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UNITED STATES DEPARTMENT OF JUSTICE 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

MAY 3, 2011 

Serial No. 112–127 

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 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

[Vacant] 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

(III) 

C O N T E N T S 

MAY 3, 2011 

Page 

OPENING STATEMENTS 

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

of Texas, and Chairman, Committee on the Judiciary ..................................... 1 

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

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 3 

WITNESS 

The Honorable Eric H. Holder, Jr., Attorney General, United States Department of Justice 

Oral Testimony ..................................................................................................... 4 

Prepared Statement ............................................................................................. 6 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Melvin L. Watt, a Representative in 

Congress from the State of North Carolina, and Member, Committee on 

the Judiciary ......................................................................................................... 39 

Response to Question posed by the Honorable J. Randy Forbes, a Representative in Congress from the State of Virginia, and Member, Committee on 

the Judiciary ......................................................................................................... 53 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Responses to Questions for the Record from the U.S. Department of Justice .... 89 

(1) 

UNITED STATES DEPARTMENT OF JUSTICE 

TUESDAY, MAY 3, 2011 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to call, at 10:17 a.m., in room 

2141, Rayburn House Office Building, the Honorable Lamar Smith 

(Chairman of the Committee) presiding. 

Present: Representatives Smith, Sensenbrenner, Coble, Gallegly, 

Goodlatte, Lungren, Chabot, Issa, Pence, Forbes, King, Franks, 

Gohmert, Jordan, Poe, Chaffetz, Griffin, Marino, Gowdy, Ross, 

Adams, Quayle, Conyers, Nadler, Scott, Watt, Lofgren, Jackson 

Lee, Waters, Cohen, Johnson, Quigley, Chu, Deutch, Sa ́nchez, and 

Wasserman Schultz. 

Staff Present: (Majority) Sean McLaughlin, Chief of Staff and 

General Counsel; Allison Halataei, Parliamentarian; Richard 

Hertling, Deputy Staff Director; Crystal Jezierski, Counsel; Jennifer Lackey, Staff Assistant; and Perry Apelbaum, Minority Staff 

Director and Chief Counsel. 

Mr. SMITH. The Judiciary Committee will come to order. Without 

objection, the Chair is authorized to declare a recess of the Committee at any time. We welcome everyone here, but particularly our 

guest today, the Attorney General of the United States, Eric Holder. I am going to recognize myself for an opening statement and 

then the Ranking Member for his opening statement. This morning 

we welcome Attorney General Eric Holder to the Committee for an 

oversight hearing on the U.S. Department of Justice. First, I would 

like to thank the Attorney General for supporting the reauthorization of the expiring PATRIOT Act provisions. I also appreciate his 

support of a mandatory data retention policy to help law enforcement officials track dangerous pedophiles and keep children safe. 

Although he may not want to take credit for this next item, I 

should also thank the Attorney General for the decision not to try 

certain terrorists in the U.S. It is the right decision and will ensure 

justice for the families of the 9/11 victims. Terrorists remain intent 

on carrying out their plots to destroy America. The killing of 

Osama bin Laden is a victory in America’s efforts to combat terrorism. But the terrorist threat does not end with Bin Laden’s 

death. In the year since 9/11, al-Qaeda has expanded and splintered into smaller groups and rogue terrorists around the world. 

This makes it harder for us to detect and deter plots against Americans both here, at home and abroad. 

2 

Despite Sunday’s victory, we cannot afford to leave our intelligence community without the resources it needs to dismantle terrorist organizations, identify threats from groups and individuals 

and interrupt terrorist plots, so Congress must reauthorize the PATRIOT Act. Our laws should keep pace with the evolving terrorist 

threat, but they must also keep pace with rapidly changing technology. Nowhere is this more apparent than with the dramatic increase in the proliferation and exchange of child pornography. 

Today pedophiles can purchase, view or exchange this disturbing 

material with near impunity. 

Child pornography on the Internet may be our fastest growing 

crime in America increasing by an average of 150 percent a year. 

Better data retention will assist law enforcement officers with the 

investigation of child pornography and other Internet-based crimes. 

When investigators develop leads that might save a child or apprehend a pornographer, their efforts should not be impeded because 

vital records were destroyed. 

While I appreciate the Department’s support on these important 

matters, I am concerned that in some cases, this Administration 

may have placed political and ideological considerations above enforcing the law. Earlier this year, the Department abandoned its 

obligation to defend the Defense of Marriage Act, a Federal law enacted by Congress and signed by President Clinton to protect the 

institution of marriage. It seems the President’s personal political 

views regarding the law may have trumped the obligations of the 

Department of Justice. 

Another example of selective enforcement is the Administration’s 

views when it comes to immigration laws enacted by the States. 

The Justice Department sued Arizona for enacting a law that mirrors Federal immigration law. The Administration justifies its actions by claiming that the Arizona law wrongly supersedes Federal 

authority. But what about a law recently enacted in Utah that creates a guest worker program for illegal immigrants. This undermines Federal immigration law and yet the Administration has 

taken no action. Similarly, the Justice Department refuses to defend Congress’ constitutional authority to determine national drug 

policy. Marijuana distribution is illegal under Federal law regardless of whether it is used recreationally or medicinally. But rather 

than enforce Federal drug laws, the Department directed Federal 

prosecutors not to bring charges against marijuana dispensaries in 

the States that have taken it upon themselves to legalize medical 

marijuana. And just last week, it was reported that the Department has dropped its criminal probe of a lawyer who admitted 

leaking classified information on the terrorist surveillance program. 

This case should have been a slam dunk for the Department 

since the attorney admitted to violating the law. But the President’s ideological opposition to the TSP program may have stopped 

a legitimate criminal investigation. The Justice Department has a 

solemn duty to defend the laws of the land as enacted by Congress 

without politics or prejudice. And I am concerned that there seems 

to be a pattern of selectively enforcing the law based on the Administration’s political ideology. I do want to thank the Attorney General for coming today, and we look forward to hearing from him on 

3 

these and many other issues. The gentleman from Michigan, Mr. 

Conyers, the Ranking Member of the Judiciary Committee, is recognized for his opening statement. 

Mr. CONYERS. Thanks, Chairman Smith. Once again, we welcome 

the Attorney General, Eric Holder. Most of us have known him for 

more than a number of years in his various positions in the government. And I welcome you here and praise your standing up for the 

rule of law, especially in the area of national security where you 

were the Attorney General that supported the end of using torture. 

And you released legal memos on this subject that proved that 

what you were doing was right and some of those legal memos 

were incorrect. 

Now, for the things that we want you to improve on. I start off 

with the fact that the worst economic upheaval since the Depression, with all the suffering and damage that it has caused citizens 

and their family, there is, to my knowledge, not one single prosecution on any of the Wall Street barons that have created this economic mess. The systemic abuses not only have not ended, but are 

still going on as far as I am concerned. 

In the area, General Holder, of the approach to crack cocaine 

cases under the Fair Sentencing Act, that the Department would 

continue to seek extreme sentences that have been rejected as a 

policy matter by both the executive and the legislative branch is 

disappointing. And more needs to be done to ensure that the socalled pipeline cases are handled in a just manner. 

And the area of antitrust enforcement and merger review, we are 

getting more discussion about this, but our economy continues to 

become more and more dominated by global megafirms, and just 

about every merger that has come through the Department of Justice’s front door has made it out alive. And I know that you are getting ready to block one large merger, but antitrust is still underutilized in the Department of Justice, and I want to help work with 

you if we can to increase the use of antitrust enforcement as these 

global megafirms get larger. 

And then in the national security area, the State secrets privilege policy is deeply troubling to me. And of course, the Department has become more transparent of late, and I appreciate that 

the State secrets report recently transmitted to our Committee, 

there is still a lot of decision-making that remains flawed. This 

privilege to me is a threat to the separation of powers and to the 

right of every citizen to lawfully fight back against government 

abuse and must be reigned in. Outside of those minor observations, 

we welcome you to the Committee, General Holder. Thank you, Mr. 

Chairman. 

Mr. SMITH. Thank you, Mr. Conyers. Without objection, other 

Members’ opening statements will be made a part of the record. We 

are pleased to welcome today’s witness, United States Attorney 

General Eric H. Holder, Jr. On February 3, 2009 Attorney General 

Holder was sworn in as the 82nd Attorney General of the United 

States. Attorney General Holder has enjoyed a long and distinguished career of public service. Joining the Department through 

the Attorney General’s Honors Program in 1976, he became one of 

the Department’s first attorneys to serve in the newly-formed public integrity section. 

4 

He went on to serve as a judge of the Superior Court in the District of Columbia and the U.S. Attorney for the District of Columbia as well. In 1997, Mr. Holder was named by President Clinton 

to be the Deputy Attorney General. Prior to becoming Attorney 

General, Mr. Holder was a litigation partner at Covington and 

Burling, LLP in Washington, D.C. 

Mr. Holder, a native of New York City, attended Columbia University graduating in 1973 and Columbia Law School from where 

he graduated in 1976. Mr. Attorney General, we look forward to 

hearing your testimony and welcome you again to today’s hearing. 

And please proceed. 

TESTIMONY OF THE HONORABLE ERIC H. HOLDER, JR., ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF JUSTICE 

Attorney General HOLDER. Well, thank you, Chairman Smith, 

Ranking Member Conyers. Chairman Smith, that was a wonderful 

introduction, except for the part where you mentioned the dates 

that I graduated from law school and college. People are now calculating how old I am. And I am of an age where I am sensitive to 

that. Other than that, thank you. But also distinguished Members 

of the Committee, good morning, and thank you for this opportunity to discuss the critical work of our Nation’s Department of 

Justice. Now, as I have stated often, no aspect of our work is more 

important or more urgent than protecting the American people. 

Mr. SMITH. Mr. Attorney General, would you pull your mic a little bit closer so that we can hear you better. Thank you. 

Attorney General HOLDER. Protecting the American people is our 

most fundamental responsibility. Two days ago with the death of 

Osama bin Laden, the leader of al Qaeda and the world’s most 

wanted terrorist, our Nation made historic progress in fulfilling 

this responsibility and in achieving justice for the nearly 3,000 innocent Americans who were murdered on September 11, 2001. This 

achievement was the result of a steadfast almost decade-long effort, 

one that spanned two Administrations and was advanced by many 

dedicated military and civilian leaders, intelligence and law enforcement officers, diplomats and policymakers, investigators, prosecutors and counterterrorism experts. For the last 2 years, President Obama has made certain that efforts to kill or to capture 

Osama bin Laden remained a central focus in our Nation’s fight 

against terrorist threats. For the President’s national security 

team, achieving this goal has been at the forefront of our work, 

even as we continued and strengthened broader efforts to dismantle and defeat terrorist networks and to use every tool available to combat national security threats both at home and abroad. 

Now, the Justice Department has played a vital role in this ongoing fight against terrorism. During the last 2 years, we have helped 

to identify and to disrupt plots to attack New York City’s subway 

system and plots to deploy weapons of mass destruction in Texas, 

Oregon and Washington State. We have secured guilty pleas, as 

well as long sentences and actionable intelligence from terrorists 

intent on harming our people, our allies and our interests. And the 

Department has charged more defendants in Federal Court with 

the most serious terror-related offenses than in an any 2-year peVerDate Aug 31 2005 11:42 Sep 13, 2012 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6601 H:\WORK\FULL\050311\66154.000 HJUD1 PsN: DOUGA
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riod in our Nation’s history. Through the use of robust military, intelligence and law enforcement operations this Administration has 

sent a clear and unequivocal warning to those intent on harming 

the American people. You will be pursued and you will be brought 

to justice. Although we can all be proud of Sunday’s successful operation and we can all be encouraged by the way that thousands 

of Americans have joined together at this defining moment in our 

fight against terrorism, we cannot become complacent. 

The fight is far from over. Just yesterday, I ordered the Department’s prosecutors and law enforcement agencies to be mindful 

that Bin Laden’s death could result in retaliatory attacks in the 

United States or against our interests overseas. And I have instructed Department officials, as well as our State and local partners, to maintain focus on our highly effective counterterrorism 

and deradicalization efforts. I have also reiterated what President 

Obama said on Sunday evening that the United States is not, and 

never will be at war with Islam. Bin Laden was not a Muslim leader, he was a mass murderer of Muslims in many countries, including our own. We cannot, and we will not lose sight of this fact. And 

I pledge that at every level of today’s Justice Department, we will 

remain focused on our paramount obligation to protect the citizens 

that we serve. Using every available resource and appropriate tool, 

including the Federal Court system, we will be vigilant against 

both international and domestic threats, and we will continue to 

utilize the critical authorities that are provided under the provisions of the PATRIOT Act, which I hope Congress will move 

promptly to reauthorize for a substantial period of time. 

On this issue, I want to thank Chairman Smith for his leadership and for his strong support. Beyond our national security work, 

the Department will take steps to build on current efforts to combat violent crime and financial fraud and to defend the rights of 

all Americans, especially the most vulnerable among us. 

And let me say, finally, that our country and the world have really just witnessed an historic moment. What we make of it now is 

up to us. Osama bin Laden has been brought to justice. A brutal 

terrorist will no longer be free to order the murder of innocent people across the globe. And just as we came together nearly a decade 

ago in the aftermath of the most devastating attack in America’s 

history, I believe we must come together again. On 9/11, our Nation was united as never before by tragedy, by grief and by a 

shared sense of loss. 

Today, we must be united by a collective resolve and a common 

purpose to protect our homeland and to protect our people, to honor 

the values that have made our Nation great and to build on the 

extraordinary progress that has been achieved in protecting the 

people we are all privileged to serve. So thank you, Mr. Chairman. 

I will be more than glad to respond to any questions that you 

might have. 

[The prepared statement of Attorney General Holder follows:] 

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

And I will recognize myself for questions. The first is this: At the 

end of the month, there are three temporary provisions of the PATRIOT Act that are set to expire. A lot of people say that we might 

exaggerate the significance of the ability of those provisions to enable us to gather intelligence. Would you comment on how imporVerDate Aug 31 2005 11:42 Sep 13, 2012 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6601 H:\WORK\FULL\050311\66154.000 HJUD1 PsN: DOUGA

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tant those three provisions are and whether you feel that they 

should be extended? 

Attorney General HOLDER. Well, we believe, I believe, it is absolutely essential that these expiring provisions be reauthorized. We 

never want to see these Acts, these provisions, expire. The fact that 

they have sunsetted periodically and have required us to come back 

periodically to get them reauthorized is not helpful to us. We need 

certainty. Our prosecutors, our investigators, need certainty in that 

regard. 

So our hope is that these provisions will be reauthorized for as 

long as we possibly can. If they were done on a permanent basis, 

that is not something that we would object to. I am trying to confront the political reality in trying to get to the necessary votes in 

the House, the necessary votes in the Senate, and my hope would 

be that at a minimum, we would reauthorize these provisions for 

a substantial period of time. 

Mr. SMITH. Thank you, Mr. Attorney General. My next question 

goes to something that I mentioned in my opening statement, and 

that is the importance of data retention by ISPs to allow us to go 

after the child predators on the Internet. Has the absence of data 

retention or significant periods of time for data retention hampered 

your ability to go after these individuals? 

Attorney General HOLDER. I can’t point to a specific case, but I 

am concerned that the lack of retention periods will hamper our 

ability to get at important cases among the ones that you mentioned, child pornography, but also in the terrorist field, national 

security field is something that we are talking about with our European counterparts where they want to have data retention periods that are substantially shorter than what I think is appropriate. 

But I think the concern that you have expressed with regards to 

the retention of data is something that is worthy of our attention. 

Mr. SMITH. Okay. Thank you. Mr. Attorney General, as I mentioned in my opening statement, it seems to me that we have had 

the appearance that the Department of Justice has chosen to prosecute cases based upon political ideology rather than equal justice 

under law. And some of the examples that come to mind are, for 

example, the decision of the Department of Justice to sue Arizona 

on an immigration bill that that State passed, but then not to Utah 

for the immigration laws that that State passed. And it seems to 

me that the Department probably should be consistent in its application of the law. 

Also you reopened an investigation into CI interrogations earlier 

in your tenure, and yet you ended a criminal probe into the lawyer 

who publicly admitted leaking classified information on the terrorist surveillance program. Again, I mentioned that in my opening 

statement. This does give the appearance of a pattern of selectively 

enforcing a law, and I wanted to ask you for your comment as to 

whether that appearance is accurate or not. 

Attorney General HOLDER. Well, let me be very clear. With regard to those matters and in all the other work that this Department of Justice does, we apply the facts as we find them, we apply 

the law as we find it, we do what we do and make decisions without any regard for political considerations. Frankly, the work of the 

Department could be made a lot easier if we listened to the critics, 

23 

if we listened to the pundits, if we looked at the polls. That is not 

what we do, it is not what I have asked the men and women of 

the Department. 

Mr. SMITH. But you understand that the examples I mentioned 

give that appearance whether that is accurate or not? Do you see 

the inconsistency that I point out and feel that that is not accurate 

or do you think that there is an appearance of inconsistency there? 

Attorney General HOLDER. Well, I don’t see necessarily the inconsistency or the appearance of political considerations that you 

mentioned. For instance, with regard to the Utah law, that is a law 

that doesn’t go into effect until 2013. It has always been Department of Justice policy to try to work with States to see if there is 

a way in which we can reach an agreement without us having to 

actually file suit. So we will look at the law and if it is not changed 

to our satisfaction by 2013, we will take all the necessary steps. 

Mr. SMITH. Okay. Thank you, Mr. Attorney General. The Ranking Member has yielded his initial time to the gentlewoman from 

Florida, Ms. Wasserman Schultz, so she will be recognized for her 

questions now. 

Ms. WASSERMAN SCHULTZ. Thank you so much. And I thank the 

Ranking Member and the Chairman. General Holder, it is good to 

see you again, and I know that you are going to really be surprised 

about the subject about which I am going to ask you, but that 

would be our focus and your priority, which I am thrilled continue 

to be a priority on the exploitation of our Nation’s children. We 

have worked hard to implement the Protect Our Children Act. And 

the National Strategy on Child Exploitation, Interdiction and Prevention Report that came out last year details that there are hundreds of thousands of criminal suspects in the U.S. engaged in 

child pornography trafficking. 

Just to give everyone an idea, according to the Office of Juvenile 

Justice and Delinquency Preemption in 2009, our Internet Crimes 

Against Children Task Forces made over 3,000 arrests and identified over 1,000 child victims. Since passage of the Protect our Children Act of 2008, the funding though has remained relatively the 

same, about $30 million. In the 111th Congress, under the Democratic leadership we passed a budget that included $60 million for 

our ICAC task forces, and we know that with every dollar that we 

add, we can make it that much more likely to actually rescuing a 

child victim. 

So wouldn’t you agree that by doubling the ICAC task force 

budget that we would have an opportunity to rescue that many 

more children? 

Attorney General HOLDER. Well, let me say that we have certainly enjoyed working with you. The focus that you have placed 

on this issue I think is totally appropriate. I hope it will be a legacy 

item for this Department of Justice that people will see that we 

stood up for our Nation’s most vulnerable and most important citizens, our children. And the work that you have done with us I 

think has been extremely effective. 

The ICAC task forces, I think, again, have been extremely effective and we want to support them in every way that we can. We 

are unfortunately confronted with budget realities that make it extremely difficult to do all the work that we want to do. But with 

24 

regard to those task forces we want to try to expand them to the 

extent that we can, support the ones that do exist and then try to 

ring out efficiency, so that we can in some ways make sure these 

budgetary problems don’t get in the way of the very important 

work that we have done together. 

Ms. WASSERMAN SCHULTZ. Let me just point out, the Administration has been incredibly supportive and has made it a priority. My 

concern is that we made a commitment in the 111th Congress to 

continue to increase the funding for the ICAC task forces, and in 

this Republican Congress, I am quite concerned that that same 

commitment won’t be met. Now, the Chairman has been—Chairman Smith has been incredibly committed to making sure that we 

can go after these child predators. I am hopeful that his influence 

rises to the top so we can ensure that continued commitment. 

I want to also just touch on a letter that I sent to you about Sholom Rubashkin which we sent in December. And it is a case where 

the judge has been accused accurately of some ex parte communication and excessive sentencing. And I won’t get into it here, but if 

we could follow up with you on that and get a response from the 

Department, I would appreciate it very much. Because it appears 

both the sentence has been—that the sentence is incredibly excessive and the judge who levied the sentence engaged in inappropriate ex parte communication. 

So if we could follow up with you on that that would be great. 

And then lastly, I just want to ask you about the gas prices task 

force, because I think that it is fantastic that the Administration 

has set up the task force. If we look—I just want to review the current situation because most people aren’t aware of this. According 

to the Energy Information Agency under the U.S. Department of 

Energy as of a week ago, this is a week ago, the U.S. crude oil reserves that we had were at 363,125 barrels, which is higher than 

at any point during the 8 years of the Bush administration. Our 

total petroleum imports are at their lowest level since 1997. 

Domestic oil production for the last 2 years is up. And in the 

Gulf of Mexico, we have larger production now than at any point 

in the last two decades, at 1.64 million barrels a day, which is double the production in 1992. Yesterday though the average price at 

the pump was $3.96, up over a dollar from a year ago this week 

when it was $2.90. So with all the good news about supply, one 

would think that there must be a dramatic increase in the demand 

for gasoline that drives those increases, but that is just not the 

case. 

So it seems like there is something that smells in Denmark. Can 

you tell us specifically how the fraud working group, which again, 

I think, is really a very aggressive way of pursuing that the facts 

and separating fact from fiction and helping to get to the bottom 

of how we can explore manipulation, explore collusion and fraud, 

and tell us how Congress can assist you in this effort. 

Attorney General HOLDER. Well, there are certainly market 

forces that are at work. And I don’t want to oversell what it is that 

we will be doing, but to the extent that there are inappropriate attempts to manipulate the market, that there is price gouging, other 

things of that nature that have had a devastating impact on average Americans who are trying to, in these tough economic times, 

25 

make do, that will be the focus of this task force. We have partners 

from the Federal Government, as well as our State and local counterparts, State attorneys general, district attorneys, all of whom 

will be coming together to look at this situation to see if there are 

people who are doing things that are inappropriate, and to the extent that they are we will hold them accountable. 

