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S. HRG. 111–907 

OVERSIGHT OF THE U.S. DEPARTMENT OF 

JUSTICE 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

NOVEMBER 18, 2009 

Serial No. J–111–63 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

ARLEN SPECTER, Pennsylvania 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

BRIAN A. BENZCOWSKI, Republican Staff Director 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 220 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 3 

WITNESSES 

Holder, Eric H., Jr., Attorney General of the United States ............................... 6 

QUESTIONS AND ANSWERS 

Responses of Eric H. Holder to questions submitted by Senators Leahy, Feinstein, Feingold, Schumer, Whitehouse, Sessions, Hatch, Grassley, Kyl and 

Coburn ................................................................................................................... 71 

SUBMISSIONS FOR THE RECORD 

Department of Defense, Washington, DC, October 7, 2009, letter ...................... 191 

Foundry: http//blog.heritage.org, Ed Meese, article .............................................. 194 

Holder, Eric H., Jr., Attorney General of the United States 

Oral statement .................................................................................................. 195 

statement .......................................................................................................... 198 

mainjustice.com, John Ashcroft, November 23, 2009, article .............................. 222 

National review Online, Andrew C. McCarthy: 

November 10, 2009, article .............................................................................. 223 

November 13, 2009, article .............................................................................. 226 

November 16, 2009, article .............................................................................. 230 

November 17, 2009, article .............................................................................. 233 

9/11 Family Members and New York City Firefighters, November 19, 2009, 

joint letter ............................................................................................................. 236 

Sumner, Tim, Brother-in-law of FDNY Joseph G, Leavey, 45, Ladder 15, 

WTC and Debra Burlingame, Sister of Captain Charles F. Burlingame 

III, pilot, American Flt 77, Pentagon, November 9, 2009, joint letter ............. 238 

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

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

Al Franken, a U.S. Senator from the State of Minnesota, Hon. John F. 

Kerry, a U.S. Senator from the State of Massachusetts and Hon. Benjamin 

L. Cardin, a U.S. Senator from the State of Maryland, joint letter ................. 240 

New York Times, John B. Bellinger II, July 18, 2009, article ............................. 242 

Wyden, Hon. Ron, a U.S. Senator from the State of Oregon, Hon. Russell 

D. Feingold, a U.S. Senator from the State of Wisconsin and Hon. Richard 

Durbin, a U.S. Senator from the State of Illinois, joint letter ......................... 245 

Wall Street Journal, WSJ.com: 

April 17, 2009, article ....................................................................................... 246 

October 19, 2009, article .................................................................................. 249 

Washington Post: 

November 6, 2009, article ................................................................................ 252 

November 20, 2009, article .............................................................................. 255 

(1) 

OVERSIGHT OF THE U.S. DEPARTMENT OF 

JUSTICE 

WEDNESDAY, NOVEMBER 18, 2009 

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

The Committee met, pursuant to notice, at 9:37 a.m., in room G– 

50, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. 

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

Durbin, Cardin, Whitehouse, Klobuchar, Kaufman, Specter, 

Franken, Sessions, Hatch, Grassley, Kyl, Graham, Cornyn, and 

Coburn. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning, everyone. I would note for Senators, this is the first hearing to be held in this room now that it 

has been rebuilt and reconstituted. Those of you who have been 

here a long time know this thing was sort of like the dark hole. 

It was probably the worst place to have to ever have a hearing because it was so dark and awful, and now it—and I commend the 

Architect of the Capitol and the Sergeant at Arms and everybody 

else who put this together and have made it better. 

Attorney General Holder, welcome. Glad to have you here. 

I commend the Attorney General for moving forward last week 

with plans to proceed on several cases against those who seek to 

terrorize the United States. He is using the full range of authorities and capabilities available to us. Just as President Obama is 

using our military, diplomatic, legal, law enforcement, and moral 

force to make America safer and more secure, the Attorney General 

is exercising his responsibilities in consultation with the Secretary 

of Defense to determine where and how best to seek justice against 

those who have attacked Americans here at home and around the 

world. And after nearly 8 years of delay, we may finally be moving 

forward to bring to justice the perpetrators and murderers from the 

September 11 attacks. I have great confidence in our Attorney General, the capability of our prosecutors, our judges, our juries, and 

in the American people in this regard. I support the Attorney General’s decision to pursue justice against Khalid Sheikh Mohammed 

and four others accused of plotting the September 11 attacks and 

to go after them in our Federal criminal court in New York. 

They committed murder here in the United States, and we will 

seek justice here in the United States. They committed crimes of 

murder in our country, and we will prosecute them in our country. 

2 

We are the most powerful Nation on Earth. We have a justice system that is the envy of the world. We will not be afraid. We will 

still go forward, and we will prosecute them. 

War crimes, crimes of terror, and murder can successfully be 

prosecuted in our Federal courts, and we have done it over and 

over and over again. America’s response to these acts is not to 

cower in fear, but to show the world that we are strong, resilient, 

and determined. We do not jury-rig secret trials or kangaroo courts, 

as some of our adversaries do. We can rely on the American justice 

system. I urge this Committee and the American people to support 

the Attorney General as this matter proceeds and urge the Congress to provide such assistance as will be needed, including providing the victims of those events the ability to participate. As 

many surviving family members of those killed that day have said, 

after years of frustration, it is time to have justice. And I will work 

with the Department of Justice and our court system as I did in 

the trial of Timothy McVeigh to make sure that there are ways 

that the victims can watch these trials. 

Federal courts have tried more than 100 terrorism cases since 

September 11—more than 100 since September 11. They have 

proved they can handle sensitive classified information, security, 

and other legal issues related to terrorism cases. And since the beginning of this year, more than 30 individuals charged with terrorism violations have been successfully prosecuted or sentenced in 

Federal courts. The Federal courts located in New York City tried 

and convicted the so-called Blind Sheikh for conspiring to bomb 

New York City landmarks and Ramzi Yousef for the first World 

Trade Center bombing. 

New York was one of the primary targets of the September 11 

attacks. Those who perpetrated the attacks should be tried there. 

They should answer for their brutality and for the murder of thousands of innocent Americans. Like Mayor Bloomberg, I have full 

confidence in the capacity of New York, and I have full confidence 

in Commissioner Ray Kelly and the finest police officers I have 

ever known and the New York City Police Department. 

The Attorney General personally reviewed these cases and, along 

with Defense Secretary Gates and based on the protocol that they 

announced this summer, determined to use our full array of powers 

by proceeding against the September 11 plotters in Federal court. 

And those charged with the attack on the U.S.S. Cole outside this 

country will be tried before a military tribunal, and he determined 

to go against Major Hasan in a court-martial for the deadly attack 

at Fort Hood just 2 weeks ago. 

I think the three different venues used for these three sets of 

crimes are appropriate, and I commend you for that. 

The President spoke at Fort Hood last week in a tribute to the 

brave men and women of our armed forces there, and he expanded 

on that matter in his weekly address over the weekend. Every 

Member of Congress—every Member—joins the President and the 

military community in grieving for the victims and their families, 

and we pray for the recovery of those who were wounded. Nidal 

Hasan has been charged with 13 counts of premeditated murder. 

The Army is leading the investigation with the support of the FBI, 

3 

and the President has ordered a review of what was known ahead 

of time, and I think that is appropriate. 

And I look forward, as this Committee conducts appropriate oversight, to finding out exactly what happened, where steps were 

taken, and especially where steps were not taken. But I would caution everybody to do it in a manner that does not interfere with the 

investigation and prosecution of this case. We want the prosecutors 

to be able to go forward with the case and not have anything we 

do interfere with it. 

I have already written to John Brennan, the Assistant to the 

President for Homeland Security and Counterterrorism, on behalf 

of this Committee. I have asked him to provide us the results of 

the internal investigation by the FBI, Army, and intelligence agencies that is underway. In the interim, on classified matters, both 

Senator Sessions and I should be informed, and I have spoken both 

with the Attorney General and with FBI Director Mueller, and yesterday the Ranking Member and I, as well as the Chairman of the 

Intelligence Committee Senator Feinstein, were briefed on the status of the investigation. We should and we will conduct responsible 

oversight. We will try not to do it in a reckless fashion because we 

should not take steps that will interfere with the ongoing investigation or stand in the way of military prosecutors. I want them to be 

able to compile a thorough and complete case. 

