focused on the primary election.’’ 

So I will be asking you a series of questions in order to find out 

whether these allegations of multiple felonies asserted against the 

White House are worth appointing a special prosecutor; and why 

since February when these were first alleged and through this series of many months we have seen no witnesses questioned and the 

White House allowed to simply say that, in the opinion of a nonattorney, a press secretary, that these were not problematic. 

Mr. CONYERS. Thank you very much. 

Mr. ISSA. I yield back. 

Mr. CONYERS. The Chair recognizes Pedro Pierluisi of Puerto 

Rico, a former Attorney General of that nation. 

Mr. PIERLUISI. Thank you, Mr. Chairman; and thank you, Mr. 

Attorney General, for testifying before this Committee today. 

In the brief time that I have, I would like to focus your attention 

on the Department’s drug control policy. As you know, in recent 

years, drug courts and other problem-solving courts have reduced 

the rate of recidivism among substance-abusing offenders by providing intensive treatment and supervision in lieu of incarceration. 

By lowering rearrest rates, drug courts save taxpayers considerable 

money. In fact, for every dollar invested in a drug court, taxpayers 

save roughly three times that amount. 

Despite the successes these courts have enjoyed at the State 

level, in the Federal system drug courts have been implemented in 

less than one-third of Federal judicial districts. 

9 

I understand the Department of Justice is conducting an acrossthe-board review of Federal sentencing policy. I urge you to look seriously at the role that drug courts can play at the Federal level, 

both as an alternative to incarceration for nonviolent offenders and 

as a reentry court for offenders who have just completed a prison 

term. We in Congress must do more to support drug courts, and 

I am drafting legislation that would provide a dedicated stream of 

funding for Federal drug courts. 

Now, finally, I have to say that I look forward to hearing from 

you regarding this new Arizona immigration law which I find offensive to all Hispanics in America, including the millions of U.S. citizens and legal residents of Hispanic origin that we have in this 

country. So I hope you address that subject matter as well during 

the course of your testimony. 

Thank you very much, Attorney General and Chairman, for 

yielding this time to me. 

Mr. CONYERS. The distinguished gentleman from Iowa, Ranking 

Member of Immigration Subcommittee, Steve King. 

Mr. KING. Thank you, Mr. Chairman; and thank you, General 

Holder, for coming here today. 

I would echo some of the remarks that Mr. Issa made about the 

experience of testifying here. We understand that there are certainly political messages going back and forth, constitutional statutory messages and public policy messages going back and forth 

here today. Most of us will engage in that. 

I have some concerns that I want to voice, a concern about the 

focus of the Department of Justice on the opposite side of the gentleman from Puerto Rico in that, as I look at the Arizona immigration law, it appears to me to be a mirror and a reflection of Federal 

law. I am concerned that we would have Federal resources that 

would be apparently directed by the White House itself to use the 

Justice Department to examine the Arizona immigration law for its 

constitutionality or any potential violation of Federal statute. I’m 

concerned that we might have those resources at the direction of 

the President, and I know we will hear how independent the Justice Department is, at the same time that we can’t find a single 

dollar or individual resources to examine ACORN, which has been 

all over the news for months and pervasive in their negative influence on elections and many other areas. 

So I’m looking forward to getting into those subjects a little more 

deeply; and I will want to hear from you as to your view on Arizona 

immigration law, the look into the alleged civil rights violations of 

the sheriff of Maricopa County and the intense focus of the Justice 

Department on that. 

Other subjects that do come to mind would be the cancellation 

of I think the most open-and-shut voter intimidation case in history 

and the direction of the Justice Department to cancel the results 

of a legitimate referendum to remove the political party and have 

local nonpartisan elections in Kinston, North Carolina. Those 

things seem to run contrary to the justice that I think that you are 

pledged to support, and I intend to bring up some of those subject 

matters. 

But I very much appreciate being here today, and this is a very 

good exercise for our constitutional republic. 

10 

I would yield back the balance of my time. Thank you, Mr. 

Chairman. 

Mr. CONYERS. Anthony Weiner of New York, Crime Subcommittee. 

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

welcome. 

I don’t believe there is a Republican or Democratic way to do 

your job. I don’t believe there is a conservative or liberal way to 

do it. I believe that law enforcement should transcend politics. That 

has led me to support you in your decision to hold the trial of 

Khalid Sheikh Mohammed in the Southern District where we have 

perhaps the best prosecutors anywhere in the world, the most experienced in prosecuting terrorism cases, judges, court officers who 

know their business; and I frankly think that, sooner or later, you 

should stop the Kabuki dance and tell us where that trial is going 

to be held. And I think if you make a good case and you sell it and 

you get the facts out there it will be supported. 

But I have to tell you, as the chief law enforcement officer of this 

country, some of the funding decisions made by this Administration 

have been mind-numbingly, insanely wrong. 

First, we see that the COPS funding—something that, as you 

know, I fought very hard for to get included in the stimulus bill— 

denied the New York City Police Department its application; and, 

when it did, it said we are going to limit it to 50 police officers. 

Essentially saying that the notion of the 5 percent cap and more, 

that a city like New York should not get what it asked for, it 

should get some miniscule number, if any. 

And then yesterday we find the Department of Homeland Security proposes a 35 percent cut in transit funds; a 3 percent cut in 

Port Authority funds; total transit funding, a 30 percent cut; a 25 

percent cut in port security. You know, I have to tell you that, 

while you might not be the Secretary of Homeland Security, I 

would be shocked if anyone who watched your press conference 

after the attempt on Times Square would come back and propose 

these things. 

I think there is something to be said for the idea that if you are 

going to say we need more boots on the ground you have to realize 

that in New York City today we have fewer police officers than 

September 11. You have to realize the COPS program which someone like me who has fought very hard to get is not necessarily only 

for towns that don’t have minor league baseball teams. Big cities 

like New York that are targets have to get the resources they need. 

And I would urge you to tell your colleagues within the Administration that when it comes to COPS, these types of funding, you 

have to give us the resources to do our job so that when you hold 

your trials we can make sure that they are safe. 

And I yield back the balance of my time. 

Mr. CONYERS. Bob Goodlatte of Virginia, distinguished senior 

Member of the Committee. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Attorney General Holder, we are delighted to have you here 

today. You will hear many different perspectives, I think, on what 

we should do with terrorists and where they should be tried. I don’t 

believe it should be in New York City, and I don’t think it should 

11 

be in our civilian courts. But I’m most in agreement with the gentleman from New York in wanting to know your perspective on 

that and to remind my colleagues that the Supreme Court’s Miranda decision does not apply in the context of a trial by a military 

commission because military commissions try people for violations 

of the laws of war, and Miranda warnings are only required when 

a defendant is tried in civilian courts. 

And as the Supreme Court explained in the 1942 case of Ex 

Parte Quirin, the Fifth Amendment does not apply to unlawful 

enemy combatants who are at war with the U.S., and I would hope 

that the Attorney General and our current Justice Department 

would uphold that and honor that Supreme Court decision. 

The Quirin case involved a group of saboteurs who were landed 

by German U-boats on American beaches. Their assignment from 

the German military authority was to destroy domestic military 

targets and war production facilities. All of the saboteurs were Germans except one, Haupt, who was a naturalized U.S. citizen. After 

they were captured by the FBI, the saboteurs were placed in military custody and tried by a military commission. The commission 

found them all guilty and sentenced all but two of them to death. 

They then challenged the authority of the military tribunal, and 

the tribunal’s denial to them during the proceedings of their constitutional rights afforded domestic criminals by the Fifth and 

Sixth Amendments. Their arguments were rejected by the Court. 

As the Court explained, those who take up arms against the United 

States are designated as enemy combatants, and enemy combatants can be lawful or unlawful, and if the latter they can be dealt 

with by the military courts. 

The Supreme Court upheld the military commission’s authority, 

concluding that the President, as Commander-in-Chief, has the 

power to seize and subject to disciplinary measures those enemies 

who in their attempts to thwart or impede our military effort have 

violated the law of war. 

Today terrorists, just like the plain-clothed Nazi saboteurs in Ex 

Parte Quirin, are considered unlawful enemy combatants because 

they fight in disguise without uniforms, and under Quirin they can 

be detained and tried by military tribunals. 

Finally, the Court in Quirin rejected Haupt’s claim of constitutional rights by virtue of his American citizenship. The Court held 

that American citizenship does not relieve him from the consequences of a belligerency which is unlawful because in violation 

of the law of war. 

I would very much appreciate hearing your views on that when 

the appropriate time comes. Thank you for joining us today. 

Thank you, Mr. Chairman. 

Mr. CONYERS. Distinguished Member of the Committee, Maxine 

Waters, Los Angeles, California. 

Ms. WATERS. Thank you very much, Mr. Chairman, for scheduling today’s oversight hearing for the Department of Justice. I am 

very pleased to have the Attorney General join us today, and I 

have a number of concerns that I would like to bring to his attention. 

In the limited time that I have this morning, I would like to discuss a few issues with you, Mr. Attorney General, and then submit 

12 

additional questions in writing so you and your staff can provide 

additional information. 

First, I have been concerned with the lack of diversity reflected 

within the Department of Justice and throughout the judicial system. I’m especially concerned about the FBI and all of the discrimination complaints that have been filed in that division and want 

to know exactly what is happening with the backlog that they had 

at one time and what you are doing to correct some of the problems 

of that division. 

I would also like to know what actions this Administration has 

taken to ensure that the Department of Justice and all of its internal agencies and divisions more closely reflect the diversity of this 

country. 

As you are aware, many of the disparities that exist within our 

Justice Department can be linked to the agents, prosecutors, and 

attorneys that enforce the law. Since our laws afford judges, lawyers, prosecutors, and Federal agencies a great deal of discretion, 

it is critically important that diversity is counted among the Department of Justice’s goals in hiring and recruiting Federal agents, 

attorneys, and staff. 

I know that many people will often cite the Attaran decision in 

order to diminish the efforts or authority of the Federal Government to provide opportunities for a diverse candidate pool. However, I strongly believe that it is within our national interest that 

individuals charged with enforcing the law include people from diverse communities and backgrounds. 

Secondly, today I would like to express my concerns with the Department of Justice review of the proposed Comcast-NBC merger. 

Over the past 20 years, our Federal antitrust laws have been so 

eroded that many believe that our regulatory agencies will simply 

rubber stamp any large transaction that comes before them. Corporations and institutions do not become too big too fail overnight. 

At some point, there is a failure of oversight. 

I just heard someone commend you for the changes that you had 

made, but I’m not aware of them, and maybe you can talk a little 

bit about that today. 

Moreover, many legal experts argue that the guiding principles 

that have historically framed the Department of Justice merger review proceedings are obsolete and there is no real way for the 

American public to gauge how the Department of Justice will review transactions such as the Comcast-NBC merger. In fact, many 

industry insiders believe that, ultimately, the DOJ and FCC will 

uphold this merger without fully considering the public interest. 

Comcast Corporation is already airing commercial advertisings 

giving the impression that its merger with NBC Universal is a 

done deal, and you need to know that we did get the cooperation 

of the FCC to extend the comment period, and now we are organizing, and about 60 Members of Congress have signed a petition 

to get public hearings. And I hope that before DOJ makes its decision that they would ask the FCC if, in fact, they are going to hold 

those hearing and you have the benefit of that information. 

Therefore, to the extent you are able to discuss, I would like to 

hear from you about what this DOJ is doing to ensure that Federal 

13 

anti-trust principles are respected within current and future merger reviews. 

And, more broadly, I would like to know if the Department of 

Justice is or intends to take a look at some of the current antitrust 

exemptions that are on the books, such as the Sports Broadcasting 

Act, which has enabled organizations like the National Football 

League to make billions of dollars while functioning as a nonprofit, 

exempt organization. 

Therefore, I look forward to asking you questions and continuing 

to communicate my concerns to you in these and other areas. 

I yield back. 

Mr. CONYERS. Mr. Trent Franks of Arizona, Ranking Member on 

the Administrative Law Subcommittee. 

Mr. FRANKS. Well, thank you, Mr. Chairman. Thank you for 

holding this Committee hearing. 

And, General Holder, I would start by saying that I know that 

it is a very difficult job that you are in and that trying to secure 

this country in a myriad of different ways is not an easy job. 

With that said, I am very concerned about the seeming subordination of some of the critical protections of Americans to the political correctness that seems to be exhibited by this Administration. 

We have all heard about the security apparatus, how it failed on 

Christmas Day when a Muslim militant failed in his attempt to 

carry out Jihad by bombing an airliner. Having some familiarity 

with certain types of explosives, the type this gentleman was using 

could have been devastating. 

And then, of course, we learned about the attempted New York 

Times Square bombing; and the type of weapon there used, it occurs to me, looked like it was an attempt to construct a fuel bomb 

weapon, which instead of just blowing the fuel in a fireball was to 

blow the fuel into the air and then ignite it. And we use fuel 

bombs, as you know, in the military apparatus that are some of the 

most powerful yield conventional weapons that we have. And if 

that had been successful I think hundreds would have died. 

In both of these cases, it was the incompetence of our enemies 

that saved us, rather than the competency of our policies. And, 

again, it occurs to me that the political correctness in the aftermath and even prior was a consideration that we should look at far 

more carefully. 

Now the disturbing part of this trend, of course, is that once in 

a while terrorists find a modicum of competence, as in the case of 

Major Hasan at Fort Hood. But Major Hasan advertised his tendencies with everything but a flashing neon sign, and yet this Administration failed to recognize it. 

The militant Muslim cleric Awlaki was communicating with 

Major Hasan at the time and has taken to taunting this Administration. He said of Mr. Obama, ‘‘His Administration tried to portray 

the operation of brother Nidal Hasan as an individual act of violence by an individual. The Administration practiced the control on 

the leak of information concerning the operation in order to cushion 

the reaction of the American public.’’ 

This seems, again, another example of this Administration failing to protect the people in the greater emphasis on the political 

correctness and once again in the name of political correctness 

14 

which has, in this case, become deadly in the most literal sense of 

the word. We face an ongoing challenge here that I believe that 

this Administration needs to face head on. 

One of the ancient generals, Sun-Tzu, said, If we cannot identify 

the enemy honestly and accurately, we cannot defeat them. The 

muzzle of political correctness that this Administration has used 

has kept us from identifying our enemy. 

I was disappointed last month to see Mr. Obama announce that 

words like ‘‘Islamic radicalism’’ and ‘‘Jihad’’ will now be prohibited 

in the national security strategy lexicon. And I know the Department of Justice is just one part of this Nation’s security apparatus, 

but it is a critical part. The performance of the Department over 

these several months of the Administration, the year and a half, 

has not instilled confidence in this country; and there seems to be 

no strategic approach to fighting terrorism or even an ability or a 

willingness to identify the enemy. 

So I’m pleased, Mr. General, that you have shown up for the 

hearing and look forward to hearing what this Administration’s 

strategic plan is to defend this Nation from terrorism. 

Thank you, Mr. Chairman. 

Mr. CONYERS. Steve Cohen, Chairman of the Subcommittee on 

Administrative Law, Tennessee. 

Mr. COHEN. Thank you, Mr. Chairman; and thank you, General 

Holder, for appearing, as I know you would. 

I just want to thank you for the job you are doing for helping 

bring the Justice Department into the 21st century; and I would 

like to ask you to specifically look, and I know you would, at the 

bill that Senator Webb has introduced to do a review of our criminal sentencing and our criminal laws. 

I was with Chairman Conyers last night at the leadership conference where Senator Leahy was honored as well as Harry 

Belafonte. And Mr. Belafonte commented on the 2 million or so 

people who are incarcerated, many of whom should not be—in his 

opinion and in my opinion as well—incarcerated because many of 

those people’s presence in jail is a reflection on the failure of our 

system to educate, to prepare for jobs, and to provide jobs over the 

years. 

A system of warehousing and criminalizing, incarcerating individuals for terms beyond what is necessary is injurious to the country and to the country’s soul and to its morality. And I know that 

you will give a close look at all of our laws, particularly victimless 

laws, where our laws really there is a cultural lag and they reflect 

more of an attitude that was 30 or 40 years ago which time has 

shown us is incorrect and is unjust. 

Thank you, sir; and I yield back the balance of my time. 

Mr. CONYERS. Judge Louie Gohmert of Texas, Ranking Member 

on the Crime Subcommittee. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

General Holder, you must be sitting there thinking, what is 

going on? You probably have never seen this many opening statements. I haven’t. You probably came over expecting to get grilled, 

and everybody is making a statement, and you are getting a pass. 

The dynamics are these. We are expecting to vote shortly, and 

most everybody here knows if we don’t take an opening statement, 

15 

we don’t get to address things to you directly. So let me just say 

I don’t believe in ambush, and I will send a letter asking these, because I doubt I will have the chance to ask. 

But one of the things I have been curious about in this discussion 

about potential terrorists on our soil was the Military Commissions 

Act of 2006 addressed these as enemy combatants. For some reason, somebody felt like that just was too offensive and requested 

a change to—and the law has now been changed. We no longer 

have enemy combatants, as you know. It is ‘‘alien unprivileged 

enemy belligerents,’’ and I’m just curious if somebody at Justice 

knows how that helps fight the war on terror, to change the name. 

Also, I appreciate your coming. It is a great thing. I know when 

the Nixon administration claimed executive privilege, people were 

properly outraged. But when a Committee here asks for the social 

secretary to find out about how the Salahis got into the Christmas 

party inappropriately, we were told that the social secretary would 

not be allowed to testify, and I’m curious about what kind of executive privilege or what that was and if that advice came from your 

Department. 

