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45–140 PDF 2009

S. HRG. 110–695 

EXECUTIVE NOMINATIONS: J. PATRICK ROWAN, 

OF MARYLAND, NOMINEE TO BE AN ASSISTANT 

ATTORNEY GENERAL, NATIONAL SECURITY DIVISION; JEFFREY LEIGH SEDGWICK, NOMINEE 

TO BE ASSISTANT ATTORNEY GENERAL, OFFICE 

OF JUSTICE PROGRAMS; AND WILLIAM B. 

CARR, JR., NOMINEE TO BE MEMBER OF 

THE U.S. SENTENCING COMMISSION 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JULY 23, 2008 

Serial No. J–110–109 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

STEPHANIE A. MIDDLETON, Republican Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 1 

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

statement .............................................................................................................. 149 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 36 

STATEMENTS OF NOMINEES 

Carr, William B., Jr., Nominee to be a Member of the U.S. Sentencing 

Commission ........................................................................................................... 73 

Questionnaire .................................................................................................... 74 

Rowan, J. Patrick, of Maryland, Nominee to be an Assistant Attorney General, National Security Division, Washington, D.C. .......................................... 2 

Questionnaire .................................................................................................... 3 

Sedgwick, Jeffrey Leigh, Nominee to be Assistant Attorney General, Office 

of Justice Programs, Washington, D.C. .............................................................. 37 

Questionnaire .................................................................................................... 38 

QUESTIONS AND ANSWERS 

Responses of William B. Carr to questions submitted by Senators Feingold 

and Kennedy ......................................................................................................... 118 

Responses of J. Patrick Rowan to questions submitted by Senators Kennedy 

and Feingold ......................................................................................................... 126 

Responses of Jeffrey Leigh Sedgwick to questions submitted by Senators 

Kennedy, Feingold and Coburn .......................................................................... 131 

SUBMISSIONS FOR THE RECORD 

Warner, Hon. John, a U.S. Senator from the State of Virginia presenting 

Jeffrey Leigh Sedgwick Nominee to be Assistant Attorney General, Office 

of Justice Programs, Washington, D.C., statement ........................................... 154 

(1) 

EXECUTIVE NOMINATIONS: J. PATRICK 

ROWAN, OF MARYLAND, NOMINEE TO BE 

AN ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION; JEFFREY 

LEIGH SEDGWICK, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF JUSTICE PROGRAMS; AND WILLIAM B. CARR, 

JR., NOMINEE TO BE MEMBER OF THE U.S. 

SENTENCING COMMISSION 

WEDNESDAY, JULY 23, 2008 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 2 p.m., in room SD– 

226, Dirksen Senate Office Building, Hon. Russell D. Feingold presiding. 

Present: Senators Specter and Brownback. 

OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. 

SENATOR FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. I call the Committee to order. I want to welcome everybody to this hearing of the Judiciary Committee on executive nominations. We have three nominees to consider today, two 

nominated to serve as Assistant Attorney General in the Department of Justice, and one to serve as a Commissioner on the U.S. 

Sentencing Commission. 

While we do not have a panel to introduce the nominees, the 

record will remain open for 1 week for any statements of introduction that Senators or members of the House wish to submit. 

We do not have a member of the other party here at this time, 

but if one comes, of course, I will turn to the Ranking Member for 

any comments that he might like to make. 

But at this time we will swear in the witnesses. Would you 

please stand to be sworn? 

[Whereupon, the witnesses were duly sworn.] 

Senator FEINGOLD. Thank you. You may be seated. 

Our first nominee is John Patrick Rowan, who has been nominated for the position of Assistant Attorney General for the National Security Division of the Department of Justice. Mr. Rowan 

currently is serving as Acting Assistant Attorney General. He has 

worked in the Justice Department since 1991, first as an Assistant 

2 

U.S. Attorney, and then in a variety of capacities at the FBI and 

main Justice. He is a graduate of Dartmouth College and the University of Virginia Law School. 

Mr. Rowan, congratulations on your nomination, and you may 

take this opportunity to introduce any family or friends that are 

here with you today, and then make any remarks you want to 

make. 

STATEMENT OF J. PATRICK ROWAN, OF MARYLAND, NOMINEE 

TO BE AN ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION 

Mr. ROWAN. Thank you, Senator. Thank you and the Committee 

for holding this hearing. It is an honor to be before you. I would 

also like to thank the President for nominating me, and the Attorney General for supporting that nomination. 

I do have my family with me today and I’d like to introduce them 

now. Over here on the end is my wife, Patricia Heffernan, who is 

a long-time Department of Justice lawyer herself. She is an Assistant U.S. Attorney in D.C. 

My two daughters, Evangelize and Vivian, who are both five and 

a half years old and very pleased to be at their first hearing 

[Laughter.] 

Senator FEINGOLD. I am sure. 

Mr. ROWAN. My father, William J. Rowan, III, is a Circuit Court 

judge in Montgomery County, Maryland. Behind in the second row 

is my brother William Rowan; in the third row is my brother Michael Rowan, his spouse Jennifer, and their children, Molly and 

Mike. I also am joined here by some colleagues from the Department of Justice and the National Security Division, and I am also 

pleased to have their support here today. 