This is a serious effort by a dedicated group of people that, as 

I said, is pretty wide ranging. It involves prosecutors, investigators, 

at a variety of levels. We will look at this on both the civil and the 

criminal sides. 

Ms. WASSERMAN SCHULTZ. I thank the Ranking Member and the 

Chairman for their indulgence, and yield back the balance of my 

time. 

Mr. SMITH. The gentleman from Wisconsin, Mr. Sensenbrenner, 

former Chairman of the Judiciary Committee, is recognized for his 

questions. 

Mr. SENSENBRENNER. Thank you very much. Thank you for coming, General Holder. I would like to ask a few questions relative 

to the Department’s February 23rd decision not to defend the constitutionality of section 3 of the Defense of Marriage Act. And as 

a result, the House of Representatives is going to have to hire outside counsel at our own expense to be able to make sure that this 

issue is properly argued before the court. Why did you do it? 

Attorney General HOLDER. Well, we had a unique situation in 

the Second Circuit where this case—where the decision was made. 

We had, in prior instances, been in circuits where the courts of appeals had a defined standard, a rational basis standard. In the Second Circuit, we had for the first time a circuit that had not looked 

at the issue, had not come up with an applicable standard. When 

the Department looked and had to make the determination as to 

what the appropriate standard was, given the nature of the way in 

which gay people had been treated in this country, given the nature of the reasons for the passage of the statute, it was our feeling 

that a heightened scrutiny test had to be applied. 

Applying the heightened scrutiny test, we did not think that the 

statute would pass constitutional muster, and as a result, thought 

that we could not make reasonable arguments in defense of the 

statute, something that is done extremely rarely but happens occasionally. And I recommended to the President that we not defend 

the statute and he agreed with that recommendation. 

Mr. SENSENBRENNER. Well, sexual preference has never been a 

protected class in any of our civil rights laws. And my understanding is that the vast majority of the courts disagree with the 

Second Circuit, and believe that the lower standard, which is rationally related to a legitimate government interest is the one that 

applies. Now, evidently, the President has decided to take the opinion of one court to the exclusion of other courts to make this decision that he will not execute the laws that he took an oath to enforce. 

Attorney General HOLDER. No, I mean, these instances happen 

occasionally. In fact, there is a Federal statute that anticipates 

this. And under that statute, when the Attorney General decides 

not to defend the statute a letter is sent to Congress, as I did in 

this case, and as I have done in other instances. The reason for the 

26 

determination, though, was, as I said, this different standard. And 

the fact that much has changed since the passage of the bill 15 

years or so ago, the Supreme Court has ruled that criminalizing 

homosexual contact is unconstitutional. Congress has repealed the 

Don’t Ask, Don’t Tell policy. Since the lower courts have—— 

Mr. SENSENBRENNER. But Congress has never repealed or modified the Defense of Marriage Act, and this law has been on the 

books for over 15 years. And you were the Deputy Attorney General at the end of the Clinton administration and this concern was 

never raised. And now all of a sudden, 2 years into the Obama administration, the President and you apparently have decided that 

section 3 is unconstitutional. You know, I know you have got to 

pivot around a little bit in this business but the Constitution hasn’t 

been pivoting around. 

Attorney General HOLDER. Yeah, but circumstances have 

changed, and that is what I have been saying. 

Mr. SENSENBRENNER. Is it political circumstances or legal circumstances? 

Attorney General HOLDER. No, as I said, if you look at the history of discrimination coupled with what Congress has done with 

regard to don’t ask don’t tell, what the Supreme Court has said—— 

Mr. SENSENBRENNER. Well, don’t ask don’t tell, with all due respect, sir, was a personnel issue in the Defense Department. And 

the decriminalization of homosexuality, that was the criminal law. 

DOMA does not deal with either of these two items. DOMA was an 

attempt to define for Federal purposes that marriages between one 

man and one woman. And 45 States in this country have also 

reached that conclusion, either through a constitutional amendment ratified by the people, as was the case in Wisconsin, or 

through statutory enactments by the legislature. 

You know, my concern on this, Mr. Attorney General, and it is 

deeply troubling, is that the President has decided to usurp the 

function of Congress in making laws which a former President has 

signed and also to usurp the function of the courts by saying that 

this law is unconstitutional; well, that is not his job. Now, I guess 

what I can say is that I certainly would support an effort to have 

the cost of Congress’ defending this provision that the President 

and you have refused to do so come out of the Justice Department’s 

appropriation so that the message is sent down the street that an 

Attorney General or President can’t willy-nilly decide that a law 

that they may have voted against if they had been in Congress at 

the time is unconstitutional. 

Well, my time is up. And, you know, let me say I haven’t said 

the last about this, but you made the wrong decision. And I think 

that there ought to be a little bit of skin off the Department’s back 

as a result of the wrong decision being made, and I yield back. 

Attorney General HOLDER. Well, with all due respect, in addition 

to the determination that I made and the President agreed with, 

which is based strictly on an assessment of the legal situation in 

front of us, there are several lower courts that have ruled that the 

DOMA itself is unconstitutional. And the notion that this is somehow something that ought to be, as you said, taken off the backs 

of the Department of Justice in a financial way, I think, is inappropriate. The lawyers in the Department of Justice who would have 

27 

worked on that case, believe me, have more than a full-time job, 

and they will have to use the time that might have been used in 

the DOMA defense, they will use it in other areas, so I don’t think 

that that is inappropriate. 

Mr. SMITH. Without objection, the gentleman from Wisconsin is 

recognized for an additional 30 seconds. 

Mr. SENSENBRENNER. Mr. Attorney General, I guess what I can 

say is that we are in a tough budget time, and we all know we are 

in a tough budget time. If you take the position that this should 

come out of Congress’ budget, which we willingly cut on the second 

day of the session, essentially what you are saying is that there 

shouldn’t be money, government money, to pay a lawyer to argue 

the constitutionality of this law. 

And you know I am one of those that believes that everybody is 

entitled to a lawyer no matter how wrong their position may be. 

And you know, what you are saying is, well, just because you and 

the President have decided not to defend DOMA because you and 

the President have decided it is unconstitutional there should be 

some kind of financial shifting around so that the lawyer gets paid 

for because this is a serious constitutional question, and the best 

lawyers in the country ought to argue both sides of the case, and 

I yield back. 

Mr. SMITH. The gentleman’s time has expired. The gentleman 

from New York, Mr. Nadler, is recognized. 

Mr. NADLER. Thank you. I am very heartened to hear from 

the—— 

Attorney General HOLDER. Can I just say, I don’t disagree with 

Mr. Sensenbrenner in the sense that good lawyers ought to be involved in this matter, and you apparently hired Mr. Clement, who 

is a great lawyer. But Congress, it seems to me, has the ability to 

pass an appropriation to pay Mr. Clement for the defense, a great 

defense that I am sure he will render. To take it out of the Justice 

Department, however, I think is inappropriate. 

Mr. NADLER. I am delighted to hear the observation of the gentleman from Wisconsin, and I look forward to his—that everyone 

is entitled to a lawyer, and I look forward to his support to greatly 

increase appropriations for legal services and legal aid so that people who need lawyers in this country can get it, and we will be 

working together on that, I am sure. Mr. Attorney General, I want 

to offer my sincere appreciation to the Administration for its daring 

and successful mission to eliminate Osama bin Laden. I want to 

commend our military, our intelligence personnel and the Administration for never forgetting 9/11, and for continuing to pursue terrorists and bringing them to justice. And please bring that message 

back to the President. 

As you well know, during the last Congress a number of us 

worked tirelessly to pass the 9/11 Health and Compensation Act so 

that we can properly honor, remember and care for the victims of 

9/11. This new law reopens the Victims’ Compensation Fund which 

will allow those still suffering and dying from their work at Ground 

Zero to finally apply for financial compensation for their losses. You 

and I have met about setting up the fund, and again, I want to encourage you to make rapid progress on appointing a special master, 

setting up the mechanisms necessary to process claims and doing 

28 

everything you can to ensure that those still suffering from the attacks will get the compensation they deserve. And I hope you will 

let us know if there is anything we can do to help ensure that implementation of the Act goes as smoothly as possible. 

Now, getting back to the little discussion of DOMA, I don’t believe that the Administration had any choice in the matter at all 

by looking at the legal precedence. And tell me if it isn’t true that 

Mr. Sensenbrenner was a little mistaken because he said you chose 

one circuit over the others. 

In fact, a number of circuits had established the rational relationship test, the Second Circuit hadn’t established any test, which 

is why you had to look into the position of the Department in the 

Second Circuit case what should you do. Not whether you agreed 

to the Second Circuit or not is a new question which you had to 

consider for the first time in a new circuit. But isn’t it true that 

the cases in the other circuits that determine that the rational relationship test was the right test all were done pre-Lawrence and 

post-Bowers. In other words, they were all done in a legal context 

in which the Supreme Court had said that the act of consensual 

sodomy, the homosexual act itself, could be properly made a crime. 

This was specifically—that was a 1986 case—was specifically overturned by the 2003 case of Lawrence which said you couldn’t do 

that. And this had to give an entirely new context and there had 

been no determination by any court as far as I know, but certainly 

by any circuit, of the proper scope of review, or standard of review 

after the Lawrence case. 

And if you look at the normal criteria for determining the standard of review that the Supreme Court has enjoined upon us as to 

what a suspect classification is, et cetera, does this class have a 

history of discrimination, does it have the political power to stop 

the discrimination, et cetera, et cetera, it meets all the tests and 

you really had no choice but to go that route. 

Attorney General HOLDER. Well, I would agree with you. I mean, 

the legal environment, the legal landscape, has fundamentally 

changed since some of those earlier decisions were made by those 

other circuits. And we confronted in the Second Circuit, a jurisdiction or a circuit that had not ruled and so therefore we had to examine the legal environment as it exists today. 

And on that basis, not on any political basis, but on a legal basis, 

a constitutional basis, the recommendation that I made to the 

President was that there was not a reasonable argument that could 

be made in favor of the constitutionality of DOMA, and the President agreed. 

Mr. NADLER. In a context after Lawrence, not just in the context 

of social change? 

Attorney General HOLDER. Exactly. In terms of what the courts 

have said, understanding what the court said and when they said 

it, what the Supreme Court said, what many lower courts have 

said, and in looking at the right to decide what the appropriate 

standard was. 

Mr. NADLER. Well, I commend you for that determination. I 

think it was compelled by the courts. And I certainly hope that we 

will not start trying to intimidate the Department in terms of its 

29 

legal decisions through the use of the appropriations process. That 

would be wholly inappropriate. 

Let me switch topics if I may. We have here your letter from Ron 

Weich, actually, on the State Secrets Doctrine. And you make some 

very interesting points. But the key point is the courts should have 

the information, you are going to exercise this power very sparingly, et cetera, et cetera, but it is still a power the executive is 

going to use. 

In the Ninth Circuit, in the initial decision of the Ninth Circuit, 

I thought, the most important sentence was a sentence where the 

three-judge panel said the executive cannot be its own judge. And 

all the criteria which you set forward in this letter are fine criteria, 

but they all say, in effect, trust the Department, trust the executive 

branch, no recognition of separation of powers. 

And my contention is that you say in here that the courts—the 

Department recognizes that courts have an essential and independent role to play in reviewing the executive’s assertion. It 

should be in approving the executive’s assertion. There should be 

secret proceedings and so forth if necessary, but the key is that the 

courts should have to okay or not an assertion of the fact that— 

a motion to dismiss on the grounds of executive privilege should 

have to be okayed by the court, not simply noted by the court regardless of how restrained and proper the executive is. That seems 

to be fundamental to our system of checks and balances and completely missing from the Department’s position. 

Attorney General HOLDER. What we have tried to do, what I 

have tried to do is really reform the process by which the invocation of that privilege is made. There are a whole series of levels of 

review that have to be agreed to, including by the highest levels 

in the Department of Justice, and I ultimately must agree that the 

invocation of the privilege is appropriate. Since this new process 

was put in place, we have only invoked a privilege on two occasions, and we only will do it in those instances where it is necessary to protect national security and not to hide anything that 

might have been inappropriately done by the executive branch. 

Mr. NADLER. All of which—— 

Mr. SMITH. The gentleman’s time has expired. 

Mr. NADLER. May I have one additional minute? 

Mr. SMITH. The gentleman is recognized without objection for an 

additional 30 seconds. 

Mr. NADLER. All of which may be true, and all of which may be 

exercised properly by you and maybe by your successor or not, but 

the decision is still reserved for the Department, not the court, and 

that is the fundamental problem which I think is inconsistent with 

our general system of government. 

Attorney General HOLDER. Well, as I said, I think we have in 

place a new process that handles the concerns that you have, and 

we make sure that these invocations of the privilege are rare and 

are appropriate. 

Mr. NADLER. Thank you. 

Mr. SMITH. The gentleman’s time has expired. If you can doublecheck this mic for me please. The gentleman from North Carolina, 

Mr. Coble, is recognized for his questions. 

30 

Mr. COBLE. Thank you, Mr. Chairman. General Holder, good to 

have you on the Hill. Mr. Attorney General, last June, the Justice 

Department contacted Alamance County in my district to inform 

the County Board of Commissioners that it was commencing an investigation concerning allegations of discriminatory policing and 

unlawful searches and seizures. The county assures me that there 

is no factual basis for these allegations. At a mutually convenient 

time, Mr. Attorney General, I would like to meet with you and/or 

the appropriate staffer of Justice regarding this matter. 

Attorney General HOLDER. We are, I guess, in the process of trying to negotiate with the sheriff’s office to get some relevant documents, and apparently there has been partial compliance with our 

document request. But to the extent that you have concerns, I am 

sure that we can work out some interaction between our staffs. 

Mr. COBLE. I thank you for that. An important element, Mr. Attorney General, of our Federal bankruptcy laws is a requirement 

that debtors consult with an approved agency to receive a briefing 

and budget analysis for the credit counseling agency prior to filing 

for bankruptcy relief. To ensure high quality standards for pre-filing counseling, the executive office of the United States trustee is 

charged with approving nonprofit budget and credit counseling 

agencies that may provide this service. There are allegations that 

the trustee office has approved a number of credit counseling agencies that are not meaningfully interacting with debtors prior to certifying that they have completed the prerequisite pre-filing counseling. 

There are also allegations that many of these nonprofit agencies 

are related or linked to for-profit entities. Are you familiar with 

these allegations? 

Attorney General HOLDER. I have heard—I am not intimately familiar with them, but I have heard conversations in the Department about the subject that you are talking. I know that we are 

looking at these matters. To the extent that you have information 

though that you think we have not adequately addressed, again, 

that would be information you can share with us I will make sure 

that the appropriate people in the Department examine it. 

Mr. COBLE. And I thank you for that. If you would get back to 

us on what you find out as well. Finally, Mr. Attorney General, as 

has been mentioned, we are in a cutting mode on the Hill, as you 

know. What are your priority areas for cuts? 

Attorney General HOLDER. I always like to have the question 

asked the other way. 

Mr. COBLE. Well, I didn’t mean to induce laughter when I asked 

that question, Mr. Attorney General. 

Attorney General HOLDER. You know, we are mindful of the fact 

that we have tough budgetary times, and the Department has to 

step up as other executive branch agencies have. We have our priority areas which all revolve around the protection of the American 

people; national security, financial fraud, prevention of violent 

crime, the protection of the most vulnerable among us. We want to 

have an adequate budget that will allow us to do those kinds of 

things. There are budget proposals that are floating around. We 

have talked to our counterparts at OMB and have made known to 

them what our priorities are. And my hope is that recognition will 

31 

be made of the unique responsibilities that the Justice Department 

has and that a budget that will allow us to serve the American people in a way that I describe will be actually enacted. 

Mr. COBLE. I thank you for that. Mr. Chairman, I yield back 

prior to the illumination of the red light. 

Mr. SMITH. Thank you, Mr. Coble. The gentleman from Michigan, 

Mr. Conyers, is recognized for his questions. 

Mr. CONYERS. Thank you, Chairman. One of the things that I 

hope we can take a new look at is the State secrets privilege in 

which the exclusion of evidence from a legal case based solely on 

affidavits submitted by the government stating that the court proceedings might disclose sensitive information which could endanger 

national security causes the information to go and the case collapses. 

And I think that is a serious problem in the way the previous 

Administration and this one is proceeding. What bothers me, General Holder, is that there have been cases challenging the use of 

rendition, of wiretapping, of torture, and the Administration has 

used the secret privilege, State secret privilege, to have these lawsuits dismissed. I think it is very troublesome and problematic, and 

I am wondering if a number of us here can begin to persuade you 

to reexamine the use of this technique, because it makes it very 

hard to challenge those in those cases to bring a case against the 

government. 

Attorney General HOLDER. Well, I certainly heard the concerns 

that were expressed by Members of this Committee, and frankly 

other Members of Congress and people outside of Congress. And I 

was concerned myself about the invocation of the privilege, and I 

think that I have put in place a regiment that, as I indicated to 

Mr. Nadler, would make the use of the privilege rare and appropriate and transparent to the extent that we can. We have sent a 

report to Congress about the invocation of the privilege which has 

not been done before. I put in place a series of review steps that 

did not exist before, and required that the Attorney General himself or herself actually sign off on any invocation of the privilege, 

all of which is new. And it would seem to me that that, I think, 

would deal with many of the concerns, if not all of the concerns, 

that have been raised. But, I mean, this is a fluid process. And to 

the extent that there are other ideas that you or other Members 

of the Committee have, I would be more than glad to listen to 

them, work with you and see if there are further changes that we 

need to make. 

Mr. CONYERS. Well, thank you. And I am familiar with that new 

report. But look, many in the legal community don’t think that it 

changes really very much, and we have got a lot more meeting to 

do and discussion, and I am glad you are open to it. Let me turn 

now to antitrust. Now, the antitrust division has been dormant for 

many years in my view. And the global corporations get larger and 

larger and larger. It works against our economy, it certainly takes 

jobs away from this country as badly as we need them. And I 

haven’t seen one major case in which your Department has refused 

to approve a significant merger. 

Now, isn’t there some way we can begin to review that? And I 

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mittee that think we can make a good case that it is not good law, 

it is terrible for the economy, and that it would be the right thing 

to do to start refusing it. DOJ hasn’t refused one merger. 

Attorney General HOLDER. Well, we have, I think, a very vigorous antitrust policy, we have got a great Assistant Attorney General, Christine Varney, who is the head of the antitrust division, 

and I think that she has, in fact, revitalized the work of the antitrust division. To the extent that proposed mergers have come before the antitrust division, they have oftentimes been approved, but 

approved with conditions that were required by the Department; 

changes in business practices, divestment of certain components in 

the business that it sought to merge. And I think that the way in 

which Christine is going about it, the men and women of the antitrust division are going about their enforcement activities is appropriate. Again, based only on the facts and law there are mergers 

that we presently have that we are in the process of considering. 

I can’t talk about those. But in the examination of those proposed 

mergers, we will be vigorously enforcing the antitrust laws. 

Mr. CONYERS. Thank you, Chairman Smith. 

Mr. SMITH. Thank you, Mr. Conyers. The gentleman from Virginia, Mr. Goodlatte, is recognized for his questions. 

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

thank you very much for coming to be with us today. A few weeks 

ago, Director Mueller testified before this Committee and highlighted the threat of cyber crime. Please let us know what measures the Department is currently taking to strengthen our Nation’s 

cyber security. 

Attorney General HOLDER. Well, it is an issue that is a great concern to us in the Department. We have within our criminal division 

a computer crimes section that does a great deal of work dealing 

with issues that come before it. It has been publicly revealed about 

steps, enforcement steps, that we have taken with regard to a matter that was centered I guess in Connecticut with regard to I guess 

what we call botnets. The national security is potentially threatened by cyber issues. There is economic fraud that can be perpetrated through the use of cyber components. We work with the 

FBI and other agencies within the executive branch to try to deal 

with these cyber issues; child pornography, as was indicated before. 

A whole variety of things can happen. 

I mean, the cyber world can be such a positive force, but also the 

potential for great negative activity is there, and so we are very active in a variety of ways in dealing with these cyber issues. 

Mr. GOODLATTE. Are there additional tools that the Congress can 

provide to the Department that would help you in this critical mission? 

Attorney General HOLDER. Well, I think that is actually a very 

good question, because the reality is that the cyber issues evolve. 

And what was state-of-the-art 6 months ago isn’t state-of-the-art 

necessarily today. And to the extent that we can come before this 

Committee, work with Members of this Committee, in looking at 

the issues that we are confronting now, or that we expect that we 

will have to confront in 6 months, a year from now, and make legislative requests, that would be certainly something that we would 

appreciate, and I would take advantage of that offer. 

33 

Mr. GOODLATTE. Well, thank you. And so I take it you would be 

willing to work with us to identify these additional tools and try 

to enhance our Nation’s cyber security, as well as your ability to 

combat cyber crime? 

Attorney General HOLDER. Oh, absolutely, absolutely. 

Mr. GOODLATTE. Another subject area I wanted to get into relates to intellectual property, which is a subset of cyber crime, if 

you will. There is a great interest on both sides of the Capitol in 

legislation to better protect the public by enhancing respect for intellectual property online. 

One of the proposals being considered has been to give the Department enhanced authority to petition Federal courts to block access to Web sites, many of which may be based outside the United 

States, which are dedicated to offering illegitimate, physical and 

digital goods to American consumers. 

In this regard, I wonder if you can address some key concerns. 

First, do you have suggestions for how this Committee can ensure 

that such new authorities are used often enough to serve as a 

meaningful deterrent to the scope of illicit online activity? 

Attorney General HOLDER. Well I think you are again right to 

identify that as an issue that is of legitimate concern. I went to 

Hong Kong and to China a few months ago and gave a speech in 

Hong Kong about this very issue. I raised with Chinese officials 

who I met with about the concerns that our government has with 

regard to these matters. To the extent that we can identify the 

need for new tools or to the extent that there is proposed legislation, we would want to work with you, look at that legislation, and 

see if, in fact, there are ways in which we can either pass it, modify 

it, but there are huge economic concerns, huge economic concerns 

around the issue that you have raised. 

Mr. GOODLATTE. What protections does the law currently provide 

before the government can seize or seek forfeiture of a domain 

name? And are there any additional steps you believe are necessary to ensure that the constitutional requirements are met, that 

legitimate users of these domains are protected? 