Also, I’m not mentioning some of the things that had been mentioned by others that are concerns, but we previously had the testimony of the Civil Rights Division Chief Perez, and he was indicating things, requirements that seemed different from what 1965 

Attorney General Nicholas Katzenbach testified regarding requirements to prove this kind of voter intimidation which was captured 

on video that a civil rights era marcher advocate said was the 

worst voter intimidation he had ever seen. 

I’m still concerned why that wasn’t pursued more vigorously. 

Chief Perez kept saying that he was going to look forward to the 

report by the Office of Professional Responsibility, and it should 

never have gotten to that. It should have been pursued. 

And, also, the other area that I will ask for your assistance on— 

and it is a bipartisan issue—we have nearly 5,000 criminal statutes. We have got people going to jail, not necessarily under Justice, EPA, different, for violations that nobody in this room ever 

knew were even violations. And we have got to do some kind of job 

of cleaning up this overcriminalization where Congress slaps on a 

criminal penalty to send people to jail, people outside of Justice 

and departments outside look forward to getting a badge and a gun 

and a siren, and I look forward to your advice on how we can work 

together to clean that situation up. 

But thank you for your appearance here today. 

Mr. CONYERS. Attorney Mike Quigley, Chicago, Illinois. 

Mr. QUIGLEY. Thank you, Mr. Chairman. 

I welcome the Attorney General as well as our two new Members 

of the Committee. 

I’m here a year now, and while it doesn’t make me a wily veteran, it does occasionally make me feel like Bill Murray in the 

movie Groundhog Day, because the opening statements sound like 

the opening statements from last year. And, obviously, the arguments and the issues and the problems we face are similar to last 

year. What is always troubling is the fact that sometimes we don’t 

get to the root causes again and again and again, and we are facing 

the same day over and over again. 

16 

And just by example, I would point out my colleagues have 

talked about international terrorists, domestic terrorists, Mexican 

drug trafficking cartels. And, to me, one of the root causes of the 

problems with that, or certainly the issues that exacerbate, are the 

issue I brought up last year, which is the gun show loopholes which 

Mayor Bloomberg in an amazing study brought out this year pointed out that the majority of people in their study who were able to 

obtain guns in gun shows could not have passed background 

checks, which is extraordinary because we see now that gun shows 

are linked to the Pentagon shooting, to shootings at Columbine, to 

international terrorists, to domestic terrorists, and, of course, to 

Mexican drug trafficking cartels. 

So I know there are those who live in fear of not having a 100 

percent voting record with the NRA, but it does seem there are 

commonsense attempts to tie rationale loopholes so we aren’t arming domestic or international terrorists and that we are not putting 

ourselves at risk. 

And I know, Mr. Holder, you discussed assault weapons in February of last year. I know it is a difficult time to raise those issues. 

But we are reminded that, as Secretary Clinton said, the majority 

of the assault weapons used in the Mexican drug cartel fights are 

brought in from the United States. 

So I hope we can address those issues. Otherwise, I’m just going 

to save this presentation for next year. 

Thank you. 

Mr. CONYERS. Mr. Jason Chaffetz of Utah. 

Mr. CHAFFETZ. I appreciate that. It is getting good, Mr. Chairman, thank you. 

Thanks to the Attorney General. Thank you, sir, for being here. 

We need you to do well. We support you. As the top law enforcement officer, your job is as critical as any in the Administration; 

and I recognize the difficulties that you have. 

Two issues that at some point I hope you would address: In February of 2009, the High-Value Detainee Interrogation Group was 

unveiled. You say in your written testimony that it is ‘‘used informally over the past year in support of counterterrorism.’’ Some 

clarification. Sometimes we read in the media that they are highly 

used, they are used a lot, but when you say they are used ‘‘informally’’ it doesn’t give us necessarily the greatest confidence that 

this group is really up and rolling and used to the degree that it 

was originally intended to do. 

The second thing is, at the end of 2008, it was pointed out in the 

Wall Street Journal today, New York City Police Commissioner 

Ray Kelly slammed FISA as, quote, an unnecessarily protracted 

risk-averse process that is dominated by lawyers, not investigators 

and intelligence collectors. The Federal Government is doing less 

than it is lawfully entitled to do to protect New York City, and the 

City is less safe as a result.’’ From Commissioner Kelly. 

At some point, I would love to hear your comments and perspectives on FISA and how that is working and is it actually, as Commissioner Kelly suggested back at the end of 2008, putting us in 

a worse position and giving you less tools than you need to do what 

you need to do. 

17 

I recognize the time constraints and thank you, Mr. Chairman. 

I yield back. 

Mr. CONYERS. Dr. Judy Chu of California. 

Ms. CHU. Thank you, Mr. Chair; and thank you, Attorney General Holder, for being here today. 

I have great concerns about the passage of Arizona law SB 1070. 

It raises important questions about civil rights in the U.S. It is a 

cruel and misguided effort, and it basically institutionalizes racial 

profiling and has already led to American citizens being detained 

by the police simply because they forgot their drivers’ licenses at 

home. 

I think that it is unconscionable for any of our citizens to have 

to live in fear and carry multiple forms of identification with them 

everywhere they go. This is something that one would expect from 

a Cold War Eastern Bloc country and not America in the 21st century. 

But what is worse is there is a disturbing pattern of racial 

profiling emerging when local law enforcement is tasked with enforcing immigration laws, making the risk of abuse in Arizona of 

even more concern. 

As Attorney General, you have a heavy responsibility to make 

sure that new and old immigration enforcement programs don’t 

tread on our civil liberties; and I would like to hear what you have 

to say about this. 

I also would like to add that I’m deeply concerned about comments that you made this weekend suggesting that the Department might seek a legislative expansion to the public safety exception to Miranda. I believe such a move by Congress would be unwise and unconstitutional. Most importantly, there is no reason to 

believe that advising suspects of their rights obstructs effective law 

enforcement. To the contrary, our experience shows that informing 

suspects of their rights actually benefits law enforcement. 

While I understand there is enormous political pressure to be 

tough on terrorism, I strongly believe we should never put political 

considerations ahead of protecting the constitutional rights guaranteed to all citizens; and I would like to hear your comments on that 

as well. 

Thank you, and I yield back the balance of my time. 

Mr. CONYERS. Mr. Greg Harper, Mississippi. 

Mr. HARPER. Thank you, Mr. Chairman; and thank you, Mr. Attorney General, for being here with us today. 

I know a lot of important issues have already been mentioned, 

but one I would like to discuss a little further would be the ongoing 

problem that we have had for years with the Association of Community Organizations for Reform Now, or ACORN. 

ACORN has stirred up controversy in regard to its Federal funding and charges of embezzlement and fraud, especially relating to 

allegations that arose about 2008 voter registration drives conducted by that organization. And, of course, several well-known 

videos surfaced several months ago that I believe were more than 

enough evidence to warrant a thorough investigation of ACORN by 

the Department of Justice. So I would hope to hear more about 

that on what the Justice Department is doing. 

18 

I know that Ranking Member Smith and other Members of this 

Committee have requested that the Department of Justice investigate ACORN, and I know that some State Attorneys General 

have launched their own investigations into the corrupt practices 

of that organization. 

The 2010 mid-term elections are only about 6 months away; and 

for the sake of all American voters and our very-much-envied election process, I hope that the Department of Justice is doing all that 

it can to ensure that ACORN is being held to a high and proper 

standard. States and localities, as well as all American voters, need 

to be able to see that the Department of Justice has responded to 

the complaints of fraud that it has received so that the public can 

have confidence that their complaints have been addressed and not 

ignored. 

I look forward to hearing your testimony, and I yield back. 

Mr. CONYERS. Adam Schiff, who serves with distinction on this 

Committee and the Intelligence Committee as well. 

Mr. SCHIFF. Thank you, Mr. Chairman. 

Welcome, Mr. Attorney General. It is great to have you back in 

the Committee, and I want to thank you for the hard work you are 

doing in focusing on these unprecedented issues. 

On the Miranda issue, I think it was quite sensible to establish 

the HIG team as we bring in experts from various agencies to 

make quick decisions about how a suspect ought to be treated, 

when Miranda warnings ought to be given. And I agree with I 

think the strong presumption that probably guides that group that 

when you arrest an American on American soil that there is a 

strong presumption that Miranda is given after the public safety 

exception has been realized, after you have gotten the information 

necessary to protect the public. 

I would be interested to learn what you have in mind in terms 

of codifying that public safety exception. In the case that gave rise 

to the exception, you had someone arrested in a market with an 

empty holster. He was asked, where is the gun? Told them where 

the gun was. They sought to suppress that. The court quite sensibly found, no, the public safety has to be paramount here. 

That is quite easy when you have an empty holster. When you 

arrest someone on terrorism charges like the Times Square case, 

very different situation. Clearly, under that exception, you would 

be able to spend time interrogating the suspect about are there 

other cars? Are there other bombs? Are there other plots? 

But where that public safety—what the parameters of that public 

safety exception are or how they would develop under case law, the 

degree to which Congress can codify, the degree to which we can 

provide input in that, what the constitutional limits are, I would 

be interested to hear your thoughts and look forward to working 

with you on that issue. 

Also, I appreciate the work you are doing and the superb committee that was put together to analyze the detainees at GITMO, 

case by case, to figure out what is the best disposition, who can be 

repatriated, who has been detained as an unlawful combatant. It 

is very hard, hard work. 

We need to follow up on that work, though, and address a tough 

issue together; and that is, how do we do the status reviews going 

19 

forward? So those that are ordered detained as unlawful combatants who may or may not be prosecuted as well, but particularly 

if they are not prosecuted, we need to work together and I think 

codify what the standards should be going forward in those periodic 

reviews. Who ought to undertake them? What kind of oversight? 

And as we move people from GITMO, and I think as we move 

to close down Gitmo and open up a prison, whether it is Thomson 

or elsewhere, we always want to make sure we have legal mechanisms in place that if there are cases we lose—and you know there 

have been cases of detainees at Gitmo where the habeases are 

being successful—we need to have a legal mechanism to make sure 

that they are not released into the United States. And I look forward to working with you on that issue well. 

Finally, one last thing, if I could, Mr. Chairman, and that is the 

DNA backlog in Los Angeles. It is really imperative that we work 

with you. We would like to establish a pilot in Los Angeles where 

samples analyzed by private labs can be uploaded into CODIS by 

the public lab, and the technical review can be done after there is 

a match. That will save millions. It will take violent people off the 

street. LA is ready to be test area for this, and we would love to 

work with you on that. 

Thank you, Mr. Chairman. 

Mr. CONYERS. Thank you. 

Attorney General Eric Holder, a graduate of Columbia University, appointed by President Reagan to the bench and then to the 

U.S. Attorney for the District of Columbia by President Clinton, 

elevated to Deputy Attorney General in 1997, private practice with 

Covington & Burling, and then on February 3rd of last year was 

sworn in as Attorney General of the United States. 

We have your statement, which will be entered into the record. 

We appreciate your patience and consideration and welcome you to 

this hearing. 

TESTIMONY OF THE HONORABLE ERIC HOLDER, 

ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE 

Mr. HOLDER. Well, good morning, Chairman Conyers, Representative Smith, and distinguished Members of the Committee. 

I’m very pleased to appear before you today to discuss the accomplishments of the Department of Justice in the past year, but first 

let me thank you for your ongoing support of the Department’s 

work and your recognition of the essential role that the Department plays in defending our Nation and its highest principles. 

Now throughout my confirmation process and since becoming Attorney General last February, I worked to establish and to articulate a clear set of goals for the Department: protecting the American people against foreign and domestic threats; ensuring the fair 

and impartial administration of justice; assisting State and local 

law enforcement; and defending the interests of the United States. 

I have repeatedly pledged, just as I did when I appeared before this 

Committee last May, to pursue these goals in service to the cause 

of justice and in a way that honors the Department’s commitment 

to integrity, transparency, and the rule of law. 

The thousands of men and women who serve the Justice Department have made, I believe, meaningful progress in meeting these 

20 

goals, whether in the pursuit and prosecution of terrorists, in the 

fight against crime, or in protecting our civil rights, preserving our 

environment, ensuring fairness in our markets, seeking justice in 

our tribal communities, promoting transparency in our government, and enforcing our tax laws. 

Despite the unprecedented challenges and new demands that 

have emerged, we are on the right path to fulfilling our obligations 

and achieving our goals. Protecting Americans against terrorism 

remains the highest priority of the Department of Justice. The Administration will continue to use all lawful means to protect our 

national security, including, where appropriate, military, intelligence, law enforcement, diplomatic, and economic tools and authorities. We will aggressively defend our Nation from attack by 

terrorist groups consistent with our Constitution, our laws, and our 

values, as well as our international obligations. 

Now as one of the counterterrorism tools available to us, the 

criminal justice system has proven its strength in both incapacitating terrorists and gathering valuable intelligence, most recently 

in the case of Faisal Shahzad. Twelve days ago, we believe that he 

attempted to detonate a car bomb in Times Square. Less than 53 

hours later, thanks to the outstanding work of the FBI, the Department’s National Security Division, the U.S. Attorneys’ Offices, and 

our partners at the New York Police Department and the Department of Homeland Security, Shahzad had been identified, located, 

and arrested. When questioned by Federal agents, he provided useful information. We now believe that the Pakistan Taliban was responsible for this attempted attack. We are currently working with 

the authorities in Pakistan on this investigation, and we will use 

every available resource to make sure that anyone found responsible, whether they be in the United States or overseas, is held accountable. 

Just this morning, we executed search warrants in several locations in the Northeast in connection with the investigation into the 

attempted bombing. Several individuals who were encountered during those searches have been taken into Federal custody for alleged 

immigration violations. These searches are the product of evidence 

that has been gathered in the investigation since the attempted 

Times Square bombing and do not relate to any known immediate 

threat to the public or active plot against the United States. I 

share that information just to indicate that this is an ongoing investigation and that we are actively pursuing all those who were 

involved in it. 

This attempted attack is a sober reminder that we face aggressive and determined enemies. For example, since January of 2009, 

14 individuals have been indicted in Minnesota in connection with 

travel to Somalia to train or to fight with the terrorist group al 

Shabaab; David Headley was indicted in Chicago and pleaded 

guilty in connection with a plot to bomb a Danish newspaper and 

for his involvement in the November, 2008, terror attacks in 

Mumbai; Umar Farouk Abdulmutallab was charged with Federal 

crimes in connection with the attempted bombing of Northwest Airlines Flight 253 near Detroit last Christmas. 

In addition, in February, 2010, Najibullah Zazi pleaded guilty in 

the Eastern District of New York to conspiracy to use weapons of 

21 

mass destruction, specifically explosives, against persons or property in the United States, conspiracy to commit murder in a foreign 

country, and providing material support to al Qaeda. Zazi admitted 

that he brought explosives to New York as part of a plan to attack 

its subway system. This was one of the most serious terrorist 

threats to our Nation since September 11, 2001, and, but for the 

combined efforts of the law enforcement and intelligence communities, it could have been devastating. Several associates of Zazi 

have also been charged with participating in the plot and related 

crimes, including Zarein Ahmedzay, who has also pleaded guilty to 

terrorism charges and faces a sentence of up to life in prison. 

The Department’s work to combat terrorism includes civil as well 

as criminal proceedings. For example, the Department successfully 

defended the Treasury Department’s designation and attendant 

asset freeze of a Saudi Arabia-based charity engaged in the widespread financial support of terrorist groups around the world, including al Qaeda. 

In addition to these efforts to protect our Nation from terrorism 

and other threats over the last year, we have reinvigorated what 

I have come to call the traditional missions of the Department. We 

have strengthened our efforts to protect our environment, to combat health care fraud, and to enforce our anti-trust laws. We have 

worked to safeguard civil rights in our workplaces and in our 

neighborhood. We have made strides in ensuring that prisons and 

jails are secure and rehabilitative, and we have worked to make 

Federal criminal laws more fair and more effective. And, as part 

of our focus on securing our economy and combating mortgage and 

financial fraud, the Department is leading the Financial Fraud Enforcement Task Force that President Obama established last year, 

using new legal tools provided by Congress. 

Once again, I thank you for your support of the Department’s 

most urgent and most essential work. I look forward to working 

with this Committee and with the Congress, and now I’m more 

than happy to answer any questions that you might have. 

[The prepared statement of Attorney General Holder follows:] 

22 

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


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

We will recess for some votes, and we will return immediately. 

The Committee stands in recess. 

[Recess.] 

Ms. JACKSON LEE. [Presiding.] The Judiciary Committee is now 

called to order. 

And, Mr. Attorney General, we are in the round of questions. 

And before I pose a motion, let me suggest that, by the opening 

statements of the Members, you have heard a number of concerns. 

And I would only add to those concerns, and not all in totality, 

is a very serious matter of mergers and particularly the merger between Continental and United. And I know that we will have an 

opportunity to raise that very important question either today or 

prospectively. 

And so we are at the point of questions, as I indicated. But I 

would like to indicate to you that our Chairman, who has presided 

over this Committee with excellence and great leadership, and presided earlier today, was approached by Members on the floor having a number of conflicts and flights to catch on important district 

business. Because of his chairmanship of the Committee leadership, he thought it would be a service to the Members if we could 

adjourn the hearing and schedule it at a later date. 

Therefore, I am asking unanimous consent to adjourn the hearing at this time. 

Mr. SMITH. Madam Chairman, I object, and I would like to be 

recognized to explain my objection. 

Ms. JACKSON LEE. The Ranking Member objects, and I will yield 

to him for his explanation. 

Mr. SMITH. Thank you, Madam Chairman. 