Senator FEINGOLD. We welcome you all. Good to see all the 

friends and family. 

Mr. Rowan, you may proceed. 

Mr. ROWAN. Senator, I don’t have anything further today except 

to express my appreciation for you all holding this hearing on relatively short notice. 

[The biographical information of J. Patrick Rowan follows.] 

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Senator FEINGOLD. Thank you, sir. With that, I’m going to turn 

to the Ranking Member of the Committee, Senator Specter, for any 

introductory remarks he wants to make. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Well, thank you, Mr. Chairman. I am glad to 

see these confirmation hearings move forward. We have some very 

important positions at issue here, the Assistant Attorney General 

of the National Security Division. This is a very difficult time. 

There is no doubt we are still subject to attack from terrorism, and 

that position is one of enormous importance. Assistant Attorney 

General for the Office of Justice Programs, again, very, very significant. 

The Sentencing Commission. I especially want to welcome Bill 

Carr here, a Pennsylvanian, and a very distinguished Pennsylvanian: he is married to my staff director, and that is a high accolade 

and a high honor, Stephanie Middleton, who has had a very distinguished practice in Pennsylvania and has given up a very lucrative 

position to come as a matter of public service. 

I do want to say that you all should not be perplexed by the absence of Senators here. We have, at any moment, as Senator Feingold will confirm, committee hearings and subcommittee hearings 

and floor actions and a variety of duties which take us in many, 

many directions. So we do have staff and we will review the 

records. 

Unless there is some very piercing cross examination by Senator 

Feingold, I think you are all in good shape. But you can never tell, 

because Senator Feingold is a piercing cross examiner. 

[Laughter.] 

I regret that I cannot stay, but I did want to come and thank 

you for your willingness to participate in public service. I am glad 

we have no lifetime appointments here, so I think the confirmation 

process will probably move forward. 

Thank you very much, Mr. Chairman. 

Senator FEINGOLD. Thank you, sir. I thank the Ranking Member 

very much. 

We will now return to testimony. Thank you, Mr. Rowan, again. 

Next, we have Jeffrey Leigh Sedgwick, who has been nominated 

to be Assistant Attorney General of the Office of Justice Programs. 

Mr. Sedgwick currently serves as the Acting Assistant Attorney 

General, and also is director of the Department’s Bureau of Justice 

Statistics. He is a graduate of Kenyon College and has a Ph.D. 

from the University of Virginia. He has taught government and political science at the University of Virginia, the University of Massachusetts, and Smith College. I was also interested to note, Mr. 

Sedgwick has done a significant amount of work with the State Department in public diplomacy. 

Mr. Sedgwick, welcome, and congratulations. You may now introduce your family and anyone else here to support you, and make 

any remarks you wish. 

37 

STATEMENT OF JEFFREY LEIGH SEDGWICK, NOMINEE TO BE 

ASSISTANT ATTORNEY GENERAL, OFFICE OF JUSTICE PROGRAMS 

Mr. SEDGWICK. Thank you, Mr. Chairman. Unfortunately, no 

member of my family is with me today because of work responsibilities, but I do want to thank a number of my colleagues from the 

Office of Justice Programs in the Bureau of Justice Statistics who 

are here, and also, I have a number of our interns in the Bureau 

of Justice Statistics that are working with us this summer. 

Senator FEINGOLD. Very good. We welcome all of them. 

Any other comments you’d like to make, sir? 

Mr. SEDGWICK. Not at this time, thank you. 

[The biographical information of Jeffrey Leigh Sedgwick follows.] 

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Senator FEINGOLD. Thank you for coming. 

At this point, I would like to ask unanimous consent that the 

statement of the Chairman of the Committee, Senator Leahy, be 

introduced in the record, and also the statement of Senator John 

Warner on the nomination of Jeffrey Sedgwick, be placed in the 

record at this time, without objection. 

[No response.] 

[The prepared statements of Chairman Leahy and Senator Warner appear as a submission for the record.] 

Senator FEINGOLD. Our final nominee is William B. Carr, who 

has been named to the U.S. Sentencing Commission. Mr. Carr 

worked as a Federal prosecutor in the Eastern District of Virginia 

for over 20 years. 

Mr. CARR. Pennsylvania, sir. 

Senator FEINGOLD. I was going to say, he said you were Pennsylvania. I guess the first two had Virginia connections. I apologize for 

the error. He is a graduate of Swarthmore College and Cornell University Law School, and has taught at both Temple and Wagner 

Law Schools. 

Mr. Carr is now a consultant to the Career Services Office of 

Drexel University College of Law in Philadelphia. 

Mr. Carr, let me turn it over to you to introduce your family 

members, friends, and others, one family member who I understand is very familiar, as has already been alluded to here, on the 

Judiciary Committee. 

STATEMENT OF WILLIAM B. CARR, JR., NOMINEE TO BE 

MEMBER OF THE U.S. SENTENCING COMMISSION 

Mr. CARR. Thank you, Senator. And she just moved from a chair 

behind you, to a chair behind me, to following Senator Specter out 

that door. 

[Laughter.] 

We have a daughter who recently graduated from college and is 

in her second month of being gainfully employed in Manhattan, so 

I didn’t ask her to come down. But a close friend of mine from the 

U.S. Attorney’s Office for more than 24 years, Bucky Mansuy, who 

is seated behind me, has come down today. 