Attorney General HOLDER. The difficulties there really are constitutional in nature. And to the extent that we can craft bills that 

allow the Department to seize domain names, to take other actions 

and do so in a constitutional way, that is something that I think 

we should explore. And we don’t have all the answers in the Department with regard to how that legislation might be crafted. 

And so I think working with this Committee and, frankly, other 

Senators who have raised this issue as well, I think would be a 

wise use of our time. 

Mr. GOODLATTE. And given that around 100 Web sites have been 

ordered seized by Federal courts under existing authorities, what’s 

your best estimate of a number of Web sites you might expect the 

Department would be able to target on an annual basis if something along the lines of the existing law was enacted to reach sites 

that are wholly based outside our borders? 

Attorney General HOLDER. I don’t know if I could give you a real 

good specific numerical estimate. But I can say that with different 

tools, given the nature of the threat that we face, that we would 

have substantially greater than the hundred or so that you have 

34 

mentioned. If we had those additional tools, as I said, working with 

you to identify the tools that we need, and making sure that those 

tools are constitutional in nature would be of great use to the Department. 

Mr. GOODLATTE. Thank you. Thank you, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Goodlatte. 

The gentleman from Virginia, Mr. Scott, is recognized for his 

question. 

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

In your prepared remarks you talked about the importance of all 

religions getting along. You are aware that then-Senator Obama, 

in Zanesville, Ohio, said that if you get a Federal grant, you can’t 

use that grant money to proselytize to the people you help, and you 

can’t discriminate against them or the people you hire on the basis 

of religion. 

Is it possible in this Administration today for someone to apply 

for a Federal grant and articulate an intention to discriminate 

against people of particular religions? For example, they don’t want 

to hire Catholics, Jews, and Muslims; would they be entitled to run 

a Federal program? 

Attorney General HOLDER. Well, I want to say that we want to 

make sure that we partner with faith-based organizations in a way 

that is consistent with our values, in a way that’s constitutional, 

and we will continue to evaluate any legal questions or concerns 

that are raised with regard to—— 

Mr. SCOTT. Does that mean, yes, they can get a Federal grant 

and discriminate? 

Attorney General HOLDER. We don’t want to be in a position 

where people are, in fact, getting Federal grants and discriminating. 

Mr. SCOTT. But you have at least one Administration official who 

has suggested that they are going to deal with discrimination on 

a, quote, case-by-case basis. What kind of cases would ‘‘We don’t 

hire Catholics, Jews, and Muslims’’ be okay? 

Attorney General HOLDER. Obviously, that kind of situation 

would not be okay, would not be legally appropriate. It would be 

inconsistent with our values. 

Mr. SCOTT. Is it legal under this Administration? 

Attorney General HOLDER. It’s not a question of it being legal 

under this Administration. It is a question of what the law says. 

Mr. SCOTT. Does this Administration provide grants to organizations that actively discriminate based on religion or not? 

Attorney General HOLDER. We don’t want to do that. We try not 

to do that, but the question is, what—— 

Mr. SCOTT. Wait a minute. Either you do or you don’t. Do you 

not give grants to organizations that actively discriminate based on 

religion or not? 

Attorney General HOLDER. The attempt we make is not to do 

that. As I have indicated, our hope is that we do something—the 

grants that we give are consistent with the law, but beyond that 

are consistent with our values. 

Mr. SCOTT. We don’t have time to go into the legal memo of June 

29, 2007. Could we give, could you for the record provide the AdVerDate Aug 31 2005 11:42 Sep 13, 2012 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6601 H:\WORK\FULL\050311\66154.000 HJUD1 PsN: DOUGA
35 

ministration analysis of that legal counsel memo which essentially 

suggested that the Religious Freedom Restoration Act of 1993 provides a virtual exemption to statutory nondiscrimination provisions? Could you provide that to us for the record? 

Attorney General HOLDER. I’m sorry. Provide you—— 

Mr. SCOTT. With whether or not the status of that policy and 

whether or not that legal counsel memo is still in effect. Could you 

provide that for the record? 

Attorney General HOLDER. As I understand it the memo is still 

in effect, as I understand it. 

Mr. SCOTT. That the Religious Freedom Restoration Act gives organizations a virtual exemption to statutory nondiscrimination provisions? 

Attorney General HOLDER. If you are talking about the 2007 

OLC world vision opinion? 

Mr. SCOTT. So if you are running a Head Start program, if they 

are running a Head Start program, they can discriminate. Even 

though there is a statutory provision prohibiting discrimination, 

they can discriminate anyway? 

Attorney General HOLDER. What I was saying was with regard 

to that specific OLC opinion, we are not in the process of reconsidering it. That is not something, as I understand it—— 

Mr. SCOTT. I’m not talking about the memo, I’m talking about 

the policy. Can they discriminate, notwithstanding a specific statutory prohibition against discrimination, they can discriminate anyway based on that interpretation? 

Attorney General HOLDER. Obviously, discrimination cannot 

occur; that is, that contravenes Federal law. 

Mr. SCOTT. Well, let me ask a number of questions. My time is 

running out. Let me ask a number of questions just for the record 

since we don’t have time for the answers. 

The Prison Rape Elimination Act regulations apparently overlooked juveniles prosecuted and jailed as adults. We want to work 

with you on making sure that they are covered. 

We also understand that the changes we made in the crack cocaine law are still not being applied for those who committed their 

crimes before the law went into effect. We need to know what 

changes need to be made since we have ascertained that those are 

unjust laws. 

We also want to ask you whether or not you believe poker is a 

game of chance or a game of skill, and whether or not the antigambling laws apply to poker as they would for roulette and other 

games like that. 

If I could get another 30 seconds, Mr. Chairman, just to ask the 

questions for the record, the news reports have talked about the 

compromise of a lot of identity information. Prosecution of identity 

theft and organized retail theft—not shoplifting—but organized, including E-fencing and everything else, are resource-intense activities. If you could give us an idea of what kinds of resources are 

needed to effectively combat identity theft, consumer identity theft 

and organized retail theft. 

Also, on reentry, your prepared remarks talked about the importance of reentry and that you are studying what works and what 

doesn’t work. We know that a lot more applications are in than we 

36 

have money to fund. And so we would like to know how that study 

is going, and also hope that you are going to continue to support 

the Federal Prison Industries, if you can give us a comment on 

that, that has shown to have a significant reduction on recidivism. 

Mr. SMITH. The gentleman’s time is expiring. 

Mr. SCOTT. And I appreciate the Chairman’s indulgence. 

Attorney General HOLDER. I would be more than happy to answer all those questions except the one about whether poker is a 

game of chance or skill. That is beyond my capabilities. 

Mr. SMITH. Thank you, Mr. Scott. 

The gentleman from California, Mr. Lungren, is recognized. 

Mr. LUNGREN. According to ESPN, it’s a sport. 

Mr. Attorney General, in 1996 while I was Attorney General of 

California, we helped work with the Congress to pass the 

Antiterrorism and Effective Death Penalty Act. One of the things 

was to try and create incentives for States to improve their habeas 

corpus procedures and to allow an expedition of their consideration 

by Federal courts. Unfortunately, no court ever found any State to 

do that. 

So in 2005, we passed legislation which changed that responsibility for certifying a State from the courts to the Attorney General. 

You published draft regulations in March 2011. The comments on 

the draft are due June 2011. I would hope that I could have your 

commitment that we will move on this, since this goes all the way 

back to 1996. 

Attorney General HOLDER. Yeah. I mean, we have tried to move 

this as quickly as we can. 

Mr. LUNGREN. As long as I have your commitment, that’s all I 

need. I would just say that with respect to DOMA, it would have 

been helpful if the President of the United States, as a former constitutional law professor during the time he was running for President, would have indicated that he had some constitutional questions about the DOMA when he was going around the country saying that he believes that marriage is between one man and one 

woman. These newfound understandings of the Constitution after 

one is elected are somewhat troubling, and particularly when it 

goes to the question of defending a law that was duly passed by 

the Congress and signed by a President. 

Mr. Attorney General, do you support and approve the action the 

President and the U.S. military took in going to Pakistan, killing 

Osama bin Laden and taking his body? 

Attorney General HOLDER. I think that the acts that we took 

were both lawful, legitimate, and appropriate in every way. The 

people who were responsible for that action, both in the decision 

making and the effecting of that decision, handled themselves I 

think quite well. 

Mr. LUNGREN. Can you tell us for the public record whether we 

can therefore be assured that any intelligence which led to this 

capture and killing of Osama bin Laden was not the result of enhanced interrogation techniques? 

Attorney General HOLDER. Well I think, as has been indicated by 

other Administration spokesmen, there was a mosaic of sources 

that led to the identification of the people who led to bin Laden. 

37 

Mr. LUNGREN. I understand that. But were any pieces of that 

mosaic a result of enhanced interrogation techniques? 

Attorney General HOLDER. I do not know. 

Mr. LUNGREN. If that were the case, would that have made the 

action we took against Osama bin Laden illegal? 

Attorney General HOLDER. No. I think that in terms of the attenuation to the extent that—let’s assume that that were true— 

those acts might have been problematic and the action that was 

taken just 2 days ago I think was sufficiently long, so that the action would still be considered legal. 

Mr. LUNGREN. Could we have used the same tactics against 

Khalid Sheikh Mohammed when we captured him in Pakistan as 

we did against Osama bin Laden? Would that have been lawful? 

Attorney General HOLDER. Could we have—— 

Mr. LUNGREN. Used the same tactics against Khalid Sheikh Mohammed when we captured him in Pakistan as we did against 

Osama bin Laden? That is, killed him rather than capture. 

Attorney General HOLDER. The aim with regard to bin Laden 

was to kill or capture him. I would think that with regard to 

Khalid Sheikh Mohammed, we could probably apply those same 

standards of kill or capture. We had the ability to capture him as 

opposed to kill him. 

Mr. LUNGREN. Does it seem in some ways inconsistent or a difficulty for moral relevance to say that it is per se so shocks the conscience that one would subject Khalid Sheikh Mohammed to 

waterboarding, but it would not shock the conscience to put a bullet in his brain? 

Attorney General HOLDER. One has to take into account a whole 

variety of things and when you are on the scene, you want to get 

the person who you are trying to capture, but you also have to 

make sure that you are protecting the lives of the people who are 

on our side and who put themselves at risk. And it is for that reason that there is a safety component there and the kill-or-capture 

component raises itself in a way that it would not when it comes 

to the interrogation of Khalid Sheikh Mohammed or somebody else. 

Mr. LUNGREN. Since you opposed a military commission trial for 

Khalid Sheikh Mohammed, would you have opposed a commission 

trial for Osama bin Laden had he been captured and not killed? 

Attorney General HOLDER. Well, that is a hypothetical. I’m not 

sure that it is particularly relevant. 

Mr. LUNGREN. Well, you have taken a strong position against 

military commissions. And the reluctance that you showed toward 

closing Guantanamo, you issued a rather strong statement about 

your disappointment with the Congress with respect to both our efforts to keep Guantanamo open and our efforts to have military tribunals. So I think it is an appropriate question to ask you whether 

or not, since you opposed a military trial for Khalid Sheikh Mohammed, whether you would have opposed a military trial for 

Osama bin Laden and rather given him the protections of a civilian 

trial? 

Attorney General HOLDER. Well, my position is oftentimes 

mischaracterized. And on the same day that I indicated that it 

made sense—tactical sense to put Khalid Sheikh Mohammed in a 

civilian court, I sent five or six other cases to military tribunals, 

38 

military commissions. I don’t have a problem with the military 

commissions. But the decision that I made in the Khalid Sheikh 

Mohammed case was based on my review of the facts, the evidence, 

and tactical decisions, tactical decisions that no Member of Congress had the ability to see, that I did. 

Mr. LUNGREN. So it is tactical rather than civilian courts being 

the one that can uphold the constitutional notions of fair play as 

opposed to a military tribunal? 

Attorney General HOLDER. I think our military commissions, in 

fact, especially since they have been modified, are constitutional 

and can give fair trials. But the decision with regard to Khalid 

Sheikh Mohammed dealt with a whole variety of things that I 

uniquely had access to, and that’s why I made that decision and 

why I have been so vehement in my comments about what I think 

is an inappropriate and wrong decision by Congress to block our 

ability to try the case in that form. 

Mr. LUNGREN. Thank you, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Lungren. 

The gentleman from North Carolina, Mr. Watt, is recognized for 

his questions. 

Mr. WATT. Thank you, Mr. Chairman. Welcome, Attorney General Holder. 

I’m going to submit with—if I can get unanimous consent, a copy 

of a letter I received from the Attorney General for North Carolina, 

asking me about funding for the elimination of meth lab cleanup. 

You may not have the information at your hand; but if you could, 

just let me know what the basis was for the U.S. DEA halting all 

funding across the country for meth lab hazardous waste cleanup. 

Apparently it’s having substantial adverse impact not only in 

North Carolina but throughout the country, and it would be helpful 

to know why they stopped that funding. 

I ask unanimous consent to submit a copy of a letter and I will 

give—— 

Mr. SMITH. Without objection, the letter will be made a part of 

the record. 

[The information referred to follows:] 

39 

Mr. WATT. In August of 2010, after a joint working group of antitrust and FTC economists and senior attorneys and public workshops and comment opportunities, the Department of Justice made 

a substantial revision to its horizontal merger guidelines. 

Let me ask you three questions and then I’ll just give you the 

rest of the time to respond, to the extent you can, and if you don’t 

have time maybe you could provide written responses. 


66154B.eps
40 

*As of September 10, 2012, Mr. Watt nor the Committee had received a response from the 

Dept. of Justice. 

First of all, could you briefly explain the impetus for the revisions and describe generally what the Department hoped to achieve 

in making the changes? 

Second, could you highlight some of the most significant changes 

made to the guidelines, and briefly assess the impact these changes 

have had on recent merger reviews? 

And third, what role, if any, did the new guidelines have in the 

Department’s analysis of the merger between Google and ITA in 

particular; and if there are other mergers that these guidelines 

were significant in, I would like to have your response, probably in 

writing, to the last question. 

But if you could respond briefly to the first two questions that 

would be helpful. 

Attorney General HOLDER. I think what I would like to do is be 

able to give you a more detailed response in writing, but to say 

that the changes that we made that were done under the leadership of our Assistant Attorney General Christine Varney were all 

designed to make the Department’s enforcement efforts more effective, to revivify the antitrust division, and to ensure that as we 

look at matters we have the tools that we need and that those tools 

are transparent, so that people understand where the Department 

is coming from, that people have some degree of certainty they can 

understand how things have to be structured. All, as I said, with 

the aim toward making the enforcement of our antitrust laws as 

effective as we can and we are as aggressive as we can. 

With regard to the specific questions that you have asked, we 

will get you something in writing.* 

Mr. WATT. Is it likely that this new approach is going to make 

it less likely—it seems to me that you are moving toward a more 

compromised approach, as opposed to an enforcement approach, of 

saying this violates the antitrust laws; therefore, we will not approve it. 

And am I misreading that or—and I think that may be the discomfort that Mr. Conyers was raising earlier, that there have been 

no disapprovals, not that we are looking for disapprovals—is this 

a shift in poll policy in the Department, I guess, is a better question. 

Attorney General HOLDER. To the extent that you are concerned 

or others are concerned that we are somehow stepping back from 

being aggressive in the enforcement of the antitrust laws, I want 

to put your minds at ease. That is not what we are attempting to 

do. In fact, we take these cases and examine them one by one, as 

we have to. And as I think I indicated to Mr. Conyers with regard 

to the decisions that have been made, we have oftentimes required 

things of the parties before the mergers were approved. The fact 

that there has not been one that has been rejected, I would have 

to look to make sure that is accurate. Let’s assume that that is 

true; that is not an indication that there is any timidity on the part 

of the antitrust division, the Justice Department, to enforce the 

antitrust laws, or any indication going forward, some of the more 

41 

high-profile ones that we are now in the process of considering, 

might not pass muster. 

Mr. WATT. Thank you, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Watt. 

The gentleman from Ohio, Mr. Chabot, is recognized. 

Mr. CHABOT. Thank you, Mr. Chairman. 

Mr. Attorney General, I would like to comment on the gentleman 

from Virginia, Mr. Scott, whom I agree with on one of the few 

issues I think we agree on: the importance of the Federal Prison 

Industries. And I would encourage you to look into that matter. 

I think it’s an important program. I think once we have people 

locked up—at this level, it is Federal prisons, I have dealt with 

them at the local level as well—I think we ought to make sure we 

are utilizing those resources, and most of them are going to be out 

in the street someday, and to the extent that they can get job skills 

and improve themselves so that when they are back out, some at 

least can become productive citizens. I think that is very important. 

Let me move to an entirely different topic, then, and that is 

Guantanamo Bay, or Gitmo. I have been there three times. The 

first time I was there was shortly after it opened. It was about 9 

years ago, not much to it at the time; that’s where we, of course, 

held the detainees or terrorists or enemy combatants, whatever terminology one prefers to use now, or even back then, most of them 

captured in Afghanistan. And the reason, of course, we set up 

Gitmo is we needed a safe and secure place to keep the most dangerous people, essentially the worst of the worst, the terrorists, 

most of them, and the goal was not to do it on U.S. soil. And at 

that time they were at Camp X-ray within Guantanamo Bay. It 

really wasn’t much more than a bunch of cages out there and I 

think a great disservice was done when we had initial photographs 

and they had bags over their heads and they were kneeling and the 

impression, the wrong impression, was given that that’s the way 

we kept them all the time. And the world press pretty much went 

wild and it was, I think, a blow to the stature of the United States 

around the world because that’s not how these prisoners are treated for the most part. At its zenith—and I was there the second 

time about 5 years ago, and then most recently about 1 month ago, 

and so I have seen it pretty recently and through the whole process. 

At its height we had somewhere around 800 detainees is what 

my information is there. We are now down to about 172. A number 

of them have been transferred back to the countries of their origin. 

In some cases, the countries didn’t want them back, and we tended 

to try to give back the folks that we thought were least dangerous 

to the country. But even at that, the record shows that about 25 

percent have taken up arms again against the United States or 

some other country, essentially, so one out of four have become terrorists again. And that to me is very disturbing. 

And they are treated—there is a lot of allegations out there 

about how terribly they are treated; for example, the 

waterboarding. First of all, the waterboarding that’s out there, this 

did not occur at Guantanamo Bay; is that a fact, Mr. Attorney General? 

42 

Attorney General HOLDER. I think that is correct. 

Mr. CHABOT. So no waterboarding there. So first of all, when we 

hear that term and we have an equivalent that it’s torture, people 

can think what they think, but the definition is it is not torture, 

but it didn’t happen at Guantanamo Bay, and I think that is an 

important point to make. When prisoners are there, they probably 

eat better than they have in their lives, get the same medical treatment that our own soldiers get, they have cable TV, 22 channels, 

exercise equipment, a Koran, a prayer rug, clothing, access to legal 

care, among other things. Would that be accurate, sir? 

Attorney General HOLDER. I don’t know about all the specifics. 

I was in Guantanamo shortly after I became Attorney General. And 

it is a place that I think treats people as they should be treated. 

I don’t know about all the details that you have just gone through. 

Mr. CHABOT. And there is a separate section and it’s classified, 

so I can’t go into a lot of this. But there’s about 20 people there. 

The worst of the worst is Khalid Sheikh Mohammed. But I think 

our men and women in uniform have been really disparaged unfairly, and these are quality people who have handled a tough job 

with great professionalism and restraint. Are you familiar with the 

term a Gitmo cocktail? 

Attorney General HOLDER. A Gitmo cocktail? I think I know 

what that is. 

Mr. CHABOT. Yes. And it is what you think it is. It’s fecal matter 

and other pretty horrific things that get thrown by prisoners at our 

guards, and even under those circumstances there’s an awful lot of 

restraint that is handled there. But I know this is one thing where 

I agree with the Administration now, where they have changed 

their opinion about closing down Gitmo and also bring those people 

back here to the United States. There’s absolutely—that was a terrible idea, sir, to bring them to the United States and try them 

here; to have the anti-American vile mindset of some of these radical jihadists spread among the prisoners in our Federal prisons, 

and that’s where they ought to be tried. We shouldn’t give people 

an opportunity—can I have 30 seconds Mr. Chairman? 

Mr. SMITH. The gentleman is recognized for an additional 30 seconds, without objection. 

Mr. CHABOT. Thank you. To give a master propagandist like 

Khalid Sheikh Mohammed a soapbox to spew that anti-American 

venom around the world is just not the way to go. So I commend 

you for bringing them back here now—excuse me—for keeping 

them at Gitmo. We also built a $16 million court facility there that 

was virtually unused. And so now it is going to be used, and should 

be, and full speed ahead with that. Thank you. 

Mr. SMITH. Thank you, Mr. Chabot. 

The gentlewoman from California, Ms. Lofgren, is recognized for 

her questions. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

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

couple of years ago the Immigration Subcommittee held a hearing 

on ICE’s raid of a meatpacking plant in Postville, Iowa. And the 

factory workers there were literally rounded up and herded into a 

cattle area and then figuratively treated like cattle. They had 

43 

group hearings with shared counsel, no translation services, and 

very questionable guilty pleas and prison time. 

Judge Mark Bennett who sentenced a number of the immigrants 

said this about that proceeding: ‘‘I found the plea agreement [that 

the immigrants were asked to sign] personally and professionally 

to be offensive, and I thought it was a travesty, and I was embarrassed to be a United States District judge that day.’’ 

Now that was then, this is now. One way to look at these prosecutions is the impact in terms of due process rights and our adherence to law as to the defendants. Another way to look at it is 

how are we using our resources. I’ve had my—the attorneys on the 

Subcommittee—take a look at the data, and I understand that illegal reentry after deportation is now the most prosecuted Federal 

felony in the United States, and that misdemeanor prosecutions of 

immigration offenses in border districts has tripled from 2007 to 

2010, and that these prosecution decisions—making reentry felony 

prosecutions the most commonly prosecuted felony, Federal felony—has come at the expense of prosecuting other crimes, and 

nonimmigration felony prosecutions in nonborder districts have declined 6 to 8 percent in the same time frame. 