The Chairman and I had a discussion about this subject, whether 

we should adjourn now because we are finished with votes for the 

day and perhaps return next week or the week after we get back 

from our Memorial Day break. Had the AG been able to assure us 

that he would be able to give us a time and a date to have that 

hearing and continue this hearing and be able to ask him questions, I certainly would have agreed to do that. 

I understand the AG’s travel schedule, I can appreciate the fact 

that he might not be able to give us a hard date, but I am uncomfortable adjourning this oversight hearing without that time and 

date specific. And that is why I feel that we should go forward, and 

we clearly have a critical mass of Members to do so. 

And, Madam Chair, I would be happy to yield to the AG, who 

looked like he was getting ready to respond as well. 

Ms. JACKSON LEE. Thank you. 

Mr. Attorney General, I am not sure if you were interested in 

being yielded to at this point. 

Mr. HOLDER. I am sorry? 

Ms. JACKSON LEE. Are you interested in being yielded to at this 

point. Otherwise, I would have a Member that I will call on. 

Mr. HOLDER. No, I am ready to proceed. 

Ms. JACKSON LEE. Mr. Schiff of California. 

Mr. SCHIFF. Thank you, Madam Chair. 

I was just going to say, to respond to my colleague from Texas, 

I understand the concern he has. 

43 

On the other hand, the Attorney General has demonstrated no 

reticence or reluctance whatsoever to come before the Committee, 

not only this Committee, but others, and I am confident he will return at the first available opportunity. If that is the case, it would 

be nice to have more full representation of the Committee. I know 

a lot of Members who couldn’t stay would love to participate in the 

hearing, and they will lose that opportunity if we go forward without them. 

Mr. SMITH. Would the gentleman yield? 

Mr. SCHIFF. I would be glad to. 

Mr. SMITH. Several responses to the gentleman’s point. 

First, it is obvious that the Attorney General has indicated a 

willingness to stay and answer questions for as long as they might 

be. 

Second of all, all Members of Congress were on notice that we 

expected to be in session today until at least 3 or 4 this afternoon. 

The fact that the votes ended earlier was not anticipated, so Members have not had to change any plans if they wanted to participate 

in this hearing. 

And then, thirdly, as I said, to repeat myself, had the AG been 

willing to commit to a date some time in the next 3 weeks, I would 

have certainly gone along with the suggestion that we adjourn 

today. But without that commitment from the AG, and despite the 

assurance of the gentleman from California—he seems to be more 

confident in the appearance of the AG in the coming weeks than 

the AG himself, or I think the AG would have given a commitment 

to a specific time and date. But absent that, I think it best that 

we proceed. 

Mr. SCHIFF. Madam Chair, reclaiming my time, that being said, 

we will just go forward. 

Thank you, Madam Chair. 

Ms. JACKSON LEE. Thank you. 

The objection being heard on the request for unanimous consent 

to adjourn, and the objection being raised, the meeting will now 

proceed. 

At this time, I would like to yield 5 minutes for his questioning 

to the gentleman from Virginia, the Chairman of the Subcommittee 

on Crime, Mr. Scott. 

Mr. SCOTT. Thank you. 

Mr. Attorney General, the last time you were here, I asked you 

about whether or not if someone had been tortured to death, 

whether or not a crime almost certainly would have been committed, and you answered in the positive. 

My question is what is the statute of limitations for torture if 

someone dies, and the statute of limitations if someone does not 

die? I have a lot of questions, and if you would prefer to respond 

in writing, that would be fine. 

Mr. HOLDER. I think I would like to respond in writing to at least 

the second part of that question. 

With regard to the first part, there is no statute of limitations 

where death results. 

Mr. SCOTT. Thank you. 

There has been a lot of controversy on Miranda rights. The last 

case in the Supreme Court on Miranda rights was ruled on a conVerDate Aug 31 2005 12:54 Jan 31, 2011 Jkt 000000 PO 00000 Frm 00047 Fmt 6633 Sfmt 6601 H:\WORK\FULL\051310\56394.000 HJUD1 PsN: 56394
44 

stitutional basis, not statutory interpretation. If we tried to change 

the statute might we not cause more problems than we solve because nobody would know until that hits the Supreme Court 

whether what we did was constitutional or not? And how would 

that affect the practice on the ground if a police officer has to sit 

up there and wonder, well, I have got all these exceptions, I might 

have to give a Miranda warning, I might not, are they a citizen, 

maybe they are a terrorist, maybe they are a citizen, not a citizen? 

Might you end up messing up a lot of cases where Miranda turned 

out to be required rather than fixing something? Will it make matters worse by trying to change anything? 

Mr. HOLDER. Well, I think it is our view that the use of the public safety exception, I want to make clear to everyone that what we 

are focusing on is the potential modernizing, clarifying of the public 

safety exception, not the Miranda rule itself, but to come up with 

a way in which we give to agents, to police officers, greater clarity 

as to how the public safety exception can be used. 

The public safety exception was crafted back in the 1980’s in connection with case Quarles that involved a police officer asking a 

person, ‘‘where’s the gun?’’ 

We now find ourselves in 2010 dealing with very complicated terrorism matters. Those are certainly the things that have occupied 

much of my time. With regard to that small set of only terrorismrelated matters, not in any other way, just terrorism cases, any act 

on modernizing, clarifying, making more flexible the use of the 

public safety exception would be something beneficial. 

Mr. SCOTT. But at the point of time the interrogation starts, a 

profile for somebody might not be able to tell whether it is terrorism or not. And thinking wrongly that it is terrorism, you can 

mess up an otherwise fairly good case. But we will look to see what 

you come up with. 

The Bureau of Prisons is under your jurisdiction, is that correct? 

Mr. HOLDER. That is correct. 

Mr. SCOTT. And the Federal Prison Industries is an important 

program. Do you have any statement on how we can make that 

program stronger and any support you want to give to that program of why it is so important? 

Mr. HOLDER. It is a critical part I think of our effort to make our 

prisons more than places that simply warehouse people, to give 

people an opportunity to gain skills that make them successful 

upon leaving prison. 

I think what people have to always focus on is that the vast majority of people who go into prisons are going to come out at some 

point. And to the extent that we can provide rehabilitative services 

to them through the vocational opportunities that the Federal Prison Industries program provides, I think those should be supported. 

I am a big, big supporter of that program. 

Mr. SCOTT. Thank you. 

I mentioned in my opening remarks, the Office of Legal Counsel 

memorandum, June 29, 2007, that essentially suggested that the 

Religious Freedom Restoration Act of 1993 provides a virtual blanket overriding statutory nondiscrimination provisions. Has your office reviewed that memorandum, and if so, could you tell us the 

45 

status of what you are going to do with it, or would you want to 

get back to us in writing on that? 

Mr. HOLDER. Well, I think I would like to get back to you in writing about that one. I have not had a chance to have, I think, indepth conversations that I need to have about that in order to respond in the way that I would like to your question. 

Mr. SCOTT. Okay. 

You are aware that the President, during his campaign in Zanesville, Ohio, indicated, and I quote, if you get a Federal grant, you 

can’t use the grant money to proselytize to the people you help and 

you can’t discriminate against them, or against the people you hire 

on the basis of religion, at least that is what he wanted to do. 

Since then, there is a suggestion that discrimination would be allowed on a case-by-case basis. It seems fairly unusual that you 

would allow discrimination on a case-by-case basis. Do you have 

any comment on where we are on restoring the civil rights for employees that existed from 1965 until about 2001 or 2002? 

Mr. HOLDER. Well, I think the Administration is committed to 

partnering with faith-based organizations in a way that is consistent with the law, consistent with our values, and consistent 

with the way in which I think this Administration has conducted 

itself. 

The Department will continue to evaluate any legal questions 

that arise with regard to how we do that on a case-by-case basis. 

But I think overall—— 

Mr. SCOTT. I think the law apparently allows discrimination as 

a policy. I mean, you have to set the policy through executive orders and statutes. Is it the policy of this Administration now to 

allow the discrimination on a case-by-case basis, and one group can 

say, well, we don’t hire people based on race and religion, and another group, well, we are not going to allow you to discriminate on 

race and religion? Or is it the policy of this Administration to allow 

discrimination? 

Mr. HOLDER. No, that is not the policy. The policy of the Administration is to interact with faith-based organizations or any organization. 

Mr. SCOTT. Which you can do without discriminating and without proselytizing. 

Mr. HOLDER. We can operate with them and interact with them 

in a way that is consistent with the law, consistent with our values, and consistent with the way in which this Administration, I 

think, has postured itself on a whole range of issues. 

Mr. SCOTT. Well, let’s just be clear. Is it the policy of this Administration to allow—is the policy of the Administration going to be 

discrimination will not be allowed? 

Mr. HOLDER. We are—yes, that is not the view that we share. 

We do not have a view that discrimination is appropriate. 

And we want to, as I said, interact with these organizations 

where these issues are presented in such a way that we are acting 

consistent with the law and acting, again, consistent with what our 

values are, both as a Nation and as an Administration. 

Ms. JACKSON LEE. The gentleman’s time has expired. 

The gentleman from Texas, Mr. Smith. 

Mr. SMITH. Thank you, Madam Chair. 

46 

Mr. AG, the Times Square bomber, Shahzad, was a naturalized 

citizen, just became a naturalized citizen a year ago. As you know, 

current law allows us to denaturalize anybody who in the last 5 

years—— 

Mr. HOLDER. I am sorry, I can’t hear Mr. Smith. 

Ms. JACKSON LEE. Can the technician check the microphones, 

please? 

Mr. HOLDER. I am sorry. 

Mr. SMITH. I regret all of my earlier comments might not have 

been heard earlier. 

Okay. There it is. 

Mr. Attorney General, the Times Square bomber, Mr. Shahzad, 

became a naturalized citizen less than a year ago. Under current 

law, we can denaturalize an individual who has become a naturalized citizen in the last 5 years if they are a member of an organization whose intent is to overthrow the Government of the United 

States. 

Do you consider terrorist organizations to be among the prohibited organizations that would allow us to denaturalize somebody? 

And when I say ‘‘terrorist organization,’’ I am using the definition 

of the Immigration and Nationality Act of a terrorist action. 

Mr. HOLDER. I am not familiar with the immigration laws, or 

that particular immigration law. And I don’t have an ability to, 

without having had a chance to study it, answer that question in 

an intelligent way. 

Mr. SMITH. Well, you are unsure whether someone who is a 

member of a terrorist organization would be able to be 

denaturalized, is that correct, from your answer? 

Mr. HOLDER. Well, my answer is that if, in fact, there is a statute that allows that to occur, it is not a statute that I am conversant with, and I am not in a position to answer your question. 

Mr. SMITH. That was section 240, but I look forward to you getting back to me. 

Would you consider the Pakistani Taliban to be a terrorist organization? 

Mr. HOLDER. If not formally designated, I think we have certainly seen through their actions and certainly in their attempt 

through Mr. Shahzad, that they are certainly a terrorist organization. 

Mr. SMITH. But you consider them to be a terrorist organization? 

Mr. HOLDER. I would, even if not formally designated. 

Mr. SMITH. Would you take action, and the DOJ can initiate this, 

to denaturalize the Times Square bomber? 

Mr. HOLDER. I am sorry? 

Mr. SMITH. Would you take action to denaturalize the Times 

Square bomber on the basis that he was a member of the terrorist 

organization the Pakistani Taliban? 

Mr. HOLDER. We have a wide range of things that we can do 

with regard to the potential defendant in this matter. We have an 

ability to put him in jail for extended periods of time. 

Mr. SMITH. So you don’t intend to denaturalize him? 

Mr. HOLDER. Well, I am saying that we have the ability to do a 

whole variety of other things. And whether or not there is an ability to denaturalize him, by the way, is something that has been disVerDate Aug 31 2005 12:54 Jan 31, 2011 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6601 H:\WORK\FULL\051310\56394.000 HJUD1 PsN: 56394
47 

cussed, and whether or not there are constitutional issues that are 

involved in that process, they certainly have been raised, and I 

think those would have to be considered as well. 

Mr. SMITH. I read your answer to mean that you are not prepared today to say you would denaturalize him. 

Let me go to my next question, which is, in the case of all three 

attempts in the last year, the terrorist attempts, one of which was 

successful, those individuals have had ties to radical Islam. Do you 

feel that these individuals might have been incited to take the actions that they did because of radical Islam? 

Mr. HOLDER. Because of? 

Mr. SMITH. Radical Islam. 

Mr. HOLDER. There are a variety of reasons why I think people 

have taken these actions. One, I think you have to look at each individual case. I mean, we are in the process now of talking to Mr. 

Shahzad to try to understand what it is that drove him to take the 

action he took. 

Mr. SMITH. But radical Islam could have been one of the reasons? 

Mr. HOLDER. Well, there are a variety of reasons. 

Mr. SMITH. Is radical Islam one of them? 

Mr. HOLDER. There are a variety of reasons why people do these 

things. Some of them are potentially religious based. 

Mr. SMITH. What I am asking is if you think, among those variety of reasons, radical Islam might have been one of the reasons 

that the individuals took the steps that they did? 

Mr. HOLDER. We see some radical Islam—I mean, I think those 

people who espouse a version of Islam that is not—— 

Mr. SMITH. Are you uncomfortable attributing any of their actions to radical Islam? It sounds like it. 

Mr. HOLDER. No. I don’t want to say anything negative about a 

religion that is not—— 

Mr. SMITH. We are not talking about Islam. I am talking about 

radical Islam. I not talking about the general religion. 

Mr. HOLDER. Right. And I am saying that a person, like Anwar 

al-Awlaki for instance, who has a version of Islam that is not consistent with the teachings of it and who espouses a radical 

version—— 

Mr. SMITH. Could radical Islam have motivated these individuals 

to take the steps that they did? 

Mr. HOLDER. I certainly think that it is possible that people who 

espouse a radical version of Islam have had an ability to have an 

impact on people like Mr. Shahzad. 

Mr. SMITH. And could it have been the case in one of these three 

instances? 

Mr. HOLDER. Could that have been the case? 

Mr. SMITH. Yeah. Again, could one of these three individuals 

have been incited by radical Islam or at least feel that they could 

have been? 

Mr. HOLDER. I think potentially incited by people who have a 

view of Islam that is inconsistent with—— 

Mr. SMITH. Mr. AG, it is hard to get an answer yes or no, but 

let me go on to my next question. 

This has to do with the transfer of individuals from Guantanamo 

Bay to other countries. Do we know, and I am not asking you about 

48 

specifics or individuals, but I hope our Federal Government, and do 

you have assurances from those countries that have received these 

transferees, that we know where these individuals are? Do we 

know whether they have remained in those countries and have 

been detained or not? 

Mr. HOLDER. When we make these transfer decisions, we work 

out in advance secure arrangements with the receiving nations so 

we have a sense of where they are, what steps are going to be put 

in place to monitor their activities and their movement. 

Mr. SMITH. Have any of these transferees made under this Administration returned to terrorism? 

Mr. HOLDER. I have read reports of that by one person, but I cannot confirm that. 

Mr. SMITH. Let’s just say that one person did, and that could well 

be the case. Doesn’t that give you pause about transferring anyone 

from Gitmo to foreign countries if even one person goes back to the 

battlefield, returns to terrorism, and might kill innocent Americans? Doesn’t that give you pause about the whole program? 

Mr. HOLDER. Well, we put in place a very comprehensive program that looked at the 240 people who were at Guantanamo when 

we got there. 

Mr. SMITH. But it is not working if anybody that has been transferred does return to terrorism, as you just acknowledged might 

have been the case. It seems to me you would want to stop the program and reevaluate the safeguards that you have. 

Mr. HOLDER. Well, I am confident that by putting together law 

enforcement, our military people, our intelligence people, and looking at those 240 people and making determinations as to where 

they should go, the best determinations we could make we actually 

did make. 

Mr. SMITH. But it is obviously not working if you had people return to terrorism who were transferred to other countries who you 

didn’t need to transfer to other countries. 

Ms. JACKSON LEE. The gentleman’s time has expired. 

Mr. HOLDER. Let me be clear here. I have not said that, on the 

basis of anything that I know that is credible or authoritative, that 

anybody that we have released—— 

Mr. SMITH. I thought you just said one may have. 

Mr. HOLDER. I read reports, I said, but in newspapers. That is 

all I am saying. I am not in a position at this point to say that, 

in fact, is accurate. I am not going to comment on the intelligence. 

Ms. JACKSON LEE. The gentleman’s time has expired. 

I now allow myself 5 minutes for questioning. 

Mr. Attorney General, you have had numerable challenges, I 

would almost call it, for fear of using a play on words, a mine field. 

Let me thank you for the deliberative manner in which the Department of Justice has handled the matters for the American People. 

You are to be credited for working through difficult issues and 

being thoughtful, along with your staff. We have difficult issues before us. 

And I would like to start off with my questioning on the whole 

concept of too big to fail. The Department of Justice is now involved. You are involved in the financial markets. You are involved 

in the communications markets, and you are involved in the aviaVerDate Aug 31 2005 12:54 Jan 31, 2011 Jkt 000000 PO 00000 Frm 00052 Fmt 6633 Sfmt 6601 H:\WORK\FULL\051310\56394.000 HJUD1 PsN: 56394
49 

tion market, because there have been efforts to merge. Certainly 

there is a communication merger that is before the Department of 

Justice and another agency, but I will focus my time on the Continental Airlines and United, and raise several questions quickly so 

that you can comment on what kinds of, what structure the investigation will take. Unlike Comcast and NBC, which has a number 

of other agencies, it appears that the Department of Justice in this 

instance may be the overriding agency. 