Senator FEINGOLD. Welcome, sir. 

Mr. CARR. And I would like to thank Senator Specter for his support, the President for the nomination, and the Committee for affording me this hearing. 

[The biographical information of William B. Carr Jr., follows.] 

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Senator FEINGOLD. Thank you, Mr. Carr. Thank you all for being 

here. 

We’ll start with questions for Mr. Carr. Under the current sentencing system, judges may increase a defendant’s sentence based 

on conduct for which the defendant was never charged, conduct for 

which all charges were dismissed, or even charges of which the defendant was acquitted. 

Applying a preponderance of the evidence standard, the judge is 

allowed to increase the sentence by the same amount that the defendant would have served if convicted by a jury and proved beyond a reasonable doubt. In effect, the defendant is sentenced for 

a crime for which he was never convicted. Now, to me this policy 

appears to fly in the face of the principle that a person is innocent 

until proven guilty. 

What are your thoughts on the practice of acquitted conduct sentencing, and would you take steps to end this practice, if confirmed? 

Mr. CARR. First, Senator, if I can address how we get to the situation we’re in where all of that conduct gets considered. When the 

Sentencing Commission first promulgated its initial guidelines 

back in 1987, what they tried to do was to sort of average out the 

sentences that were already being imposed based on the reasons 

that they were being imposed. 

The Sentencing Commission concluded that, with respect to certain kinds of crimes, sentencing judges had historically taken into 

consideration things that had not necessarily been charged or not 

necessarily been proved. 

Acquitted conduct was the one that, as I tend to say, sort of 

flunked the smell test, but passed the logic test, because since they 

set up a system where judges would do judicial fact-finding by a 

preponderance of the evidence, judges could find facts that had 

never been charged, or find by a preponderance of evidence facts 

of which a defendant had been convicted at trial. 

I understand why it is controversial, I understand why many 

people—judges and practitioners alike—rail against it. One of the 

things about taking acquitted conduct off the table, it could have 

a curious effect on some charging and pleading decisions. 

A prosecutor thinking about charging five different drug distributions where the evidence of the first one is simply an informant, 

the evidence of the second one is an informant and some surveillance, and the evidence of the last three is an undercover agent 

with tape recordings, might thing, well, I’m just going to charge to 

the last three because that way the defendant doesn’t have an opportunity to get acquitted of the first two. 

By the same token, if all five are charged, a defense attorney 

might say, well, we’d better go to trial on this one because we may 

roll the dice and get the first two thrown out. So it is not a simple 

situation, but there’s a logic to it that goes along with the whole 

logic of preponderance of the evidence, and even considering other 

relevant conduct on top of what’s charged. 

Senator FEINGOLD. So you would not be inclined to try to change 

it. Is that what you’re saying? 

Mr. CARR. I know that there are various proposals out there. If 

confirmed—and I’m not trying to avoid the question, Senator. If 

107 

confirmed, I would participate, as I would hope to participate, with 

six other sentencing commissioners in deliberations on the issue, 

which I have not had the opportunity to do. 

Senator FEINGOLD. Well, thank you. I hope you’ll keep as open 

a mind as possible. I know you’ve thought about these kinds of 

issues. I think it raises some very serious concerns, as you acknowledge, so I appreciate your answer. 

The U.S. Sentencing Commission has been an outspoken critic of 

the unjust and unwarranted disparity in sentences between crack 

and powder cocaine offenses. Last November, the commission 

adopted an amendment to the sentencing guidelines that helped 

mitigate this disparity by reducing the base offense levels for crack 

cocaine offenses. The Sentencing Commission then considered 

whether to apply this amendment retroactively. 

In making this decision, the commission considered three factors: 

the purpose of the amendment, the significance of its impact, and 

the feasibility of retroactive application. Based on these factors, the 

commission unanimously determined that the amendment should 

be applied retroactively. 

Do you agree with the commission’s decision to apply the amendment retroactively, and do you think more should be done to reduce 

or eliminate the crack/powder disparity? 

Mr. CARR. It would be difficult for me to sit here, as one who did 

not participate in that decision, and say that when seven commissioners agreed that it should be retroactive, including the one who 

voted against the amendment himself, that I would be likely not 

to have joined in that decision. There were several things that were 

compelling about the retroactivity decision. 

As I understand the Sentencing Commission’s projections, the average reduction in sentence for those who would be eligible for a 

reduction would be 27 months. That reduction would, on average, 

be from 152 months to 125 months, so you would still be talking 

about people who, on average, were doing more than 10 years in 

jail. 

In addition to that, when we’ve gotten to the point from 1995 till 

now when the commission has, time after time, said we have to do 

something about this disparity, and that’s through many commissioners over many different compositions of the commission, and as 

I understand it, their most recent proposal was suggesting that 

Congress enact something that would result in a disparity of not 

greater than 20:1. I believe there are at least three proposals out 

there ranging from 1:1 to 20:1. When there seems to be enough legislative support for that, it would have been surprising, I think, 

had they not made that retroactive. 

Senator FEINGOLD. I thank you for your answers, and now I will 

go to Mr. Sedgwick. I’d like to ask you about J. Robert Flores, the 

administrator at the Office of Juvenile Justice and Delinquency 

Prevention, an office within OJP. 