Now I raise this because many of us when we go home every 

week, get this question from our constituents: As far as we can tell, 

the Department has not brought a single prosecution of a highranking Wall Street executive or major financial firm in the wake 

of the Wall Street scandals that contributed to the global economic 

crisis. So it looks to me that the Department is spending its resources prosecuting nannies and busboys who are trying to get 

back to their families, illegally reentering, and yet we have not 

brought any prosecutions on the bandits on Wall Street who 

brought the Nation and the world to the brink of financial disaster. 

Could you explain these priorities, Mr. Attorney General? 

Attorney General HOLDER. Well, there’s a lot packed into that 

question. The fact that there are so many prosecutions along the 

border is an indication of the nature of the problem that we confront. This Administration has always stood for a comprehensive 

approach to—— 

Ms. LOFGREN. No. No. No. I would like to know about the lack 

of Wall Street prosecutions. 

Attorney General HOLDER. All right. I was just dealing with 

some things that you said. The fact that we have these prosecutions on the border is not any indication that we are not taking the 

Wall Street potential offenses seriously. We have prosecuted a 

great many cases that deal with fraud with regard to the mortgage 

area, with regard to financial schemes. 

A case was brought, just decided in the last couple of weeks, a $3 billion fraud scheme that involved Colonial Bank, Mr. Lee 

Farkus. The Department is looking right now at the report prepared by Senator Levin’s Subcommittee that deals with Goldman 

Sachs. People have to disabuse themselves of the notion that somehow or other this Department of Justice, the prosecutors who look 

at these cases, don’t want to bring these cases. They come to the 

Department of Justice to look at matters like this to apply the law, 

look at the facts, and to bring these cases. We are extremely aggressive in that way. 

44 

Ms. LOFGREN. May I ask how many investigators and U.S. Attorneys are assigned to the prosecution of executives on Wall Street 

who may have committed misconduct? 

Attorney General HOLDER. I can’t give you an exact number. But 

I can tell you that a substantial number of people in the Southern 

District of New York, as well as the criminal division here in 

Washington, numerous FBI agents—— 

Ms. LOFGREN. Maybe we can get that number after this hearing. 

I would like to turn to the whole mortgage industry. There was 

tremendous misconduct undertaken relative to the mortgage industries, including fraud. And as you are aware, I am sure, all 50 attorneys general have engaged in settlement discussions with banks 

about their misconduct. Recently the Comptroller of the Currency 

released a draft cease-and-desist order which one expert described 

as the regulatory equivalent of a Potemkin Village. 

I’m wondering if you could tell us—I understand the Department 

is also engaged in the negotiations—what should the top priorities 

for a global settlement of legal claims against the servicing industry include? Do you concur with the attorneys general’s outlined 

settlement, or do you have a different approach? 

Attorney General HOLDER. Well, I’m not sure you can say that 

the attorneys general are a model. They have a variety of approaches. Tom Perrelli, who is the Associate Attorney General, is 

intimately involved in that process, and we are trying to work with 

the financial institutions as well as the State attorneys general to 

try to work our way through an appropriate settlement. 

Ms. LOFGREN. Well, they have a framework and I’m just wondering if you agree with that framework or not. 

Attorney General HOLDER. Well, there is a framework. But there 

are still a whole bunch of different views, believe me. There’s a 

stated framework. But in terms of the interaction that goes on in 

these negotiations, there are a variety of positions that we are trying to harmonize and trying to work with the financial institutions 

to reach a conclusion. 

Ms. LOFGREN. If I could ask for unanimous consent for 30 seconds, Mr. Chairman. Could you tell us if the—— 

Mr. SMITH. The gentlewoman is recognized for an additional 30 

seconds. 

Ms. LOFGREN [continuing]. If the settlement discussions fail, are 

you prepared to prosecute these institutions, since that is the basis 

for the settlement discussions? 

Attorney General HOLDER. If the negotiations fail, if there is a 

basis for prosecutions, we will bring them. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

Mr. SMITH. Thank you Ms. Lofgren. 

The gentleman from California, Mr. Issa, is recognized for his 

questions. 

Mr. ISSA. Thank you, Mr. Chairman. 

Mr. Attorney General, I would like to thank you for the work 

that the U.S. attorney Laura Duffy is doing in San Diego going 

after coyotes, going after gun traffickers at the border. The work 

in my border district area of making our city safer, because the 

crime in Mexico often stops at the border, because her work and 

willingness to prosecute human traffickers and gun traffickers is 

45 

very much appreciated. So just so you hear two sides of the California story for a moment. 

Mr. Attorney General, we have two Border Patrol agents who are 

dead, who were killed by guns that were allowed, as far as we can 

tell, to deliberately walk out of gun shops under the program often 

called ‘‘Fast and Furious.’’ This program, as you know—and the 

President has been asked about it, and you have been asked about 

it—allowed for weapons to be sold to straw purchasers, and ultimately many of those weapons are today in the hands of drug cartels and other criminals. 

When did you first know about the program officially, I believe, 

called ‘‘Fast and Furious’’? To the best of your knowledge, what 

date? 

Attorney General HOLDER. I’m not sure of the exact date but I 

probably heard about Fast and Furious for the first time over the 

last few weeks. 

Mr. ISSA. Now that you have been briefed on it, the President 

has said on March 22 that you didn’t authorize it. Did your Deputy 

Attorney General James Cole authorize it? 

Attorney General HOLDER. I’m sorry, did the—— 

Mr. ISSA. The Deputy Attorney General, James Cole—— 

Attorney General HOLDER. Did he—I didn’t hear. Did he—— 

Mr. ISSA. Did the Deputy Attorney General authorize it? 

Attorney General HOLDER. My guess would be no. Mr. Cole, I 

don’t think was in the Department at the time that operation started. 

Mr. ISSA. But he has been aware of it much longer. 

Attorney General HOLDER. Been aware of it much longer? 

Mr. ISSA. Than you have, since you have only been aware of it 

a few weeks. How about the head of the criminal division, Lanny 

Breuer, did he authorize it? 

Attorney General HOLDER. I’m not sure whether Mr. Breuer authorized it. You have to understand the way in which the Department operates although their operations—this one has gotten a 

great deal of publicity. 

Mr. ISSA. Yeah, there are dead Americans as a result of this 

failed and reckless program. So I would say that it hasn’t gotten 

enough attention, has it, Mr. Attorney General? 

Attorney General HOLDER. Not necessarily. There’s an investigation that is underway—— 

Mr. ISSA. I’m aware of that investigation. Let me follow up with 

a couple of questions. 

Attorney General HOLDER. We will have to look at that to see exactly what happened with regard to that—— 

Mr. ISSA. Mr. Attorney General—— 

Attorney General HOLDER. I take very seriously the allegations—— 

Mr. ISSA. Mr. Attorney General, do you take seriously a subpoena signed by the Clerk of the House? 

Attorney General HOLDER. Of course. 

Mr. ISSA. After 14 days waiting for a letter to be signed or acknowledged or responded to, we sent a subpoena signed by the 

Clerk of the House. Thirty-two days later, last night, your people 

responded by giving us 92 pages, representing three documents 

46 

that were public records already, all are available, and saying that 

the other 400 or so responsive pages were not going to be produced. 

Do you stand by that? And were you aware of that? 

Attorney General HOLDER. I think we indicated that the other 

400 pages would be made available for review, to be accurate, I 

think. So those in essence were being made available as well. 

Mr. ISSA. And that took 32 days to get that answer. 

Attorney General HOLDER. The information was gathered as 

quickly as it could. I have taken steps to enhance our ability to to 

respond to subpoenas and document requests in that regard. I was 

not satisfied with the pace at which these things were happening. 

And as I said, I have taken some steps to make sure that we are 

more responsive. 

Mr. ISSA. Mr. Attorney General, do you agree that Congress has 

an independent responsibility, particularly when U.S. persons have 

been killed because of a failed and reckless program, to investigate 

those who authorized, approved, knew about it, and in some other 

way were responsible for it? 

Attorney General HOLDER. As I indicated to you last night when 

we spoke about this at the White House, I think there is a legitimate oversight responsibility that Congress has. But I think also 

Congress has to use that oversight responsibility in a responsible 

way. We have cases, 20 matters, that will go to trial in June of this 

year—— 

Mr. ISSA. Mr. Attorney General, isn’t it true that those cases that 

will go to trial in June—I have very limited time, I’m sorry—those 

cases are basically a bunch of meth addicts who did the buying, 

that you do not have what this program was supposed to produce, 

you don’t have the kingpins, you don’t have the places it went. 

What you have are the people that you already had on videotape, 

many many months before indictments were brought. Isn’t this 

true? 

Attorney General HOLDER. There are cases that are important 

that we are trying to bring, that we want to try successfully, and 

they are part of a scheme. You can’t look at a case as an individual 

matter and think it is unimportant, because small cases lead to 

larger ones. And that’s why it’s important—— 

Mr. ISSA. I would ask unanimous consent for an additional 30 

seconds. 

Attorney General HOLDER. That’s why these cases are important, 

and that is why—— 

Mr. SMITH. Without objection, the gentleman is recognized for an 

additional 30 seconds. 

Mr. ISSA. Mr. Attorney General, my final question, though, is 

from what you are saying about a scheme and so on, do you stand 

by this program; in other words—and it’s not a hypothetical, really—if you knew this program, knew about this program 90 days 

ago, 180 days ago, would you have allowed it to continue? And if 

not, then what are you going to do about the people who did know 

and allowed it to continue? 

Attorney General HOLDER. Well, what I have told people in the 

Department of Justice is that under no circumstances in any case, 

that any investigation that we bring, should guns be allowed to be 

distributed in an uncontrolled manner. 

47 

Mr. ISSA. So that would be consistent with the March 9 letter 

from Deputy Attorney General James Cole in which he said that 

we should not design or conduct undercover operations which include guns crossing the border; if we have knowledge that guns are 

about to cross the border, we must take immediate action to stop 

the firearms from crossing the border and so on. That’s your policy 

today. 

Attorney General HOLDER. That is our policy. That has certainly 

been the policy that I have tried to impose since I was Attorney 

General. 

Mr. ISSA. And isn’t Fast and Furious inconsistent with that policy? 

Attorney General HOLDER. Well that’s one of the questions that 

we’ll have to see, whether or not Fast and Furious was conducted 

in a way that’s consistent with what Jim wrote there, what I have 

said today, and that’s what the Inspector General is, in fact, looking at. 

Mr. ISSA. And will you agree to work with both this Committee, 

of course, and the other Committee investigating this as to—we’re 

not looking at the straw buyers, Mr. Attorney General, we’re looking at you, straw purchasers; we’re looking at you, we’re looking at 

your key people who knew or should have known about this, and 

whether or not your judgment was consistent with good practices 

and whether or not, instead, the Justice Department is basically 

guilty of allowing weapons to kill Americans and Mexicans. 

So will you agree to cooperate with that investigation both on the 

House and Senate side? 

Attorney General HOLDER. We’ll certainly cooperate with all the 

investigations, but I’m going to take great exception to what you 

just said. The notion that somehow or other this Justice Department is responsible for those deaths that you mentioned, that assertion is offensive. And I want to tell you—— 

Mr. ISSA. But what if it’s accurate, Mr. Attorney General? 

Attorney General HOLDER [continuing]. That it is the policy of 

the Justice Department to make sure that we do all that we can 

to protect law enforcement agents. It is one of the reasons why I 

have tried to look at a whole variety of methods, techniques that 

we can use to protect the lives of law enforcement agents. It is 

something that this country is not focused enough on. 

Over the last 2 years, the rate at which our people in law enforcement have been killed has risen about—— 

Mr. ISSA. What am I going to tell Agent Terry’s mother about 

how he died at the hand of a gun that was videotaped as it was 

sold to a straw purchaser fully expecting it to end up in the hands 

of drug cartels? 

Attorney General HOLDER. We’ll have to see exactly what happened with regard to the guns that are at issue there. And I have 

attended funerals. This is something that isn’t theoretical, this is 

not political, this is extremely real for me as Attorney General. 

Mr. ISSA. It is for us, too. I thank the gentleman. 

Mr. SMITH. The gentleman’s time has expired. 

Attorney General HOLDER. I have had to look into the eyes of 

widows, of mothers who have have lost sons. I have felt their pain. 

And the notion that somehow, some way, we are less than vigilant, 

48 

less than strong in our determination to keep the people who put 

their lives on the line every day to protect the American people, 

that we’re not doing all that we can to protect them is inconsistent 

with the facts, inconsistent with the people who serve in the Department of Justice. 

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

The gentlewoman from Texas, Ms. Jackson Lee, is recognized for 

her questions. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. 

Mr. Attorney General, I consider these opportunities a chance for 

us to work as a team. We are, in fact, a team. I have been privileged to serve on this Committee since being elected to the United 

States Congress. And it is an honor because we hold in our hands, 

as you do, the lives of Americans as it relates to the laws of this 

land. 

First of all, I too want to add my appreciation for what I know 

was a combined effort on the capturing and, of course, the ending 

of the evil actions of Osama bin Laden. Obviously the intelligence 

and various law enforcement officers, certainly the CIA at the lead, 

certainly had over the years a longstanding effort. And I thank 

you, the expanded team and President Barack Obama, and it 

should be said over and over again. I thank you also for the very 

astute team, legal talent, that you have combined under your leadership at the DOJ. And what I would like to see most of all is our 

enhanced cooperation. We have worked together in the past. 

And I have a series of questions, some of which I want to have 

answers. But I would really like you to, say, be in touch with—and 

that person, please have them be in touch with me in my office. 

Some of these require a detailed answer. 

You may not have had the details. I associate myself with Congresswoman Wasserman Schultz on the Rubashkin case, Rabbi Solomon Sholom Rubashkin, excuse me. And I think we can talk about 

this very briefly only because this person has been convicted and 

has been sentenced for 27 years. It is a nonviolent crime, first offender, they have eight or seven or nine children, maybe ten children, and they have been disallowed bail while they’re on appeal, 

I think on the basis of an issue of a flight risk. 

I would ask for a review of this case on the basis of the potential 

of bail. And I need to work with someone on that. I’ve given you 

the parameters and I don’t want to engage, and I want to do it not 

as interfering in a prosecution which is already done, it’s the question of a bail. 

The second question very quickly is regarding the communication 

management units, 60 to 70 individuals are in it, two-thirds are 

Muslims, it is a very harsh unit. A story was told us by Sara 

Joyyousi, that was her dad, no communication with his children. 

I’d like to know what your thoughts are about the practices surrounding CMUs and whether or not they are extremely harsh in 

light of the population. It seems to me that that needs to be someone getting back to me, if you would, and that is on the CMUs. 

The IRS criminal division, we have had a lot of colorful stores 

about actors and others, but it’s serious when it comes to our 

neighbors and friends. I would like to meet with the IRS, DOJ, IRS 

or individual dealing with the ability to resolve what seems to be 

49 

innocent cases, meaning bad facts, payroll taxes—I know sends 

horns out of our head—but individuals who have been in small 

business, who have had some mishaps in their health and they are 

now caught up in this system. I really think we’re better than this. 

And I really think the Justice Department is better than this. And 

I think we have the latitude, as a barred lawyer, as someone who 

has a license, I’m certainly aware of ex parte contacts, but I would 

be very interested in having that opportunity. On those three, 

would you be able to let me work with individuals under your staff? 

Attorney General HOLDER. We will try to certainly look at the requests that you have made and get information back to you. 

Ms. JACKSON LEE. I would greatly appreciate that, particularly 

on Rabbi Rubashkin and why he cannot have a bail. 

Let me go now to the ATF situation. We had a report by the OIG 

that indicated that the greater guns, that long guns have a shorter 

time to crime than handguns in Mexico. We know that the ATF 

has no permanent director. But I believe that, as the OIG has said, 

that ATF needs to have reporting responsibility and be able to get 

data and be able to have more enforcement opportunities of these 

AK-47s that are killing people on both sides of the border with 

these horrible drug cartels. What is your answer to that? 

Attorney General HOLDER. Well, we have certainly proposed that 

with regard to long guns along the border with one to four States, 

that there be a reporting requirement if somebody buys two long 

guns over the space of 5 days that are larger than 22-caliber, if 

they are semi-automatic, and if they have detachable magazines. 

It’s a proposal that OMB is in the process—— 

Ms. JACKSON LEE. So we are working on that. I have a short period of time, and I will pursue it further with you. I would like to 

see that happen. 

Specifically with respect to Harris County, I have a whole series 

of questions, but I will get on and ask them in writing. We submitted to the Justice Department a police brutality tape regarding 

Chad Holy and have asked for the Justice Department to investigate. We have heard nothing from that. We have heard announcements from Seattle and Miami, Florida, and nothing from Houston, 

Texas. I also need to have a status report, I would like your answer 

on this, status reports on the question of the Harris County jail. 

You issued a report that there were constitutional violations. The 

question is: What has been the oversight of the Department of Justice and have they completed? 

I also want to ask the question—I would ask for an additional 

30 seconds so you can answer this—the issue of the 

ContinentalUnited merger that is finished. I want to thank your 

assistant attorney general for antitrust for a very open discussion. 

But I would like to know whether there is a follow-up and whether 

or not we need to strengthen the Clayton Act’s section 7A for the 

Justice Department, because we frankly feel there is no oversight. 

Could you answer the question about the brutality case, excessive force and why there has not been a response, and including 

that in a police brutality situation? And then what is the status of 

the Harris County jail? 

Attorney General HOLDER. We will try to get you answers to all 

of those questions and I might ask for a budgetary increase, given 

50 

the nature of all of the things you have now put on our plate. But 

we will get you answers to all—— 

Ms. JACKSON LEE. Well I can say, Mr. Attorney General, I am 

one of your strongest advocates and supporters, and so I expect no 

less from you. And as relates to budgets, you can be sure that Sheila Jackson Lee will not be asking to cut the COPS budget of 600 

million. You might want to answer whether that will hurt you. Or 

the FBI at 83 million. Anything that I will be doing will be increasing the funding for the Department of Justice, because I believe in 

what you do both in terms of your juvenile division and your civil 

rights division. 

And if I could add one more thing, I need to understand what 

you’re doing with respect to redistricting and the oversight over the 

numbers of cases that will be coming forward and the involvement 

of the Department of Justice. 

Attorney General HOLDER. We will certainly answer all those 

questions. I was kidding you, but you have been a big supporter 

of the Department, and for that we are very thankful institutionally, and I thank you very personally for all the support you’ve 

given me over the years. 

Ms. JACKSON LEE. I will add amendments so that you can get 

more money on this appropriation. I’m sure Chairman Smith will 

support me on those amendments and greater funding for the Department of Justice. 

Mr. SMITH. Thank you, Ms. Jackson Lee. 

Ms. JACKSON LEE. Thanks. I yield back. 

Mr. SMITH. The gentleman from Virginia, Mr. Forbes, is recognized. 

Mr. FORBES. Thank you, Mr. Chairman. And Mr. Attorney General, thank you for being here. 

Forgive me for talking quickly but I only have 5 minutes. I want 

to begin, I was interested that the Ranking Member deferred his 

questions at the beginning today to the head of the Democratic National Committee who asked two questions, one relating to gas 

prices and the other child pornography. So I would like to pick up 

on these two questions. 

The first one on gas prices was this: The indication was that 

somehow this spike-up is a result of illegal activity by major oil 

companies in terms of either price gouging or illegal influence in 

the market. Six months before the Administration came into office 

in July of 2008, it was the highest spike we had, $4.11. The President talked about it in the campaign; the Administration came in 

concerned about energy and the price of gas at the pump. 

In the last 21⁄2 years since you’ve been in office, can you tell us 

what evidence you have uncovered that you can present to the 

Committee today that the prices at the pump have been affected 

by illegal activities of major oil companies in terms of price gouging 

or illegal influences on the market? 

Attorney General HOLDER. Well, the purpose of the task force 

will be to examine—— 

Mr. FORBES. I’m sorry to interrupt you. I’m talking about evidence that you currently have, not task forces or studies. But in 

21⁄2 years, have you uncovered any evidence that you can present 

to this Committee today of such activities? 

51 

Attorney General HOLDER. I’m not prepared to present them at 

this point. But what we tried to with the task force—— 

Mr. FORBES. So you don’t have any to present to us today. Have 

you made any prosecutions? 

Attorney General HOLDER. But the task force would look at all 

this stuff and see what has happened over the course of time—— 

Mr. FORBES. When did you set up the task force, Mr. Attorney 

General? 

Attorney General HOLDER. The task force was constituted over 

the last couple weeks. 

Mr. FORBES. Last couple of weeks. So we have had 21⁄2 years, 

knew these concerns were there, and except for the last 21⁄2 weeks 

you’ve done nothing to ascertain if we have any such evidence, and 

you have none to present to the Committee today? 

Attorney General HOLDER. Well, given the situation that we are 

now confronting that is relatively recent in terms of the recent 

price hikes that we have seen—— 

Mr. FORBES. But we knew, Mr. Attorney General, in July it was higher. Today it’s 3.9 per gallon, it was $4.11 then. No prosecutions, no recommendations of any changes to the law from anything 

you have found out in the last 21⁄2 years. 

Let me skip that and go to the pornography issue. 

Do you believe that there’s any connection, we’ve talked about 

child pornography, do you believe there’s any connection between 

hard-core adult pornography and child pornography, human trafficking, violence to women and sexually violent behavior? 

Attorney General HOLDER. There are a number of things that 

you have put together there, and there are relationships between 

certainly some of them. And we have certainly tried to look at 

those violence against women issues. 

Mr. FORBES. Which ones do you feel there is no connection to, so 

I can take that one off the table? Let me repeat them. Human trafficking. Any connection? 

Attorney General HOLDER. With? 

Mr. FORBES. Between hard-core pornography and human trafficking. 

Attorney General HOLDER. Probably, yes, there is probably some 

connection. 

Mr. FORBES. Violence to women, yes or no? 

Attorney General HOLDER. Probably. 

Mr. FORBES. Sexually violent behavior? 

Attorney General HOLDER. That, I don’t know. 

Mr. FORBES. So you don’t know if there’s any connection between 

hard-core pornography and sexually violent behavior? 

Attorney General HOLDER. I don’t know. 

Mr. FORBES. How about child pornography? 

Attorney General HOLDER. Probably, yes. 