Also yesterday, the Attorney General and Treasury Secretary 

Geithner announced the creation of a financial fraud task force. 

This is a significant step in our efforts to strengthen fraud prevention and enforcement. It uses the authority we provided in the 

Fraud Enforcement and Recovery Act. I worked hard with Senator 

Grassley and Senator Kaufman to draft this act and get it passed. 

I was pleased to be there when the President signed it into law. 

He gives law enforcement new tools and resources to investigate 

and prosecute the kinds of financial frauds that are undermining 

our country. We are now hard at work on measures that can help 

find, deter, and punish health care fraud as well. Just the week, 

we learned that the Government has paid more than $47 billion in 

questionable Medicare claims, because as we prepare to consider 

health reform legislation, we have to address these issues of health 

care fraud. I hope that our new act that we worked on a bipartisan 

way will help that. We have to complete our legislative work on a 

media shield bill and the USA PATRIOT Act Sunset Extension Act. 

And on these matters, I appreciate the support we have from the 

Attorney General. 

So, with that, let me yield to Senator Sessions and then Attorney 

General Holder. 

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

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Mr. Chairman, and I am glad we 

could have this hearing today. We agree on a number of things. On 

the matter of the prosecution of Khalid Sheikh Mohammed and the 

9/11 terrorists we do not agree. 

Mr. Attorney General, I appreciate you, enjoy working with you. 

You have got a tough job. When I complain to my wife about this 

or that, she looks me straight in the eye and says, ‘‘Don’t blame 

4 

me. You asked for the job.’’ So you have got a tough job, but you 

asked for it. With your experience, you knew what you were asking 

before you got it. 

Let me acknowledge several people in the audience today. David 

Beamer from Florida and Alice Hoagland from California are here. 

They came here for the hearing today. David lost his son, Todd, 

and Alice lost her son, Mark, on Flight 93. Lisa Dolan is here. She 

lost her husband, Navy captain Robert Dolan, at the Pentagon on 

September 11th. Debra Burlingame I believe is here. She lost her 

brother, a pilot. Also, we are honored that Tim Brown from the 

New York Fire Department is here. Tim worked night after night 

on the rescue and recovery efforts of the World Trade Center. So 

it is a privilege to have each of you with us today. 

On September 11, 2001, our Nation was attacked by a savage 

gang of terrorists, people who had previously stated, as bin Laden 

did, that they were at war with the United States. Their intent was 

to kill innocent Americans and bring ruin to the United States. The 

death and destruction they caused in New York, Washington, and 

Pennsylvania was an act of war. 

Now, at the time that was crystal clear to us. If there is now 

among some folks in Washington any confusion on that point, it is 

because time, I think, has dulled their memory or because other 

matters have clouded their judgment. 

But the American people remember that day well, and they know 

that the facts have not changed. President Bush responded to the 

9/11 terrorist acts swiftly and forcefully, and we have been blessed 

that the dedicated work of millions of Americans has prevented 

similar attacks of that scale. 

Today we remain engaged in the two long struggles in Afghanistan and Iraq. We wish the work there was easy, but it is not, and 

this effort is not. As we sit in this chamber, 188,000 American men 

and women in uniform fight tirelessly to root out terrorism from 

foreign battlefields. Our military and intelligence personnel are, in 

fact, at war this very day, 7 days a week, under dangerous and adverse conditions, because this Congress has authorized and asked 

them to go there, and we sent them there. 

The best way to honor these men and women is to work just as 

hard and just as smartly to ensure that what we do supports them 

and the goals that we have set for them. Regrettably, when I look 

at the policies taking shape under the new administration, I fear 

that that is not the case. I just am worried about those decisions. 

Over the past 9 months, we have seen the administration continue to delay providing clear leadership to our troops in Afghanistan, call for an investigation and potential prosecution of CIA 

agents who risked their lives to capture dangerous terrorists and 

who previously had been cleared of an investigation. They have cut 

a deal on a media shield legislation to protect individuals when 

they leak classified information to the mass media in a way that 

I think is not good. They concede to a weakened form of the PATRIOT Act, a vital legislative tool for our intelligence community, 

and declined to provide basic information, to date at least, that we 

are going to have to have as we go forward with the Fort Hood investigation, and now announce that they will bring Khalid Sheikh 

5 

Mohammed, the self-proclaimed mastermind of 9/11, back to Manhattan to be treated as a common criminal in U.S. courts. 

Taken together, I think these policies signal to our people, to our 

country, and to our military, and to the international community 

that for the United States fighting global terrorism is not the priority it once was, that we can return to a pre-9/11 mentality. 

The problem is this: al Qaeda does not agree. They continue to 

seek to do us harm, as we all well know, and we must continue to 

be vigilant as we track down these terrorists and bring them to justice. And we must use all lawful tools to do so. Lives are at stake. 

Today’s hearing will focus on, among other issues, the Attorney 

General’s decision to prosecute Khalid Sheikh Mohammed and four 

other terrorists in U.S. courts rather than in military courts. I believe this decision is dangerous. I believe it is misguided. I believe 

it is unnecessary. It represents a departure from our longstanding 

policy that these kinds of cases should be treated under the wellestablished rules of war. 

Khalid Sheikh Mohammed is a terrorist, is alleged to be a terrorist. He is alleged not to be a common criminal, but who has a 

desire not for ill-gotten gains but for the destruction of our country. 

The correct way to try him is by military tribunal. This distinction 

is important because the military courts and civilian courts have 

different functions. The United States court system was not designed to try unlawful enemy combatants. 

And, Mr. Holder, I do not think these are normal defendants. 

These are people we are at war with, and we are dropping bombs 

on them this very day, attacking their lairs wherever they hide. 

The fabulous policewoman who went straight to Hasan at Fort 

Hood firing her weapon was, in effect, participating in a war effort. 

The enemy who could have been obliterated on the battlefield on 

1 day but was captured instead does not then become a common 

American criminal. They are first a prisoner of war once they are 

captured. The laws of war say, as did Lincoln and Grant, that the 

prisoners will not be released until the war ends. How absurd is 

it to say that we will release people who plan to attack us again? 

Second, as part of their military activities, if they violate the 

laws of war, then and only then may they be tried for crimes. That 

is what happened to the Nazi saboteurs in the Ex Parte Quirin 

case in World War II when they were tried by military commissions. Military commission trials are fair. They are recognized not 

only by our country but by nations all over the world. Far from seeing our actions as some sort of demonstration of American fairness, 

I suspect our cold-blooded enemies and our clear-eyed friends both 

must wonder what is going on in our heads. Are we, they must ask 

themselves, still serious about this effort? 

As former Attorney General Michael Mukasey wrote in 2007, 

‘‘Terrorism prosecutions in this country have unintentionally provided terrorists with rich sources of intelligence.’’ 

Mr. Attorney General, we are concerned about what is happening 

today. We respect and like you, but this is a serious question, and 

we will raise a number of issues as we go through the hearing. 

Thank you. 

Chairman LEAHY. Well, obviously, Senator Sessions and I have 

a differing view on this, but there will be differing views here, and 

6 

that is why we thank you for coming here—although I must admit, 

Senator Sessions, that I am delighted to hear somebody from Alabama quote approvingly Ulysses S. Grant and Abraham Lincoln. 

The world has come full circle. 

Senator SESSIONS. And they were winners, too. 

Chairman LEAHY. Well, I appreciate that acknowledgment, too, 

but we probably best leave this one alone. 

I would put in the record the letter I sent to John Brennan, the 

Assistant to the President for Homeland Security and Counterterrorism, asking when they finish their investigation that this Committee be able to see what we have found, both what went right 

and what went wrong. 

[The letter appears as a submission for the record.] 

Chairman LEAHY. Attorney General Holder, thank you for being 

here. Please go ahead, sir. 

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

GENERAL OF THE UNITED STATES 

Attorney General HOLDER. Thank you, Mr. Chairman, Senator 

Sessions, and other members of the Committee. 

When I appeared before this Committee in January for my confirmation hearing, I laid out several goals for my time as Attorney 

General: to protect the security of the American people, to restore 

the integrity of the Department of Justice, to reinvigorate the Department’s traditional mission, and, most of all, to make decisions 

based on the facts and on the law, with no regard for politics. 