Mr. Flores’ tenure has been controversial from the beginning. He 

is widely viewed by juvenile justice advocates as having weakened 

the agency through systematic neglect. Last month, we learned Mr. 

Flores bypassed the agency’s peer review process and awarded 

more than $8 million in grants to low-scoring applicants that had 

ties to friends and family of President Bush. 

108 

We also learned the Office of Inspector General is investigating 

Mr. Flores for use of government funds for personal travel and for 

improper hiring practices. These matters have been turned over to 

Federal prosecutors, who have opened a criminal investigation. 

Now, I understand that in criminal proceedings a person is presumed innocent until proven guilty beyond a reasonable doubt, but 

the bar for running an important Federal agency should probably 

be higher than just ‘‘not a proven criminal’’. In this case we are not 

just talking about allegations of professional misconduct. 

The DOJ Inspector General has found enough evidence of criminal misconduct to refer the matter to prosecutors. The Office of Juvenile Justice is among the offices under your supervision. Have 

you taken any action on this matter since you have become Acting 

Assistant Attorney General, and is it your opinion that Mr. Flores 

should continue to be in charge of this office while the criminal investigation continues? 

Mr. SEDGWICK. Thank you for that question, sir. The events that 

are—that you allude to that have been the subject of recent media 

reports, oversight hearings, and so on took place during the 2007 

fiscal year when I was the director of the offices or the Bureau of 

Justice Statistics and not in the role of Acting Assistant Attorney 

General for the Office of Justice Programs. 

Should I be fortunate enough to be confirmed, I can tell you that 

my highest priority will be that the process of awarding grants in 

the Office of Justice Programs will meet the highest standards of 

professionalism, integrity, and transparency. 

Since assuming the position of Acting Assistant Attorney General 

in January, I have taken steps, up to and including personally reviewing and augmenting our peer review policy, to make sure that 

the process that we use meets with broad approval. 

Senator FEINGOLD. Do you have authority under your current position to take action on this matter with regard to Mr. Flores? 

Mr. SEDGWICK. That would be a personnel issue that I would not 

want to speculate on right now. 

Senator FEINGOLD. Your authority is a personnel issue? 

Mr. SEDGWICK. I— 

Senator FEINGOLD. To act on this, in theory? 

Mr. SEDGWICK.—The question of whether or not I have—I have 

not, as an Acting Assistant Attorney General, raised that question 

of what my authority is. 

Senator FEINGOLD. OK. 

Mr. SEDGWICK. Since it seemed to me presumptuous to do so as 

an Acting Assistant Attorney General, to raise the question of my 

personnel authority with regard to a Presidential appointee within 

the Office of Justice Programs. 

Senator FEINGOLD. I’m not sure I agree with that, given the fact 

that you are the acting person in that authority, but I won’t pursue 

it at this time. 

For the first time in 2008, the Office of Justice Programs used 

a portion of the Crime Victims Fund for OJPs management and administrative costs, despite the fact that there is no express authority in either the authorizing or appropriations statutes for doing so. 

The Crime Victims Fund, as you all know, was created so that 

fines, forfeitures, and assessments paid by Federal criminal offendVerDate Nov 24 2008 15:02 Mar 17, 2009 Jkt 045140 PO 00000 Frm 00112 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45140.TXT SJUD1 PsN: CMORC
109 

ers, not taxpayers, generate the revenue used for grants to State 

crime victim compensation programs, direct victim assistance services, and services to victims of Federal crimes. 

Since you were acting director of OJP for at least a part of this 

time, can you explain the justification for using these funds for 

management and administrative costs? 

Mr. SEDGWICK. Yes, I can. There are two legal sources from 

which—or two legal authorities under which we can raise the funds 

necessary for the administration of programs in the Office of Justice Programs. They may either be drawn from legislatively appropriated funds for the purposes of management and administration 

or they can be carved out of the program funds themselves and applied for the administration of those programs. 

Historically, there has been but one legislative appropriation for 

management and administrative expenses in the Office of Justice 

Programs, and that has historically averaged right around $42 million. The situation we faced in fiscal year 2008 was that that appropriation amount was cut to $10 million, which is significantly 

less than the M&A amount necessary to keep even the Office of 

Victims of Crime open for the full fiscal year administering its programs. Therefore, we made the decision, since we had but $10 million 

appropriated—in fact, the management and administration expenditures authorized by Congress were $127 million—we made the decision to treat all program funds essentially equally and to carve 

out of all program funds an amount, effectively 4.9 percent, for the 

administration of programs in OJP. So, all program dollars were 

treated equally. 

As I said, this is really largely the result of, for the first time, 

having the legislatively appropriated amount of M&A reduced 

below a level that was necessary for the M&A assessment for OVC, 

let alone the other program offices in OJP. 

Senator FEINGOLD. Thank you, Mr. Sedgwick. I will have some 

followup written questions for you on some of these matters, but 

thank you for your answers. 

Mr. Rowan, let me turn to you. You have worked at the FBI or 

Main Justice since 2002. Were you read into the President’s Terrorist Surveillance Program prior to when it became public in December of 2005? 

Mr. ROWAN. Yes, I was, Senator. 