Mr. FORBES. Okay. Of those, then, can you tell me how many 

agents that you have had assigned to investigate hard-core pornography in the United States right now? 

Attorney General HOLDER. We have a child enforcement and obscenity section that looks at these patterns—— 

Mr. FORBES. No, no. Hard-core pornography, not on child pornography, hard-core adult pornography. 

52 

Attorney General HOLDER. Congressman, if you let me answer 

the question, I have an answer for you. 

Mr. FORBES. Sure. Go ahead. 

Attorney General HOLDER. But I have to speak. 

Mr. FORBES. Go ahead. 

Attorney General HOLDER. We have to work this out. You ask a 

question and give me a chance to answer. 

Mr. FORBES. And if I can get time, I would love to take as much 

time—— 

Attorney General HOLDER. I would be more than glad to give you 

more than 5 minutes if the Chairman is willing to do that. We 

have a child enforcement and obscenity section that handles as 

part of its responsibilities examination of obscenity matters. It is 

not only a child exploitation section, it looks at obscenity matters 

more generally, and has recently been reformed to include a task 

force that looked at strictly obscenity matters, that has now been 

moved into CEOS. 

Mr. FORBES. We had a task force that was set up under the previous Administration that got 52 convictions for hard-core pornography cases. Have you disbanded that task force? 

Attorney General HOLDER. It has not been disbanded. It has 

been incorporated into CEOS. 

Mr. FORBES. Can you tell me how many prosecutions in the last 

21⁄2 years of hard-core pornography cases this Administration has 

undertaken and how many convictions you have obtained? 

Attorney General HOLDER. We have a number, and I can get that 

number to you. I don’t have it at my finger tips. 

Mr. FORBES. Will you get that number for us? 

Attorney General HOLDER. Yes. 

[The information referred to follows:] 

53 


66154C-1.eps
54 

Mr. FORBES. Can you also let us know, if you would, how many 

attorneys that you have assigned to adult hard-core pornography 

and how many agents that you have assigned to adult or hard-core 

pornography. 

And if you would, when you give that to us, would you let us 

know the evidence that you’ve received of any major oil companies’ 


66154C-2.eps
55 

illegal activities that have resulted in gas prices, evidence you have 

today; secondly, any prosecutions you have had to date; and third, 

any recommendations you’ve made to change the laws. 

And with that, Mr. Chairman, my time is up. 

Mr. SMITH. Thank you, Mr. Forbes. 

Attorney General HOLDER. With regard to the oil question, the 

task force that we’re putting together would look at not only what 

is going on now, but what has happened over the past, and make 

determinations about whether or not there are inappropriate market manipulations or price gouging. Which is not to say that we are 

not dealing with something that might be market-driven. We don’t 

go into this with any preconceived notions. And what the task force 

will look at is the situation and then make appropriate determinations and then we’ll take action that is appropriate. We don’t go 

into this with any preconceived notions, though. 

Mr. FORBES. Mr. Attorney General, my point was that we knew 

this was a big problem in July 08, we’ve gone 21⁄2 years, and we’ve 

just set up a task force 2 weeks ago. 

Attorney General HOLDER. In July 2008, I was not the Attorney 

General of the United States, just for the record. 

Mr. SMITH. The gentleman from Tennessee, Mr. Cohen, is recognized for his questions. 

Mr. COHEN. Thank you, Mr. Chairman. 

Mr. Attorney General, you were asked a question earlier which 

reminded me—you smiled when the question was asked, kind of a 

smile—and it reminded me of a nice article I read on the web this 

morning that said that President Obama, when he engaged in activities over the weekend, going to Alabama, going to Florida, dealing with Mr. Trump at the dinner, and all those things, that he 

had a poker face. Now, it’s been said, I believe, that you and the 

President have played poker together. Is that correct? 

Attorney General HOLDER. No. I’ve never played poker with the 

President. I don’t know if the President plays poker. 

Mr. COHEN. You don’t know that. 

Attorney General HOLDER. I don’t know. 

Mr. COHEN. Let me ask you this. You seem to think that maybe 

you didn’t know whether it was skill or luck in poker. Do you think 

Phil Ivy is just lucky? He’s the world’s greatest poker player. Do 

you think he is lucky, and Annie Duke, or do you think they have 

some skill involved? 

Attorney General HOLDER. I’m not sure I know who Mr. Phil Ivy 

is, but I’m sure there is some degree of skill that is involved in 

this. I’m not a poker player myself. 

Mr. COHEN. You’re not. I didn’t realize that. You might become 

one, because it’s one of the rapidly increasing popular activities in 

America, and it has been going on for years. And people used to 

play at tables, like in the kitchen they play poker. Now they do it 

on the Internet because there are things that—it’s amazing the 

things you do on the Internet. I even got one of these. I’m moving 

into the age. 

Attorney General HOLDER. I’ve got one, too. 

Mr. COHEN. You pay bills and you do things you used to not do 

there, but you do them. Do you think we really ought to be spending a lot of time in trying to deal with Internet poker and/or do you 

56 

think we should find a way to make it legal, to tax it, and to bring 

revenue in to help pay for the folks that Mr. Sensenbrenner wants 

to take out of your budget? 

Attorney General HOLDER. Well, we have to enforce the law as 

it exists. And there are laws on the books with regard to Internet 

gambling that we have to enforce. We recently announced an action 

in the Southern District of New York. It is for, I guess, Congress 

to decide what the law is going to be, and then we will enforce 

those laws. 

Mr. COHEN. I agree with you generally. I understand there were 

civil rights laws in the forties and fifties that the government had 

to defend. And then maybe 10, 12, 15 years later, after Thurgood 

Marshall’s arguments and the Court’s agreement, that they realized those weren’t valid laws, and the law changed because society 

changed, people’s thinking changed? 

Same thing with DOMA. There are certain laws and things 

change, and you change. Even though it’s the law Congress passed, 

there’s a change in the cultural lag and it kind of catches up and 

the people’s perception of it changes. Some of the same people that 

gave us DOMA, most of them gave us the laws against Internet 

poker. It was that family’s value crowd that, yeah, and—quotes— 

and they gave us those laws, but sometimes they might not have 

been the right laws. And some of Mr. Forbes’ folks, so you could 

be prosecuting some of those obscenity cases with some of the people you’ve otherwise got concerned with some of these laws concerning Internet poker. And there are priorities. We can’t do everything. 

Don’t you think that maybe in the priority range, that Internet 

poker would be down at the bottom of the level and beneath obscenity and hard-core pornography and child rape and things like 

that? 

Attorney General HOLDER. Well, there are a whole variety of 

things that we have responsibility for. The cases that we brought, 

for instance, in the Southern District of New York involve pretty 

substantial amounts of money in big financial institutions. And I 

think those cases are appropriate. 

There are going to be some other cases in this area that aren’t 

really Federal cases because they’re not really large enough—the 

degree of harm is not serious enough. Even within a certain class 

of cases, certain ones are going to be worthy of our attention and 

then some will not be. 

Mr. COHEN. Did the Southern District coordinate with the Criminal Division or you particularly about the policies of your office 

which has been kind of in flux underlying the decision to effectively 

criminalize poker, going after these folks? 

Attorney General HOLDER. Yeah, the Southern District worked 

with the Criminal Division, worked with main Justice in the formulation of that case, though the primary responsibility was in 

New York. 

Mr. COHEN. We are coming down on time, which is my fault, but 

freedom is a big issue with me and the opportunity to do things. 

And a lot of people, the cocaine and crack sentencing, we made 

progress. But is the Department seeing that we are asking for senVerDate Aug 31 2005 11:42 Sep 13, 2012 Jkt 000000 PO 00000 Frm 00060 Fmt 6633 Sfmt 6601 H:\WORK\FULL\050311\66154.000 HJUD1 PsN: DOUGA
57 

tences that are maybe on the lower range for those people that 

were indicted before the law changed? 

Attorney General HOLDER. I have told our prosecutors, I have 

given them discretion, so that they ask for sentences that are appropriate looking at the facts of each individual case. The Department is going to take a position with regard to whether or not the 

loss should be made retroactive before the sentencing commission. 

But while we are still in that process, I have asked my prosecutors 

to make sure that we only ask for sentences that are appropriate 

and consistent with the facts. 

Mr. COHEN. Expungement is an issue I am interested in, too. Do 

you believe we should have for like low-level crimes, whether misdemeanors, an expungement law on the Federal level, whereby 

after say 7 years a first offender for a nonviolent offense could get 

the record expunged to maybe get a job? 

Attorney General HOLDER. I think that is certainly something 

that I would want to work with the Committee on and consider. It 

is certainly something we had here in Washington, D.C., when I 

was a judge for a relatively small number of offenses, obviously 

nonviolent, so that the stigma that goes with a conviction, especially for younger people, might not harm their ability to get meaningful employment to otherwise make themselves productive members of society, and so the ability to have that as a tool in the Federal system is certainly something I am willing to consider. 

Mr. COHEN. The red light has come on, and I am going to do the 

hypothetical yield back the remainder of my time that doesn’t exist. 

But I am going to bring up if I can in the extra 30 seconds I know 

the Chairman is going to give me—— 

Mr. SMITH. Without objection, the gentleman is recognized for an 

additional 30 seconds. 

Mr. COHEN. Thank you. I am going to bring up an issue that the 

Chairman wouldn’t want me to bring up, which is the fact that—— 

Mr. SMITH. In that case, he is not recognized for an additional 

30 seconds. 

Mr. COHEN. The Memphis Grizzlies beat the San Antonio Spurs 

4-2. I know you play basketball with the President. Has he caught 

on to Zack Randolph in the Grizzlies of being a dynasty in the 

making—— 

Mr. SMITH. The gentleman’s time has definitely expired. 

The gentleman from Arizona, Mr. Franks, is recognized for his 

questions. 

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

Thank you, General Holder, for being here. 

Sir, money is indeed the lifeblood of terrorism. Without funding 

terrorism, it would be nearly impossible. The 2008 Holy Land 

Foundation case was the largest terrorism finance case in U.S. history, as you well know. And according to the volumes of case history and evidence available on the Web site of the Federal Court 

of the Northern District of Texas, hundreds of U.S.-based persons 

or entities are listed as unindicted co-conspirators who allegedly 

funneled millions of dollars to the designated terrorist organization 

Hamas under the guise of funding a Muslim charity. 

Now, the sources have told us that the case was the product of 

19 years of investigations, consuming thousands of hours, thouVerDate Aug 31 2005 11:42 Sep 13, 2012 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6601 H:\WORK\FULL\050311\66154.000 HJUD1 PsN: DOUGA
58 

sands of man-hours of manpower and millions of dollars. But over 

the past year, the Department of Justice has signaled that it will 

not further prosecute this case, despite the voluminous evidence 

that the unindicted co-conspirators are financing terror from within 

the United States. 

Chairman Smith of this Committee and Chairman King of the 

Homeland Security Committee are interested, obviously, in learning why this case was dropped, as you well know. You have received correspondence recently from both of them. Now, you have 

claimed that the career attorneys made the decision to drop the 

case, but the press reports are saying that prosecutors, FBI agents 

and even your own spokesperson at DOJ are telling a different 

story. They claim that the decision to scuttle the largest terrorism 

finance case in U.S. history now spanning three Administrations 

was made not by career attornies but instead by senior Obama administration political appointees. 

Now, the scuttling of this case obviously has outraged the career 

lawyers. And according to Congressman King, we just learned from 

his office that his letter today was responded to in a completely unresponsive way. It never did speak to the questions that he asked. 

So I guess I ask you here then today, which individuals, and I hope 

you will say the names, which individuals are responsible for scuttling the Holy Land Foundation prosecutions of the unindicted coconspirators? 

Attorney General HOLDER. Well, the premise of your question is 

inaccurate. There was no scuttling of the case. 

Mr. FRANKS. Do you intend to—I am sorry, I don’t know what 

happened here. I didn’t mean to do that. I wasn’t yelling at you; 

the microphone kind of went off on me. 

Do you intend to prosecute these cases? 

Attorney General HOLDER. The decisions that were made not to 

prosecute those cases were made initially in the Bush administration and continue in this Administration. And I have to take exception—— 

Mr. FRANKS. Let me just, I have to stop you on that. You claim 

that the decision to drop the case was a continuation of the approach taken by the Bush administration, but that really isn’t true. 

The Bush administration successfully prosecuted the first round 

of defendants. They aggressively secured convictions on all 108 

counts. And the first—you know, the first round didn’t conclude 

until after, until 3 weeks after the election of Barack Obama, and 

essentially the Bush administration just ran out of time. They were 

pursuing this. 

And Peter King has said that, you know, it is hard to hide behind the deliberations of the Bush administration that pre-date the 

successful prosecution of the Holy Land case. So you are obviously 

not following the Bush administration’s path, because they did 

prosecute, and they got 108 convictions. 

Attorney General HOLDER. But a decision was clearly made in 

not indicting certain organizations and people in that initial case. 

That is why they were, as you said, unindicted co-conspirators. 

But the other thing is that what you say about the concerns 

about the career prosecutors seems very inconsistent with press reports that I have read from the guy who handled that matter, a 

59 

career prosecutor, who said that there was no political pressure 

brought to bear on anybody in connection with the decision not to 

proceed. That was in the Dallas Morning News, I believe that is 

the newspaper, and I would be more than glad to get a copy of that 

article. 

Mr. FRANKS. I am sorry the microphone is giving me so much 

trouble here, but let me just ask you, did you or the case abandon 

or not, did you do that? 

Attorney General HOLDER. No. 

Mr. FRANKS. Did anyone in your Department do that? 

Attorney General HOLDER. No. 

Mr. FRANKS. Okay. Were you personally involved in any decision 

to delay any prosecution of the case? 

Attorney General HOLDER. No. 

Mr. FRANKS. Have you communicated with the White House 

about the Holy Land Foundation case? Was the White House involved in any sort of issue to try to delay or not to persecute the 

case—prosecute the case? 

Attorney General HOLDER. No. 

Mr. FRANKS. Were any of the unindicted co-conspirators communicating outside the legal process now with the White House or the 

Department of Justice about the Holy Land Foundation case? 

Attorney General HOLDER. Not to my knowledge. 

Mr. FRANKS. All right. Well, I think my time is up here. 

And thank you, General, for coming. 

Mr. SMITH. Thank you, Mr. Franks. 

The gentleman from Illinois, Mr. Quigley, is recognized for his 

questions. 

Mr. QUIGLEY. Thank you, Mr. Chairman. 

Welcome. 

You know, coming from Chicago, I can’t help reflect on the fact 

that there is a trial taking place there, and while I don’t ask you 

to comment on that, I note that there always seems to be a trial 

taking place there or other places in the country that deal with 

public integrity. 

As you know, the court has struck down the honest services section of the statute, a very valuable tool that prosecutors had to go 

after public officials using their office for personal gain. We could 

really use your office’s help preparing a replacement. 

I think it was probably appropriate the statute was struck down 

because it was probably, as they said, too vague. But I appreciate 

your comments on what we need to do to fill that void. 

Attorney General HOLDER. Well, that obviously is a very valuable 

tool. It has been used over the years in any number of instances. 

It is a statute that has had a somewhat troubled history. It has 

been declared unconstitutional. I guess that has been applied on at 

least a couple of occasions. So I think what we need to do is come 

up with a statute that will survive constitutional scrutiny once and 

forever. And obviously, we would be willing to work with this Committee and others so that we could have that tool back in place. 

Mr. QUIGLEY. Thank you. 

And I would like to afford you the opportunity here to talk about 

another issue that is important to everyone here, and that is the 

recent extraordinary increase in police officer shootings across the 

60 

country. I think since January, 29 police officers have been shot in 

this country. This is an increase in fatal police shootings of more 

than 50 percent over last year. I believe you convened a conference 

on this last month. I would again appreciate your office’s help on 

what else we can do to help you in this vein. 

Attorney General HOLDER. That is something that is of great 

concern to me and is the reason why I convened that summit a few 

weeks ago. It is one of the reasons why we have tried to increase 

our funding of bullet-proof vests that are made available to State 

and local police agencies and why we have tried to now require 

that there be a mandatory wear policy, as well. We have something 

also called the VALOR program so that officers can be trained as 

to handle themselves in these situations when their lives are most 

likely to be put at risk. That is something I think that is really 

worthy of this Committee’s time, certainly my time, and I would be 

glad to work with you in that regard to try to keep our law enforcement officers safe. 

Mr. QUIGLEY. I can’t help but inject another statistic that is bothering to me. The 29 officers fatally shot this year, 20 were killed 

by individuals who would have been barred by Federal law from 

possessing guns. In my vein, this gets to the greatest loophole of 

all, and that is the gun show loophole. The fact that you could be 

barred from getting on an airplane, you can have multiple felonies, 

you could have been adjudicated as being dangerously mentally ill, 

but you can go to 33 States and go to a gun show and buy just 

about anything you want without a background check whatsoever. 

Your thoughts on this? 

Attorney General HOLDER. Well, I think we have to look at the 

laws that we have on the books. We need to certainly enforce them. 

We need to be asking questions about whether they are adequate, 

whether they are keeping our people safe, whether they are keeping law enforcement officers safe. And we also have to focus on, 

and I think the point you made is a very, very good one, who has 

these guns. 

It is not only a question of what guns we are dealing with, but 

also who has them. Obviously, everybody has Second Amendment 

rights. The Supreme Court has ruled that in the Heller case. This 

Department of Justice respects that decision. But I think questions 

can be asked about are there felons, too many felons who for whatever reason are in possession of guns; people who have mental 

issues, whether they should have guns; people who have domestic 

violence issues, whether they should have guns. There are a whole 

variety of questions as to the who that I think we should focus on 

as well. 

Mr. QUIGLEY. And I agree. And to close, I would suggest to those 

who are very supportive of the Second Amendment that while that 

case did grant Second Amendment rights, that majority opinion did 

talk about limitations. One was who and one of the others was 

what. And I think it is fair to ask if you are out to protect your 

home or you are hunting deer, whether you need a 30 round clip. 

But that is my own editorial comment for the day. 

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

Mr. SMITH. Thank you. 

Thank you, Mr. Quigley. 

61 

The gentleman from Texas, Mr. Gohmert, is recognized. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

And thank you, Attorney General, for being here. I want to follow 

up on what Mr. Franks was talking about, the case involving the 

Holy Land Foundation. You have mentioned the Dallas Morning 

News article. I have a copy of it here. I have also got a copy of the 

political article. And the person you are talking about is Jim Jacks, 

who is the interim U.S. attorney for the Northern District of Texas, 

because the President has not made a nomination for U.S. attorney 

for the Northern District of Texas. So as long as Mr. Jacks stays 

in the good graces of the President, he serves at the will of the 

President or of the judges in that area; he might even get the nomination if he does a good enough job from the President. He serves 

at his will. 

So let’s go to this. Are you aware that this same career prosecutor that you have mentioned filed pleadings in the case before 

Judge Solis and before the Fifth Circuit where he supported the decision of Judge Solis that there was evidence to keep the unindicted 

co-conspirators listed? Because some of them were wanting to be 

eliminated as co-conspirators, he filed documents with the court. 

And I am rather sensitive, as a former judge and chief justice, to 

lawyers filing things and saying things they don’t believe. Because 

it seems that the position Mr. Jacks is taking now, which could be 

viewed as supportive of the President’s position on some of the people and some of the organizations that are unindicted co-conspirators, are inconsistent with his position in his pleadings. And I have 

copies of those as well. 

But the judge found after reviewing Mr. Jacks’ pleading that 

there was plenty of evidence to keep them in as unindicted co-conspirators. Now, if a lawyer files something that he doesn’t believe 

and he knows he doesn’t believe it, some judges think it is a fraud 

upon the court that requires punitive actions to be taken. So I am 

also aware that when someone makes a statement to the Dallas 

Morning News, even if he believes it is not true, though it may 

help him in the political appointment, there is no actionable punitive measures that may be taken. 

So I wonder which Mr. Jacks’ opinion we are relying on; the one 

that is the interim, that possibly hopes to be nominated or stay in 

that position, or the one that filed pleadings before the court. 

Now, are you aware that one of the unindicted co-conspirators is 

the Islamic Society of North America, ISNA? Were you aware of 

that? 

Attorney General HOLDER. I don’t have at the tip of my fingers 

all the unindicted co-conspirators. But there is not an inconsistency 

in—— 

Mr. GOHMERT. Wait a minute. My time is limited. I have to ask 

questions and get short answers. The FBI has recruited through 

the ISNA magazine. ISNA has advertised in FBI publication—in 

their publications. And even in the White House’s own Deputy Assistant National Security Advisor went out and spoke and met with 

and spoke out at the—let’s see, the All Dulles Area Muslim Society, 

or short for that is ADAMS, ironic. But Deputy National Security 

Advisor Denis McDonough even in his opening remarks thanked 

62 

the president of ISNA and that thank you is on the White House 

Web site. 

So I am wondering, when you say that you nor anyone else, as 

I understood, in your Department assisted at all in the decision not 

to pursue prosecution of the most important funding case for terrorism in American history, do you need time to reflect on that, or 

can you absolutely be certain that no one in your Department had 

any consultation with Mr. Jacks or anyone making the decision in 

this case before the decision was made not to pursue it? 

Attorney General HOLDER. I am not sure that is the question I 

was asked. But beyond that, the notion—— 

Mr. GOHMERT. Well, that is the question I am asking. That went 

beyond Mr. Franks’. That is the question I am asking. 

Attorney General HOLDER. Now, you asked me one question and 

you are saying—your question is what now? 

Mr. GOHMERT. My question is very specific. Is there anyone in 

your Department who consulted with Mr. Jacks or whoever made 

the decision before the decision was made not to pursue any of the 

unindicted co-conspirators in the Holy Land Foundation trial? 

Attorney General HOLDER. It is my understanding that in fact 

there was contact between Washington national security professionals and the U.S. Attorney’s Office in Texas in that regard. But 

one thing—— 

Mr. GOHMERT. Are those Washington national security professionals part of your Department, because that was the question? 

Attorney General HOLDER. Part of the National Security Division. 

Mr. GOHMERT. But are they under you? 

Attorney General HOLDER. Yeah. The National Security Division 

is part of the United States Department of Justice. 

Mr. GOHMERT. Did they consult with you in any way? 