In my first oversight hearing in June, I described my early approach to these issues. Five months later, we are deeply immersed 

in the challenges of the day, moving forward to make good on my 

promises to the Committee and the President’s promises to the 

American people. 

First and foremost, we are working day and night to protect the 

American people. Due to the vigilance of our law enforcement and 

intelligence agencies, we have uncovered and averted a number of 

serious threats to domestic and international security. Recent arrests in New York, Chicago, Springfield, and Dallas are evidence 

of our success in identifying nascent plots and stopping would-be 

attackers before they strike. 

Violence can still occur, however, as evidenced by the recent tragic shootings at Fort Hood. We mourn the deaths of the 13 brave 

Americans, including Dr. Libardo Caraveo, a psychologist with the 

Justice Department’s Bureau of Prisons, who had been recalled to 

active duty. The Federal Bureau of Investigation is working diligently to help gather evidence that will be used by military prosecutors in the upcoming trial of the individual who is alleged to 

have committed this heinous act. 

We are also seeking to learn from this incident to prevent its reoccurrence. Future dangerousness is notoriously difficult to predict. 

The President has ordered a full review to determine if there was 

more that could have been done to prevent the tragedy that unfolded in Texas 2 weeks ago. We have briefed the Chairman and 

Ranking Member of this Committee and other Congressional leaders on our efforts and will continue to keep Congress abreast of 

this review. 

7 

Now, my written statement addresses a number of other issues 

before the Department, but I would like to use the rest of my time 

allotted to me today to address the topic that I know is on many 

of your minds: my decision last week to refer Khalid Sheikh Mohammed and four others for prosecution in Federal courts for their 

participation in the 9/11 plot. 

As I said on Friday, I knew this decision would be a controversial 

one. This was a tough call, and reasonable people can disagree with 

my conclusion that these individuals should be tried in Federal 

court rather than a military commission. The 9/11 attacks were 

both an act of war and a violation of our Federal criminal law, and 

they could have been prosecuted in either Federal courts or military commissions. Courts and commissions are both essential tools 

in our fight against terrorism. 

Therefore, at the outset of my review of these cases, I had no preconceived notions as to the merits of either venue. And, in fact, on 

the same day that I sent these five defendants to Federal court, I 

referred five others to be tried in military commissions. 

I am a prosecutor, and as a prosecutor, my top priority was simply to select the venue where the Government will have the greatest opportunity to present the strongest case and the best law. I 

studied this issue extensively. I consulted the Secretary of Defense. 

I heard from prosecutors in my Department and from the Defense 

Department’s Office of Military Commissions. I spoke to victims 

who were on both sides of this question. I asked a lot of questions, 

and I weighed every alternative. And at the end of the day, it was 

clear to me that the venue in which we are most likely to obtain 

justice for the American people is in Federal court. 

Now, I know there are members of this Committee and members 

of the public who have strong feelings on both sides. There are 

some who disagree with the decision to try the alleged Cole bomber 

and several others in a military commission, just as there are some 

who disagree with prosecuting the 9/11 plotters in Federal court. 

Despite these disagreements, I hope we can have an open, honest, and informed discussion about that decision today, and as part 

of that discussion, I would like to clear up some misinformation 

that I have seen since Friday. 

First, we know that we can prosecute terrorists in our Federal 

courts safely and securely because we have been doing so for years. 

There are more than 300 convicted international and domestic terrorists currently in Bureau of Prisons’ custody, including those responsible for the 1993 World Trade Center bombing and the attacks on our embassies in Africa. Our courts have a long history 

of handling these cases, and no district has a longer history than 

the Southern District of New York in Manhattan. I have talked to 

Mayor Bloomberg of New York, and both he and Commissioner 

Kelly believe that we can safely hold these trials in New York. 

Second, we can protect classified material during trial. The Classified Information Procedures Act, or CIPA, establishes strict rules 

and procedures for the use of classified information at trial, and we 

have used it to protect classified information in a range of terrorism cases. In fact, the standards recently adopted by the Congress to govern the use of classified information in military comVerDate Nov 24 2008 09:56 Mar 31, 2011 Jkt 064953 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\64953.TXT SJUD1 PsN: CMORC
8 

missions are based on and derived from the very CIPA rules that 

we would use in Federal court. 

Third, Khalid Sheikh Mohammed will have no more of a platform to spew his hateful ideology in Federal court than he would 

have had in a military commission. Before the commissions last 

year, he declared the proceedings an ‘‘inquisition.’’ He condemned 

his own attorneys and our Constitution and professed his desire to 

become a martyr. Those proceedings were heavily covered in the 

media, yet few complained at that time that his rants threatened 

the fabric of our democracy. 

Judges in Federal courts have firm control over the conduct of 

defendants and other participants in their courtrooms, and when 

the 9/11 conspirators are brought to trial, I have every confidence 

that the presiding judge will ensure appropriate decorum. And if 

Khalid Sheikh Mohammed makes the same statements he made in 

his military commission proceedings, I have every confidence that 

the Nation and the world will see him for the coward that he is. 

I am not scared of what Khalid Sheikh Mohammed has to say at 

trial, and no one else needs to be afraid either. 

Fourth, there is nothing common—there is nothing common— 

about the treatment the alleged 9/11 conspirators will receive. In 

fact, I expect to direct prosecutors to seek the ultimate and most 

uncommon penalty for these heinous crimes. And I expect that they 

will be held in custody under special administrative measures reserved for the most dangerous criminals. 

Finally, there are some who have said the decision means that 

we have reverted to a pre-9/11 mentality or that we do not realize 

that this Nation is at war. Three weeks ago, I had the honor of 

joining the President at Dover Air Force Base for the dignified 

transfer of the remains of 18 Americans, including three DEA 

agents, who lost their lives to the war in Afghanistan. These brave 

soldiers and agents carried home on that plane gave their lives to 

defend the country and its values, and we owe it to them to do everything we can to carry on the work for which they sacrifice. 

I know that we are at war. I know that we are at war with a 

vicious enemy who targets our soldiers on the battlefield in Afghanistan and our civilians on the streets here at home. I have personally witnessed that somber fact in the faces of the families who 

have lost loved ones abroad, and I have seen it in the daily intelligence stream that I review each day. Those who suggest otherwise are simply wrong. 

Prosecuting the 9/11 defendants in Federal court does not represent some larger judgment about whether or not we are at war. 

We are at war, and we will use every instrument of national 

power—civilian, military, law enforcement, intelligence, diplomatic, 

and others—to win. 

We need not cower in the face of this enemy. Our institutions are 

strong, our infrastructure is sturdy, our resolve is firm, and our 

people are ready. 

We will also use every instrument of our National power to bring 

to justice those responsible for terrorist attacks against our people. 

For 8 years, justice has been delayed for the victims of the 9/11 attacks. It has been delayed even further for the victims of the attack 

9 

on the U.S.S. Cole. No longer. No more delay. It is time. It is past 

time to finally act. 

By bringing prosecutions in both our courts and military commissions, by seeking the death penalty, by holding these terrorists responsible for their actions, we are finally taking ultimate steps toward justice. That is why I made the decision. 

Now, in making this and every other decision I have made as Attorney General, my paramount concern is the safety of the American people and the preservation of American values. I am confident that this decision meets those goals and that it will also 

withstand the judgment of history. 

Thank you. 

[The prepared statement of Attorney General Holder appears as 

a submission for the record.] 

Chairman LEAHY. Thank you, Attorney General, and as you 

know, I have discussed with you several times that my belief is 

that when people commit murder, commit murder here in the 

United States, commit murder on this scale, they should be prosecuted, and I would hope they would be convicted. I am glad to see 

finally, after all these years, that they are being prosecuted in the 

same way Timothy McVeigh, who committed mass murder in this 

country, was prosecuted. 

Let me go to another horrific tragedy. We have the murder of 13 

individuals, including 12 soldiers, the wounding of more than 30 

others on the Fort Hood Army Base in Texas. Our thoughts and 

prayers are with these people. In my church on Sunday, they 

prayed for the families—for those who died but for the families left 

behind. And that is why I sent this letter to John Brennan to find 

out what happened. I want the results of the investigation ordered 

by the President. Several of us were briefed yesterday morning— 

Senator Feinstein, Senator Sessions, myself, and others—on what 

is happening. I think—in fact, I know that you want to find out everything that happened, not only what happened there but what 

may have gone right and what may have gone wrong prior to that. 