Senator FEINGOLD. OK. Did you ever express concern about the 

legality or constitutionality of that program in any internal deliberations within the FBI or the Department of Justice? 

Mr. ROWAN. Senator, I was not at any point asked to express an 

opinion about the sort of legal underpinnings. My focus, when I 

was read in, which is actually when I was in the Criminal Division 

of the Department of Justice and after—so this was after I’d been 

at FBI, my focus was trying to determine how to deal with the 

issue of our criminal discovery obligations in connection with prosecutions and the potential that there may be intelligence information out there. 

That work began shortly before the program was made public in 

December, 2005, and continued in a much more visible way after 

December of 2005. So again, I was aware of the program because 

110 

we were trying to determine, how can we ensure that we are maintaining—that we’re meeting any obligations we might have. 

Senator FEINGOLD. I understand that you were not asked about 

your opinion on the legality or the constitutionality. I also understand you did not offer it. But do you recall having an opinion, 

yourself, about the legality or constitutionality of the TSP program? 

Mr. ROWAN. Senator, as I sit here today, recall—I recall certainly 

forming a general conclusion that it was a highly complex area, 

that the analysis was complicated. I cannot recall forming a bottom-line conclusion about the legality or not of the program or 

the—sort of any element of the legal opinions underpinning it. I 

certainly was aware of some of the issues, but I was focused on trying to make sure that I met the responsibilities that I understood 

myself to have. 

Senator FEINGOLD. Would it be fair—and you can just say no if 

you don’t think it is—to say that you perhaps saw it as a close call? 

Mr. ROWAN. It’s—you know, when I—when I—when I sit here 

now, Senator, and think about the legal foundation for the program, I—I am primarily focused on what I have reviewed in the 

context of the white paper. I think that there are some complicated 

issues there. I do think that the idea that things like signals intelligence collection are an instrumental part of war efforts and that, 

therefore, the authorization for the use of military force was a piece 

of legislation that one could look to in determining whether or not 

the sort of means provisions had been met. 

I recall, particularly, that area, finding that to be a rather solid 

analysis. But it’s a complicated area of the law, I certainly concede 

that. 

Senator FEINGOLD. Well, I am asking because the White House 

and I both agree it’s not a close call; we just come to completely 

opposite conclusions. So I’m trying to find people who might have 

seen it as somewhere in between. But thank you for those answers. 

You have a long history as a Federal prosecutor and have been 

involved in a number of successful terrorism prosecutions that have 

been brought by the Department of Justice. Do you believe that the 

criminal justice system can be an effective tool in the U.S. Government’s fight against terrorists? 

Mr. ROWAN. I do, Senator. I believe that there—there—it is certainly the case that one size may not fit all. I think that there are 

appropriate, different approaches given the circumstances, but I 

think one critical component is now, has been, and always will be 

the criminal justice system. 

I’m very proud of the work that I’ve done to prosecute international terrorism cases, proud of the folks in my division in U.S. 

Attorney’s Offices around the country that have actually been in 

court on those cases, and I think that they’re an extremely important part of how we address the problem of international terrorism. 

Senator FEINGOLD. As you know, there was a lot of controversy 

surrounding the PATRIOT Act when it passed in 2001, and in my 

view it flew through Congress too quickly and without time for 

calm consideration. Four years later when Congress took up the reauthorization of the PATRIOT Act, I was disappointed that the administration pursued a confrontational and highly political apVerDate Nov 24 2008 15:02 Mar 17, 2009 Jkt 045140 PO 00000 Frm 00114 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45140.TXT SJUD1 PsN: CMORC
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proach to that legislation, refusing to agree to some quite modest 

and reasonable changes proposed by both Republicans and Democrats. 

In retrospect, do you think that the consideration of both the 

original PATRIOT Act and the reauthorization legislation was 

overly politicized, and do you think that additional reasonable 

checks and balances could have been built into that legislation to 

protect against abuse, while still ensuring that the government has 

the authorities it needs? 

Mr. ROWAN. Senator, I appreciate that those are extremely significant pieces of legislation that were in the first PATRIOT Act, 

of course, moved through Congress quickly, and that there were 

issues that arose that may not have been anticipated until after 

the fact. But I—to the extent that you’re asking if I believe that 

the PATRIOT Act reauthorization was overly politicized in a way 

that caused us as a country to end up with a statute that didn’t 

strike the right balance, I would disagree with that. 

I should note a point of personal bias, that the National Security 

Division was actually created by the PATRIOT Act reauthorization 

and my position that I’m up for confirmation on was actually created by that legislation, so I certainly can’t be too against it. 

Senator FEINGOLD. I confess to bias, as the only Senator to vote 

against the bill, so there we have it. 

Anyway, let’s turn to Senator Brownback. 

Senator BROWNBACK. I’ve been in those categories, being the only 

one to vote that way. 

Gentlemen, thank you for being here. I want to thank the Chairman for holding the hearing and moving forward, and hopefully 

these nominations will move forward quickly. 

I don’t know whose daughters those twins are back there, but 

they’re beautiful. Bring them to every hearing you have, is my suggestion. 

[Laughter.] 

Mr. ROWAN. They’ll be available for rent, Senator. 

[Laughter.] 

Senator BROWNBACK. OK. Are they twins? 