So the question becomes, do we have a concept merger that represents something too big to fail? Are there major Clayton Section 

7 anticompetitiveness involved routes and otherwise? And do we 

hold to the comments made by one of the CEOs that this is, in essence, my words characterizing theirs, an easy do, a piece of cake, 

and we will be done in a certain period of time? 

The question is, the American people will be drastically impacted, my words, closing routes, closing hubs, changing locations, 

losing jobs; my direct question to you, is the Justice Department 

going to be guided by public statements by CEOs, it is a piece of 

cake? Are they going to be guided by comments, it is an Illinois 

deal, and they will look the other way? And are they going to be 

guided by the fact that the Star Alliance, which you also reviewed 

and thank you for doing so vigorously, was supposed to, by many 

points, represent making these entities strong enough to stay on 

their own, but maybe it was a step toward monopoly; what will be 

the structure of that investigation? And do we expect that you will 

finish it in 2 months, as we have been represented to? 

Mr. HOLDER. Well, we have, I think, a revitalized Antitrust Division that is headed by a very capable woman, Christine Varney. 

And whenever a proposed transaction or agreement raises significant competition issues, the Department’s Antitrust Division will 

conduct a very vigorous investigation, and that is what we would 

plan to do here. 

And to the extent that the merger of United and Continental 

would substantially lessen competition, we would take the appropriate enforcement action. The Department will examine this merger, as it does all of those that are within our responsibility, very 

seriously, take into account all of the information that we can, and 

take very, very seriously the responsibility that we have. 

I am very proud of the work that the Antitrust Division under 

Christie Varney has taken. 

Ms. JACKSON LEE. Will you put any self-imposed deadline on 

yourself, on the Department of Justice? 

Mr. HOLDER. We will take the time that is necessary for us to 

look at it, to make sure that we are comfortable in the decisions 

that we are making. We will not unnecessarily delay things, but we 

will certainly take the time that we need to come up with a reasoned decision. 

Ms. JACKSON LEE. Thank you. 

Let me just, very quickly, two major questions have come up. 

The Arizona law that seems to racially profile a number of classes 

of individuals, the basic question I have beyond racial profiling is 

the preemption question as it relates to immigration law. Have we 

yielded, and does the Justice Department intend to vigorously purVerDate Aug 31 2005 12:54 Jan 31, 2011 Jkt 000000 PO 00000 Frm 00053 Fmt 6633 Sfmt 6601 H:\WORK\FULL\051310\56394.000 HJUD1 PsN: 56394
50 

sue, the question of this law as it may relate to Federal 

preemptiveness? 

And let me ask the other two. Dealing with the Times Square 

bomber, based on your experience, can you compare the effectiveness of the interrogation methods used for the attempted flight 253 

and Times Square bomber, on the one hand, and so-called enhanced interrogation, which you have addressed now in the past, 

such as methods like water boarding, those calling for that approach? Do you believe that the flight 253 suspect’s family, as you 

have indicated, would have come to the United States, persuaded 

him to cooperate and provide significant valuable intelligence, 

which I think is very important, if he had been water boarded, 

rather than giving Miranda warnings, which have been given to 

terrorists, alleged terrorists, by the Bush administration? Effectively, what are we trying to show as we present ourselves to the 

world on fighting the war on terror? 

Mr. HOLDER. Well, I think that if one looks at the facts and looks 

at the questioning that was done by experienced FBI agents with 

regard to Abdulmutallab, with regard to Shahzad, and with regard 

to Headley, one would see that the customary FBI techniques that 

do not involve the use of enhanced interrogation procedures have 

proven to be effective. We have gotten useful information, and useful intelligence, from all of these individuals as a result of the use 

of techniques that are recognized as traditional, and that are recognized as consistent with our values. 

There is not a tension between conducting ourselves in law enforcement in a way that is consistent with our values and being effective and having the ability to protect the American people. And 

I think if one looks at what has happened over the past year, one 

would see dramatic proof of that. 

Ms. JACKSON LEE. The Arizona law Federal preemption and the 

Justice Department’s intention? 

Mr. HOLDER. As I have indicated, we are in the process of looking at that law. We are concerned about the potential impact that 

it has, and whether it contravenes Federal civil rights laws potentially leading to racial profiling. We are also concerned about 

whether there is the possibility that it crosses the line with regard 

to preemption. 

There is certainly an immigration issue, an immigration problem, 

an illegal immigration problem that this country needs to face. The 

concern that we have is this is something that ought to be done on 

a national basis as opposed to trying to do it on a State-by-State 

basis. 

Ms. JACKSON LEE. I thank the gentleman. 

I now recognize the gentleman from California, Mr. Lungren, for 

5 minutes. 

Mr. LUNGREN. Thank you very much. 

And I appreciate your appearance before us, Mr. Attorney General. 

I do have to comment though, we seem so careful not to use 

terms like radical Islam for fear of offense, but we readily refer to 

racial profiling being either the consequence or the motivation of 

the voters and elected officials in Arizona. And I find that remarkable. 

51 

Mr. HOLDER. Well, I am sorry. 

Please do not misinterpret what I said. I did not say that that 

was why, that that was the motivating factor for the people in Arizona. 

I understand their frustration. I am saying that one of the things 

that we need to look at, at the Department of Justice, is whether 

or not we should have a national answer to a problem that is very 

real to them. 

Mr. LUNGREN. I appreciate that, Mr. Attorney General. 

It must be frustrating to the people of Arizona who write in the 

law, there shall not be any racial profiling, by specifying you cannot use that as the reason for stopping an individual or questioning 

an individual, and yet immediately there is a comment on this 

panel and other places that that must be racial profiling. When is 

something not when they say it is not, may be the real question 

here? 

I only half-facetiously ask, can we assure the American people 

that Mr. Shahzad was not motivated by anger developed because 

of the passage of the health care bill? 

Mr. HOLDER. Excuse me? 

Mr. LUNGREN. Well, that was suggested by the mayor of New 

York as the possible reason for the activities, and we seem to be 

reluctant to talk about radical Islam possibly being the case. 

Let me ask this, Mr. Attorney General, on the Miranda warnings. What is the position of your Administration, what is the position of the Justice Department on this question: Do we believe that 

no Miranda warnings should be given until we have gotten from 

suspected terrorists, for whom we have reasonable suspicion they 

are involved with terrorism, that we have got from them every bit 

of information that they have with respect to public safety demands? 

Mr. HOLDER. We do these on a case-by-case basis. And what we 

try to do is make use of the law as it exists. And we certainly know 

that in those initial interactions with people who we suspect to be 

terrorists, there are public safety questions that can be asked of 

them. We try to use the public safety exception to glean as much 

information as we can appropriately and consistent with what the 

Supreme Court has said that we can do. 

Mr. LUNGREN. I appreciate it. 

My question is, at what point in time do you believe that you 

must cease that and give Miranda warnings before further interrogation can take place? 

Mr. HOLDER. Well, a decision has to be made about whether or 

not you are going to give Miranda warnings at the time when you 

feel that you have exhausted all the questioning that you can do 

under the public safety exception, whether you have made the determination that there is perhaps no immediate threat to the public or to the officers who are involved. 

Mr. LUNGREN. That is the question I have. 

There is a distinction, at least in my mind, between the public 

safety exception as previously understood by court decision; that is, 

it is the case of imminent danger. You have the case where a gun 

is missing; you know it is in that location, and someone might pick 

52 

it up and do harm immediately. You have the case of a ticking time 

bomb; you have to get that information immediately. 

But in this case or in cases involving suspected terrorists, presumably we are trying to get more information than just the immediate danger. We are trying to solicit information with respect to 

perhaps a terrorist network. And so my question is, is it not a 

somewhat different application of law or the foundations of the exception of the law to use it in these circumstances involving terrorists as opposed to the conventional notion in regular criminal 

cases? 

Mr. HOLDER. I think the definition of immediate danger really 

can be different if one looks at, to use your words, the traditional 

context as opposed to the terrorist context. That is one of the reasons why we think that we should think about modernizing, and 

clarifying, the public safety exception so that we would have a public safety exception that is prepared—that we can use and deal 

with that. 

Mr. LUNGREN. I understand that. And what I am trying to get 

at is, what is the basis of that? 

For instance, Mr. Abdulmutallab, as I understand it, 

Abdulmutallab gave you information some weeks after you arrested 

him. Or at least, based on statements that have been made from 

the Justice Department, one would ascertain that. If that be the 

case and that information was valuable in allowing us to further 

understand terrorist plots, then one would question whether or not 

we should have tried to get that information earlier, prior to the 

time that we gave him the Miranda warnings. And if, in fact, the 

justification is that it is danger not of this immediate, short time 

period, that is, do we know whether he has another bomb, but 

rather we are trying to gain information with respect to terrorist 

activity, then that notion is different and the underlying legal argument made before the court is different. 

I am trying to glean from you, what is the basis for your use of 

the imminent danger exception in terrorist cases as opposed to 

criminal cases? 

Mr. HOLDER. Well, if the question is, let’s say, in Quarles case, 

where is the gun, a simple question, and that was allowed. 

In a terrorist situation, there are a whole variety of other questions that one would want to put to a person. Are there other people who are similarly engaged are we concerned about? We know 

how al Qaeda likes to do things in tandem. Are there other bombs 

that are—— 

Ms. JACKSON LEE. The gentleman’s time has expired. Finish your 

answer. 

Mr. HOLDER. Are there other bombs that we need to be concerned with? Are there other people who are going to be coming 

this way as a result? Are you maybe the first in a—are you in the 

vanguard of a terrorist attack? These are all questions that we 

think can appropriately be asked under the public safety exception. 

We want to have—our view is that we would like to have a greater 

degree of clarity with regard to what the public safety exception 

would entail, and that would be useful for agents, police officers, 

who have to deal with terrorist suspects. 

Ms. JACKSON LEE. The gentleman’s time has expired. 

53 

I recognize the gentleman from North Carolina for 5 minutes, 

Mr. Watt. 

Mr. WATT. Thank you, Mr. Attorney General. 

I appreciate you being here. 

And this has been a little disjointed process. I hope it hasn’t 

blown up your whole day, but I am happy to have you here. 

Let me ask three quick questions. And to the extent you can 

comment publicly, that would be great. To the extent you want to 

follow up in writing, it would also be great. 

We got some information several weeks ago that Professor Laurence Tribe was coming over to assist you all with the Access to 

Justice Program, and then it has kind of gone quiet since then. So 

one of the things I would like to try to find out is, what he is doing 

and whether we are making, you know, any progress on the Access 

to Justice Program? And maybe you are not ready to roll that out, 

and I respect that if you are not ready to do that publicly here, but 

at some point, it would be great to get a report on that. 

Mr. HOLDER. Well, I can tell you that—— 

Mr. WATT. Go ahead. I was going to ask all three of them, and 

then let you wax and wane, and stay out of it. 

Mr. HOLDER. Okay. 

Mr. WATT. The second thing is, I note that there was a settle- ment with AIG for $6.1 million to African American customers. 

While I never thought I would live to see a day that I thought $6.1 

million was a paltry sum, given the magnitude of distress that AIG 

and others caused African American customers, that seems like a 

fairly modest settlement. To the extent that you are able to provide 

any details on that case without violating whatever ethical standards you have, it would be helpful to get some information on that. 

And then, finally, I wanted to applaud, obviously, the objections 

that you all have interposed to the proposal of Kingston, North 

Carolina, to change its voting system under the Voting Rights Act 

preclearance provisions. And I would like to get, perhaps in writing 

again, because I am not sure if 5 minutes will do justice to it, some 

assessment of the kind of preparation you are making for the onslaught of cases that are likely to come. As soon as this Census is 

over, I suspect there will be a whole new round of voting rights 

cases filed, and I think we need to be as prepared, and DOJ needs 

to be as prepared as possible to meet that onslaught. 

So those are the three areas of inquiry. And I will shut up, and 

you can use the rest of my 5 minutes to respond, and whatever you 

don’t respond to in the 5 minutes, then perhaps you can send us 

something in writing. 

Mr. HOLDER. I will. I will take you up on your offer to respond 

in writing with regard to the second and third questions that you 

raised about the settlement and about the question of the Census 

and the interaction that has with the position we have taken in 

Kingston. 

With regard to the Access to Justice initiative that Professor 

Tribe is involved with, that is something that is really critical to 

me as Attorney General and to the President as well to come up 

with ways in which we make sure that people, irrespective of their 

economic condition, irrespective of their socioeconomic status, have 

an ability to enjoy all the fruit of our great system. 

54 

One of the things that we are focused on and one of the things 

that Professor Tribe is focused on is this whole question of indigent 

defense and whether or not people get adequate representation or 

not based on their economic condition. We have seen studies, we 

have seen reports about people in critical parts of criminal proceedings acting without a lawyer. We are trying to understand 

what the various systems look like around the country. Professor 

Tribe will be intimately involved in that effort in particular, but 

then more generally to make sure that all American citizens have 

equal access to justice. 

He is a very eminent scholar. He is just stepping up, but I expect 

that he will make a major contribution to this Justice Department. 

Mr. WATT. Thank you so much, Madam Chair. 

I will yield back. My time is expired anyway, so I can’t yield any 

time back, but I yield back anyway. 

Ms. JACKSON LEE. I thank the gentleman for yielding what he 

might not have, but for his courtesy. 

I now recognize the gentleman from Virginia, Mr. Goodlatte, for 

5 minutes for his questioning. 

Mr. GOODLATTE. Thank you, Madam Chairman. 

And, Attorney General Holder, welcome. We are pleased to have 

you here today. 

As you know, and I have had some conversations with your staff 

regarding a case that is of great importance in Virginia, in the last 

days of his gubernatorial term, former Virginia Governor Tim 

Kaine inexplicably requested that Jens Soering, a man convicted in 

the Virginia State courts of the brutal and violent murders of two 

residents of central Virginia, in my congressional district, be transferred from Virginia’s prison system to Germany. 

Soering is currently serving two life prison sentences. However, 

if he is transferred to Germany, it is my understanding he could 

be released within 2 years. The decision to approve or deny a proposed transfer is committed to the discretion of the Department of 

Justice and in your hands. 

I understand that the seriousness of the offense and the potential 

public outrage at the transfer are factors that the Department considers in evaluating such transfers. I can attest to you that these 

crimes were heinous and that the public outrage about the potential transfer is extremely high. I have been contacted by many constituents expressing opposition to this transfer, including some involved in the original case. 

In addition, I forwarded to you a letter signed by 75 of the 100 

members of the Virginia House of Delegates opposing this transfer. 

The letter was signed by Republicans, Democrats and Independents alike, and in addition, Governor McDonald contacted the Department to revoke Governor Kaine’s request. 

And I wonder if you can tell us what the status is of that process. 

Mr. HOLDER. Well, first, I would agree with you. Those were heinous and very serious crimes. 

The question I think that the Justice Department has to deal 

with is to see what, in fact, is the position of the State going to 

be, whether or not the revocation recision by Governor McDonald 

of what Governor Kaine did is in fact going to be upheld by the 

courts in Virginia? So until that, I think, determination is made, 

55 

the Justice Department really cannot act. And so I guess we are 

waiting to see that. 

But I will agree with you, we are talking about the most serious 

crimes that one can imagine. Lives were lost as a result of the actions taken by this defendant. And in making any kind of assessment, that would be uppermost in our minds. But I guess we are 

waiting to see what the resolution is of the contrary positions of the 

two Governors. 

Mr. GOODLATTE. Well, General Holder, it seems to me that you, 

in your capacity, could make the decision not to honor the recommendation of Governor Kaine whether or not Governor McDonald’s letter overturning Governor Kaine’s request is recognized or 

not. It doesn’t seem to me that you need to get to that question in 

order to simply make a determination. And I find it hard to believe 

that the Department could contemplate transferring this man to 

Germany when the public outrage over this is so overwhelming; 

and justice is being served by the Virginia criminal justice system, 

and then, in Germany, he could be released in as little as 2 years 

or less, certainly not what has occurred in Virginia, which has required him to serve, so far, the full two life sentences that have 

been imposed upon him. 

Mr. HOLDER. Well, I think in making the determination, it 

makes a lot of sense to get what the State’s position is actually 

going to be. 

And I think that, in that case, it makes sense for us to await the 

official determination of what the position of the State of Virginia 

is with regard to the request that has been made. 

But factoring that in, I want to emphasize that I have been a 

prosecutor, for a good portion of my life. I have prosecuted violent 

crime cases and dealt with them as a judge. This is as serious a 

case as I have seen. And that would obviously be something that 

would weigh into any decision that we had to make. 

Mr. GOODLATTE. Let me ask another question about another 

issue that is pending here in the Congress and of importance. 

Congressman Barney Frank has introduced H.R. 2267, legislation to repeal the recently enacted Unlawful Internet Gambling Enforcement Act, a bill that passed with overwhelming bipartisan 

support. His repeal bill also legalizes and regulates Internet gambling at the Federal level under the Financial Services Regulatory 

Agency. 

Among its various provisions, the bill, in my opinion, guts the 

Wire Act, U.S.C. 1084, by stating that the Wire Act will not apply 

to any activities regulated by the licensing scheme envisioned 

under the bill. 

So I would like to know, first, do you believe that currently illegal offshore gambling operations should be legalized by the Federal 

Government, and do you support or oppose this legislation? 

Mr. HOLDER. We do not support the legalization of offshore gambling. 

When one looks at the negative impact that that has had on the 

lives of individuals, potential that it has for problems that it might 

create, even on a community-wide basis, it just seems to, I think, 

us that that is not something that we necessarily want to support. 