We are both former prosecutors, so we do not want to compromise 

a prosecution. 

What resources is your Department using to learn whether steps 

were missed that could have been taken to avert this tragedy? 

Attorney General HOLDER. Well, the FBI is certainly intimately 

involved in the investigation and working with the military investigators and military prosecutors who will ultimately try the case. 

All of the resources of the Justice Department that have been requested have been made available and will be made available in 

order to determine exactly what happened at Fort Hood, and also 

to try to determine how we can prevent future incidents like this 

from occurring. 

Chairman LEAHY. Certainly when the court-martial goes on, the 

evidence will come out, and the American people will learn, we will 

all learn more facts about what happened. I am mostly interested 

in knowing if there were things that were overlooked that could 

have been avoided it. Will you commit to share with this Committee, if in your investigation—yours, the Justice Department— 

you find that there were things that were missed that should have 

been picked up prior to this tragedy? 

10 

Attorney General HOLDER. The President has directed that we 

conduct exactly such an inquiry, and it would be our intention to 

share the results of that inquiry. My only cautionary note would 

be that we sequence this in such a way so that we do not interfere 

with the ongoing investigation and the potential prosecution. But, 

clearly, that information needs to be shared with Congress generally and with this Committee specifically. 

Chairman LEAHY. I can assure you as Chairman of this Committee that I want a successful prosecution. I also want to know 

what happened. And I think we can sequence it in such a way that 

we do not interfere with the prosecution. 

The members of the Senate—incidentally, your letter supporting 

the PATRIOT Act reauthorization bill that we passed from this 

Committee is very helpful, and I appreciate that. We have requested that the administration work with us to provide more information on classified issues related to PATRIOT Act authority. 

We sent a letter to the Department in June and again this week. 

I am saying this rather broadly because you know the particular 

classified areas we are looking for. Will the Department schedule 

a briefing in the coming days so Senators can be briefed fully on 

this prior to the debate on the floor? 

Attorney General HOLDER. Yes, Mr. Chairman, we are working 

on ways in which we can make available to Senators and Congressmen who will be asked to vote on the reauthorization of the PATRIOT Act, and that information will be made available in a way 

that is consistent with the protection of those very important tools 

that must remain classified. But that information will be made 

available. 

Chairman LEAHY. On the PATRIOT Act, Senator Sessions and I 

and others have been working on a managers’ amendment to address a few remaining issues in the reported version of the bill. 

These do not concern operational matters, and I hope that we can 

circulate that to the members of this Committee. Are you satisfied 

that nothing in the bill reported by the Committee endangers your 

ability to use those tools effectively to keep us safe and secure? 

Attorney General HOLDER. Yes, I am confident, based on my own 

examination and my interaction with members of the intelligence 

community, talking also to FBI Director Mueller, that the reauthorization of those provisions in the way in which it has been proposed will not have any negative impact on our ability to use them 

in an effective way. 

Chairman LEAHY. And I think I know the answer to this next 

one, but would you agree that it is important that we get the bill 

reauthorized? 

Attorney General HOLDER. It is absolutely important. These are 

vital tools that we have to have in this fight against those who 

would do us harm. 

Chairman LEAHY. Now, when the President first took office in 

January, I encouraged the Obama administration and the many 

supporters of a Federal shield law to work together to reach consensus, and I congratulated the Department of Justice, in fact, all 

the shareholders, for working together in good faith to reach this 

consensus. We have a compromise bill that restores important proVerDate Nov 24 2008 09:56 Mar 31, 2011 Jkt 064953 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\64953.TXT SJUD1 PsN: CMORC
11 

tections that I helped craft to protect bloggers and freelance journalists. 

Attorney General Holder, in the letter you and Director of National Intelligence Blair, Admiral Blair, sent to me earlier this 

week, you said that the compromise Federal shield bill provides 

‘‘appropriate protection for national security.’’ Do you support the 

compromise bill? 

Attorney General HOLDER. I do. I think that it is a better version 

than that which had previously been considered. There were a 

number of concessions made with regard to the concerns that I 

raised, that were raised by the intelligence community, and I think 

that the bill we have strikes a good balance. It is a compromise between the concerns that we had in law enforcement, in the intelligence side, and the legitimate interests, I think, of the media. 

Chairman LEAHY. Because we have so many, I want to try and 

make sure we stay within the time. My last question is this—I 

have a lot more questions, but my last one is this: In 2004, Democrats and Republicans worked together to pass the Justice For All 

Act to try to make our criminal justice system more efficient, effective, and fair. Now, a key component of that was the Debbie Smith 

Rape Kit Backlog Reduction Act, significant funding for the testing 

of—or to reduce the backlog of untested rape kits so victims do not 

have to live in fear of while these kits languish in storage. I have 

worked to make sure it is consistently and fully funded. 

Now, I have been disturbed to learn recently in our hearings 

that, despite the legislation and the hundreds of millions of dollars 

in funding, substantial backlogs remain in communities around the 

country, and victims still face inexcusable delays in seeking justice. 

We have found 12,500 untested rape kits in the Los Angeles area, 

with other cities reporting almost as severe. You found in the Justice Department that in 18 percent of open, unsolved rape kit 

cases, evidence had not even been submitted to a crime lab. 

Can we work together in your Department and find out what 

went wrong, find out how we get these rape kits tested, how we 

do it in a way that protects the victims and gives us a chance to 

prosecute the people who committed the rapes? 

Attorney General HOLDER. Mr. Chairman, I not only pledge that 

we should, we have to work on this. For every crime that remains 

unsolved, there is a rapist who is potentially still out there and 

ready to strike again. 

The Justice Department looks forward to working with this Committee to come up with a way in which we do away with that backlog and fully comply with the intent of what I think was a very 

good piece of legislation 5 years ago. 

Chairman LEAHY. Thank you very much. 

Senator Sessions, and then Senator Kohl. 

Senator SESSIONS. Thank you, Mr. Chairman. 

These are very, very important issues, this decision on how to try 

the people who attacked us on 9/11. It has ramifications. It is not 

cowering in fear of terrorists to decide the best way for this case 

to be tried is to be tried by military commission. 

You have indicated that military commissions can be used, that, 

therefore, I assume you believe, Mr. Holder, that a military commission can fairly and objectively try certain of these cases. 

12 

Attorney General HOLDER. Yes, I think that is right, and that is 

why I sent five of those trials to military commissions. I expect that 

as I make further determinations, I will be sending other cases to 

the military commissions as well. 

Senator SESSIONS. So military commissions are a legitimate way, 

historically, that other nations have used, as well as the United 

States, to try people who have violated the rules of war. Is that 

right? 

Attorney General HOLDER. That is correct and, when appropriate, I will make use of those commission? 

Senator SESSIONS. Well, I just want to tell you, I think this is 

causing quite a bit of concern. I see today that Governor Thomas 

Kean of New Jersey, who chaired the 9/11 Commission, says he 

thinks this is a mistake, that it will provide Khalid Sheikh Mohammed the position to be a martyr and a hero among al Qaeda sympathizers around the world. 

I would note that Mary Jo White, New York United States Attorney under President Clinton, said it may take 3 years to try these 

cases, and the decision has been strongly criticized, as you know, 

by Rudy Giuliani, who was mayor of New York when the attack occurred, who also served as Associate Attorney General, was a Federal prosecutor himself, and United States Attorney in Manhattan. 

I take his views seriously. I served under him when he was Associate Attorney General, and he has complained about—Attorney 

General Mukasey, former Attorney General Mukasey has also criticized this decision. 

I do not think the American people are overreacting. I do not 

think they are acting fearfully. I think they think that this is war 

and that the decision you have made to try these cases in Federal 

court represents a policy or a political decision. Wouldn’t you 

agree? 

Attorney General HOLDER. No. 

Senator SESSIONS. Well, it is a policy decision at least, is it not? 