Mr. ROWAN. They’re mine, Senator. Vivian and Evangelize. 

Senator BROWNBACK. Hi, girls. 

I’ve looked through and I’m pleased to see you’re up, pleased to 

see you moving forward. I want to draw one item to your attention, 

if I could, that’s been a personal issue of mine, so this is a personal 

project that we’ve been pushing for. It’s on the Second Chance Act. 

There is a bipartisan bill coming through here to try to reduce the 

recidivism rate of people going into prison. We got it passed, signed 

into law by the President, and it will be implemented by this administration. 

I think actually some of the programs may come through the Office of Justice Programs, less impact on the U.S. Sentencing Commission. But it’s my hope that this will be actively pursued by the 

administration as a way of being able to try to reduce these recidivism rates that we have across the country, because right now if 

you go under our present system, the numbers I’ve seen, twothirds of the time you’re going to go back once you get out. 

112 

So, something’s not quite working right when they’re in to try to 

help people either develop the life skills, or the abilities, or the 

mental fortitude of the soul to be able to stop this sort of criminal 

activity. This is an effort that we’ve got to, I think, really address 

and address in a very wholehearted fashion to say we’re going to 

try to address this person’s needs and try to structure and get an 

environment and an atmosphere that can stop this gate from going 

around and around. 

As I look at the numbers, I think we’ve got about 600,000 people 

getting out of prison a year. If you’ve got two-thirds of them going 

back, it seems like a really effective way to deal with part of our 

crime problem would say, well, we’re going to get that number 

down, we’re going to cut that number in half. I hope you’ll look aggressively at implementing that. I don’t know about Mr. Sedgwick. 

I think this would be something—I don’t know if you’ve had a 

chance to look at this or think about it any at all, or even you, Mr. 

Carr. But if you had any thoughts on it, I would appreciate it. 

Mr. SEDGWICK. We have—actually have looked at this issue quite 

extensively and in the Bureau of Justice Statistics we have just 

created a new Reentry and Recidivism Unit within the Bureau of 

Justice Statistics to focus attention on precisely this question. But, 

clearly, I share your concern on this issue and look forward, if I’m 

fortunate enough to be concerned—to be confirmed, to working 

with you and others in the Senate that are concerned about this 

issue to see what we can do to put together a robust agenda of 

studies to determine what is the most effective way to reduce recidivism rates post-release and to enhance the successful reentry of 

persons that are being released from confinement into society and 

make sure that’s a smooth and successful transition. I look forward 

to working with you on that. 

Mr. CARR. Good afternoon, Senator. Actually, although I could 

not attend it—I was on Federal jury duty those 2 days last week— 

the Sentencing Commission actually had a comprehensive 2-day 

symposium on Alternatives to Incarceration and Reentry Programs. 

I think it’s something that the Sentencing Commission is going to 

be getting more involved in going forward. They were addressing 

both Federal and State systems, and ways to evaluate their success. 

In my own district, in the Eastern District of Pennsylvania, 

something that has not been funded, except I think there’s one 

former U.S. Attorney who is paid under $75 an hour, the U.S. Attorney’s Office went to the Probation Department and the District 

Court and, as you may know, there’s an epidemic of violent crime 

in Philadelphia and they’ve got a new pilot program where there 

is a repeat offender index, which is something that the Probation 

Office figures out for everyone who’s in jail. 

For a certain score on that scoring system, there’s a 58 percent 

rate of being revoked and sent back to jail for those who are released from Federal prison and are residents of Philadelphia. They 

started a program 10 months ago where people who have that score 

and are in that category are offered the opportunity to enter this 

program, and the court has supplied the work of two magistrates, 

the U.S. Attorney’s Office has supplied the work of two Assistant 

U.S. Attorneys, and the Probation Department has—and the DeVerDate Nov 24 2008 15:02 Mar 17, 2009 Jkt 045140 PO 00000 Frm 00116 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45140.TXT SJUD1 PsN: CMORC
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fender’s Office have each provided two, and these offenders—and I 

think there are three dozen of them now—meet every 2 weeks in 

a group with their families, with the magistrates, with the people 

from the U.S. Attorney’s Office, Probation Department, and Defender’s Office, and those people are all active in getting local agencies involved, getting funding for training. 

They’ve got the Community College of Philadelphia admitting 

these people to classes and waiving admission fees. And while it’s 

certainly a low number of people and a short period of time, in 10 

months no one has faced a revocation hearing. I think there are experiments like that going on in State courts and Federal courts 

around the country, which, if I’m fortunate enough to be confirmed, 

I would love to work on with the Sentencing Commission to figure 

out how we can reduce recidivism, since, as you say, I think there 

are about 650,000 prisoners being released every year. 

Senator BROWNBACK. I hope you can. One of the things that I 

did—have done a couple of times, is spend a night in prison, of my 

own volition. I’ve not been charged or convicted on anything, just 

to be clear for the record here. But it was really helpful. It’s one 

thing to read about these things, it’s another thing to sit there and 

smell it, and feel it, and be in the middle of it. I’d recommend, if 

you’re approved—and I’m certain the Majority would appreciate 

your spending time in jail. I’m kidding here. That was unsolicited 

and unfair, so I’m kidding with that. But I think it would be real 

helpful, actually, to get kind of that feel for it and it may be useful. 