Attorney General HOLDER. No. 

Mr. GOHMERT. All right. Thank you. I see my time is up. 

Attorney General HOLDER. But one thing I want to say that I 

think is grossly unfair. You have cast aspersions on a person who 

I don’t know, who has served, I understand, the United States Department of Justice and the people of this country quite well for a 

good number of years and you have implied that he would take a 

position in order to maintain a position as an acting U.S. attorney 

or to become the U.S. attorney. 

These are the kinds of things that you know will get reported in 

the newspapers. People don’t know this gentleman. They will wonder about him. And I think that is a very unfair thing to do, given 

the fact that I don’t think there is any basis for the assertions that 

you have made. 

Mr. GOHMERT. Now, wait a minute. You are saying there are no 

basis for the assertions—— 

Mr. SMITH. The gentleman is recognized for an additional 30 seconds. 

Mr. GOHMERT. No basis for the assertions that he said one thing 

in the pleadings before the trial court and the same things before 

the pleadings in the Fifth Circuit and yet he comes out and says 

something entirely different later, that there is no evidence to support that, and basically what he is telling the Dallas News there 

63 

was no basis for a case there. And you are saying I have no basis 

for saying that? I have got the Dallas News article. I have got the 

pleadings he filed. That is what I am basing that on. 

Attorney General HOLDER. No, it is not inconsistent, his saying 

that there is a basis to keep these people, these organizations as 

unindicted co-conspirators. 

Mr. GOHMERT. Have you looked at the documents that were 

made available in this case before you say that I am being unfair 

by making allegations? Have you looked at the evidence in the 

case? Here is ISNA, here is documentation of the money they provided which ended up supporting terrorism as found by the court, 

and you are saying I have no basis for saying what I did. There 

is a basis for what he said before the Fifth Circuit and before the 

trial court. And so I don’t appreciate the allegation that I am making unfounded allegations. 

Attorney General HOLDER. I am just responding to what you 

said. You essentially said that he would take a position in order to 

maintain a position. That is certainly what you implied. 

Mr. GOHMERT. I raised the issue. And sir, I don’t know how 

many cases you have ever tried in court or prosecuted, but I can 

assure you if you tried a case and you had someone with the impeachment material that was available for Mr. Jacks on his inconsistencies and you didn’t pursue it, you would not be an effective 

trial lawyer. These are a basis for impeachment of his stating that 

there was no politics involved because there was no case there. 

Mr. SMITH. The gentleman’s time has expired. 

Mr. SCOTT. Mr. Chairman, the Attorney General was trying to 

explain why there was no inconsistency and he kept getting cut off. 

Could the Attorney General respond to the question—— 

Mr. GOHMERT. I was responding to the allegations about me having no basis for my statements, and I deserve to have a chance to 

respond to those. 

Mr. SCOTT. Can the Attorney General respond? 

Mr. SMITH. Does the Attorney General have anything to add? 

Attorney General HOLDER. I was simply saying that the notion 

that the filing of something that says that these people, organizations, should be treated as unindicted co-conspirators is not inconsistent with this notion that there wasn’t political pressure brought 

to bear on that decision. I don’t see how one necessarily affects the 

other. 

And you know, I am going to stick up for my people. That is 

what I am doing. I am not going to let people who work in the 

United States Department of Justice have their characters assailed 

without any basis. 

That might be something that people in this Committee feel is 

easily done. It is not going to happen as long as I am Attorney 

General of the United States. It is just not going to happen. 

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

Mr. GOHMERT. Now, Mr. Chairman, I should have a chance to respond since there are allegations made about me. But I do appreciate the Attorney General now letting us know that Mr. Jacks is 

one of his people. Thank you. 

Attorney General HOLDER. As are the 114,000 other people who 

work in the United States Department of Justice. 

64 

Mr. SMITH. Thank you, both. 

Mr. GOHMERT. So he is part of your Department? 

Attorney General HOLDER. These are my people. 

Mr. SMITH. Thank you, both. 

The gentlemen from Florida—— 

Mr. GOHMERT. So people in your Department did make that decision not to prosecute? 

Mr. SMITH. The gentleman’s time has expired. 

The gentleman from Florida, Mr. Deutch, is recognized for his 

questions. 

Mr. DEUTCH. Thank you, Mr. Chairman. 

General Holder, thank you for being here. The Wall Street Journal reported today that the U.S. Has filed a lawsuit against Deutsche Bank for lying repeatedly about the quality of mortgages so 

that they could profit from the resale. According to the lawsuit, 

when selecting mortgages from the Federal Housing Administration’s insurance program, Deutsche Bank did not consider whether 

the borrowers would be able to repay. In clear violation of Federal 

Housing Administration’s mortgage insurance program, these government-insured mortgages were then sold off, earning the bank a 

massive profit while leaving homeowners to face foreclosure and 

the government on the hook to pay billions of dollars in insurance 

claims. The claims are startling, and the charges highlight the efforts to seek profit at any cost while leaving thousands of people 

and their families to lose their homes and the taxpayers being 

forced to pay for the bank’s actions. 

First, I would like to commend you for the Department’s vigorous 

pursuit of these charges against Deutsche Bank, and I would like 

to ask whether—first, whether the Department is investigating any 

other large banks in possible deceptive actions that they may have 

taken to fuel the mortgage crisis that the country has been facing? 

We will start with that. 

Attorney General HOLDER. Well, we have a very active program 

under way looking at a variety of players in the mortgage field. We 

brought a number of cases already. There are a number of investigations that are pending. 

Mr. DEUTCH. Next, would the Department pursue criminal 

charges that would result in jail time for the heads of these large 

banks and servicers if it is found that they knowingly took actions 

like those described in the lawsuit filed against Deutsche Bank? 

Attorney General HOLDER. The scrutiny that we would bring 

would not simply be at the organizations and be looking to punish 

the organizations. If there are individuals who have taken actions 

that would warrant individual liability, that is something that we 

will pursue as well. 

Mr. DEUTCH. And if I could just pursue one possible line of prosecution that has been raised. I would love your thoughts on it. And 

that is under Sarbanes-Oxley, the requirements under SarbanesOxley, that executives at Wall Street firms have to establish and 

maintain adequate systems in internal control; that they have got 

to regularly test those controls and make sure that they are adequate; and as I understand it, that that statute provides that in the 

case of knowingly making false claims, one would be subject to 

fines up to $1 million and imprisonment of up to 10 years; and that 

65 

if those claims were willful, those violations were willful, fines then 

of up to $5 million and jail time of up to 20 years in prison. Is this 

the basis—would this be the basis of potential claims against individuals in connection with the mortgage foreclosure cases that are 

being pursued? 

Attorney General HOLDER. Those are potential statutes. There 

are other statutes that we can bring, including some as old and 

tried and true as wire fraud and mail fraud. I mean, there are a 

whole variety of tools that we have, including those that you have 

mentioned, and we will try to make use of all of those as we continue in these investigations. 

Mr. DEUTCH. And so as you pursue these claims, at what point 

is the determination made? Obviously, my colleagues asked, others 

have asked, certainly been a big topic of conversation, while there 

is a $1 billion case that has been filed today, which I applauded 

you for, given the vast array of potential claims that could be, individual claims that could be brought, that would bring the potential 

of criminal violations, when might we expect to see some of those 

cases filed as well? 

Attorney General HOLDER. I mean, that is hard to predict. We 

are serious about the investigating that we are doing, and it is always hard to determine exactly when decisions will be made either 

to prosecute or to decline prosecution. All I can tell you is that we 

are looking at these cases seriously. We are going to pursue them 

aggressively, and as soon as we can make a determination and 

share that with the American people, we will. 

Mr. DEUTCH. So then there is, just to conclude, General Holder, 

there is—we should know, the Members of this Committee and the 

American people should know that your Justice Department is vigorously investigating these potential claims and that under Sarbanes-Oxley and a whole array of other statutes, the possibility for 

criminal prosecution against individuals in connection with the 

mortgage foreclosure crisis is real and we should look forward to 

the potential of those cases being brought? 

Attorney General HOLDER. I mean, I don’t want to over promise, 

but the possibility that those cases could be brought, yes, that is 

certainly the case. I mean, we are in the process of looking at a 

whole variety of these matters, and it is possible that criminal 

prosecutions will result. Civil actions might result. We are going to 

try to take whatever enforcement action we can to try to hold people responsible where that is appropriate. 

Mr. DEUTCH. Thank you. 

And I yield back, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Deutch. 

The gentleman from Utah, Mr. Chaffetz, is recognized. 

Mr. CHAFFETZ. Thank you, Mr. Attorney General. I appreciate 

you being here. I would like to go back to Project Gunrunner and 

Operation Fast and Furious. You said that in just the last few 

weeks is when you had heard this. The President made statements 

to this in a report on Univision back on March 22nd. Were you 

aware of this operation before the President or after the President 

made those comments? 

Attorney General HOLDER. My guess would be probably before 

the President. 

66 

Mr. CHAFFETZ. Who briefed the President about this? He obviously knew something about it, he made a statement about it. Who 

briefed the President? 

Attorney General HOLDER. I don’t know. 

Mr. CHAFFETZ. Who would typically—who would do that? If not 

the Attorney General, who would brief the President on this? 

Attorney General HOLDER. Well, I mean, we have a White House 

contacts policy so that the Justice Department interacts with the 

White House Counsel’s Office. Now, I don’t know what process goes 

on from the White House Counsel within the White House. 

Mr. CHAFFETZ. Let me move on. Are you familiar with the President’s comments then on March 22nd? He said, quote, there may 

be a situation here in which a serious mistake was made. If that 

is the case, then we will find out and we will hold somebody accountable. Would you agree with that comment or not agree with 

that comment? 

Attorney General HOLDER. Yeah, I would agree with that. 

Mr. CHAFFETZ. Would you agree that there were some serious 

mistakes made in this situation? 

Attorney General HOLDER. I don’t know. That is one of the things 

that we are trying to investigate. That is what I have asked the 

Inspector General to look at. 

Mr. CHAFFETZ. Now, it has been reported that at the death of 

Brian Terry, one of our Border Patrol agents, that there were guns 

from the operation found at that scene. Is that in dispute? 

Attorney General HOLDER. I don’t know that to be factually accurate. I don’t know. I have heard that. I have asked the Inspector 

General to look into that, and I am awaiting that report. 

Mr. CHAFFETZ. Is there a scenario if those guns were found at 

that scene where—is there a possible scenario where mistakes 

weren’t made and yet we have guns at the scene of the death of 

one of our Border Patrol agents? 

Attorney General HOLDER. I think that is right. I think if those 

facts are in fact accurate, I suspect that mistakes in fact were 

made. 

Mr. CHAFFETZ. Now, this program was approved by the Justice 

Department. My understanding is in January of 2010. I guess I am 

struggling to understand why an operation as big and as large and 

as important as this has not come to your attention for more than 

a year after it was originally authorized. Can you help me understand that? 

Attorney General HOLDER. Well, you have to understand that 

something you described as big, in comparison to all the other 

things that are going on in the Department at any one given time, 

might not seem quite as large. I have, as I said, 114,000 or 115,000 

employees; the FBI, the ATF, the DEA. You know, a whole variety 

of things that we talked about here today. 

Mr. CHAFFETZ. I guess my concern is here is an operation where 

we are knowingly allowing more than 1,500 guns to go across the 

border, maybe with good intention but obviously with consequence 

that is unparalleled. I am just not aware of us on a regular basis 

allowing and knowingly, allowing guns to be put in the hands of 

bad guys and now we got—I just don’t understand why that doesn’t 

come to your attention. 

67 

Also, my understanding is that they are receiving task force 

money. And these types of programs, the task force must be approved at some very high levels, including the level of deputy attorney general. Who did know about this? Who did authorize this, and 

when did they authorize it? 

Attorney General HOLDER. Again, that is part of what the Inspector General will be looking at; who exactly was involved, what 

the level of knowledge was, who should be held accountable if in 

fact there were mistakes that were made. That is what the Inspector General will be looking at. 

Mr. CHAFFETZ. So it is not—is it your intention to not comply 

with our subpoena because the attorney—because Inspector General is doing that? Or do you believe—that is, are you precluded 

from complying with the subpoena because the IG is looking into 

it, or can you do both simultaneously? 

Attorney General HOLDER. We can do both simultaneously. What 

I have asked is that with regard to replying to the subpoenas, that 

we try to minimize the impact on the ongoing cases. It is not the 

Inspector General’s report. And we have tried to come up with 

ways in which we will make information available to the Committee in a timely fashion and not harm those ongoing investigations. 

Mr. CHAFFETZ. The ATF office involved in this was evidently the 

Phoenix office. Are there any other ATF offices that you are aware 

of that may have been involved or engaged in this? 

Attorney General HOLDER. May be involved in? 

Mr. CHAFFETZ. In the Project Gunrunner or Operation Fast and 

Furious, or was it just the Phoenix office? 

Attorney General HOLDER. I don’t know. 

Mr. CHAFFETZ. Let me move to a different issue if I could in my 

short time here. I just recently went down to the border with Mexico. I think one of the statistics that the Border Patrol puts out 

there is that they only have 15 percent, 15 percent operational control. What do we need to do to secure the border? Because I was 

shocked and surprised. I mean, I went for hours in places right 

along the border where there is nothing more than a barbed wire 

fence cut in many places and never even saw a Border Patrol 

agent. So we are pouring a lot of resources into this. But what from 

your opinion do we have to do to actually secure the border, because it is not happening? 

Attorney General HOLDER. Well, I think that the situation along 

the border is better now than it probably ever has been—— 

Mr. CHAFFETZ. But how do you come to that conclusion? 

Attorney General HOLDER. You base it on the number of people 

who are stopped, the amount of drugs we recover, the number of 

guns that are recovered. 

Mr. CHAFFETZ. So if that stat goes up, if the number of apprehensions goes up, is it better, or is it if the number of apprehensions goes down, is it better? 

Attorney General HOLDER. It depends on a whole bunch of 

things. It certainly is a function of the number of people who are 

trying to get in. It also is a function of how effective our enforcement efforts are, which is not to say that there aren’t still issues 

or still problems along the border. And I think we have to do all 

68 

we can to secure our border. And I think that one of the ways in 

which we do that is to really look comprehensively at this whole 

immigration question. 

Mr. CHAFFETZ. No doubt. I think that we have got to fix illegal 

immigration and do a lot of other things. But the statistic of apprehension, if it goes up, are we doing a better job securing the border, 

or if apprehensions go down, are we doing a better job securing the 

border? 

Attorney General HOLDER. As I said, that is a difficult one to answer. 

Mr. CHAFFETZ. I know, that is why I asked you. 

Attorney General HOLDER. You can say that if we are apprehending more people, that means we are stopping more people coming through. On the other hand, if we are getting fewer people, it 

is entirely possible our enforcement efforts are working and fewer 

people are trying to get in. It is a difficult question to answer. 

Mr. CHAFFETZ. I at some point would love to know the answer 

to that question, Mr. Chair, but I appreciate it. Thank you. 

Mr. SMITH. Thank you, Mr. Chaffetz. 

The gentleman from Puerto Rico, Mr. Pierluisi, is recognized. 

Mr. PIERLUISI. Greetings, Mr. Holder. 

In the brief time that I have, I want to address the problem of 

drug-related crime in Puerto Rico. Through the first 3 months of 

this year, 301 homicides were committed in Puerto Rico, a 35 percent increase over the same period last year. And this is unacceptably high for 3.8 million people. 

You might say, you know, why am I raising this local issue? 

Well, the fact of the matter is that unfortunately Puerto Rico has 

long been a transshipment point for drugs coming into the U.S. 

mainland, so this is tied to the U.S. as a whole. 

When I look at the Federal Government’s efforts to combat drugrelated violence in Puerto Rico, I am troubled that key DOJ offices 

on the island have vacancy rates between 17 percent and 57 percent. From speaking with you and others at the Department, I understand that apparently you are having difficulty recruiting 

agents for places like Puerto Rico, high-crime localities or high-cost 

localities. 

And I wonder, how are you making these decisions? When you 

assign personnel throughout the Department, different agencies; 

ATF, DEA, FBI, to your knowledge, I mean, are you taking into account homicide rates, for example, the level of violence, issues such 

as recruitment difficulties? Are you giving any incentives to your 

agents to locate in places like Puerto Rico, or it could be Miami or 

it could be LA, I mean, different places, maybe Detroit, places facing high crime at a certain point in time, New Orleans? How are 

you doing this? 

Attorney General HOLDER. We try to deploy our resources in 

places where they are most needed. And the concerns you raise are 

legitimate ones, not only because Puerto Rico is a transshipment 

point, which is right, but because people who live in Puerto Rico 

are American citizens and are deserving of the protection of their 

government. 

We try to come up with ways in which we get investigators and 

agents into places that need them, such as Puerto Rico, by coming 

69 

up with incentives, by coming up with what we call TDYs, temporary duty, by putting people there for—if people don’t want to relocate, putting people there for maybe 90 days, 180 days, something along those lines, to try to keep the numbers up. 

We are doing the best we can trying to get our resources to the 

places where they are most needed. You and I have talked about 

this issue. And I am very concerned about the homicide rate in 

Puerto Rico and the influence of drugs on that part of our country, 

part of our Nation, on the island. 

Mr. PIERLUISI. One other thing, in looking at this issue, I got statistics from all the different agencies within your Department but 

for the FBI. Would you assist me in providing me that this is the 

number of positions that you have authorized or available and the 

number that are vacant? I just want to compare. And I believe I 

should have this information. 

Attorney General HOLDER. I will get you that information. 

Mr. PIERLUISI. Thank you so much. 

I yield back the a balance of my time. 

Mr. SMITH. Thank you, Mr. Pierluisi. 

The gentleman from South Carolina, Mr. Gowdy, is recognized. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Attorney General Holder, if you would, I would be indebted to 

you if you would let the AUSAs and the Federal law enforcement 

officers in the District of South Carolina know how grateful I am 

for their service and how much I appreciate they do a fantastic job. 

And I am sure it would mean more to them to hear it from you 

than it would from me. So if you would let them know that, I would 

be grateful to you. 

Attorney General HOLDER. Well, I thank you for that, and I will 

pass it on. I will make a point to do that. 

Mr. GOWDY. Thank you. And what I hope to do with the remainder of my time is have a constitutional conversation with you as 

opposed to a political conversation. 

You do not disagree that Congress has the authority to define 

marriage. Your position is not that the interstate commerce clause 

doesn’t allow us—you are not making a States’ right argument; you 

are making an argument based on the three tiers of constitutional 

scrutiny, right? 

Attorney General HOLDER. Typically marriage has been defined 

as something that has been seen as something that is a State issue 

as opposed to the Federal Government. 

Mr. GOWDY. It is. But there are thousands of instances where 

Congress has to define what the family is in order to be instructive 

with respect to other statutes. So you are not challenging that Congress has the authority to define marriage. 

Attorney General HOLDER. I think we may be quibbling here, but 

not define marriage as much as to define in Federal statutes how 

married people are to be treated, something along those lines; I 

think I would agree in that regard. 

Mr. GOWDY. All right. And would you agree with me that the rational basis test is the appropriate test to be used with respect to 

consanguinity, the marrying of family members, that is the appropriate test, right, rational basis? You are not arguing for a heightVerDate Aug 31 2005 11:42 Sep 13, 2012 Jkt 000000 PO 00000 Frm 00073 Fmt 6633 Sfmt 6601 H:\WORK\FULL\050311\66154.000 HJUD1 PsN: DOUGA
70 

ened level of scrutiny on whether or not cousins can marry each 

other? 

Attorney General HOLDER. No, I would not argue that. I don’t 

know if there is law on that. But again, off the top of my head, I 

am not sure that you would need a heightened scrutiny standard 

in that regard. 

Mr. GOWDY. And age restrictions, we wouldn’t need a heightened 

level of scrutiny with respect to age restrictions? 

Attorney General HOLDER. No. There is a four-part test I have 

right here that I don’t think you have a heightened scrutiny as 

well. 

Mr. GOWDY. And we don’t need an intermediate or heightened 

level of scrutiny with respect to polygamy, right? 

Attorney General HOLDER. I would think not. 

Mr. GOWDY. And since Lawrence, two Courts of Appeals have 

upheld a rational basis test for sexual orientation. So that is two 

that have upheld the rational basis; one that has applied a heightened level of scrutiny. So my question is, why would you single out 

the one Court of Appeals that has applied a higher level of scrutiny 

ignoring the two that applied to a rational basis test? That just 

strikes me as a political calculation and not a constitutional calculation. 

Attorney General HOLDER. No, not a political calculation. I think 

what we had to do was look at—you know, Courts of Appeals make 

decisions that sometimes the Department of Justice will disagree 

with. To the extent that Courts of Appeals have taken different 

views of what the appropriate level of scrutiny is, we think those 

Courts of Appeals are wrong. The Supreme Court will ultimately 

have to decide this issue. But I want to assure you and everybody 

else that the decision that we made with regard to DOMA did not 

have a political component to it; it was a legal determination. 

Mr. GOWDY. I want to believe you, I really do. I mean that earnestly. But you know, when I was an AUSA, there was a Court of 

Appeals that said that law enforcement officers didn’t have to read 

Miranda warnings anymore. It was an unusual opinion, and it was 

one we didn’t follow. It was one Court of Appeals that ruled that 

way. There are—heavens knows, the Ninth Circuit Court of Appeals is presumptively wrong, so we don’t change our course of conduct when the Ninth Circuit—I said that, not you, right. When the 

Ninth Circuit Court of Appeals comes up with something crazy, we 

don’t change our course of action. It is difficult to explain why it 

is not a political calculation or a decision when two Courts of Appeals post-Lawrence have said the rational basis test is the one 

that applies and only one has argued for a heightened level of scrutiny, it is tough to see how that is not political. 

Attorney General HOLDER. I think one example, and I might be 

wrong in this one, but if my memory serves me correctly, when it 

came to the Dickerson case, the Fourth Circuit indicated that that 

statute was passed to essentially overrule Miranda. I think the 

Fourth Circuit said that that statute was in fact constitutional. The 

Justice Department just argued against that statute, said that it 

was unconstitutional, before the Supreme Court. So you have the 

Justice Department both arguing in the Supreme Court against the 

statute passed by Congress and also taking on a Federal Court of 

71 

Appeals. So there is a basis, there is history to these kinds of actions that we took with regard to DOMA. It is unusual. It is, you 

know, rare, but it happens on occasion. 