56 

Mr. GOODLATTE. Well, thank you. I appreciate your understanding the risks that Internet gambling imposes on our citizens. 

Madam Chairman, I see my time has expired. 

Ms. JACKSON LEE. The time has expired of the gentleman from 

Virginia. Thank you so very much. 

The Chair will now recognize the gentlelady from California, Ms. 

Waters, for 5 minutes. 

Ms. WATERS. Thank you very much. 

I want to try and get responses on three issues that I have. 

The first one that I talked about was diversity, particularly focused on FBI, and whether or not you have the responsibility for 

working with the FBI to ensure that the discrimination complaints 

that have come from within are being settled and whether or not 

there is a backlog. And I will be writing you some more on this, 

but I want to hear from you just briefly what you know and what 

you have done. 

Mr. HOLDER. Well, just 2 weeks ago, I issued a directive, a diversity plan, for the Department of Justice that includes all of the Department’s components, including the FBI, the DEA, the ATF, and 

the other components that make up the Department. 

There are people who are going to be in place to monitor this situation, to monitor these diversity efforts. All of the components 

have to come back, I believe, by the end of June with what their 

plan is to diversify their ranks. This Department of Justice is committed to diversity. This Department of Justice is at its strongest—— 

Ms. WATERS. Do you still have backlogs in the FBI of discrimination complaints? 

Mr. HOLDER. I am sorry? 

Ms. WATERS. Do you have a backlog of discrimination complaints 

in FBI? 

Mr. HOLDER. I don’t know. I will have to check, and I can get 

back to you on that. 

Ms. WATERS. All right. 

And that report is public, that information? 

Mr. HOLDER. The diversity plan? 

Ms. WATERS. Yes. 

Mr. HOLDER. Yes. 

Ms. WATERS. All right. We will get a copy of that. 

Quickly, moving to antitrust, the big one, the media merger of 

the purchase of NBC by Comcast and how you view these things. 

We are concerned because of the size of this purchase, and we are 

concerned that this consolidation will cause Comcast to own movie 

studios, Internet, cable, broadband, you name it. And some of these 

mergers, they don’t have any public hearings on. We work with the 

FCC, and they did agree to extend the comment period. Now, what 

is your responsibility? 

Mr. HOLDER. Well, we certainly look at these for their impact on 

competition and whether or not they unnecessarily consolidate 

things that should be separate. 

The Justice Department does not typically hold hearings or does 

not hold hearings when we conduct our antitrust investigations. I 

understand that the FCC perhaps has had one or is planning to 

have one, and that certainly, I think, is in there for them to decide. 

57 

The work that the Justice Department does is typically done in 

a nonpublic setting. 

Ms. WATERS. Would you be advantaged in any way if you had information from a public hearing from all kinds of production groups 

and people involved in media about the lack of access to ownership 

and programming and management and all of that? Would that 

help you in any way with your decision? 

Mr. HOLDER. Sure. I mean, we make our best decisions when we 

have access to the greatest amount of information. 

Ms. WATERS. So public hearings that would draw this information out could be helpful to you, is that right? 

Mr. HOLDER. It could be. 

But we will be taking our own steps to try to reach out to affected, potentially affected parties and individuals and get information from them. But certainly, anything that develops the record 

that gets more information out there that we have that we can 

have access to would be something that would be good. 

Ms. WATERS. And can I have my staff talk with you about what 

steps you will be taking? We would like to know. Perhaps we can 

be of assistance, coming from the Los Angeles area, where we have 

lots of people in production, et cetera, that are really concerned 

about this purchase, okay? 

Mr. HOLDER. Sure. I would be glad to talk to you. But, again, 

there are limits that when we have ongoing investigations, there 

is only so much that we can discuss. But I think, in terms, there 

may be—— 

Ms. WATERS. Whatever you can discuss. 

Mr. HOLDER. There may be things we can discuss, though. 

Ms. WATERS. And finally, let me just ask you about the militias 

and the right wing terrorist organizations. 

I am particularly concerned about the one who had planned to 

kill a police officer, and once the police arrived, that they would 

have a lot in plain view to kill. I haven’t heard of terms like domestic terrorism. I am concerned about a possible Timothy McVeigh 

type incident with some of these militias. I know Homeland Security has some responsibility. What is your responsibility, and what 

are you doing? 

Mr. HOLDER. You know, I think you raise a very good point. 

We have focused a great deal on international terrorists, as we 

should, but we cannot take our eyes off the fact that we have within our own country domestic terrorism that we also must confront. 

The case that you described, the Hutaree case, is an example of 

that. And their plot to kill a police officer and then to try to kill 

more police officers who came to the funeral is an indication of the 

kind of activity, the kind of heinous acts that we have to be concerned with. 

If one looks at the statistics that have been developed, you see 

that there has been a pretty dramatic rise in the number of these 

domestic hate groups, and that gives us great concern. 

The FBI monitors these groups, always being mindful of the fact 

of that people have First Amendment rights. But we monitor these 

groups to make sure that they don’t cross the line from that which 

is protected by the First Amendment and crosses into that which 

is criminal. 

58 

Ms. WATERS. So is there a formal kind of definition or way of approaching domestic terrorism and to raise the level of attention on 

domestic terrorism the way we have done on foreign terrorism? 

I don’t hear it talked about. I don’t hear anything coming over 

to us to talk about domestic terrorism. I did hear this morning that 

a kid was accused of being a terrorist in school because this autistic kid drew some pictures, what looked like violent pictures, but 

I have never heard of this kind of terrorism being described domestically. And what can you do to help focus this country and this 

Congress on domestic terrorism? 

Mr. HOLDER. Well, I start my day at 8:30 with a briefing with 

the FBI Director about—— 

Ms. JACKSON LEE. If the General can wrap up, the gentlelady’s 

time has expired, but I will allow you to finish the answer, please. 

Attorney General HOLDER [continuing]. Where we review the 

threat stream for the past 24 hours. And a component of that conversation, that briefing, focuses on what is going on domestically. 

And so the American people should, I think, be reassured that 

their law enforcement agencies, the FBI, their Justice Department, 

is focused not only on international terrorism but on domestic terrorism as well. 

Ms. WATERS. The gentlelady’s time has expired. 

The gentleman from California, Mr. Issa, is recognized for 5 minutes. 

Mr. ISSA. Thank you, Madam Chair. 

General Holder, as I said in my opening statement, I am deeply 

concerned that a seated Member of Congress, a distinguished Member of this body, has alleged what amounts to three felonies. The 

former U.S. Attorney, now Senator, Arlen Specter, has confirmed 

that, in his opinion, if the allegations are true, they are felonies. 

What are you presently doing and what will you commit to do, 

including hopefully a special prosecutor or a special investigator, 

about these allegations by a former admiral in the Navy and now 

U.S. Congressman? 

Mr. HOLDER. Well, I can say that, with regard to the appointment of a special prosecutor, that is something that is done on a 

case-by-case basis. 

Mr. ISSA. And what could be more a case by case than an allegation that this White House has committed three felonies in offering 

a Member of Congress a high-ranking position in this Administration in return for his getting out of the primary? What could be 

more appropriate than that? And if it is not appropriate and you 

are not conflicted, then what are you doing about it? 

Mr. HOLDER. Well, there are regulations that are in place. And 

there are requirements that have to be met before a special prosecutor, an independent counsel, is appointed. I have great faith in 

the people in the Public Integrity Section who would typically handle these kinds of matters. I was a member of the Public Integrity 

Section for 12 years. 

Mr. ISSA. Fine. I sent you a letter, you have not responded to it. 

What is the response to investigating this? These are allegations of 

three crimes. There is an election to be held in a matter of days, 

greatly influenced in the entire State of Pennsylvania by these unanswered allegations of White House criminal activity? 

59 

Mr. HOLDER. Well, I thought we had responded to your letter. If 

we had not, I apologize for that. These are matters, all of these 

matters, any matter that comes up like that are obviously fact-specific and deals a lot with what the intent of the person was. I am 

not speaking specifically about the matter that you have raised, because I don’t talk about any matter that might come into the purview of the Department of Justice. 

Mr. ISSA. Okay. 

Well, then let’s talk hypothetical for a moment, Mr. General. 

Section 211, which prescribes what bribery is, the offer of a government job, which is Section 600, by an official; are these serious 

matters? 

Mr. HOLDER. Simply offering somebody a job? 

Mr. ISSA. If I offer you a job in the White House, let’s say Secretary of the Navy, in return for your doing something, such as 

dropping out of an elected office to clear a primary, is that a serious crime? 

Mr. HOLDER. Well, I think we are talking about more than a hypothetical now. 

Mr. ISSA. I am asking if that hypothetical is a crime. You don’t 

answer specifics, Mr. General. 

Do you answer hypotheticals? Is that a crime? 

Mr. HOLDER. I don’t answer hypotheticals. 

Mr. ISSA. Okay. So let me understand this. There has been an 

allegation by a Member of this body. The allegation is that he was 

offered a position, a high-ranking position in the Administration, in 

return for getting out of the primary, which he declined and stayed 

in the primary. 

You are saying, let the ethics section, the integrity section, handle it. You don’t comment on it. 

Then I asked you, if allegations similar that I have alleged were 

true, would there be a crime? And you are saying you don’t answer 

hypotheticals. 

Well, look, you are here before us today. If you won’t answer 

literals and you won’t answer hypotheticals, you don’t answer or 

apparently investigate, we have an allegation of three felonies, the 

Congressman says are felonies and a seated U.S. Senator, a member of the same party has said is if true is a crime and you are 

not investigating whether it is a false statement by a Member of 

Congress or a crime by the White House, what are we to do. 

Mr. HOLDER. You see the danger in dealing with hypotheticals is 

because you can never spin out in its totality what a real case 

would look like. 

Mr. ISSA. General Holder, it is not a hypothetical when Congressman Joe Sestak says he was offered a job by this White House in 

contradiction to at least three sections of the U.S. Code. I have 

asked you what you are doing about it and apparently you are not 

willing to say that it is being handled by the public integrity section. You are only willing to say that those kinds of things are handled. 

Have you put any attention into following up on our letter and 

the allegation of Congressman Sestak? 

Mr. HOLDER. As I said, I thought we had responded to your letter, but you are saying the premise—— 

60 

Mr. ISSA. It could be in the mail, but it is very slow sometimes. 

We have not received it. 

Mr. HOLDER. I apologize if we have not done that. The premise 

that you make, though, that there are violations of these statutes, 

again, things that would have to be examined would have to be 

looked at by—— 

Mr. ISSA. I’m only asking you if you have followed up on the allegations by a Member of Congress and an assertion by a U.S. Senator. That is all I’m asking. I’m not asking for all the details of how 

you would follow up. 

Have you followed up on these allegations that we brought to 

your attention that, to be honest, national press has brought to 

your attention? 

Mr. HOLDER. As I said, it is the Department’s policy not to comment on anything, not to comment on pending matters to say there 

is an investigation to say there is not an investigation, that is not 

the way in which the Department of Justice under Republican or 

Democratic attorneys general have conducted. That is not what we 

do. And that is the way I answered the question you pose to me. 

Mr. ISSA. I’m sorry, you can’t answer the question. I yield back. 

Ms. JACKSON LEE. The gentleman’s time has expired. The Chair 

is being sensitive to Members who are in the midst of questions so 

Mr. General, you will see the light red, but we want to allow Members to be able to finish their question and their answer. And Members, we recognize that there are people who are still traveling. 

With that, I will recognize in Pierluisi for 5 minutes. 

Mr. PIERLUISI. Thank you, Madam Chair. Thank you again, Attorney General. 

I would like you to address a bit further the Arizona matter. I 

heard you say that you are looking into the matter. The way I see 

it, and you heard me before, I find the whole matter offensive on 

behalf of all Hispanics in America, but I bet I can speak for others 

as well. This is a Nation of immigrants. And most of them are either U.S. citizens or legally residing in this country. So I am very 

disturbed by this law. And regardless of the motives, I’m talking 

about a law that lends itself, on its face, to racial profiling. 

Now the way I see what the Department could be doing, I see 

that the Department could be doing any of three things. First, challenge the law in court, second, clarify its position on the preemption issue that this matter raises, and third, deal with, assuming 

the law ends up being in effect and it is not challenged, dealing 

with its implementation, civil rights actions to the extent that 

there are civil rights violations. 

So I just want you to be a bit more specific. What are you looking 

at? And what can we reasonably expect from the Department in 

this matter in the near future? 

Mr. HOLDER. Well, we are examining the law and trying to determine if it contravenes the Federal responsibility for the immigration question, whether or not what the Arizona legislature has 

tried to do is actually preempted by Federal law, by Federal statutes. In addition to that, we are looking at it from a civil liberties 

perspective to see whether or not the law contravenes Federal civil 

rights statutes. That inquiry, that look at the law is presently unVerDate Aug 31 2005 12:54 Jan 31, 2011 Jkt 000000 PO 00000 Frm 00064 Fmt 6633 Sfmt 6601 H:\WORK\FULL\051310\56394.000 HJUD1 PsN: 56394
61 

derway, and we are in the process of trying to determine what action, if any, we are going to take. 

Mr. PIERLUISI. I see. If I have time, and I will add one thing that 

troubles me as a former attorney general, I think community policing is so effective in America, and this matter also raises the possibility of affecting the ability of local law enforcement to deal with 

our communities, gain the trust of residents in our communities 

when they are under siege by all crimes, not only immigration violations. So that troubles me. I would like to hear from you on that. 

Mr. HOLDER. Though I understand as I think I said before the 

frustration of people along the border and Arizona I guess here specifically one of the concerns I have is exactly the one that you have 

just talked about, and whether or not the passage of this law will 

serve as a wedge between law enforcement and the communities 

that law enforcement is supposed to serve. 

If a community feels that it is being treated unfairly, that it is 

being profiled, you are less likely to have people share information 

with law enforcement, you are less likely to have an ability to solve 

crimes in that community. And those are the kinds of issues that 

I think we have to take into consideration as we look at the law. 

Mr. PIERLUISI. Thank you. 

Ms. JACKSON LEE. The gentleman yields back? 

Mr. PIERLUISI. I do. 

Ms. JACKSON LEE. The gentleman yields back. We now recognize 

Mr. Coble for 5 minutes. The gentleman from North Carolina. 

Mr. COBLE. Thank you, Madam Chairman. General, let me extend from my opening remarks this morning. What criteria, General, set apart Khalid Sheikh Mohammed and his co-conspirators 

from other Gitmo detainees that require or who require civilian 

rather than military commission trials? 

Mr. HOLDER. Well, the determinations that I have tried to make 

in making assessments as to where these cases can be tried are 

case specific, where can the case best be tried. On the same day 

that I made the announcement that the case would be tried in a 

civilian court, I sent five or six other cases, I don’t remember exactly how many, to military commissions. The question of military 

commissions deals in some ways with the acquisition of evidence on 

the battlefield. But we make these cases—I make these determinations on a case-by-case basis following a protocol that I have with— 

that is used by me and by the Department of Defense. 

And so each case is assessed and a determination made about 

where we can best try the case, where justice can best be accomplished. 

Mr. COBLE. Thank you, General. 

General, you recently stated that the Department is still reviewing where to try Khalid Mohammed and his co-conspirators. What 

issues is the Department still addressing? 

Mr. HOLDER. Well we have not—there is a review underway 

about the determination that I made, I guess, back in November 

about the location of the trial. We take into account a variety of 

things: the reaction of political leaders in particular areas, the reaction of the public in that area. And we are taking into account 

a whole variety of things in making that determination. We are not 

62 

ruling anything in or ruling anything out at this point. That review 

is still underway. 

Mr. COBLE. General, how many venues are you considering? 

Mr. HOLDER. Well, I would say that we are considering a variety 

of places in which and forums in which that case might be held. 

Mr. COBLE. I guess specifically what I am driving at is, in your 

opinion, does the capital venue statute that indicates the punishable by death violation shall be in the county where the offense 

was transmitted, would that limit it to New York, Pennsylvania 

and Virginia? 

Mr. HOLDER. Yeah, that is a very good point. That is a statute 

that we have to deal with in making these determinations. There 

is a statute that says if you are going to seek the death penalty, 

the trial has to occur in the place where the offense actually took 

place which does limit, in some ways, our ability as to where the 

trial could be venued, though there is some question about how directive, how strong that particular statute is. But that statute certainly is a factor that has to be taken into consideration. 

Mr. COBLE. Thank you, General Holder. 

Madam Chair, I yield to the gentleman from Virginia my remaining time. 

Ms. JACKSON LEE. The gentleman from Virginia is recognized for 

the remaining time. 

Mr. GOODLATTE. I thank the gentleman for yielding. General 

Holder, following up to the comments of the gentleman from California, I’m not taking a position for or against the Comcast/NBC 

Universal merger, but I do want to make the point that I think the 

Department’s job is to conduct a fair, thorough and expeditious review, apply the facts to the law and make a decision based on that 

analysis, and I have every confidence that you and the Department 

will do just that. 

Mr. HOLDER. Thank you. 

Mr. GOODLATTE. I yield back the gentleman. 

Mr. COBLE. I reclaim it and yield back, Madam Chairwoman. 

Ms. JACKSON LEE. The gentleman yields back, and I now recognize the gentleman from Tennessee, Mr. Cohen for 5 minutes. 

Mr. COHEN. Thank you, Madam Chair. 

General Holder, we had talked about racial disparities earlier 

last year when you were before us. And I have a bill which I have 

introduced, the Justice Integrity Act originally introduced also in 

the Senate by Senator Biden, and it was to look at a study of racial 

and ethnic disparities. We have held back on the bill at the request, I believe, of the Justice Department because you were doing 

an internal study. Have you concluded that study? 