One other thing I want to suggest to you. We’re just looking at 

a way of doing this. I don’t know how to do it, but just to try to 

start some sort of formalized offering of a reconciliation process between victims and perpetrators. You’ve seen this be quite successful in some of these Third World countries that have had just massive problems. I’m thinking particularly of South Africa, Rwanda. 

They’re starting in some other places, where they have a Truth and 

Reconciliation Commission. 

We have these horrific incidences that happened, but then you’re 

trying to put a culture back together. I’m not suggesting that here 

and I’m not suggesting anything be required, but if there was a 

process where the victim and perpetrator could voluntarily access 

some sort of reconciliation process, I’ve been impressed at what I’ve 

seen other places do. 

I was in Rwanda, along with Senator Durbin, a couple of years 

ago, now. It had been 11, 12 years ago, prior to when we were 

there, that they had gone through the genocide, 800,000 people 

killed in about a 6-week time period in a relatively small, intensely 

populated country. I was impressed that they were even functioning after that period of time. If you just think of the level of 

violence there, the level of retribution that people desired in that 

situation, and yet they had gone through this very aggressive process of trying to get the place to function again. And it’s certainly 

not perfect, but I was impressed at how far they’ve come. 

I thought, that’s something—we should see if there’s a way to 

allow it on a voluntary basis. Our office would be willing to work 

with either of you, if you’re interested in it. It’s something we’re 

going to try to pursue and see if there are things that we can develop on that, because we need both people not going back to jails 

114 

often, and we need some form of a reconciliation so we can move 

forward as a society. 

Mr. Chairman, thank you very much. That is all my questions. 

Senator FEINGOLD. Thank you, Senator Brownback. 

Back to Mr. Rowan. You were at the FBI General Counsel’s Office for much of 2003. Were you surprised by the reports issued by 

the Department of Justice Inspector General documenting widespread problems with the use of national security letters from 2003 

to 2006, after those authorities had been dramatically expanded in 

the PATRIOT Act? 

Mr. ROWAN. I was, Senator. I certainly was aware, from my time 

at the FBI, that national security letters were a critical tool in 

widespread use. My limited sort of opportunity to see in a detailed 

way what sort of processes were followed, I was of the view that 

people were being very careful in the use of national security letters at the sort of headquarters level that I saw these things, and 

I was surprised at the issues that the IG uncovered. 

As you know, we in the National Security Division have begun 

a set of national security reviews, where we go out to field offices 

around the country, working with FBI OGC, to review case files, 

look at the predication for NSLs, among other things, make sure 

that the law is being followed. 

Senator FEINGOLD. This relates to our discussion of the PATRIOT Act, because I actually received a call from the Director of 

the FBI apologizing that this report was coming out. This was after 

having had a former Attorney General refer to those of us who had 

questions about the way the PATRIOT Act was drafted as having 

seen the ‘‘phantoms of lost liberty’’, when in fact it was the statute 

itself that was insufficient in some cases. 

It was not just that there was misconduct or inappropriate use. 

We could have drafted the language about the NSLs more tightly 

to give more clear guidance. I think that is an important part of 

the story in terms of our role here, as well as your role in the Executive Branch. 

Mr. Rowan, I understand the National Security Division is providing support to the Office of Military Commissions, which is the 

Pentagon office with primary responsibility for prosecuting the detainees at Guanta ́namo Bay who have been charged with war 

crimes. What role are Justice Department officials playing in those 

prosecutions? 

Mr. ROWAN. The department is supporting the prosecutions 

through providing prosecutors—and they have a few paralegals as 

well, I think—to work on commissions’ cases. Obviously the FBI is 

also providing assistance by way of making agents available who 

are potential witnesses and things like that, helping put cases together the way we would put a case together in a Federal prosecutor’s office. 

So the National Security Division is sort of the headquarters 

component within the Department of Justice that has gone out and 

tried to recruit Federal prosecutors who are willing to work on 

commissions’ matters, give up their work in their home district and 

come work on detail. 

So we have approximately 12 or 14 prosecutors working on those 

matters, sort of teaming up with DoD personnel on the cases. ObviVerDate Nov 24 2008 15:02 Mar 17, 2009 Jkt 045140 PO 00000 Frm 00118 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45140.TXT SJUD1 PsN: CMORC
115 

ously the responsibility, the ultimate authority for charging decisions and strategic decisions all that, lies with the Office of Military Commissions and the Office of the Chief Prosecutor there. 

Senator FEINGOLD. Do you believe that evidence obtained 

through coercive interrogation techniques should be offered in 

these trials? 

Mr. ROWAN. I think that we obviously have to be very careful, 

very judicious in the decisions we make about what evidence we 

offer for admission, statements taken from detainess. The Military 

Commissions Act obviously lays out a standard and we need to, 

needless to say, comply with that standard. 

We need to develop—because the military commissions are not a 

set of proceedings with a long history, we need to sort of continue 

to develop our credibility going in front of the military judges on 

those issues, so we have to be careful not only to be asking for the 

admission of statements in a way that’s consistent with the law, 

but we need to do—to make very careful decisions to ensure that 

everybody understands that we are being very reasonable and very 

judicious in what we offer. 