Attorney General HOLDER. It was a policy decision. It was a decision that was case driven. It is a decision based on the evidence 

I know that, frankly, some of the people who have criticized the decision do not have access to. The decision I made was based on my 

judgment looking at all of the evidence, talking to the people who 

have gathered that evidence, and the determination made by me as 

to where we can best prosecute these cases and come up with the 

best chances for success. There was not a political component to my 

decision. 

Senator SESSIONS. I would offer for the record, also, Mr. Chairman, a statement from the 9/11 family members and New York 

firefighters strongly opposing this decision. 

Chairman LEAHY. Without objection. 

[The letter appears as a submission for the record.] 

Senator SESSIONS. You indicated in one of your factors—well, 

first of all, President Obama and you have established a review 

committee. As I understand it, that committee—the Detainee Policy Task Force I guess is the correct name of it—concluded that 

there is a ‘‘presumption that, where feasible, referred cases will be 

prosecuted in an Article III court’’—that is, a Federal criminal 

13 

court. Is that still the policy of the Department of Justice that 

there is a presumption that the cases will be tried in Federal court? 

Attorney General HOLDER. That is the presumption, but it is also 

clearly a presumption that can be overcome, as evidenced by the 

fact that five of the people about which I made the determination 

and announced last Friday will be going to military commissions. 

We make these decisions on a case-by-case basis using the protocol 

that you mentioned, and a part of that is this presumption. But it 

is not an irrebuttable presumption. It is a presumption, and only 

that. 

Senator SESSIONS. Well, that has baffled me from the beginning. 

I know that was part of the last campaign, and the President criticized President Bush continuously—and many of his allies did—for 

his conduct of the war on terrorism. But I think the idea that a 

captured combatant who, if eligible to be tried because they have 

committed violations of the laws of war, would be tried in military 

commissions is only common sense and part of our history. 

Isn’t it true that to avoid the presumption, your task force said 

it would take compelling factors to change that? 

Attorney General HOLDER. I am not sure I would say compelling 

factors. There are a variety of circumstances that have to be examined, but I also think we have to look at the history of these military commissions that are held out as these shining examples of 

what ought to be done. 

There were, as I count, three trials, three proceedings brought 

before these military commissions over the great many years that 

they existed. They had to be reformed as a result of the way in 

which they were initially set up. We have the Article III courts that 

have tried these matters before. We have judges who I have great 

confidence in, prosecutors who I have great confidence in. I also 

have confidence in the people of New York to sit down and fairly 

judge these cases and to mete out the appropriate punishment. 

Senator SESSIONS. I do not think the people are happy with the 

decision. I think there are clear advantages to trying cases by military commission as opposed to what can become a spectacle of a 

trial with high-paid defense lawyers and others focused on using 

that as a forum. There are a lot of reasons that I think are compelling that these commission cases can be tried fairly and effectively 

without many of the problems of the public normal trial. 

With regard to the specific decision that you made, I noticed you 

referred to the Cole and to another case in which a military person 

was killed. But isn’t it true that on 9/11 the United States Pentagon, the center of our defense establishment, was directly attacked by the people who had declared war upon us? 

Attorney General HOLDER. Yes, there is no question that is true. 

That is one of the factors I considered in making this determination. The people who were killed on 9/11 were largely civilians. 

There was obviously a very grievous and heinous act that occurred 

at the Pentagon. But because of the fact that this was an act that 

occurred on our shores with a victim population that was largely 

civilian, among other things, including the admissibility, my desire 

to ensure that certain evidence would be admitted, it was my determination that bringing that case in an Article III court made the 

most sense. 

14 

Senator SESSIONS. Well, certainly military personnel were killed 

on 9/11. They attacked our Pentagon, and I do not think we should 

give a preference to military commission trials simply because the 

enemy attacked civilian people rather than military people. 

Thank you very much. 

Chairman LEAHY. Thank you. 

I will also put in the record a number of items in support of what 

you are doing, a whole lot of names—I will not read them all— 

ranging from a former Ambassador to the United Nations to Barry 

Goldwater, Jr., to John Whitehead, the President of Rutherford Institute, and so forth. That will be placed in the record in support 

of what you are doing. 

I would also place in the record a letter from a number of people, 

including a former Commandant of the Marine Corps and other 

military people, in support of what you are doing. 

I will put into the record a group including Bob Barr, David 

Keene, Chairman of the American Conservative Union, Grover 

Norquist, and others in support of what you are doing. And a letter 

from a number of the families of those who were killed on 9/11 in 

support of what you are doing, and I will place that in the record 

also. 

[The information referred to appears as a submission for the 

record.] 

Chairman LEAHY. Senator Kohl. 

Senator KOHL. Thank you, Mr. Chairman. 

Mr. Attorney General, last January, I was pleased by your commitment to close the detention center at Guantanamo Bay. For too 

long, it has tarnished our image around the world and complicated 

our efforts to combat terrorism. Although you have faced greater 

than expected hurdles, you have made significant progress in closing the facility. Nevertheless, I am disappointed that this morning 

President Obama said that we would not meet his goal of closing 

Guantanamo Bay by January 22, 2010. 

I would like to get an update on where you are in this process. 

Currently 215 detainees remain at Guantanamo. Administration 

officials have said that 40 to 50 will be transferred to the United 

States to face prosecution in Federal courts or military tribunals 

and about 100 will be transferred to other countries. What is your 

timeline for accomplishing these goals? What will you do with the 

remaining detainees? And when do you think that we will meet our 

goal of closing Guantanamo? 

Attorney General HOLDER. Yes, the President did announce 

today that we will not be able to meet that deadline. We had unexpected difficulties in trying to reach that goal. 

We have made tremendous progress in closing Guantanamo. We 

have more than 100 detainees who have been approved for transfer; 25 have been transferred overseas to date. More than 40 detainees have been referred for prosecution, and we will be making 

additional forum decisions on the remaining detainees in the near 

future. 

The decisions for the remaining detainees are still pending approval, but we expect to have decisions for all detainees well before 

even the January 22nd deadline. It will be a question of trying to, 

among other things, determine where those people who have been 

15 

approved for transfer can be placed. I think that is going to be our 

biggest problem in ultimately closing Guantanamo. 

Senator KOHL. Do you have some idea of when that may finally 

arrive at its conclusion? 

Attorney General HOLDER. Well, I saw a report on what the 

President indicated during his remarks, and I think he says sometime this year we ought to be able to do that. 

Senator KOHL. Wisconsin lost two brave service members during 

the shooting rampage at Fort Hood. It is a tragedy that while preparing to defend us from threats around the world, these brave soldiers face danger here at home. 

As you know, Major Hasan came to the attention of the FBI last 

December because of e-mails that he had written to a known terrorist suspect. But the FBI did not pursue an investigation of him 

because they concluded that the e-mails were consistent with his 

research at Walter Reed and no contact was made with the Department of Defense. 

I understand that a thorough investigation will take time to complete, but we need to protect our troops now, as I am sure you 

would agree. Going forward now, what changes have you made or 

will you make to prevent something like this from happening 

again? 

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

understand exactly what happened that led to that tragedy. Were 

there flags that were missed? Were there miscommunications or 

was there a lack of communication? And once we have a handle on 

that, I think that we can propose and work with this Committee 

on ways in which we can prevent such a tragedy from occurring 

again. 

We are at close to the beginning stages of this inquiry, and I 

think we have to determine on the basis of a sound investigation 

exactly what happened. I will say that on the basis of what I know 

so far, it is disturbing to know that there was this interaction between Hasan and other people. That I find disturbing. 

Senator KOHL. But you do recognize, I am sure, that there is an 

urgency about that mission to arrive at some decisions with respect 

to better protecting our troops? 

Attorney General HOLDER. Yes, there is certainly an urgency, 

and the President has given us, I guess, another 2 weeks or so— 

until the end of November—to come up with some findings, some 

determinations, and so I think that is an indication of how serious 

we take this and how quickly we want to try to get to the bottom 

of it. 

Senator KOHL. Thank you. 

Mr. Holder, last week, you announced that the Department will 

bring the Guantanamo detainees accused of planning the 9/11 attacks to trial in Federal court in New York, as we have talked 

about this morning. On Friday, you said that you would not have 

authorized prosecution if you were not confident that the outcome 

would be successful. 