Mr. HOLDER. The studies that we are doing are still, they are 

fairly close to, as I like to say, coming into a landing, and I’m starting to hear now back from the task forces that we created, and on 

the basis of some of the reports that I am receiving, I will be announcing a variety of things over the next 2 weeks or so. But the 

one that you are talking about, I have not yet seen a report. 

Mr. COHEN. When do you think you might see a report on that 

one? You don’t have one on racial disparities yet, do you have others? 

63 

Mr. HOLDER. Well, we certainly have, we have been looking at 

the question of looking at racial disparities, geographic disparities 

as well, with regard to the criminal law, and I have received a report on that. And we will be issuing some guidance in that regard 

very soon. 

Mr. COHEN. Very soon. That is good and that report will be released to the Judiciary Committee and the public, I presume? 

Mr. HOLDER. It is something that will be public. It will be certainly released in the field, and I’m sure that the public will have 

an ability to look at my pronouncement. 

Mr. COHEN. Also, I have introduced legislation which I will be introducing today to require States and localities that receive funds 

through the Byrne program, JAG program, to study racial and ethnic disparities in their criminal justice systems work to reduce 

those. Do you agree that States and localities have a responsibility 

to make sure Federal funds such as Byrne grants are not used to 

perpetuate in any way whatsoever racial and ethnic disparities in 

reports would be a good way to put them on notice and maybe ferret out those situations? 

Mr. HOLDER. Sure. The Byrne and JAG grants are one of the 

chief ways in which we support our State and local counterparts, 

and we would expect that that would be done in a nondiscriminatory manner and done in a way that would not promote disparities and that would be responsive to the needs of particular communities. We are trying to make sure that those grants further the 

cause of equal justice as opposed to retarding it. 

Mr. COHEN. I mentioned in my opening statement my support for 

Senator Webb’s bill, which I believe Congressman Delahunt is a 

sponsor of here. Has the Justice Department done any, or intend 

to do any comprehensive looks at our sentencing laws and try to 

reform them so that they are in the 21st century? 

Mr. HOLDER. One of the task forces that I put in place has looked 

at the Federal sentencing laws, and it is as a result of that, again, 

there will be something issued very shortly from me to the field. 

We have looked at the Webb bill as modified and it is one that the 

Administration again has modified and now supports. 

Mr. COHEN. There was an April 22 Federal District Court sentencing ruling by Judge George Wu. Are you familiar with Judge 

Wu? He issued a 41-page written order concerning a man named 

Charles Lynch, who was convicted of medical marijuana dispensing, and in that opinion he said much of the problem could be 

ameliorated by the reclassification of marijuana from Schedule I. 

What are your thoughts that you could share with us about how 

the Department will approach a rescheduling hearing of marijuana, 

which is right now in the highest class that the Federal Government knows, means it is at a level with Dilaudid, opium, heroin, 

as far as being habit forming, addictive and troublesome and expensive and bad and all those other things? 

Mr. HOLDER. One has to look at the issue of marijuana in its totality. The Mexican cartels get the greatest amount of their revenue from the trafficking of marijuana. It is something that fuels, 

helps to fuel the violence we have seen in Mexico. It is potentially 

something that can—the trafficking of this substance can have an 

effect on violence in the United States. 

64 

What the Administration has done is to say that in those States, 

where a determination has been made that medical use can be 

made of marijuana that we would not use our limited resources to 

go after marijuana being used in that way but to focus our attention on those people who are major traffickers of marijuana and 

other drugs that have such a negative impact on so many communities in this country. 

Mr. COHEN. If I could ask the Chair for just 30 more seconds. 

Thank you, Madam Chair. 

On that subject, I concur and commend you on that. But I would 

like to suggest that possibly the reason that there is such a demand for that product that causes all the violence is because it is 

illegal, and maybe if it wasn’t a class 1 and maybe if there was 

some other determinations maybe you would, and obviously it must 

be popular some place with someone. And that is why maybe we 

should take into consideration the popularity and demand and 

maybe changing cultural norms and values and maybe supply and 

demand then we could reduce violence through another way, violence with violence, and violence with incarceration and instead 

kind of work our way through this, get to a higher place so to 

speak. 

Ms. JACKSON LEE. The gentleman’s time has expired. 

Do you have a response? 

Mr. HOLDER. Well, I would only say that I think one of the 

things we ought to try to do is reduce demand for marijuana and 

other drugs that will help our Mexican counterparts. It is, I think, 

the responsibility of the United States to try to do that. This Administration has tried to do that through the use of drug courts 

and treatment, added money for treatment facilities, and, I think, 

that is the way in which we can decrease the amount of violence 

that we see. 

Ms. JACKSON LEE. The gentleman from Iowa, Mr. King is recognized for 5 minutes. 

Mr. KING. Thank you, Madam Chair. General Holder, thanks for 

coming forward to testify today. I appreciate it. It is a long day. It 

comes to mind that Representative Chu spoke earlier in her opening remarks about how Arizona’s immigration law institutionalizes 

racial profiling. And she also said that people are already being detained because they forgot their driver’s license at home. Could you 

add some clarity to that statement for this panel, please? 

Mr. HOLDER. Well, I am not familiar with the incident perhaps 

that Congresswoman Chu was talking about. The concerns that I 

have expressed are with regard to the whole question of preemption and whether the statute gets into areas that are more properly 

handled by the Federal Government and what the impact of the 

law will be on law enforcement and its interaction, its relationship 

with certain communities in Arizona. 

Mr. KING. Perhaps if I just state into the record that the Arizona 

law isn’t an Act, it doesn’t go into effect until 90 days until its passage and signature by the Governor, then we could agree that any 

action that would be taking place on Arizona’s immigration law 

would not take place until 90 days after it is signed by the Governor, and the balance of any activity might have been inspired by 

the press or public dialogue, but nothing on the authority of the 

65 

legislation could possibly be taking place at this point. Would you 

agree? 

Mr. HOLDER. Again, I’m not familiar with the fact situation that 

she mentioned—— 

Mr. KING. Wouldn’t that generally be the standard, though, if it 

were Federal law or a State statute that until it is enacted, it can’t 

have an effect legally and so her remarks that she has made could 

not be relevant to the law’s enactment itself? 

Mr. HOLDER. Again, I don’t know whether some police officer 

thinking that the law is going to be taking effect has acted in a 

way that is inappropriate. I just don’t know anything about the fact 

situation that she has described. 

Mr. KING. Then let’s try this down the path of the Constitution 

preemption which you mentioned. And as I understand Arizona 

law, and I could probably list a couple of minor exceptions, it mirrors Federal immigration law, and the question and the charge 

that seems to come from the President was that the Department 

of Justice was going to be looking into Arizona’s immigration law 

and presumptive, presumably to evaluate its constitutionality, 

which you had referenced, and whether it would violate any Federal statute under that preemption clause. Could you, today, point 

to anything in the Constitution that would prevent Arizona from 

passing and enforcing immigration law provided it didn’t go beyond 

the bounds of Federal immigration law within the idea of mirroring 

that Federal immigration law, and is there anything in the Constitution you could point to that would define Arizona’s immigration law as unconstitutional or potentially unconstitutional? 

Mr. HOLDER. Well, the regulation of our borders and the immigration that occurs by crossing our borders is something that is inherently something I believe for the national government to take 

responsibility for. 

As I indicated, I understand the frustration that people feel in 

Arizona. We have not done, I think, enough as a Nation to deal 

with a very real problem that people in the Southwest border have 

to deal with. But it is really more than them. It really is a national 

problem. I think that is why the President has said that a comprehensive look at this issue, dealing with the causes of illegal migration as well as what we do with those people who are here without documentation is a way in which we can hopefully solve this 

problem. 

Mr. KING. But General Holder, now we have now digressed into 

policy, and as far as specificity, with regard to the Constitution or 

current Federal statute, and you have already gone in and investigated this, I presume, at the direction of the President, so you 

should know today whether there is a constitutional point that can 

be made or a Federal statutory point that can be made, and I will 

suggest that I have looked at this and I have asked our attorneys 

to look at this, and we have not found a constitutional argument 

that would indicate that Arizona has violated the Federal Constitution, nor have we found a way that Arizona has gone beyond the 

bounds of Federal immigration statute. And I point out also that 

in the Constitution there is nothing there that defines immigration 

law as the exclusive province of the Federal Government. Only two 

places, protection from invasion and then Article I, Section 8 that 

66 

says to establish a uniform rule of naturalization, the balance of 

that is implicit. And case law supports local law enforcement enforcing Federal immigration law. So how would you respond to 

that? 

Mr. HOLDER. Our view is still underway. We have not made a 

determination yet whether or not Federal law preempts the Arizona statute. That is something that we are examining. I was saying that was one of the two bases upon which we might take some 

legal action. But we are not at that stage. We are not at that point 

where we have made a determination that, in fact, it contravenes 

Federal law. 

Mr. KING. Just to respond briefly to that inconclusive answer. I 

would point out there have been a significant amount of resources 

that have beeninvested in looking at Arizona immigration law. It 

appears to follow a pattern of political actions of your office. And 

the ACORN investigation couldn’t seem to get started with one single individual or one single investment of dollars, which has this 

country entirely tied up in knots and it threatens the very, the 

underpinnings for our Constitution are legitimate elections. The 

threat to our legitimate elections, that is the one thing that would 

break, tear this country down is if we lost our confidence in the 

electoral process. 

Yet we can’t investigate ACORN, but we can investigate Arizona 

and we still can’t find out what might have brought your attention 

to that, as you haven’t pointed out anything in the Constitution or 

Federal statute or case law that would direct anyone to look into 

the Arizona law. So I would be happy to conclude my statement 

with that and yield back the balance of my time. 

Ms. JACKSON LEE. Thank you. The gentleman’s time has expired. 

Mr. HOLDER. I just want to make one point very clear. The determinations that we make as to what statutes we look at, what cases 

we investigate, are done in an apolitical way. I am quite proud of 

the time I have spent in this Department of Justice. I consider myself a career guy. I have served very proudly under both Democratic and Republican attorneys general. I understand the traditions of this Department. I will not allow this Department of Justice to be politicized. People may not agree with the decisions that 

I make. But I want the American people to know, right or wrong, 

the decisions I make are based on the facts and the law and have 

no basis in politics. That is not what this Justice Department is 

about. That is not what this attorney general is about. 

Ms. JACKSON LEE. The gentleman from Georgia, Mr. Johnson, is 

recognized for 5 minutes for his questioning. 

Mr. JOHNSON. Thank you, Madam Chairwoman. 

General Holder, there have been a number of myths that have 

been perpetrated by the politicians seeking to inject politics into 

the political process. And one of these myths that has once again 

reared its ugly head has been the notion that the Obama administration and you as the attorney general place the U.S. at risk by 

prosecuting terrorists in Federal Court, including the Christmas 

Day bombers and the 9/11 defendants, and now the Christmas Day 

underwear bomber and the gentleman who was recently arrested 

for leaving a car packed with explosives in Times Square. 

67 

And now prior to this issue becoming a political football, the 

Bush administration had tried numerous terrorist suspects in the 

Federal courts, including the shoe bomber, Richard Reid, whose 

case is strikingly similar to the underwear bomber’s case, and also 

Zacarias Mousawi, the so-called 20th 9/11 hijacker. And is it true 

that according to the Bush administration numbers itself, that 

there have been over 300 antiterrorism cases that were prosecuted 

in civilian courts after 9/11—— 

Mr. HOLDER. Yes, that is a number that I think is accurate. And 

I think that we learn from that number and from what we have 

been able to do in the 15, 16 months or so that this Administration 

has been in existence that our Federal criminal courts can handle 

these matters. History shows that. The facts demonstrate that. 

The concern I have is that to the extent that people want to take 

away from us the ability to bring cases in the Federal courts, you 

take away from us an extremely valuable tool. You actually weaken 

this country, you weaken our ability to fight this war against those 

who would do this Nation harm. We have to be able to use our 

military power. We need to use our military commissions. We need 

to use our diplomatic power, our economic strength, as well as the 

Federal criminal justice system if we are going to be really effective 

and ultimately win this war. We should not have this tool taken 

away from us. 

Mr. JOHNSON. Well, now tell me during the Bush administration 

when these 300 or so cases, antiterrorism cases, were making their 

way through Federal Court to final disposition, the success rate in 

those prosecutions was phenomenal, was it not? 

Mr. HOLDER. I don’t have the exact numbers but the numbers 

were in the very, very high 90 percentage rate. 

Mr. JOHNSON. Now if you could, I have been having trouble with 

this. If you could tell me what has actually changed from the time 

that these 300 Bush administration cases were prosecuted in the 

civilian courts to the current time, where we say that the civilian 

courts are inadequate, ill equipped and incompetent and unable to 

do what it has already established a track record of doing? What 

has changed now other than the ascent of the current party in 

power to that position? 

Mr. HOLDER. Well, I often ask myself that same question as I 

look at people who hold themselves out as experts, pundits on television and who I think were notably silent when actions that we 

are taking now were taken by the Bush administration previously. 

I will leave to them to decide exactly what it is that has caused 

them to change their views when we have a consistent policy when 

it comes to the use of the Federal criminal justice system to handle 

these terrorism cases. But I do think that your suggestion that the 

party that is now making these determinations has changed, is certainly a factor. 

Mr. JOHNSON. Well, if I might add a little commentary or editorial commentary onto the back of that, I think it is another illustration of the politicization of the notions of justice and fair play 

that I have come to respect during my 30 years as a lawyer. 

Mr. HOLDER. I would say that is something that is extremely 

worrisome. I would think that the one place in which politics might 

not enter is when we talk about issues involving the national secuVerDate Aug 31 2005 12:54 Jan 31, 2011 Jkt 000000 PO 00000 Frm 00071 Fmt 6633 Sfmt 6601 H:\WORK\FULL\051310\56394.000 HJUD1 PsN: 56394
68 

rity that we could as Americans put aside the idea of gaining political advantage when the stakes are as high as they are. 

We are talking about protection of the American people, protection of American interests around the world. If ever there was 

something that should unite us—I’m not saying we have to agree 

on everything—but the notion that I see, I think, too often about 

using this particular subject to try to gain political advantage is, 

from my perspective, very distressing. 

Ms. JACKSON LEE. The gentleman’s time is expired. 

Mr. JOHNSON. Thank you, Madam Chair. 

The JACKSON LEE. The gentleman from Texas, Mr. Poe, is recognized for 5 minutes. 

Mr. POE. Thank you Madam Speaker. 

Thank you for being here. We know that terrorists use weaknesses in our immigration laws and our border security laws to 

come into the United States to carry out attacks. So Arizona, since 

the Federal Government totally fails to secure the border, desperately then passed laws to protect its own people. The law is supported by 70 percent of the people in Arizona, 60 percent of all 

Americans and 50 percent of all Hispanics according to the Wall 

Street Journal NBC poll done just this week. 

And I understand that you may file a lawsuit against the law. 

It seems to me the Administration ought to be enforcing border security and immigration laws and not challenge them and that the 

Administration is on the wrong side of the American people. Have 

you read the Arizona law? 

Mr. HOLDER. I have not had a chance to. I have glanced at it. 

I have not read it. 

Mr. POE. It is 10 pages. It is a lot shorter than the health care 

bill which was 2,000 pages long. I will give you my copy of it if you 

would like to have a copy. Even though you haven’t read the law, 

do you have an opinion as to whether it is constitutional? 

Mr. HOLDER. I have not been briefed yet. We as I said have had 

underway a review of the law. I have not been briefed by the people who have are responsible for that review. 

Mr. POE. Are you going to read the law? 

Mr. HOLDER. I am sure I will read the law in anticipation of that 

briefing. I know that they will put that in front of me, and I will 

spend a good evening reading the law. 

Mr. POE. Well, I have gone through it, and it is pretty simple. 

It takes the Federal law and makes it, enacts it as a State statute, 

although it makes it much more refined in that it actually says in 

one of the sections that no State or subdivision may consider race, 

color, national origin in implementing the requirements of any subsection of this law. It seems to outlaw racial profiling in the law. 

I know there has been a lot of media hype about the legislation. 

Do you say see a difference in the constitutionality of a statute 

and the constitutionality of the application of that statute? Do you 

see there is a difference in those two? 

Mr. HOLDER. Sure, there is a potential for challenging a law on 

its face and then challenging a law as it is applied. So there are 

two bases for challenging a particular statute. 

Mr. POE. And when do you think you will have an opinion as to 

whether the law is constitutional? 

69 

Mr. HOLDER. I have used this term a lot, but I think this is relatively soon. I think that we have to. There has been much discussion about this. The review is underway. The Department of Justice, along with the Department of Homeland Security, is involved 

in this review, and I would expect our view of the law will be expressed relatively soon. 

Mr. POE. You have some concerns about the statute, and it is 

hard for me to understand how you would have concerns about 

something being unconstitutional if you haven’t even read the law. 

It seems like you wouldn’t make a judgment about whether it violates civil rights statutes, whether it violates Federal preemption 

concepts, if you haven’t read the law. So can you help me out there 

a little bit how you can make a judgment call on that, but you 

haven’t read the law and determined whether it is constitutional 

or not? 

Mr. HOLDER. What I have said is I have not made up my mind. 

I have only made the comments that I have made on the basis of 

things I have been able to glean by reading newspaper accounts obviously on television, talking to people on the review panel, on the 

review team looking at the law. But I have not reached any conclusions as yet with regard to it. I have just expressed concerns on the 

basis of what I have heard about the law. But I am not in a position to say at this point, not having read the law, not having had 

the chance to interact with the people doing the review exactly 

what my position is. 