Senator FEINGOLD. But does it trouble you at all that coercive interrogation techniques could be used to obtain evidence and that 

that information would be used at trial? 

Mr. ROWAN. I think it—it really depends on the degree of coercion. I think that there’s a lot of activity that, you know—the end 

of the spectrum is, anybody who’s in detention might assert that 

there’s an element of coercion about the very fact that they’re in 

detention, whether it’s the police department, station house down 

the street or in a camp in Afghanistan to the other end of the spectrum. 

And—and I think—so I—I think we just—we need to be very 

careful because we obviously have not only a statutory standard to 

meet, but we have a lot of people in this country and around the 

world who are watching closely to make sure that we are behaving 

in a responsible way and we need to make all the decisions we 

make about the evidence in light of that concern. 

Senator FEINGOLD. If confirmed, you’ll be responsible for overseeing implementation of the new FISA Amendments Act. As you 

know, I, and many others in Congress, have grave concerns about 

that legislation. It is critically important that this committee and 

the Intelligence Committee be kept up to date on what steps the 

executive branch is taking to implement this new law. What is 

your view of congressional oversight in making sure a statute like 

FISA works as is intended? 

Mr. ROWAN. Senator, I think that congressional oversight is—is 

going to be an extremely important part of the way we implement 

this statute. Obviously there are built into the statute a number 

of means by which we can alert the Congress how it’s being implemented. We in the National Security Division are going to be at the 

center of the effort, not only to draft the appropriate targeting and 

minimization procedures, but also to do the assessments. 

There’s like 6-month assessments required under the statute, 

and those assessments are to determine whether or not the targeting and minimization procedures are being followed. Those assessments will, of course, be made available to the Judiciary and 

116 

Intelligence Committees, and that’s sort of one piece, the most obvious piece, that’s right there in Section 702. 

I would also note that with respect to the Protect America Act, 

the National Security Division of the Department of Justice did a 

great deal of work by way of trying to inform the Congress about 

what was going on with the way that was implemented. I think 

there was a total of sort of 37 assessments done by the National 

Security Division, working with the DNI and the NSA, to ensure 

that that was being implemented properly, and the results of those 

assessments were briefed up here on the Hill. 

We are very aware of the congressional concern over the statute, 

the new procedures that we’ll all be working under for the first 

time, not to mention the fact that there is, of course, a sunset 

which, while it seems like a long way away right now, will be on 

us before we know it. So we are fully aware and—and understand 

that the Congress expects to hear how this is working in great detail, and we are looking forward to making those reports. 

Senator FEINGOLD. What in your background can you point to 

that will give us confidence that you will treat these committees as 

a partner in your work rather than an annoyance, that you will answer our questions, consult with us, and keep us informed of the 

things we need to know? 

Mr. ROWAN. Senator, you know, I was a prosecutor doing ordinary criminal cases—murder cases, drug cases, the whole gamut— 

for a long time. In that, you learn very quickly that your credibility 

is extremely important. You don’t go into court and—in front of a 

judge or a jury and promise things that you aren’t going to comply 

with. You don’t get it wrong. You ensure that every time you do 

something, you’re building your credibility because you’re going to 

make—you’re going to ask that jury or that judge to make important and significant decisions at the end of the proceeding. 

That’s, I think, the way we need to approach our work here. I’m 

used to that. It’s a little bit different because we’re now not marching off to court to convince a judge or a jury. Here we’re coming 

up to the Congress to convince the Congress that the authorities 

that we’ve been provided are being used responsibly. But that’s the 

first thing I sort of think about when I think about the importance 

of—of oversight and of maintaining a close communication with the 

Congress. 

Senator FEINGOLD. Senator Brownback will probably consider 

this a partisan remark, but I wish more people who had come before us in the last few years had taken that attitude about working 

with this committee. I look forward to your taking that approach. 

Senator Brownback? 

Senator BROWNBACK. I have no additional questions. 

Senator FEINGOLD. Well, I want to thank all the nominees for 

their time today. Written questions for the nominees should be submitted by the close of business 1 week from today. 

Let me close by addressing a few comments specifically to Mr. 

Rowan. You have an important responsibility as only the second 

person to be nominated to the position of Acting Assistant Attorney 

General for the 2-year-old National Security Division. The new division has an important goal, to bring the disparate parts of the 

department that deal with intelligence and national security toVerDate Nov 24 2008 15:02 Mar 17, 2009 Jkt 045140 PO 00000 Frm 00120 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45140.TXT SJUD1 PsN: CMORC
117 

gether under a single chain of command, thereby minimizing turf 

battles and allowing the department to more efficiently carry out 

its work to fight and prevent terrorism and espionage. 

But another important responsibility of the position to which you 

have been nominated is to be responsive to Congress, regardless of 

the fact that there is not much time remaining in this administration. During Mr. Gonzales’ time as Attorney General, a serious rift 

developed between the department and Congress. Even with his 

departure, we frequently still do not get the answers we need in 

a timely manner. So, I hope you’ll take that role seriously as well. 

Protecting Americans from terrorism is our number-one priority in 

Congress, as it is in the department, and this committee wants to 

be helpful to you in your work. 

The hearing is adjourned. 

[Whereupon, at 2:46 p.m. the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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