However, many critics have offered their own predictions about 

how such a trial might well play out. One concern we have heard 

from critics of your decision is that the defendants could get off on 

legal technicalities, in which case these terrorists would walk free. 

16 

Does this scenario have any merit? If not, why? And in the 

worst-case scenario that the trial does not result in a conviction, 

what would be your next steps? 

Attorney General HOLDER. Many of those who have criticized the 

decision—and not all, but many of those who have criticized the decision have done so, I think, from a position of ignorance. They 

have not had access to the materials that I have had access to. 

They have not had a chance to look at the facts, look at the applicable laws, and make the determination as to what our chances of 

success are. 

I would not have put these cases in Article III courts if I did not 

think our chances of success were good—in fact, if I did not think 

our chances of success were enhanced by bringing the cases there. 

My expectation is that these capable prosecutors from the Justice 

Department will be successful in the prosecution of these cases. 

Senator KOHL. But taking into account that you never know 

what happens when you walk into a court of law, in the event that, 

for whatever reason, they do not get convicted, what would be your 

next step? I am sure you must have talked about it. 

Attorney General HOLDER. What I told the prosecutors—and 

what I will tell you—is that failure is not an option. Failure is not 

an option. These are cases that have to be won. I do not expect that 

we will have a contrary result. 

Senator KOHL. Well, that is an interesting point of view. I will 

just leave it at that. Thank you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator Kohl. 

Senator Hatch. 

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

It is good to see you again, General, and I appreciate the work 

you are trying to do down there, although I have a lot of problems 

with what you have just done in this area. 

Several events have transpired since your last appearance before 

this Committee, and I hope to cover hopefully all of them in my 

short time. In my opinion, a significant event was the FBI’s disruption of three separate terror plots in Texas, Illinois, Colorado, and 

New York. To me, these plots and the men who were eager to carry 

them out remind me that we are still engaged in this war against 

terror. 

You will recall that at your confirmation hearing you expressed 

your belief that the United States is currently engaged in a war. 

But last week, during your press conference to announce the transfer of Khalid Sheikh Mohammed, KSM, you referred to the actions 

of KSM and his co-conspirators as ‘‘extraordinary crimes.’’ 

Now, you made reference to the attacks of 9/11 as an act of war 

and a ‘‘violation of Federal law.’’ Last week, during your announcement, you referred to the actions of KSM as an ‘‘extraordinary 

crime.’’ 

Do you still believe that the United States is engaged in a war 

on terror? 

Attorney General HOLDER. As I indicated in my opening remarks, the United States is at war. There is no question about 

that. And the acts that Khalid Sheikh Mohammed perpetrated are 

17 

not only crimes, they are acts of war. I do not think—there is no 

question about it. 

Senator HATCH. OK. I just wanted to establish that. As I just referenced, last week you announced the Justice Department’s intent 

to bring Khalid Sheikh Mohammed, KSM, to the United States to 

stand trial in New York City. Now, I do not agree with that decision, I want you to know right off the bat, not because I do not 

think the Federal Government can detain dangerous terrorists, not 

because bringing them to a metropolitan area will create an even 

bigger bull’s eye on that city; it is because I believe, as the longestserving person on the Senate Select Committee on Intelligence, 

that military commissions are the preferable venue to protect national security information and prevent disclosure of sources and 

methods. 

Now, that is not to say that Article III courts cannot handle terrorist prosecutions for providing material support of terrorism. 

That same conclusion was reached by the 9/11 Commission. In its 

findings, the Commission concluded that an ‘‘unfortunate consequence’’ of excellent investigative and prosecutorial efforts in the 

initial 1993 al Qaeda attack on New York created an impression 

that the law enforcement and criminal justice systems were well 

equipped to cope with terrorism. But let us just examine the overall record of ‘‘successful prosecutions.’’ 

There are some numbers floating out there that some 195 terrorists have been ‘‘successfully’’ prosecuted since 9/11. However, I believe that the actual number is a fraction of that. Since 9/11, approximately 26 terrorist attacks have been disrupted. 

So what is the actual number of successful Justice Department 

prosecutions of persons convicted of providing material support to 

al Qaeda since 9/11? And how many of those defendants were investigated and captured on U.S. soil? 

Attorney General HOLDER. Well, I know that we have over 300 

people who are in our prisons at this point who have been convicted of either domestic or international—— 

Senator HATCH. I am talking about those convicted of providing 

material support to al Qaeda, not other categories. 

Attorney General HOLDER. I was going to say who have been convicted of domestic or international terrorism, and that would include people who were convicted of material support charges. I do 

not have at my fingertips the numbers of people who have been 

convicted of material support, but that information I can get to you, 

Senator. 

Senator HATCH. I believe that number is probably closer to 50 

than it is the 195 that has been bandied about. And I would like 

to have that answer, Okay? 

[The information referred to appears as a submission for the 

record.] 

Senator HATCH. I would like to shift to what is considered a ‘‘successful prosecution.’’ In June, you announced the transfer of Ahmed 

Ghailani from Guantanamo to stand trial for his role in the bombings of the U.S. embassies in Kenya and Tanzania. As you are 

aware, Ghailani was previously indicted for this international terrorist act by a Federal grand jury in New York, and during your 

18 

announcement you mentioned that four co-defendants in this case 

were already ‘‘successfully prosecuted.’’ 

However, I would not exactly characterize these prosecutions as 

‘‘successes.’’ I base this on the fact that these terrorists were not 

given the death penalty. The Government did, in fact, seek the 

death penalty, but a juror, despite knowing that he was deciding 

a capital case, later disclosed that he could not, in fact, support a 

verdict that would result in imposing the death penalty on the four 

terrorists, and because of this, the Government was not able to obtain a sentence of death after conviction. And for reasons that escape me, the Government has not chosen to seek the death penalty 

against Mr. Ghailani. 

So will the Government seek the death penalty in the trials of 

Khalid Sheikh Mohammed and his co-conspirators? And I would 

also add: Why did the Government not elect to seek the death penalty in the case of Ghailani? 

Attorney General HOLDER. As I have indicated, it is my intention, after the processes are gone through at the Department, to 

seek the death penalty with regard to the 9/11 plotters. We made 

the decision not to seek the death penalty with regard to Mr. 

Ghailani. There were four defendants in that case. The prior administration decided not to seek the death penalty with regard to 

two, did seek the death penalty with regard to the other two, and 

a jury made the determination not to impose the death penalty. 

As we looked at Mr. Ghailani’s role, it seemed to us that his role 

was more consistent with that of the two defendants in which the 

prior administration decided not to seek the death penalty, and on 

that basis we decided not to seek the death penalty for Mr. 

Ghailani. 

Senator HATCH. Former Attorney General Michael Mukasey was 

the trial judge in the prosecution of the blind sheikh, Omar Abdel 

Rahman and also heard motions in the Jose Padilla case. 

Now, Judge Mukasey, an experienced Federal judge, has always 

asserted that the trials of the conspirators in the 1993 World Trade 

Center bombing damaged national security. For example, the prosecution is compelled by the rules of discovery to provide a list of 

unindicted co-conspirators to the defendants. In 1995, this list 

made it all the way to Sudan and into the hands of Osama bin 

Laden. 

During the trial of Ramzi Yousef, the nephew of KSM and mastermind of the 1993 World Trade Center bombing, testimony about 

a cell phone tipped off terrorists that their communications had 

been compromised. The end result was the disclosure of a source 

and method and the loss of useful intelligence. Now, I could go on 

and on and cite numerous other examples from these trials, and I 

know you are familiar with them, having been at the Department 

of Justice back then. 

What I would like to know—and my time is just about up, but 

let me just ask this last question. What I would like to know is: 

How do you intend to ensure that sensitive national security information does not end up in the hands of terrorists or their associates, especially if KSM or other detainees decide to represent themselves? Is the Classified Information Procedures Act, CIPA, really 

19 

sufficient to safeguard classified information if these detainees do 

or do not have counsel? 

Attorney General HOLDER. Well, it has been argued that bringing 

these cases in Article III courts will somehow reveal information 

that otherwise might not be revealed or could be better protected 

in the military commissions. The reality is that the Information 

Protection Act that exists in military commissions is based on 

CIPA that we use in Article III courts. 