Mr. POE. The 287(g) program is Federal law that helps implement Federal immigration statutes and gives States the authority 

to implement and enforce Federal statutes. Do you believe that is 

constitutional? 

Mr. HOLDER. Section 287? 

Mr. POE. 287(g). 

Mr. HOLDER. Yes. I believe that is constitutional. 

Mr. POE. Just a couple more questions in the minute that I have 

left. 

The folks in Arizona, it seems to me, are like the folks in Texas. 

They see people coming across the border, illegal entry, people 

being in the country illegally, still against the law. The Federal 

Government is supposedly, according to you and others, that is the 

Federal Government’s job to secure the borders. We secure the borders of foreign countries; Third World countries protect their borders better than we do. I think for political reasons we don’t secure 

the border. This is not the first Administration that hasn’t secured 

the border. I hope it is the last Administration so that it actually 

does secure the border. 

The law, it seems, should be enforced and if the Federal Government performed its role, Arizona wouldn’t need to have these desperate measures. Other States are talking about the same thing. 

They wouldn’t have to have these measures if the Federal Government just did its job. 

Last question. Do you think if the Governors asked for the National Guard on the border that that is a constitutional request? 

Ms. JACKSON LEE. The gentleman’s time has expired. I will allow 

the General to respond to his question. 

70 

Mr. HOLDER. As I said earlier, I think we have to have as a comprehensive look at this. And we have to have, we have to secure 

our borders. We have to also deal with the millions of people who 

are here in an undocumented way. This is a national issue. It requires, I think, a national response, not necessarily, even understanding the frustration the people feel in Arizona, but not doing 

this State by State. This is something that requires our national 

government working with the States to come up with a solution, a 

comprehensive, a comprehensive solution. 

Ms. JACKSON LEE. Ms. Chu of California is recognized for 5 minutes. 

Ms. CHU. Thank you so much. 

I have grave concerns about the civil rights aspect of the Arizona 

law, SB 1070, as I said in my opening statement. And I believe 

that it is unconscionable for any of our citizens to live in fear and 

carry multiple forms of identification with them everywhere they 

go, and this is something one would expect from a Cold War eastern bloc country, not America in the 21st century. 

I know you have said you are looking into a review of this law 

and that you will make a final decision relatively soon I think is 

what you said. But if you decide not to challenge the law, do you 

intend to monitor its implementation to address concerns about 

civil rights violations? 

Mr. HOLDER. I think we would do that in any case. I don’t know 

exactly again what we are ultimately going to do with regard to our 

review of the law, but with regard to the law, and any other law, 

that exists in this regard, we would constantly be monitoring it to 

see if there are civil rights violations, civil rights concerns, that are 

generated by the implementation of the law should we decide not 

to challenge it, for instance. 

Ms. CHU. There are also three lawsuits that have been filed 

against this law, the National Coalition of Latino Clergy and Christian Leaders filed a suit claiming it is illegal because it usurps Federal authority in immigration enforcement and it could lead to racial profiling, and two police officers are suing because it would 

hinder police investigation in Hispanic prevalent areas and violates 

the 14th Amendment rights of equal protection. Would you consider intervening any litigation by any other party? 

Mr. HOLDER. Again, our review is underway, and exactly what 

procedural step we are going to take we have not yet decided. I will 

need to interact with our team that has been looking at the law 

and has been conducting this review and on the basis of that interaction, we will decide what action we are going to take, if any. 

Ms. CHU. Well, another troubling aspect of the Arizona law is 

that it requirements local law enforcement to confirm with Federal 

authorities the legal status of anyone who is arrested regardless of 

the offense. And in many cases, it would take days for the Department of Homeland Security to respond to such a request. If the police decide not to press charges based on the underlying offense, 

wouldn’t it violate the rights to due possess if the person were held 

without charges for extended periods? And also, do you believe that 

the Federal Government could realistically and promptly respond 

to all such inquiries for every person arrested in Arizona? 

71 

Mr. HOLDER. That is an interesting question. We are working 

with our partners at the Department of Homeland Security. And 

I am sure that one of the questions we are trying to deal with is 

what is the impact of this statute when it goes into effect? What 

is the potential impact of that statute on the Federal Government 

and then the resources that the Federal Government would be able 

to bring to bear on this very difficult issue. So that is a part of the 

mix that we will consider in determining what action we will take. 

Ms. CHU. Well, in 1996, the Office of Legal Counsel concluded 

that the State and local police lacked legal authority to detain individuals solely on the suspicion of being in the country illegally. 

However in 2002, assistant attorney general Jay Bybee issued an 

Office of Legal Counsel memorandum concluding that Federal law 

did not preempt State police from arresting aliens on the basis of 

civil deportability. 

Have you officially asked the Office of Legal Counsel to reserve 

this policy? 

Mr. HOLDER. I have not as yet, but as we go through our review, 

one of the things that has to be taken into account is the 2002 

opinion that you reference, its continued viability, and whether it 

is a correct assessment of the law. That is all a part of what our 

review team is, in fact, looking at. 

Ms. CHU. Well, why would you keep that 2002 opinion in force 

while it is under review if it is under review, especially given the 

widespread opposition and civil liberties complaints? 

Mr. HOLDER. Well, I don’t think, as I said, that it is going to take 

us an extended period of time to decide what action we are going 

to take, but before we decide to take any action, I think we need 

to understand this statute in its totality, the impact that it will 

have, understand and take into account what policies the Federal 

Government has put in place including OLC opinions, and history 

that is involved in all of this. 

There is a wide variety of things that go into the determination 

that ultimately we will have to make, and I want to make sure 

that we take as comprehensive a look as we can before we make 

what I think is going to be a very consequential decision. 

Ms. CHU. And turning toward another issue that the Department 

of Justice actually had some action on with the investigation 

against Maricopa County Sheriff Arpaio for civil rights violations 

and unfairly targeting Hispanics and Spanish-speaking people, 

what is the status of that investigation by the special litigation section against Sheriff Arpaio? 

Mr. HOLDER. That matter is under investigation. It is under review. I can’t say an awful lot about that because it is a matter that 

is under review. The sheriff has unfortunately decided not to cooperate with the investigation, and so I think that makes our task 

a little more difficult, but it is a matter that is underway. The review is underway. 

Ms. CHU. Thank you. I yield back. 

Ms. JACKSON LEE. The gentlelady’s time has expired. The gentleman from Arizona, Mr. Franks, is recognized for 5 minutes. 

Mr. FRANKS. Thank you, Madam Chair. 

General your office announced some months ago that Khalid 

Sheikh Mohammed would be tried in a civilian trial in New York 

72 

and I have to be very direct with you. Some of us were kind of 

stunned because of the discovery that this offered terrorists their 

ability to penetrate much of our intelligence gathering, the potential of them having a platform before the world, a recruiting mechanism, it just seemed like a terrorist’s dream. And I just have to 

be honest with you. I just think it was an incredibly misguided 

comment. But ostensibly, it was so that we could show that America’s system was superior to the others in the world. And that 

sounded like at least an honorable commitment. 

But then the Administration said, there were several voices in 

the Administration that said, well, if they are somehow not convicted that we won’t let them go. 

In an interview with NBC news to November 18, 2009, President 

Obama declared that Khalid Sheikh Mohammed will be convicted 

and executed. And then in testimony before the U.S. Senate, you 

stated that in relation to the prosecution of KSM ‘‘failure is not an 

option.’’ 

Now I don’t know how that undermines our system if we really 

hold that notion because you as the attorney general of the United 

States and certainly Mr. Obama must know that KSM and his coconspirators are afforded, in our civilian courts, the presumption of 

innocence. And in light of this, does the Department honestly believe that it could successfully defend against an assertion by KSM 

and others that these statements have tainted a civilian jury or 

commission members to such degree as to deny them the presumption of innocence? 

Mr. HOLDER. Well maybe I can clear this up once and for all. 

When I said failure is not an option that was not a prediction about 

the course of the trial. It was from my perspective an exhortation 

similar to the way in which a coach talks to his players and tells 

them you guys got to go out there and win this game because failure is not an option. That is what I was saying. 

Mr. FRANKS. I will give you that. But the notion then that the 

Obama administration says that Khalid Sheikh Mohammed will be 

convicted and executed, the notion that the Administration has 

said many times that we will not let them go regardless. Not only 

does that undermine our system, but does it not afford the attorneys of KSM the opportunity to say, well, you have tainted the jury 

pool here and we are not afforded the presumption of innocence? 

That seems like that is not a hard question, but I don’t know if you 

are willing to address it or not. 

Mr. HOLDER. We would have an extensive voir dire that we 

would have to go through, and I am sure you could find people who 

would be able to judge the case based on only the evidence and testimony that was introduced during the course of the trial. The notion that somehow, some way, something that I have said has so 

tainted a jury or so tainted a potential jury pool that we would not 

be able to give Khalid Sheikh Mohammed and his confederates a 

fair trial I think is belied by the facts that we have done this in 

the past with high profile terrorism cases, in the Bush administration. We have cases that are underway right now in New York that 

are being handled I think in an appropriate way and defendants 

are being given fair trials. 

73 

So I think we have done it in the past. We can do it in the future 

and I don’t think anything anybody has said in this Administration 

has tainted our ability or impacted negatively our ability to—— 

Mr. FRANKS. Khalid Sheikh Mohammed will be convicted and executed. You don’t think that that is potentially suggesting that 

there may not be a presumption of innocence? 

Mr. HOLDER. Well, from my perspective, I think that the lawyers 

who will try this case are experienced, the evidence that we have 

is good, and I am hopeful that we will have a good outcome. That 

prediction on my part doesn’t necessarily mean that I think the 

ability to say that the trial was fair is in some way—— 

Mr. FRANKS. General, respectfully, I don’t think you are going to 

answer the question. But I do think you put a judge in the impossible position of either trying to do what is right and protect the 

country or break the rules as a judge that he is required to—I 

mean, Khalid Sheikh Mohammed, the Administration is all too 

quick to say well this person was waterboarded. If you are a defense attorney there, you have got a plethora of options to try to 

undermine the trial. I think everyone knows that. I certainly do. 

I think you do, sir. So let me shift gears. 

You stated on Meet the Press last weekend that if 9/11 mastermind Khalid Sheikh Mohammed were brought to the U.S. for a 

trial and acquitted, that if he were acquitted that ‘‘there are other 

mechanisms we might have to employ like immigration laws that 

we could use, the possibility of detaining him using the wars of 

law. Now I think you meant laws of war and I think that is understandable. 

Were you referring to the PATRIOT Act provision found in section 236(a), the Immigration Nationality Act which allows for an 

indefinite detention of an alien you certify is a terrorist? Is that 

your basis for saying that? 

Mr. HOLDER. Well, I am not sure about the particular section but 

the laws of war certainly allow us to detain people who are engaged in conflict with the United States. They certainly have habeas corpus rights and can challenge that detention as has happened in the Federal District Court here in Washington, D.C. So, 

yes, there is the possibility that Khalid Sheikh Mohammed could 

be detained under the laws of war. 

Mr. FRANKS. Well, my final question, Madam Chair, is what, sir, 

is your backup plan to protect the safety of Americans if you cannot rely on an immigration detention law? What is the plan here 

if those things fail. 

Mr. HOLDER. Well, as I think I indicated in the interview that 

you mentioned, I have great confidence in our abilities in the first 

instance to try the case fairly and effectively and to get a good result. 

Beyond that, though, there are other options that we have beyond the trial. There are immigration laws. There are the laws of 

war, and with regard to Khalid Sheikh Mohammed, there are other 

charges that could be brought against him because of other acts 

that he did beyond what happened on September 11. 

Mr. FRANK. I guess time will tell. Thank you, Madam Chair. 

Ms. JACKSON LEE. The gentleman’s time has expired. 

74 

I am now very delighted to yield to the distinguished new Member of this Committee, Mr. Deutch from Florida, for 5 minutes. 

Mr. DEUTCH. Thank you, Madam Chair. I am delighted to have 

the opportunity. Attorney General Holder thank you for being here. 

I wanted to just spend a minute after some lengthy discussions 

today about terrorism and preventing terrorism and trying terrorists. On the prevention piece in particular the terrorists screening 

database which, as I understand, is comprised of those individuals 

who are known or reasonably suspected to be or have been engaged 

in conduct constituting in preparation for, in aid of or related to 

terrorism, those are the individuals included. 

The question is, and what I would like to hear from you about 

is the Department’s view on selling weapons to those terrorism suspects, and if you could speak to the government’s determination 

that someone may be too dangerous to board a plane but not too 

dangerous to purchase an assault rifle, and then specifically, if you 

can clarify the Administration’s current position on halting gun 

sales to suspected terrorists and whether the Administration supports congressional efforts to keep weapons out of the hands of 

those individuals that are contained within the terrorist screening 

database. 

Mr. HOLDER. We certainly want to work with Congress with regard to that question about the access that people in the terrorist 

watchlist have to obtaining weapons. We have to keep in mind, and 

this will be part of the dialogue, that the FBI is notified when 

somebody on the terror watchlist, in fact tries to obtain a weapon. 

And there are, I have to be careful, but there are law enforcement 

equities, reasons, why that is something that is valuable to us. And 

so I think taking into account the law enforcement equities we 

have, the law enforcement realities that we now have, we would 

want to work with Congress to talk about the very real issue that 

you have raised. 

Mr. DEUTCH. General Holder, if in order to balance these law enforcement equities, wouldn’t it be possible to both prevent those 

weapons, those assault rifles in particular, from being sold to that 

suspected terrorist, while at the same time, still deriving the benefit of these equities and notifying the FBI? 

Mr. HOLDER. I don’t want to get into too much detail with regard 

to techniques and how the FBI uses actions by certain people on 

terrorist watchlists and what that leads to, but it is part of the conversation that I think we should have in dealing with a very real 

issue. And I don’t mean to denigrate the issue that you have 

raised. But the very real issue that you have raised is something 

I think we should work together and try to resolve. 

Mr. DEUTCH. I appreciate that. I would point out as we try to 

prevent all forms of terrorism the terrorists in Mumbai that killed 

173 people, dozens of those murdered and injured were murdered 

or injured with an AK-47, and it does seem, and I appreciate your 

willingness to work with us, but if we have an opportunity to keep 

those sorts of weapons in particular out of the hands of would be 

terrorists, it would be therefore possible for us to prevent tragedies 

of that magnitude from occurring here in this country. And I look 

forward to having the opportunity to work together to make that 

so. 

75 

Mr. HOLDER. Please do not takeay what I said as disagreeing 

with your last statement. There are a variety of things that we 

need to do and can appropriately do. I just, as I said, would want 

to make sure that in looking at this question, looking at this problem, that we surface all of the law enforcement equities that we 

have and deal with the very real problem, the very real concern 

that you have identified especially in the last statement that you 

made. 

Mr. DEUTCH. I appreciate that, General, and I hope we have the 

opportunity to do that soon. Thank you, and I yield back the time. 

Ms. JACKSON LEE. The gentleman yields back his time and it 

gives me great pleasure again to yield to another distinguished new 

Member of the Committee, Mr. Polis from Colorado, for 5 minutes. 

Mr. POLIS. Thank you, Madam Chair. My first question is with 

regard to Federal policy with regard to Drug Enforcement Administration and marijuana policy building off of what my colleague, Mr. 

Cohen, asked earlier. 

I certainly applaud it and agree with warm representing one of 

the States that has medical marijuana law and regulates the sale 

of marijuana the memo describing the intent of DEA and U.S. attorneys. I would like you to describe the objective processes the 

DEA and U.S. attorneys are using in order to make a determination about whether individuals are in ‘‘clear and unambiguous compliance with State law.’’ How is that determined? 

Mr. HOLDER. Well, it is done, and people get, I guess, tired of 

hearing this but it is true, it is done on a case-by-case basis. We 

look at the State laws and what the restrictions are, how the law 

is constructed, and then there are a number of factors in that 

memo that are guides. Is marijuana being sold consistent with 

State law? Are people or firearms somehow associated with the 

sale? There are a variety of factors that are contained within the 

memo that went out from the deputy attorney general that the 

United States attorneys and assistant U.S. attorneys are supposed 

to apply, supposed to consider when trying to make the determination about whether or not Federal resources are going to be used 

to go after somebody who is dealing marijuana. 

Mr. POLIS. I would certainly encourage the question of whether 

or not it is consistent with State law would certainly be left to 

State enforcement actions. In particular, I brought to your concern 

in a letter of February 23 requesting a clarification of your policies 

regarding medical marijuana, with regard to several statements 

that were made by one of your agents in Colorado, Jeffrey Sweeten, 

along the lines of the quote, as quoted in the paper, the time is 

coming when we go into a dispensary, we find out what their profit 

is, we seize the building and we arrest everybody. They are violating Federal law. They are at risk of arrest and imprisonment.’’ 

I would like to ask what steps you might take to make sure that 

the spirit of the enforcement mechanisms that you outlined to me 

in the answer to your previous questions are not contradicted by 

the statements of agents that, in fact, then strike fear into legitimate businesses in the eyes of our States. 

Mr. HOLDER. It is incumbent upon me as attorney general to 

make sure that what we have set out as policy is being followed 

by all of the components within the Department of Justice and to 

76 

the extent that somebody at the DEA, somebody at some assistant 

United States attorney office is not following that policy, it is my 

responsibility to make sure that the policy is clear, that the policy 

is disseminated, and that people act in conformity with the policy 

that we have determined. 

Mr. POLIS. Do you believe, do you agree that statements that 

could be recently taken as threatening to businesses that are legal 

in our State are, in fact, contrary to your stated policy? 