Mr. GOWDY. But you would agree the Supreme Court has never 

applied a ightened level of scrutiny to sexual orientation, so there 

is no precedent from the Supreme Court and only one of the Courts 

of Appeals has even suggested there is a heightened level of scrutiny while two have not. 

And Mr. Chairman, could I have 30 seconds just to ask one other 

question? 

Mr. SMITH. Without objection. 

Mr. GOWDY. Thank you, Mr. Chairman. 

We will continue this conversation hopefully at some other point. 

You said that there were tactical reasons to try terrorists in a 

civilian court rather than military tribunals. You would agree the 

evidentiary rules are more relaxed in military tribunals than in 

civil court. 

Attorney General HOLDER. There are certain rules; they are not 

as lax. The difference is not as great as some people think. Certainly with regard to hearsay, you can get more hearsay evidence 

in the military commissions than you can Article III courts. 

Mr. GOWDY. Discovery rules are different. 

Attorney General HOLDER. Slightly. 

Mr. GOWDY. Jury qualification and selection is certainly different. 

Attorney General HOLDER. Yeah, different systems there. 

Mr. GOWDY. Right. So, I mean, to the extent you can, what tactical decisions made you believe that it was better to try these defendants in civilian court than in military court, because you used 

the word tactical, and as a prosecutor, I am thinking more likely 

to get a conviction. 

Attorney General HOLDER. Well, you would be right when it 

comes to tactical and how I view that. What I don’t want to do, 

with all due respect, because you have asked questions I think in 

good faith, I don’t think I can answer that question out of concern 

that what I might say could have a negative impact on the case 

that is pending now in these military commissions. The tactical 

reasons or tactical concerns that I saw, were I to reveal them might 

give to the defense an opportunity to raise issues that otherwise 

might not exist. 

Mr. GOWDY. Fair enough. 

Thank you, Mr. Chair. 

Mr. SMITH. Thank you, Mr. Gowdy. 

Attorney General HOLDER. But I do want to say, Mr. Gowdy, I 

appreciate what you have said about the assistants there, and I 

will share with them those good thoughts. 

Mr. GOWDY. Thank you very much. 

Mr. SMITH. The gentleman from Georgia, Mr. Johnson, is recognized for his questions. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Mr. Attorney General, I welcome you here today. And as head of 

the Justice Department, you are responsible for, among other 

things, enforcing the Federal criminal laws, defending the United 

States against civil actions and also protecting our national secuVerDate Aug 31 2005 11:42 Sep 13, 2012 Jkt 000000 PO 00000 Frm 00075 Fmt 6633 Sfmt 6601 H:\WORK\FULL\050311\66154.000 HJUD1 PsN: DOUGA
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rity. Now, at a time when your Department has been adversely impacted by the ravenous budget cutting, I was puzzled by one of my 

colleagues on the other side’s questioning you about the allocation 

of your precious resources to the issue of adult hardcore pornography. 

And I really would like to know what is adult hardcore pornography? But because my time is limited, I will forego that question. 

But Mr. Attorney General, over the last couple of years, you have 

successfully prosecuted many terrorist cases, and in fact, under 

your leadership, the Justice Department has successfully prosecuted more terrorists than any other 2-year period in history. The 

recent military operation which led to the death of Osama bin 

Laden is a testament as to how this Administration handles national security in a disciplined fashion, using all the tools at its disposal that are available in an effort to protect the American people. 

And I must take this opportunity to recognize the great, the fabulous success of the mission which was carried out by the CIA and 

the Joint Special Operations Command that resulted in the apprehension of Osama bin Laden over the weekend. 

And I know that your Department is just as effective when it 

comes to prosecuting terrorists, and I deeply regret the fact that 

your decision to prosecute Khalid Sheikh Mohammed, the mastermind of 9/11, your decision to prosecute him in the civil—I mean 

in the criminal courts of this country, I regret that Congress, politicians in Congress usurped your ability to exercise the discretion 

that you have with respect to where to try that gentleman. 

And because he will be tried in a secret military tribunal, many 

of the things about the case that have not been publicly revealed 

will not be revealed, and so the American people will be left without the information, which I think would generate true closure for 

them in this matter. 

I appreciate all that you have done at Justice to protect all 

Americans at home and abroad, and I applaud the Justice Department’s commitment to transparency. Under your leadership, the 

Department has processed a record number of Freedom of Information Act requests, and you have testified before this Committee numerous times, and your dedication to State and local law enforcement by supporting the COPS program certainly does not go unnoticed, especially in this tight economy. 

Now, General Holder, I sent you a letter on March 28th of this 

year requesting information pertaining to three Federal intelligence contractors; HBGary Federal, Palantir Technologies and 

Berico Technologies, who collectively refer to themselves as Team 

Themis. Are you familiar with my letter? 

Attorney General HOLDER. I can’t say that I am. 

Mr. JOHNSON. Well, in that letter, I expressed concern that the 

three firms may have broken the law by conspiring to harm American citizens using illegal techniques, such as hacking, planting 

malware, blackmail and fraud. Nineteen of my colleagues in the 

House of Representatives echoed those serious concerns in a letter 

sent to House Committee chairs earlier in March, and I also requested copies of all Department of Justice contracts with those 

firms within 10 days. 

73 

I have grave concerns that the law may have been broken, and 

I understand that there are many demands on your time and that 

your staff is busy, but will you commit to looking into that matter? 

Attorney General HOLDER. Yeah, we will—I have a great staff, 

many of whom are right behind me, and they are undoubtedly taking notes right now with regard to the letter you talked about—I 

hope they are—about March 28th. 

Mr. JOHNSON.Well, I hope they are also. 

Attorney General HOLDER. They are writing. They are writing. 

Mr. JOHNSON. Okay. I would appreciate you all getting back to 

me. And when additional information arises, I will definitely send 

it to you on that case. And with that, I will yield back. Thank you. 

Mr. SMITH. Thank you, Mr. Johnson. 

The gentleman from Iowa, Mr. King, is recognized for his questions. 

Mr. KING. Thank you, Mr. Chairman. 

I thank Attorney General Holder for his long testimony here, and 

this is always a challenge and always an interesting day to serve 

on this Committee when the Attorney General of the United States 

is to testify before the Judiciary Committee, and I do appreciate it. 

I have a series of subjects I would like to examine, perhaps not 

in the depth that some of the others have. But I recall your testimony here roughly a year ago, and we had a discussion and exchange about Arizona’s SB1070 law. And at that time, I had asked 

you if there was a provision in the Constitution that you believed 

it had violated or if there was Federal preemption that it had perhaps violated or if there was any controlling case law that it perhaps crossed the line on it. At that point, you weren’t prepared to 

respond to that. And I don’t ask you to do that today, but to make 

this point that subsequent to that, then, of course, Justice filed a 

lawsuit against Arizona. And in reading that, I come across this— 

it seemed to be something I hadn’t encountered before—a careful 

balance that makes the case that Congress has established a careful balance between the various and sometimes competing immigration laws, and it is the job of Justice and the other departments 

to maintain that careful balance, just to put that in summary. 

Attorney General HOLDER. I am sorry, again, what kind of balance? I couldn’t hear you. 

Mr. KING. A careful, careful balance. And I have been involved 

in a lot of immigration debates, and I don’t know that anyone has 

alleged they had introduced legislation on immigration that was 

designed to achieve or enhance a careful balance. And so I just ask 

if that, I will call it illegal theory, the careful balance theory, does 

that exist anywhere else in law that you know of? 

Attorney General HOLDER. Well, the positions that we have 

taken in that lawsuit have been upheld by both the District Court 

and a Court of Appeals, theories that we have brought. The theories that we have used, which I think are mainstream theories, as 

I said, by two courts now that have said that we are in the right. 

Mr. KING. Boy, this is the microphone. It is not Trent Franks’ 

fault. The careful balance theory, however, regardless of the two 

courts ruling, and we are on our way to the Supreme Court, I presume, do you know that that careful balance theory exists anywhere else in law? 

74 

Attorney General HOLDER. To the extent that we have used particular theories, particular phrases, I am sure that the lawyers who 

filed those briefs did so carefully, did so with regard to—— 

Mr. KING. Attorney General, just let the record show I think it 

is a unique theory myself, and I would be very interested if there 

is any other place that you could direct my reference. It seems to 

me that that is the one that is convenient for this case. And if 

there is—if it is out there anywhere, I would like to know the answer to that. 

But let me move on. And that is—and I didn’t ask you the question whether you read SB1070. But we have another piece of legislation out there now that has been passed by one of the States; it 

is called HB116. That is Utah’s legislation that I will just contend 

for the sake of simplified vernacular creates Utah as a sanctuary 

state. Have you examined and have you read HB116? 

Attorney General HOLDER. I have read the Utah law. 

Mr. KING. And have you made a determination on whether to 

bring suit against Utah? 

Attorney General HOLDER. No, we have not. As I indicated I 

think in a prior question, what we typically do is try to interact 

with the State and try to work our way through any disagreements 

we might have without bringing suit. The statute doesn’t go into 

effect until 2013, I understand. We are prepared to bring suit if 

that is necessary, but that is a decision we will make in about a 

year or so. 

Mr. KING. Let me just make the point that if Arizona is preempted, then Utah establishing a sanctuary Sate certainly is preempted. I would make that point between us here today. 

And I move on, also, you have reviewed since your last testimony 

before this last Committee the sworn testimony of the Christian 

Adams and Chris Coates before the Civil Rights Commission under 

oath when they had made the point that the Justice Department 

has a racial component to the equation of whether they will enforce 

discrimination if it disadvantages a minority. Have you reviewed 

that testimony, and do you accept it as truthful, their sworn testimony? 

Attorney General HOLDER. I have not reviewed the testimony, 

but their characterization of that is totally inaccurate. 

Mr. KING. And I just ask, have you then looked into the Department and evaluated, done a further investigation, though—I mean, 

you disagree with that, but have you actually done an extra investigation within your own Department to satisfy yourself, or was 

that your judgment a year ago and is that just simply your same 

judgment today? 

Attorney General HOLDER. No. If you look at the assertions that 

they have made, it seems to me that they are inconsistent with the 

findings that the Office of Professional Responsibility has made 

looking at the whole Black Panthers matter where the OPR made 

the determination that politics, race did not play a part both in the 

filing of the case or in the decision as to how the case was disposed 

of, which seems to me is inconsistent with what they are claiming. 

Mr. KING. And Mr. Attorney General, I point out that I believe 

that Thomas Perez was less than truthful with this Committee 

75 

when he testified that they achieved the highest penalty involved 

under the law. 

And I just ask unanimous consent for an additional minute. 

Mr. SMITH. Without objection, the gentleman is recognized for an 

additional 30 seconds. 

Mr. KING. Thank you, Mr. Chairman. 

I also wanted to bring up the issue of Pigford Farms. And can 

you cite for this Committee the authorization that you had or may 

believe you had to open up negotiations for a second round of 

Pigford Farms we refer to as Pigford II? 

Attorney General HOLDER. The Attorney General has the ability 

to settle cases. That is part of what the—that is I think an inherent part of what the Attorney General’s—— 

Mr. KING. Would you cite the 2008 farm bill as the authorization 

for that specifically to conclude Pigford II? 

Attorney General HOLDER. I am not sure I quite understand your 

question. 

Mr. KING. Well, I can understand why. And then, so I would ask, 

did you negotiate with John Boyd on settlement for Pigford II? 

Attorney General HOLDER. Did I? 

Mr. KING. Yes, or did anyone from your office authorized by you 

do so? 

Attorney General HOLDER. I am not sure I know who Mr. Boyd 

is. 

Mr. KING. That is instructive to me, and I won’t push my time 

limits any further. 

Thank you, Mr. Attorney General. I appreciate it. 

Mr. SMITH. Thank you, Mr. King. 

The gentlewoman from California, Ms. Chu, is recognized. 

Ms. CHU. Thank you, Mr. Chair. 

Thank you, Mr. Attorney General, for being here. Two nights 

ago, President Obama announced that Osama bin Laden had been 

killed. And as Americans around the country rejoiced, President 

Obama also reminded us that on that day, no matter where we 

came from, what God we prayed to or what race or ethnicity we 

were, we were united as one American family. 

But in the wake of 9/11, we have seen a disturbing increase of 

hatred and discrimination against the Muslim community in America and those thought to be Muslims, such as South Asians and 

Sikh Americans. Most recently the House Homeland Security Committee in fact held hearings that targeted the American Muslim 

community. 

Considering the importance that intelligence information played 

in finding Osama bin Laden, how could an antagonistic relationship between an American Muslim community and law enforcement hurt our efforts to combat any homegrown terrorist threat, 

and what have you been doing to engage the community and maintain their trust? 

Attorney General HOLDER. Well, I think that is a good question. 

If there were an antagonistic relationship between law enforcement 

and those communities, that would have a negative impact on our 

ability to protect the American people. 

What we have seen is a pretty consistent level of cooperation and 

provision of information from the Muslim community here in the 

76 

United States. We have started a series of outreach efforts where 

I think the Department of Justice has been leading the way in 

order to dispel myths, make sure that there are open lines of communication, make sure that people understand that our aim is to 

protect all Americans, Muslim Americans as well as everyone else. 

And to the extent that there is discrimination or inappropriate actions directed toward that community, our Civil Rights Division 

has tried to step in and take action. 

Ms. CHU. Then let me ask about a guidance that the DOJ has. 

Even 10 years after 9/11, there is racial and religious profiling 

against the South Asian, Muslim and Sikh communities, and it is 

of widespread concern. I do commend the Department and especially the Civil Rights Division, the FBI and the U.S. Attorney 

General’s Office, which has investigated over 750 incidents involving violence, threats and vandalism and arson against Arabs, Muslim, Sikhs and South Asian Americans in the United States between 9/11 and March 2007. And in June 2003, the DOJ issued 

guidance banning the practice of racial profiling. Giving evidence 

that shows that racial profiling is ineffective and counterproductive, policies that prohibit it are certainly admirable. However, there needs to be much more strength on this kind of guidance. And the guidance doesn’t profile—doesn’t ban profiling on the 

basis of religion or national origin and lacks a meaningful enforcement mechanism. What is the progress of the review that I believe 

that you are doing right now involving this guidance? Where is it 

at? 

Attorney General HOLDER. Well, I would say, first, as a general 

matter, the use of profiling techniques is not generally good law enforcement, is not generally good law enforcement. We have under 

review the policy that was initiated back, I believe, in 2003. That 

review is under way, and my hope would be that I will have some 

recommendations from the group that is looking at that policy. 

Ms. CHU. And I certainly would urge that you do look at the 

issues of religion and national origin, as well as the enforcement 

mechanisms. 

Let me also say that the DOJ has engaged in this much needed 

outreach, and I certainly acknowledge that, but there certainly is 

also a need to better institutionalize current ad hoc initiatives. 

Would the DOJ consider formalizing the initiative to combat post9/11 discriminatory backlash within the Civil Rights Division of the 

DOJ by designating a special counsel for post-9/11 discrimination 

and a special counsel for religious discrimination? 

Attorney General HOLDER. Well, that is an interesting idea. I 

think that we have laws that our Civil Rights Division traditionally 

enforces that handle those kinds of issues. We have a community 

relations service as well in the Justice Department that can contribute in this regard. So I think we have the tools that we need, 

and we certainly have the dedication of the people who are career 

employees and who will be there after I leave as Attorney General 

who I think will remain dedicated to the enforcement of those regulations and those laws. 

Ms. CHU. I hope you might consider that. 

And my last question has to do with hate crime statistics. And 

the Hate Crime Statistics Act mandates the collection of data on 

77 

hate crimes, but it lumps together those acts that are anti Muslim 

or anti Arab, hence, those acts that are actually committed against 

Sikh Americans or South Asian American are not distinguished. 

Would the Department of Justice consider formally tracking hate 

crimes suffered by Arabs, Hindus, Sikhs and South Asians separately? 

Attorney General HOLDER. I think that is something we could 

consider. I think the greater the amount of granularity we have 

with regard to who is the victims of these kinds of acts, the more 

effective we can be in our enforcement efforts. So I think your suggestion is a good one, and that is certainly something that we can 

consider and work with you in trying to determine whether that is 

something that we can appropriately do. 

Ms. CHU. Thank you and I yield back. 

The CHAIRMAN. Thank you Ms. Chu. 

Before I recognize the gentleman from Arizona, Mr. Quayle, for 

his questions, let me say that two votes have been called, and we 

will need to stand in recess and go vote and then we will return, 

Mr. Attorney General, if that is all right with you. There are still 

several Members who would like to ask questions. 

The gentleman from Arizona. 

Mr. QUAYLE. Thank you, Mr. Chairman. And thank you, Mr. 

Holder. 

I just want to get some clarification on what you talked about 

with Mr. King. Is the reason that there hasn’t been any action on 

the Utah case, is it based on just the fact that it is not getting implemented until 2013 and you still do see some possible supremacy 

clause violations within that law? 

Attorney General HOLDER. I think they are certainly issues that 

we see now. Our hope would be that between now and 2013, there 

might be some way that we can work our way through those concerns without having to bring a lawsuit. But if we have to, we will. 

Mr. QUAYLE. So just working through possibly the legislature, 

the State legislature passing a different law, making some amendments to that law? 

Attorney General HOLDER. Right. That way interpretations that 

the Attorney General might take of the law, there are a number 

of ways in which we might try to work our way through it. 

Mr. QUAYLE. Changing gears. But I read last month that the 

Wall Street Journal reported that the DOJ and the FTC have resorted to coin flips, sometimes trades and bargains when determining which agency might have jurisdiction over cases, which can 

cost the interested parties additional time and expenses. 

Recently the DOJ’s anti-trust division, FTC and Congress have 

conducted investigations into online search engines and online advertising markets. As this area of our economy continues to grow, 

how do you plan on dividing the work between the agencies while 

preserving institutional knowledge and consistency? 

Attorney General HOLDER. That is a very good question, and 

something that we are trying to work our way through. 

The FTC and the Justice Department anti-trust division have 

generally been in a good place in dividing up responsibility for antitrust enforcement. There have, however, been instances where we 

have not been on the same page and I think we need to get toVerDate Aug 31 2005 11:42 Sep 13, 2012 Jkt 000000 PO 00000 Frm 00081 Fmt 6633 Sfmt 6601 H:\WORK\FULL\050311\66154.000 HJUD1 PsN: DOUGA
78 

gether and try to work together and that is what we are trying to 

do. To figure out what the rules of the road are going to be so that 

we don’t end up with as you indicated either coin flips or other 

ways in which we decide these matters. 

Mr. QUAYLE. So the DOJ and the FTC are working together to 

try to get some guidance and see who is going to be overseeing 

those matters? 

Attorney General HOLDER. Yes. 

Mr. QUAYLE. The other question I have is what role do you think 

that the anti-trust division has in helping to maintain an online 

marketplace that rewards without necessarily foreclosing new competition and preventing ideas from reaching consumers? 

Attorney General HOLDER. I think the anti-trust division, it is an 

interesting way that you phrase it but I think it is right. Anti-trust 

is generally seen as trying to stop mergers consolidation but I 

think the effect, the collateral, the impact of that work is to make 

sure that things are kept open, things are kept free and that is especially important when one looks at cyber issues, the Internet, 

where innovation happens so rapidly and where consolidation is 

not necessarily a good thing. And so we are constantly looking in 

that sphere for things that might inhibit the growth, the development of the Internet. 

Mr. QUAYLE. And in those investigations, have you seen any active and actual bottlenecks or gatekeepers on the Internet that actually is keeping content from consumers? Have you seen any actual evidence of that? Or are we starting to get down to conjecture 

and it is going to the possibility of the gatekeepers rather than actual factual evidence pointing to that? 

Attorney General HOLDER. That was a good question. I am not 

sure that I am capable of answering that. We can get you something in writing from the folks in the anti-trust division who would 

be able to tell you more, in a more complete and contemporary way 

what concerns they have in that regard. I am not aware of any. 

But just because I am not doesn’t mean that maybe there aren’t 

things going on in the anti-trust division that would be responsive 

to your question. 

Mr. QUAYLE. So you don’t know anything but you can give me 

information if there is any? 

Attorney General HOLDER. We will get you something. 

Mr. QUAYLE. Okay, perfect. Thank you, Mr. Holder. 

And with that, Mr. Chairman, I yield back. 

Mr. SMITH. Thank you, Mr. Quayle. 

Mr. Attorney General, we will stand in recess for 20 minutes and 

be back then. 

[recess.] 

Mr. SMITH. The Judiciary Committee will reconvene. Welcome 

back, Mr. Attorney General. 

And the gentlewoman from California, Ms. Sa ́nchez, is recognized for questions. 

Ms. SA ́ NCHEZ. Thank you, Mr. Chairman. 

Attorney General Holder, I want to thank you for joining us here 

today. It is always nice when the AG takes the time to come and 

talk about the many issues facing the Department of Justice and 

how they impact the population here in the United States. I want 

79 

to start with a couple of quick questions regarding the anti-trust 

division first. As I am sure, the Members of the Committee are 

aware, one of the major issues facing the anti-trust division is the 

proposed merger of AT&T and T-Mobile. I serve on the Intellectual 

Property Subcommittee, and I am sure that they are going to be 

holding hearings to consider the various impacts of this merger. 

I just want to talk to you really quickly about the DOJ’s investigation into this proposed merger and the questions I have specifically on this issue are, if you can give the Committee a sense of 

how long you expect that review to take, and then also what factors 

are you going to be considering as you review that merger? 

Attorney General HOLDER. I am not sure that I can give you, 

with any degree of certainty, how long the review would take. It 

will be one that will be done thoroughly and expeditiously, and 

then I think the normal things that would be considered will be the 

ones that will drive the inquiry, the whole question of what the impact of the merger will have on, the potential merger would have 

on consumers, on the market. It would be just a traditional analysis even though it involves some cutting edge technologies. 