If I might, there have been misinformation with regard to this 

whole question of this co-conspirator list and about the phone 

records allegation. The co-conspirator list was not a classified document. Had there been a reason to try to protect it, prosecutors 

could have sought a protective order, but that was not a classified 

document. 

With regard to the phone record allegations, during the embassy 

bombings trial, the admission of phone records—the allegation is 

that the admission of these phone records alerted bin Laden to the 

fact that his cell phone was monitored and then he stopped using 

it. This allegation is simply wrong. Bin Laden stopped using the 

phone long before that information was disclosed in court proceedings. The phone records were used in the embassy bombing 

trials, not the Ramzi Yousef trial, as has been reported. Bin 

Laden’s phone was not used after October the 9th of 1998. Production of discovery in the embassy bombings case did not begin until 

December 17th of 1998, and the phone records were not disclosed 

in court until March 20th of 2001. 

So with regard to those allegations and those contentions, there 

is a factual problem. There are factual inaccuracies that deal 

with—that underlie those contentions. And it is my firm belief that 

through the use of CIPA we can protect information in Article III 

courts in the same way that they can be protected in military commissions. 

Chairman LEAHY. Thank you. 

Senator HATCH. If I could just add, there is no question that in 

the Federal courts there will be much more information that will 

be revealed that would not be revealed in a—— 

Chairman LEAHY. Well, if you want to add that, I would just note 

that Patrick Fitzgerald, whom we all acknowledge was a good prosecutor in the embassy bombing case, he said, ‘‘When you see how 

much classified information was involved in that case and when 

you see that there weren’t any leaks, you get pretty darn confident 

the Federal courts are capable of handling these prosecutions.’’ 

That is what U.S. Attorney Fitzgerald said. 

Senator Feinstein. 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. 

Welcome, General. I have thought quite a bit about your decision 

to try these five people in Federal court, and I just want you to 

know that I fully support it. I have been on this Committee for 17 

years now. I happen to believe that our Federal courts are our finest. I happen to believe that our Federal judges are our best. And 

I happen to believe that New York City is able to handle this in 

a very professional and definitively legal manner. 

In my service on Intelligence, I have watched the failure of the 

military commissions for the past 7 years. As you have pointed out, 

20 

only three cases have essentially been tried, and there has been a 

great deal of controversy surrounding those decisions. 

The attack in New York, as you point out, was both a major attack of war and a major and horrific criminal event. It is something 

none of us in America ever thought could happen, but it did. And 

I think the fact that these men are going to be tried in the finest 

of the American judicial system by strong prosecutors and by a fair 

judge is really very, very important. 

I assume that the reason that you made the decision is because 

you believe that there is sufficient untainted evidence to obtain a 

conviction. Is that correct? 

Attorney General HOLDER. That is correct, and that was one of 

the main drivers in my decision, to deal with what evidence could 

I present or could we present in whatever forum and to try to minimize the chances that we would have to deal with this issue of 

tainted evidence. 

Senator FEINSTEIN. Thank you very much. Let me move to another subject. 

In August, President Obama announced the creation of the HighValue Detainee Interrogation Group, known in this city of acronyms as HIG. It would be made up of experts from several intelligence and law enforcement agencies. The interrogation unit will 

be housed at the FBI, but will be overseen by the National Security 

Council. 

Can you describe with some specificity the role that the FBI will 

be playing in this effort and the type of oversight that will be 

placed on interrogation? 

Attorney General HOLDER. Well, what we have come to call the 

HIG is an effort to gather people in anticipation of the capture of 

high-value detainees, to have a group of people who are steeped in 

who these people are, and have determined how we can successfully interrogate them using methods that are consistent with our 

values as an American Nation. The FBI, along with the members 

of the intelligence community, will play a part in acquiring this information and also devising interrogation techniques that will be 

effective with regard to the specific person that is in front of them. 

There will be a team of people for each of those potential highvalue detainees. 

Senator FEINSTEIN. When could we expect the announcement of 

the director? And when will it be operative? 

Attorney General HOLDER. I am not sure what our timeframe is. 

I know that we are in the process of gathering the people. The underlying work is underway, and I would hope that we would have 

an ability to identify perhaps not the members of it but certainly 

the people who would be running it relatively soon. 

Senator FEINSTEIN. And I would assume the auspices that they 

would follow would be the Army Field Manual plus any additions 

that the task force has made? 

Attorney General HOLDER. Right. Those are the conditions under 

which they will be operating as set out by President Obama. 

Senator FEINSTEIN. Thank you. Let me go to another subject. 

In 2008, the Federal Bureau of Prisons staff confiscated 1,519 

cell phones from Federal prisons and 255 cell phones from secure 

Federal institutions. I was in San Diego talking with an FBI agent, 

21 

and he pointed out that most of the narcotics trafficking is actually 

done out of the prison system in the United States, particularly the 

California prison system, and he mentioned one prison, Pelican 

Bay, in specific. And then I came back and I found that there are 

all these cell phones in prisons which enables a group—namely, the 

Mexican mafia—to essentially use cell phones to give directives 

right out of prisons, on hits, on territories, on dealers. And I think 

this is a very serious thing. 

I have introduced legislation that would make cell phones contraband in Federal prisons with possession punishable by up to an additional year in prison. What do you think of this? What are you 

doing? It is a real problem, Mr. Attorney General. 

Attorney General HOLDER. It is a real problem, Senator. I had 

experience with that when I was the United States Attorney here 

in Washington, D.C. Rayful Edmond, who was a very notorious and 

large drug dealer in Washington, D.C., was convicted, sent to jail, 

and then continued to run his drug enterprise from prison, and was 

convicted again for that. 

The maintenance of cell phones in prison I think is unacceptable, 

and I think we have to find ways in which we confiscate them. I 

think you are right, they ought to be considered contraband, and 

I think we ought to also look at what technological means we have 

that might possibly block the use of cell phones in prison for those 

that, for whatever reason, we are unable to get from prisoners. 

Senator FEINSTEIN. Would you take a look at my legislation? And 

your support would be appreciated. 

Attorney General HOLDER. I certainly will do that. 

Senator FEINSTEIN. Thank you. 

Attorney General HOLDER. I think the idea that you have, 

though, and the concern that you have is a very legitimate one and 

one that we have to deal with. 

Senator FEINSTEIN. Thank you. 

In June of 2009, the GAO released a report indicating that individuals on terrorist watchlists succeeded in purchasing guns an astonishing 865 times between 2004 and 2009. This dangerous loophole in Federal law is known as ‘‘the terror gap,’’ and it has continued to allow the individuals on the FBI’s terrorist watchlist to purchase guns, despite the fact they are not allowed to fly on an airplane. 

The Bush administration’s Justice Department drafted and supported Federal legislation to close this gap in the 110th Congress, 

and identical legislation has been introduced in the 111th Congress. 

Does the Justice Department support closing this gap? And will 

you support that legislation? 

Attorney General HOLDER. Yes, we will support that legislation. 

It seems incongruous to me that we would bar certain people from 

flying on airplanes because they are on the terrorist watchlist and 

yet would still allow them to possess weapons. I think that the legislation that was initially proposed by the Bush administration was 

well conceived, and we will continue to support that. 

Senator FEINSTEIN. Excellent. Thank you very much, General. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator Feinstein. 

22 

Senator Grassley. 

Senator GRASSLEY. I have an observation and a couple questions. 

My observation, which I do not want you to respond to, is I do 

not know how you can make a statement that failure to convict is 

not an option when you have got juries in this country. I think a 

lot of Americans thought O.J. Simpson ought to be convicted of 

murder rather than being in jail for what he is in jail for now. It 

seemed to me ludicrous. You know, I am a farmer, not a lawyer, 

but I just want to make that observation. 

A question: You previously pledged—— 

Chairman LEAHY. I think it is only fair he ought to be able to 

respond to that. 

Senator GRASSLEY. OK, but as long as it does not come out of my 

time. 

Attorney General HOLDER. Well, that is fine, and maybe I should 

have been more—maybe I should have been more expansive in my 

response to the question that Senator Kohl put to me. I mean, certainly we have thought, I have thought about that possibility. And 

one of the things that this administration has consistently said, in 

fact, Congress has passed legislation that would not allow for the 

release into this country of anybody who was deemed dangerous. 

And so that if there were the possibility that a trial was not successful, that would not mean that that person would be released 

into our country. That is not a possibility. 