Mr. HOLDER. Well, again, if the entity is, in fact, operating consistent with State law and is not, does not have any of those factors 

involved that are contained in that deputy attorney general memo, 

and given, again, the limited resources that we have and our determination to focus on major traffickers, that would be inconsistent 

with what the policy is as we have set it out. 

Mr. POLIS. Moving on to immigration, I am worried about denying immigrants access to Federal judicial review in light of the Arizona law when they will be dragged into State courts in a fashion 

when the ultimate responsibility and authority regarding immigration is supposed to be that of the Federal Government. Are we worried about Arizona courts effectively trying to enforce Federal immigration laws? 

Mr. HOLDER. One of the primary concerns that we have is whether or not the impact of the Arizona statute preempts, whether it 

improperly interferes with what is ultimately a Federal responsibility. Wwhether or not Federal law preempts the Arizona statute, 

is one of the things that we are looking at. 

Mr. POLIS. And finally, there is a significant backlog in our immigration courts, and I would like you to briefly outline the steps that 

you are taking to restore fairness and efficiency to immigration 

courts which have been identified by several studies as a need of 

major structural reforms as well as additional financial resources. 

Mr. HOLDER. We have really been engaged this fiscal year and 

next fiscal year in hiring a very substantial number of immigration 

judges which is one of the problems we had. We simply need more 

people to process these cases. We have also engaged in I think 

training to make sure that the people who serve as judges and who 

are a part of the system are conducting themselves appropriately. 

We have a new chief judge who I think is doing a good job in the 

training component, and we are trying to make sure that he and 

the people in the system have all the tools that they need so that 

our responsibility with regard to immigration is done in an appropriate way. 

Mr. POLIS. Thank you, and I yield back. 

Ms. JACKSON LEE. The gentleman has yielded back. 

General, I believe that we are better as a Nation for having a 

U.S. Department of Justice, and I think we are better as a Nation 

to have a lawyer who represents the American people. I think it 

is important, as I close, to try to give you an opportunity to clarify 

a few points that may still be somewhat unclear. 

One is an inquiry that I would appreciate if you would respond 

in writing within the parameters of that investigation and that is 

of course regarding the Harris County jail which is located in Harris County Texas. There has been an inquiry and a comment as to 

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ful to local jurisdictions with jail overcrowding problems impacting 

mental health issues and the health and security of the incarcerated persons. 

And if I could have that in writing I would appreciate it. But I 

would like to pursue to be clear on the record there are a lot of 

overlapping jurisdictions. I happen to be on homeland security and 

there are overlapping jurisdictions between the Department of Justice and homeland security. So let me just focus on what the Administration is for and what it is against, what positions it has 

taken. 

Has the administration Department of Justice taken any position 

to be against strong border security both at the northern and 

southern border of the United States? 

Mr. HOLDER. No. Not at all. We understand that the primary responsibility for protecting our borders is a national responsibility. 

It is one that this Administration takes very seriously. It is one 

component that we think has to be taken seriously as part of the 

comprehensive view of immigration reform. 

Ms. JACKSON LEE. And if this Congress was to undertake what 

we call a comprehensive immigration reform on the issue of benefits falls under the Judiciary Committee, does the Administration 

hold that that reform is mutually exclusive to being strong in its 

position on securing the border, both northern and southern border? 

Mr. HOLDER. I think if one looks at the totality of this problem, 

there are a lot of moving pieces but there is not necessarily tension 

between them. How we deal with people who are here and undocumented; the whole question of what benefits people have, should 

have, and should not have; the maintenance of strong borders 

along our southern frontier and our northern frontier are all things 

that have to be a part of this solution. And the resolution of that 

big problem does not necessarily mean that there is a tension between the component parts. 

Ms. JACKSON LEE. So fixing, for example, the opportunity for a 

child not born but raised in the United States to attend college, for 

example, which is a problem plaguing a lot of nonstatus immigrants, is not mutually exclusive if that was to occur if Congress 

was to move from the Administration’s position on securing the 

borders. 

Mr. HOLDER. Well, yeah. We can certainly secure the borders. 

And then the whole question of how we deal with people who are 

here illegally and putting them on a pathway to citizenship, which 

is what we talked about and which has been talked about in previous Congresses. I think these are all the kinds of things that we 

need to discuss. 

Ms. JACKSON LEE. Following up on the Arizona law, it is my understanding—and I think you have made it clear, but I think it is 

important—is there is nothing in your testimony that would suggest that you would not read this bill, but presently you have 

tasked your staff to do a thorough review of this legislation at this 

point, is that my understanding? 

Mr. HOLDER. I am old enough now that I don’t read things too 

far in advance and then forget them before I need to know them. 

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78 

view all the reports that the review team puts before me. I will 

meet with that review team. And, on the basis of all of that, make 

an informed decision. 

Ms. JACKSON LEE. We would not want the record to reflect that 

America’s lawyer did not read either legislation we wrote or legislation that was relevant that was written by any State. 

But pursuing that question, I first focused on Federal preemption, and I think my colleagues have probed that sufficiently, but 

if you want to make that clear that you understand what that 

means in terms of the assessment of a State law. 

But I want to raise in terms of the Arizona law this question of 

potential racial profiling, and I say it in this sense. You don’t have 

jurisdiction over the census, but there are reports suggesting that 

States like—and they are still members of the larger body of 

States, albeit they are unique States—California, New York, Arizona, and Texas, among others, have been impacted negatively by 

a lot of, should I say, reflections on immigration in terms of account.That truly impacts an authority embedded in the Constitution and certainly designated to the Department of Commerce to 

count everybody, and it does not put qualifications on who gets 

counted. 

On the question of racial profiling, if your team is reviewing this 

and if you read this law and there is grounds for seeing that this 

broadly, without basis, racially profiles, I think one of our Members 

indicated that you might be stopped for a traffic, that is a legal 

contact, and you might have someone knock on your door trying to 

solicit funds for the local police department, I don’t know if that is 

a legal contact or not. But if you find that there is a racial profile 

which is under jurisdiction of the Justice Department, for example, 

if you find that there is racial profiling going forward on Pakistani 

Americans—obviously, the Pakistani Americans or Pakistanis have 

been in the news. I tell you that the community is frightened. What 

is the position of the Department of Justice on unfair racial 

profiling within your jurisdiction? 

Mr. HOLDER. I think that, first and foremost, people have to understand that racial profiling is not good law enforcement; and we 

should understand that those who want to do this Nation harm are 

trying to take advantage of the possibility of racial profiling. 

What you see is their desire to come up with people who they call 

have clean skins, people who do not fit profiles, people who do not 

come from certain countries, people who come from the United 

States, people who do not look like what you would expect a terrorist to look like. Those are the people who they are trying to recruit. And if we restrict ourselves to profiling we will be handing 

a tool to those who seek to do this Nation harm. And so that is certainly in that context. 

But racial profiling just more generally is never good law enforcement. It has all kinds of collateral negative impacts that drive 

wedges between law enforcement and certain communities. There 

is no good basis. I have never seen a good basis for racial profiling. 

Ms. JACKSON LEE. And as your staff reviews in particular the Arizona law, I would imagine, without predicting all that they review, 

that is certainly an element as you review the Arizona law as reVerDate Aug 31 2005 12:54 Jan 31, 2011 Jkt 000000 PO 00000 Frm 00082 Fmt 6633 Sfmt 6601 H:\WORK\FULL\051310\56394.000 HJUD1 PsN: 56394
79 

lates to the stopping and arresting individuals with surnames and 

other aspects of that law. 

Mr. HOLDER. I think we will look at the law as it is written, look 

at the law as it is applied, potentially applied, in trying to make 

our decision about whether or not we should take any action with 

regard to it. 

Ms. JACKSON LEE. Let me also—thank you—just to follow up and 

just put into the record, some language that I paraphrased dealing 

with the Clayton Act, Section 7. 

The Act seeks to capture anticompetitive practices in their incipiency by prohibiting particular kinds of conduct not deemed in the 

best interest of a competitive market. If there is ever a question of 

a competitive market, I think, or one that we are attempting to 

have competitive, it is the aviation industry. As I read the law, and 

I would like you to correct me if I am incorrect, it seems as if submissions dealing with aviation mergers is presented to the DOJ, 

but there is notice given to the FTC. And if you would either correct that or suggest that it is. And if you would give the procedure, 

if that is the case, as to whether or not the FTC is in fact just notified and the DOJ takes the lead. Or my question would be whether 

the DOJ would take the lead. 

The second question would be, and I just want this to be further 

confirmed, have you set or has the Justice Department set a December, 2010, deadline for your review of this present merger in 

particular that I have mentioned, and that is Continental Airlines 

and United? 

And if you speak just from the law, the Clayton Act, Section 7, 

or any aspects of antitrust law is, obviously, appropriate, is the 

question of pricing and price increase, are those variables that will 

be under the eye and scrutiny of the Department of Justice? 

And, lastly, I would ask—and this is a pointed question. I want 

to pay tribute to Chairman Conyers, who developed an Antitrust 

Task Force under his initial leadership of this Committee, showing 

how important it is that a vigorous review taking into consideration President Theodore Roosevelt’s initial I guess thought on this 

process of conglomerates recognizing that we are a capitalist society. I understand one of his quotes is that we have to save capitalism from the capitalists. 

But Chairman Conyers thought the antitrust review was extremely important, and so we had a task force that we ultimately 

merged into one of our Subcommittees, and the question that I now 

pose is, which I think someone has asked on another approach, 

whether there is any politics that would play in any decision that 

you would make on really any matter, but in this instance, for example, that one of the parties involved happens to be housed in Illinois? All of these comments that are going around, and again I said 

to you that one of the CEOs said this was a done deal, this will 

be done by, we see no problem in its completion—I yield to the 

General. 

Mr. HOLDER. Well, the Justice Department has primary responsibility for the assessment of the Continental/United merger and 

whether or not that has an anticompetitive impact. There is no 

deadline with regard to how long it will take us to do that. We will 

do the job as best we can and use the amount of time that we need, 

80 

and I can assure you that political considerations will not be a part 

of that process. 

As I said, we have an Antitrust Division that I think has been 

revitalized by the woman who heads it now, the Assistant Attorney 

General, Christine Varney. She has been I think appropriately aggressive in looking at mergers and will do so with regard to this 

one. I am confident that we will give this a good, thorough, vigorous look and make a decision on the basis of that examination. 

Ms. JACKSON LEE. Let me close very quickly. I know that you 

have been very gracious. Just give me these last two points that 

I wish to clarify, and that is a question of national security. 

I started out by saying that you have traversed a lot of land 

fields, a lot of mines, and I believe deliberation is key to being an 

American and as well the lawyer for America. There is a lot of talk 

about the initial decision for Khalid Sheikh Mohammed, politics 

and whether or not we said something first. I complimented the 

DOJ for its deliberation and its studiousness. I would like you to 

clarify that. 

And I will say this. The comments made by a President, a Commander-in-Chief, who is also a politician and a citizen, are among 

many comments that have been made. The President has a right 

to make comments, because he has the First Amendment right of 

freedom of speech. 

My understanding is that lawyers go into courtrooms many times 

around America, in this instance, U.S. Attorneys, against all kinds 

of comments being made in the general forum. But that does not 

take the place of a vigorous prosecutorial presentation, as I understand it. 

So if you would comment and clarify again with the Times 

Square bomber whose family members came and encouraged that 

individual to participate fully, and I think you said—there is so 

many bombers, but let me just finish the sentence, and I will clarify—but came and asked them to fully participate and to give answers, and that individual was initially questioned under civilian 

justice Miranda rights. And, of course, that was the Christmas Day 

bomber. Yet the Times Square bomber likewise provided additional 

enhanced information. Give us your sense that that does not undermine the justice system in this country and the ability to defend 

the American people against terrorism and does not show weakness as it relates to national security. 

Mr. HOLDER. I think all that I can point to is the facts and history, which has shown that the giving of Miranda warnings has not 

had a negative impact on our ability to get information from people 

charged with terrorist offenses. 

One can look at Abdulmutallab in Detroit; Shahzad here, the 

Times Square bomber; Headley, the person in Chicago; all of whom 

were given their Miranda rights and nevertheless decided to continue talking, sharing information, and sharing intelligence with 

us. There is a misconception that people have that the giving of Miranda warnings necessarily means that somebody is going to stop 

talking. That is inconsistent with the facts. 

The facts in the cases that I have just mentioned, and certainly 

what I think you see through the criminal justice system is that 

the determination that people make as to whether or not they are 

81 

going to continue to talk or talk at all to law enforcement is not 

determined solely by Miranda warnings. There is a lot more that 

goes into it: the rapport that interrogators are able to make with 

people they are questioning and the strength of the evidence of the 

case that we can bring. 

I actually think that we also have to consider the reality that 

once a person is given Miranda warnings and if that person decides 

he wants to take advantage of them and get a lawyer involved in 

the processes, that frequently a defense attorney looking at the 

facts that are arrayed against his client frequently becomes an advocate on behalf to try to convince that person to cooperate with 

the government in the hope that a sentence would be lessened. So 

that even where Miranda warnings have that initial impact of stopping an information flow, it does not necessarily mean that that 

flow of information is forever stopped. 

But I think one thing that I would really want to clear up is this 

whole notion that the giving of Miranda warnings necessarily 

means that people stop talking. That is inconsistent with the facts. 

Ms. JACKSON LEE. My final question to you is something both of 

us have spoken about, and I think it is very close to your personal 

beliefs. Chairman Scott has worked very closely on this whole 

broad issue of juvenile crime, juvenile justice, and we have managed with his leadership I believe to pass out of this Committee 

something called the Promise Act. But I want to point—and that 

is looking at best practices to deal with the question of juvenile justice. 

You have a section that deals specifically with the issues dealing 

with juveniles. If we look at our history over the last two decades, 

we really have done poorly. We had two 16-year-olds, among others, shot and killed at a 3-year-old’s birthday party in New York. 

Tens upon tens of juveniles have been murdered in Chicago. The 

lacrosse murder at my alma mater, University of Virginia, and 

down in Houston, a fine college student at a party shot dead without any hopes of survival. 

What is the focus of the Department as relates to juvenile violence and also the access of juveniles to guns, and how can we 

work together as a Committee and a Department of Justice and the 

Administration on this ongoing sickness and violence? 

Mr. HOLDER. Well, I don’t know if you remember that in Chicago, 

I would say late last year, there was an incident where a young 

man who was taped being killed by a gang, other young people, 

when a board hit him over the head. Arne Duncan and I, the Secretary of Education and I, went out to Chicago to assess what had 

happened there and to get a better understanding of what was 

going on in Chicago with regard to youth violence. That has led to 

an effort that—I keep saying this—that very soon the Administration is about to announce with regard to how we are going to deal 

with this issue of proposals that we have with regard to this issue 

of youth violence in a select number of cities where we are trying 

a variety of different things and see what actually works. 

When we deal with the problem of youth violence, I think too 

often we think of it in a microcosm; and we don’t understand that 

what we are talking about, in essence, is the future of this Nation. 

And kids who can’t go to school and feel safe don’t learn as well. 

82 

Violence has negative impacts on the lives of children who are exposed to it as the children get older. So we want to try to deal with 

this problem. 

As we like to say, to be not tough on crime but to be smart when 

it comes to crime, and to come up with solutions that will prevent 

youth violence to the extent that we can, but then deal with the 

impact of people who are either victims of youth violence, or who 

witness violence. Because that also is something that has an impact on young people and impacts them as they mature. 

Ms. JACKSON LEE. And guns and juveniles. 

Mr. HOLDER. Obviously, a very large problem. The prevalence of 

guns in certain communities, the possession of guns by juveniles 

and the way in which they use them is a primary concern. A disproportionate number of these unfortunate homicides happen because too many young people have too easy access to guns. We 

have to deal with that. 

Ms. JACKSON LEE. Let me thank you very much for your openness and your integrity and honesty during these hearings. 

Let me as well thank Chairman Conyers for convening this hearing and for the leadership that he has given on any number of 

these issues that we have addressed throughout this hearing. 

This will conclude our questioning. I will add that there will be 

potentially, potentially a number of hearings on some of the questions that Members have asked, some having to do with the antitrust question and mergers. I would hope that the Justice Department would receive the transcripts of those hearings as they might 

be very helpful in the deliberation for those particular issues. I acknowledge that the General is nodding ‘‘yes’’ on those comments. 

And I would like to thank you, Attorney General Holder, again 

for being with us today. 

Without objection, Members will have a minimum of 5 legislative 

days to submit any additional written questions for you which we 

will forward and ask that your answer be forwarded to us as 

promptly as you can and that they be made part of the record. 

Without objection, the record will remain open for 5 legislative 

days for the submission of other additional materials, including 

those from the Department of Justice. And I noted for the record 

that you indicated that you would respond to a number of Members, including the Chair’s questions, by writing; and we appreciate 

that. 

I believe the hearing has been a useful contribution to our efforts 

to help ensure that the Nation’s premier law enforcement agency 

is dedicated to being a shining example not only in how effectively 

it pursues its cases but equally in how it respects the questions 

that we hold particularly near and dear, and that is the fundamental question of freedom that is a hallmark of American democracy. Today, I believe we made one more step toward promoting democracy in this Nation and protecting the Constitution as it should 

be. 

General Holder, thank you for your presence here today; and, 

with that, the hearing is adjourned. 

Mr. HOLDER. Thank you. 

[Whereupon, at 3:45 p.m., the Committee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

RESPONSE TO POST-HEARING QUESTIONS POSED TO THE HONORABLE ERIC HOLDER, 

ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE


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