Ms. SA ́ NCHEZ. Thank you. I want to talk to you a little bit about 

the state criminal alien assistance program. When I was a new 

Member of Congress, law enforcement came to visit me in my office 

to talk about how a reinterpretation by the Department of Justice 

had a profound impact on their budgets. SCAAP program was established to help reimburse State and local governments for the 

costs associated with housing undocumented criminals, but in 

2003, the Department of Justice reinterpreted SCAAP in a way 

that caused a drastic drop in every State’s reimbursement, and 

that has had repercussions throughout the law enforcement community at a time when, quite frankly, when law enforcement can 

least afford it. In my State of California, for example, SCAAP reimbursement payments have declined from $220 million in fiscal year 

2002, that was prior to the reinterpretation of the statute, and it 

has dropped to 112 million in fiscal year 2009. 

And as I am sure you are aware, many States are experiencing 

budget shortfalls and having to scale back on many services. 

And I am wondering if you would be willing to reexamine the 

award criteria for the SCAAP program and review the reinterpretation and see if that merits continuance? 

Attorney General HOLDER. When I testified before the Budget 

Committees, I was very conversant with SCAAP and where we 

were in terms of our budget. To be honest with you, I am not now. 

What I can do is promise to get you something that indicates where 

we are in our budget with regard to SCAAP and also look at that 

opinion and see how that impacts the—— 

Ms. SA ́ NCHEZ. I don’t want to get into the weeds of it, but it really is criteria that is nonsensical and doesn’t make a lot of sense. 

I am asking if you would take the time to sort of review that opinion and figure out if that still makes sense? 

Attorney General HOLDER. We can do that. 

Ms. SA ́ NCHEZ. Okay, great. And then finally, I want to address 

an issue that some of my colleagues earlier asked you some questions but about the recent indictments of several online poker Web 

sites. Those have a significant impact on many of my constituents 

80 

because I have heard a lot from them on this matter. As Mr. 

Cohen, I believe, stated, it is a game that is gaining in popularity 

and there are about 10 million Americans that currently play poker 

on line and it also ends up being about a $16 billion industry in 

this country. 

Now, I know that there has been successful regulation of online 

poker playing in places like Europe and Australia, and I happen 

to be a strong supporter of legislation that would legalize online 

gambling in this country and allow us to tax it reasonably and efficiently and make sure that people were not being cheated out of 

their money. I am sure you can appreciate, again, in challenging 

economic times, when States are experiencing deep budget shortfalls and the Federal Government is trying to find a way to get its 

fiscal house in order, that is one area in which we could potentially 

increase revenue for the coffers. 

So I am hoping that that is an area that you will look at, again, 

in terms of where you dedicate your precious resources. I think 

time would probably, in my humble opinion, be better spent dealing with bigger and more impactful, serious violent crimes, for example, than trying to trying to interrupt this industry which, as I 

said, has been efficiently regulated in other countries. And with 

that, I will yield back my time to the Chairman. 

Mr. SMITH. Thank you, Ms. Sa ́nchez. 

The gentlewoman from Florida, Mrs. Adams. 

Mrs. ADAMS. Thank you, Mr. Chairman. 

Mr. Holder, I have a few questions and I am going to go quickly 

because I only have 5 minutes and I would really like to have a 

lot more, to be honest with you. Earlier, I listened and you said 

there were determinations as to why to follow through on enforcing 

the law or not enforcing the law, and I have a couple of questions. 

We are a Nation of laws, are we not? 

Attorney General HOLDER. We are—I can’t hear you. 

Mrs. ADAMS. We are a Nation of laws? 

Attorney General HOLDER. Yes. 

Mrs. ADAMS. And what determination, what do you do to make— 

what do you go through to determine which laws your agency will 

enforce or not enforce? 

Attorney General HOLDER. See, I wouldn’t put it that way. I say 

we enforce all the laws. The question is—— 

Mrs. ADAMS. Well, we would probably disagree on that and I am 

just wondering is there a process which you go through to determine which ones you will actively enforce and which ones you will 

inactively enforce? 

Attorney General HOLDER. I think it is a question of prioritizing. 

That is how I would say it. 

Mrs. ADAMS. So you have a process to prioritize the laws which 

you will enforce? 

Attorney General HOLDER. No. Prioritize our enforcement efforts. 

You try to find what is the potential greatest harms, for instance, 

when it comes to violent crime, what is the most impact when it 

comes to financial crime, given the limited resources we have on 

those determinations that is how we decide where we deploy our 

resources. 

81 

Mrs. ADAMS. Well, as someone who comes from a law enforcement background, I know that I was tasked with enforcing the 

laws that were on the books. If there was something wrong with 

the law or we found there was an issue we went to our legislative 

branch to deal with those, and I would ask that you would do that, 

you would give us that opportunity because if they are on the 

books, the American people expect for us to enforce them. 

Do you not agree with that? 

Attorney General HOLDER. As I said, we enforce the laws. We 

take into account the impact. 

Mrs. ADAMS. But do you agree the American people expect us to 

enforce the laws that we have on our books? 

Attorney General HOLDER. Sure. And we do. 

Mrs. ADAMS. The other thing is with the final end to the chapter 

of bin Laden, and he is now deceased and I commend everyone involved with his capture and ultimate demise, my question to you 

is in last year, you reauthorized the reinvestigation of CIA 

operatives in Gitmo even after they were cleared once by career 

Department of Justice investigators. 

Were any of these CIA operatives involved in getting the detainee information that led to Osama bin Laden’s death? 

Attorney General HOLDER. The inquiries that I ordered, I guess, 

was last year—— 

Mrs. ADAMS. Were any of them involved? 

Attorney General HOLDER. The investigation that I ordered last 

year—— 

Mrs. ADAMS. Were any of those involved in the ultimate information that—— 

Attorney General HOLDER. I was trying to answer the question. 

Mrs. ADAMS. It is a yes or a no. 

Attorney General HOLDER. Well, I can’t answer that way. The investigation I ordered last year was people who potentially went beyond the OLC opinions—— 

Mrs. ADAMS. Who were previously cleared? 

Attorney General HOLDER. Well, their information that is being 

examined by a special prosecutor who had been appointed by—— 

Mrs. ADAMS. But I am not asking exactly that. I was wanting to 

know were they involved in getting the information that ultimately 

caught bin Laden? 

Attorney General HOLDER. I am not in a position to answer that. 

I don’t know. I am not allowed to answer the question. 

Mrs. ADAMS. Okay. 

Attorney General HOLDER. I am—— 

Mrs. ADAMS. Maybe in another venue you can answer that for 

me. 

Attorney General HOLDER. No. What I am saying is that I was 

trying to answer the question. You are looking for yes or no. I don’t 

think I can give you one in that way. 

Mrs. ADAMS. Okay. The task force that has been created, and I 

am looking forward to seeing the outcome of that task force, I know 

there is a lot of factors playing into what is going on with the 

prices of gas and oil, and a lot of people in America want answers, 

and I agree with them. They should be afforded those answers. 

82 

One of the things I noted was that your central mission of financial fraud enforcement task force is to enhance the government’s effectiveness and combat financial fraud. As part of your investigations, will you also be probing into the Department of the Interior 

for its efforts to restrict trade by closing lands and holding our natural resources hostage? 

Attorney General HOLDER. I am not sure that I am familiar with 

those allegations. 

Mrs. ADAMS. Well, we have had some closed, and permits pulled 

back, and people are wanting to know and have a right to know 

the answers to those questions, why? And if that plays into the 

cost, the American people would like to know if it does. 

Also, the value of the dollar. Is that playing into the cost of our 

oil and gas? Those are questions that I would hope that you will 

answer for the American people since you have created this—just 

one other thing. I am curious. Does your agency not have the authority to do this without this Commission being created? 

Attorney General HOLDER. Sure, we could. But in trying to be an 

effective task force, you bring into the task force those agencies 

that have particular expertise. And by combining that, we make a 

task force that is better than one that we might be able to create 

out of simple Justice Department personnel. 

Mrs. ADAMS. You had already started an investigation prior to 

the task force being created? 

Attorney General HOLDER. I couldn’t hear you. 

Mrs. ADAMS. You had already started investigating prior to the 

task force being created? 

Attorney General HOLDER. No. 

Mrs. ADAMS. Thank you. 

Mr. SMITH. Thank you, Mrs. Adams. 

The gentlewoman from California, Ms. Waters, is recognized. 

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

And I thank the Attorney General for the time that he is spending here today, and the fact that he waited for us to come back 

from the vote. I wanted to come over here despite the fact that I 

am Chairing a Subcommittee of the Financial Services Committee 

because I want to talk about mergers. I have spent, I spent an 

awful lot of time on the Comcast-NBC merger as you, a lot of people know. And I am concerned. I am concerned about consolidation. 

But Mr. Holder, it appears across all industries that anti-trust 

enforcement under the Administration, under this current Administration does not appear to be much different from the previous 

Administration’s kind of rubber-stamped approvals of multiple 

mergers and consolidations. The mergers of Ticketmaster, Live Nation, Continental-United, Southwest-AirTran, Comcast-NBC and 

Google-ITA have all been approved by your anti-trust division. It 

appears that the anti-trust division is chartering new territory and 

positioning itself as more a regulator than a legal enforcement 

agency. 

The consent decrees from the Comcast-NBC, Google-ITA and 

other mergers attach conditions that temporarily require DOJ monitoring enforcement actions if breached. In my estimation, it takes 

more resources for DOJ to regulate through the Judiciary than to 

simply block or audit divestiture when appropriate. 

83 

Is regulating through consent decree in areas such as competition over the Internet and tech industry really the most effective, 

efficient and transparent way to create rules of the road for merger 

reviews? It is kind of a dual question here. I just want to understand where you are going over there with these merger questions? 

Attorney General HOLDER. Well, I think the anti-trust division it 

is tough on enforcement where it finds violations of the anti-trust 

laws. And I don’t think those consent decrees or those conditions 

that were placed on those mergers are insignificant. The anti-trust 

division doesn’t go into this with a notion that we want to try to 

find a way in which we make a merger occur. You look at the antitrust laws, apply them, and then make a decision as to whether or 

not a merger can go through or there are ways in which a merger 

might be constructed that it could. But we don’t go into it with a 

presumption or a mindset that we want to make mergers occur. 

And I think that we have through the leadership of our assistant 

attorney general, I think we have been appropriately aggressive. 

Ms. WATERS. Have you denied any since you have been there? 

Attorney General HOLDER. Let’s see. I could probably get back to 

you with that. I am not sure. 

Ms. WATERS. Well, let me just register this. I spent hours upon 

hours working on the Comcast-NBC merger and raised significant, 

we think, questions about that merger. We understand how they 

operate now. We learned an awful lot about some of the agencies 

and programs that came in to support them. We learned about how 

they make contributions to nonprofit organizations. We were not 

talking about whether or not you contribute to churches and civil 

rights groups and all of that. We were talking about whether or not 

your company, your business, is diverse, whether or not it is reflected in your management, we talked about whether or not the 

programming at NBC, et cetera, opened up opportunities for independent operators. We talked about some serious and significant 

issues. We got outplayed because they were able to roll in a lot of 

folks who had gotten contributions for their yearly conventions and 

their churches and all that of that. And I am just wondering 

whether or not those of who us who are concerned about consolidations and mergers should just stop fighting these things altogether 

and allow them to come in with the conditions that you think play 

well and you all just adopt those conditions and let these mergers 

could go through. I am really concerned about it. 

Attorney General HOLDER. Well, as I said, the anti-trust division 

is taking its enforcement responsibilities seriously. I think, again, 

as I said before, we are being appropriately aggressive in handling 

these matters in a way that is consistent with the law. 

Ms. WATERS. I am going to ask you something that is very sensitive. At the time that we were fighting, at the time that we were 

trying to fight to get people to pay attention to Comcast and NBC 

and how huge this merger was, NBC, that is owned by GE, CEO 

was being considered to head up the President’s business council. 

Are you aware of that? 

Attorney General HOLDER. I was not aware of it at the time. I 

am aware of it now. 

Ms. WATERS. Was that something that should be taken into consideration as you made a decision about that merger? 

84 

Attorney General HOLDER. It should not have been and was not 

taken into consideration. 

Ms. WATERS. It should not have been taken into consideration? 

Attorney General HOLDER. It was not. 

Ms. WATERS. Why not? 

Attorney General HOLDER. That is not the consistent with what 

the enforcement responsibilities are of the anti-trust division. 

Ms. WATERS. At the time that you were considering the merger, 

the key player was GE that owned NBC, and it appears that there 

was a relationship here with the Administration and with GE that 

would cloud their objectivity about that merger. You don’t think 

that is worth considering? Or you don’t think that is in your mandate to consider? 

Attorney General HOLDER. No, we certainly shouldn’t consider it, 

did not consider it. You have to understand that the Justice Department acts when it comes to its enforcement responsibilities 

independent of anything that the White House might be doing with 

regard to—— 

Ms. WATERS. Oh, the appointees on the FCC acts independent of 

the White House also? The DOJ and the FCC have nothing to do 

with each other when they are considering these mergers? 

Attorney General HOLDER. I am talking about the Justice Department and its responsibilities when it comes to the enforcement 

of the laws that are our responsibility, we act independently of 

other executive branch agencies—— 

Ms. WATERS. Including the FCC, you are not interacting with the 

FCC? 

Attorney General HOLDER. I was going to say there are instances 

where we will interact with other agencies if they have a particular 

expertise or if there is a reason for us to interact with them when 

it comes to a particular statute, but when it comes to our enforcement responsibilities and determinations as to whether or not the 

anti-trust laws were violated and if those were the responsibility 

of the Justice Department, we act in an independent manner. 

Ms. WATERS. We are not talking about whether or not the antitrust laws were violated past tense. We are talking about consideration of the request or the attempts to get the merger, and looking 

at all aspects of whether or not this merger is in the best interests 

of the citizens of this country, the people of this country, that is 

what I am talking about. 

Do you, in looking at that merger interact with the FCC who 

have appointees by the President and what is going on in that 

overall discussion? 

Attorney General HOLDER. Let’s cut to the quick here. The Justice Department’s determinations in that case or any other case is 

not affected by relationships that exist between the White House 

and the head of GE or anything like that. That didn’t come into 

play in the determination that the Justice Department made in 

that case. That is the bottom line. 

Ms. WATERS. And should not come into play. 

Attorney General HOLDER. And that is the bottom line. 

Mr. SMITH. The gentlewoman’s time has expired. 

Ms. WATERS. Thank you. Thank you very much. 

85 

Mr. SMITH. The gentleman from Pennsylvania, Mr. Marino, is 

recognized for his questions. 

Mr. MARINO. Thank you, Mr. Chairman. General, welcome. I 

want to thank you and your staff for waiting for us. I know how 

busy you are. I was U.S. attorney from 2002 to 2008 and I was 

very busy. I multiply that by a thousand for you and your staff, 

and I know how you multitask. So with that said, sir, I have to put 

in a plug for my middle district of Pennsylvania staff who I miss 

dearly and they made me look good. 

Attorney General HOLDER. Well, don’t take this off Mr. Marino’s 

time, but I tried my second and third cases in Scranton. I am an 

admirer of Judge Nealon, and he is a great judge and was very 

kind to a young lawyer when I was up there in the 1970’s. 

Mr. MARINO. I know what you mean. I tried several cases there. 

Let’s just switch gears here for a moment and let’s talk about the 

Federal Bureau of Prisons. We know over the years, we have had 

officers who have been murdered, killed by inmates. And no one 

knows better than I do the seriousness of when we talk about having officers carry guns and just visiting a Federal prison last week 

I sat down with the inmates and had a chance to talk with them 

a little bit about how things are operating. 

And you know some of those inmates stood up and were concerned about the safety of some of the guards believe it or not. I 

had to take what they were saying as the truth. But also the 

guards and I discussed the fact that the guards should not be carrying guns for obvious reasons at least between us. But, do you see 

any harm in the officers carrying mace, carrying a spray of some 

type? There is a situation where a guard was killed, he was 

stabbed several times by two inmates, got away from them down 

into another landing, they came down and finished him off. And I 

have to think that perhaps just the fact that having some mace to 

fight them off for a few seconds until help got there, it may have 

saved his life. So I would ask you to please consider that. 

Attorney General HOLDER. Yeah. 

Mr. MARINO. And let me know what the downside is to that if 

you would because we couldn’t come up with any other than the 

fact that an inmate could grab that but still there would be time 

to handle that situation. So if you would please. 

Attorney General HOLDER. I am not an expert in that field, but 

I am more than glad to run your suggestion by the folks at BOP 

and we will get back to you on what their response is. 

Mr. MARINO. Thank you. Now I want to switch gears here to 

Countrywide Financial, particularly Angelo Mozilo. He was the 

former chair and CEO of Countrywide Financial. And the SEC filed 

charges against him and others on June 4, 2009, alleging that they 

failed to disclose to investors the significant credit risk that Countrywide was taking on as a result of its efforts to build and maintain market shares. 

The SEC’s complaint further alleged that Mozilo engaged in insider trading while he was aware of material nonpublic information 

concerning Countrywide’s increasing credit risk and the risk regarding the poor expected performance of Countrywide originated 

loans. 

86 

This gentleman received or made over, from 2001 to 2006 470 

million in salaries and stock options and things of that nature. The 

Federal prosecutor in Los Angeles dropped these criminal investigations on this man in February 2011. He was assessed civil penalties to the tune of almost $68 million and I don’t know all the 

facts, haven’t read any indictments or anything or potential investigator reports, only what I read in the newspaper and catch from 

other individuals. 

But I understand this person is still enjoying his yacht out in the 

Mediterranean and based on the limited material that I read, I 

think there is a question there, I think there is a serious question 

that at least could have been brought before a grand jury to determine whether to indict. I can see why he probably wanted to hand 

over $68 million if he made 470 and not spending any jail time on 

that. 

If you are familiar with that, could you elaborate on it a little 

bit and if not, could you have someone look into that, please? 

Attorney General HOLDER. Well, I am not sure there is an awful 

lot of information we would be able to share. I am not intimately 

familiar with the case. In any case, I am not at all certain we 

would be in a position to share information about a closed matter, 

as you will remember from your DOJ days, that is not something 

that is typically done. 

What we try to do obviously is to look at these matters, be aggressive, we have good lawyers again as you know, around the 

country who look at these matters and try to make cases. And that 

is something that I hope I conveyed today, that these matters are 

examined by prosecutors who come to the Justice Department to 

try these matters, to investigate these matters and take these matters to court and then to hold people responsible. 

If determinations are made not to proceed, it is not for lack of 

trying. It is because they have made a determination that they 

can’t. 

Mr. MARINO. You made it very clear today. I applaud you for 

those efforts. My office was involved in prosecuting a case similar 

to this. And I never would question a U.S. attorney as to why they 

did or didn’t. I am sure there are reasons. But this is the kind of 

situation where my constituents say, how can someone this 

wealthy get away with that, and you know how they are couching 

it in terms of wealth and get away with it. I know that is not the 

case with the Justice Department. Thank you so much for being 

here today, and I yield my time. 

Mr. SMITH. Thank you, Mr. Marino. 

Mr. Attorney General, I would like to ask you a few questions 

just to follow up on some subjects that were raised earlier, and my 

guess is that there are easy answers. 

Does the Administration still favor having background checks 

conducted by those who purchase firearms at gun shows? We were 

told by your earlier answer whether the Administration had 

changed its earlier position or not, but do you still favor having 

those background checks conducted? 

Attorney General HOLDER. I will say that I think that having a 

system where people who are exercising their Second Amendment 

rights in purchasing firearms, we would all be better served by 

87 

having background checks done. We are presently engaged in a dialogue with a variety of members of the firearms community. We 

will be having working group meetings at the Justice Department, 

we talk to retailers, a whole variety of people. We are in the process of trying to look at the state of the law and come up with proposals about things that we might consider to make the law better 

and to make the American people being more safe. 

Mr. SMITH. But you do favor the background checks being conducted? 

Attorney General HOLDER. I would say that, as I said, I think the 

American people are better served and are more safe by having 

people exercising their rights in a way that when you get to a licensed firearms dealer, you have an instant background check 

done. I think that is a better way to do it. 

Mr. SMITH. I am talking about at a gun show, though, and you 

do favor the background checks there? 

Attorney General HOLDER. I think that having everybody who 

purchases a gun—— 

Mr. SMITH. Everybody including that. Okay. I understand. 

You were asked a question earlier about price-fixing by oil companies. Are you aware of any oil companies who have engaged in 

that conduct? I know you appointed a task force that might or 

might not discover that. But are you aware of any of that type of 

activity today? 

Attorney General HOLDER. I am not aware of any activity like 

that today. I have to await the results of the investigation. That 

is what the investigation is for. 

Mr. SMITH. I understand. In regard to my question about the 

Utah immigration law, when I ask why you weren’t filing suit 

against Utah as you had Arizona, you said we are trying to work 

something out with them. What were you referring to when you 

said trying to work something out with Utah? 

Attorney General HOLDER. It would depend on what Utah does. 

Once we have raised the concerns that we have, the legislature 

might decide to change the law. There might be enforcement ways, 

there might be ways in which the law might be enforced that are 

consistent with how we view our immigration responsibilities. 

Mr. SMITH. It would seem it is unconstitutional, at least it is suspect on its face because you have a law that professes to give legal 

status to people in the country who are here illegally. Why 

wouldn’t, I don’t know how you work that out, and it seems to be 

a clear violation of current immigration law so—— 

Attorney General HOLDER. It might be. The law as it exists in 

2011, it could be a violation that we would sue, by 2013, we may 

be in a position that we are in a different place. 

Mr. SMITH. If they change the law, it would take something like 

that. Okay, fair enough. Do you still favor closing Gitmo? I wasn’t 

sure by an earlier answer whether that was the case. 

Attorney General HOLDER. I have indicated and the President 

has indicated we both think the closure of Guantanamo would be 

in our national interests. 

Mr. SMITH. Fair enough. Mr. General, thank you for being here 

today. Thank you for answering all of our questions and we will be 

in touch with you as well. 

88 

Attorney General HOLDER. Okay, thank you. 

Mr. SMITH. Before we adjourn, without objection, all Members 

will have 5 legislative days to submit additional written questions 

for the witness and to submit any additional materials for the 

record. With that, we stand adjourned. Thank you again. 

Attorney General HOLDER. Thank you. 

[Whereupon, at 2:25 p.m., the Committee was adjourned.] 

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