But, again, I want to emphasize that I am confident that we will 

be successful in the trial of these matters. 

Senator GRASSLEY. Yes, and it is my understanding that if he is 

not convicted and somehow the judge lets him off on a technicality 

or something, then he becomes an enemy combatant, and you are 

right back where you started. So what do you gain? But, anyway, 

you understand the law. I do not. I am just trying to bring a little 

common sense to this. 

You previously pledged to respond ‘‘fully and in a timely fashion’’ 

to Judiciary Committee inquiries. Senator Leahy and I wrote you 

in October with a list of outstanding unanswered requests. I do appreciate your courtesy reply and your willingness to have your staff 

meet with mine to work out this backlog of requests. But I am disappointed that your reply to Chairman Leahy and me indicates 

that you are considering not answering pre-2009 Committee questions to the Department. This position is completely unacceptable 

to me. These unanswered questions deal with serious matters such 

as national security, whistleblower law enforcement. You are not 

upholding your pledge to respond to all outstanding requests as 

you told me you would when you came to my office prior to confirmation? I even tried to help you by giving you a big, thick file 

of things that were unanswered from the previous administration. 

I wanted to save you an embarrassment, I wanted to save President Obama any embarrassment for what the previous administration did not do right in responding to proper requests. 

So why are you and the Department not willing to answer these 

questions? 

Attorney General HOLDER. Well, what we have tried to do is certainly answer all of those questions that have been propounded to 

23 

us that pertain to this administration, and I think we are up to 

date in that regard. 

I do remember that booklet that you gave me, and I think that 

we have done a pretty good job in responding to those. I know our 

staffs are meeting, I believe on Monday or Tuesday of next week, 

to try to discuss this. It is our hope that we can find a way to stay 

current with the questions that are given to us and also deal with 

the backlog that you are discussing. 

It is not a question of us not trying to do that. We really were 

trying just to prioritize the way in which we responded to these 

questions. And I hope our staffs will be able to work together and 

find a way through this. 

Senator GRASSLEY. Well, Senator Leahy has committed to me 

that he will work with me to get that job done, and thank you very 

much, and I hope we will be successful. 

On Guantanamo, the decisions to bring detainees to the United 

States and afford them civilian trials is highly questionable. I want 

to know more about who is advising you on these decisions. There 

are attorneys at the Justice Department working on this issue who 

either represent Guantanamo detainees or work for groups who advocated for them. This prior representation I think creates a conflict of interest problem for these individuals. 

For instance, Principal Deputy Solicitor General Neil Katyal represented Osama bin Laden’s driver and bodyguard in his case challenging the earlier versions of the Military Commissions Act that 

Congress passed on a bipartisan basis. I am quoting National Journal: ‘‘Mr. Katyal has not recused himself and is still working on detainee matters at the Justice Department.’’ The article indicates 

that other attorneys with previous involvement in detainee issues 

are also on detainee issues at the Department. 

Another example, the New York Post reported that your Department hired Jennifer Daskal to serve in the National Security Division. She also serves on a task force deciding the future of terrorist 

detainees. According to the article, Ms. Daskal has no national security experience and no prosecutorial experience. She has, however, a background of advocating for detainees. One example of her 

advocacy is from a 54-page report that criticized Guantanamo Bay’s 

treatment of the terrorist detainees where she stated one detainee 

described as a self-styled poet ‘‘found it was nearly impossible to 

write poetry anymore because the prison guards would only allow 

him to keep a pen or pencil in his cell for short periods of time.’’ 

As a consequence of these three examples, I want to know more 

about these potential conflicts. Would you provide me and members 

of the Committee with the following information: the names of political appointees in your Department who represent detainees or 

who work for organizations advocating on their behalf; the cases or 

projects that these appointees worked with respect to detainees 

prior to joining the Justice Department; and the cases or projects 

relating to detainees that have worked on since joining the Justice 

Department? Would you please provide that information to me and 

the Committee? 

Attorney General HOLDER. I will certainly consider that request, 

but I want to make sure that you understand that the people in 

the Department understand their ethical obligations, and to the exVerDate Nov 24 2008 09:56 Mar 31, 2011 Jkt 064953 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\64953.TXT SJUD1 PsN: CMORC
24 

tent that recusals are appropriate on the basis of prior representations or prior connections, people in the Department have recused 

themselves from specific cases. 

I have been recused from a couple of the habeas cases that are 

pending here in the district court of the District of Columbia because my firm—not because I did, but because my firm represented 

or had some connection to the person who was subject of that habeas proceeding. 

So we are very sensitive to that concern and are mindful of it, 

and people who should not be participating in certain decisions do 

not do so. 

Senator GRASSLEY. But I asked you for information. Will you provide it? 

Attorney General HOLDER. I will consider that request. 

Senator GRASSLEY. Well, let me tell you then, I think your Department probably is doing what is usual, but let me quote a law 

professor, dean of college of law, Don Burnett: ‘‘What is unusual is 

the size of the cluster of the individuals who are affected.’’ And so, 

you know, you have got a big job ahead of you that you have taken 

on, moving this stuff from military commissions. It seems to me we 

need to know who is involved in it and what their predilections are. 

I yield back. 

Attorney General HOLDER. Well, let me say this about the people 

who work in the Justice Department and who work on these cases. 

They are fine public servants who have sacrificed a great deal to 

work in the Department. They apply the law as best they can. They 

are patriots. They are concerned about the security of the American 

people. And whatever their previous roles, I am confident that they 

can put those aside or recuse themselves, and I am confident that 

the people who I am speaking with and relying on have the best 

interest of the American people, including the national security, 

uppermost in their minds. 

Senator GRASSLEY. The very least you can give me is a list of the 

recusals. 

Attorney General HOLDER. I will consider that. 

Chairman LEAHY. Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

General, I want to commend you for your decision to try Khalid 

Sheikh Mohammed and other 9/11 plotters in Federal court. It is 

about time that we bring these criminals to justice, and your decision shows the world that this country stands firmly behind its 

legal system and the Constitution. 

As you know, I do not agree with every decision you have made 

in this area. I remain skeptical about the decision to try five other 

Guantanamo detainees in military commissions. But too much of 

the criticism directed at using our Federal courts has not been 

based in fact. Some conservative commentators have gone so far as 

to call it scare-mongering, and they have called for it to stop. 

More than 200 terrorism defendants have been prosecuted in our 

Federal court system since 9/11, and Federal prisoners securely 

hold more than 300 inmates whose cases were terrorism related. 

Zacarias Moussaoui was successfully prosecuted and convicted in 

Federal court of conspiring with al Qaeda on the 9/11 attacks and 

is serving a life sentence. And yet I do not remember hearing the 

25 

kind of uproar about the decision to try Moussaoui in Federal court 

that we are hearing now. So it is a little disheartening that critics 

of your decision seem to have so little faith in our system of justice. 

So, Mr. Attorney General, how does your decision to seek justice 

in Federal court support our fight against terrorism? 

Attorney General HOLDER. Well, I have great faith in our system, 

and it is not a speculative faith. It is based on experience. The 

cases that you mentioned, the familiarity I have from the Federal 

courts, having been a prosecutor in those courts, gives me the belief 

that we are going to have an ability to maintain courtrooms in a 

way that is consistent with what I think we want. There will be 

a level of decorum. I think that we will have an ability to introduce 

the evidence that we seek to introduce, and that our courts are capable of handling this whole concern that people have expressed 

about the dispersal of classified information. We have done it in the 

past, and I am confident that we can do it with regard to these five 

individuals. 

Senator FEINGOLD. I have been raising concerns for a while now 

about the possibility of establishing a so-called indefinite detention 

regime. Recently, a statement rejecting indefinite detention without 

charge was issued by more than 130 former Members of Congress, 

diplomats, Federal judges, prosecutors, high-level military officers, 

and national security experts representing the full political spectrum. The declaration said this: ‘‘Instituting a system of indefinite 

determination without charge in the United States for terrorism 

suspects would threaten the constitutional protections enshrined in 

our justice system and is simply bad policy.’’ 

General, can you tell us yet whether there will be any Guantanamo detainees who will be neither prosecuted nor transferred to 

another country? And is the administration currently contemplating holding some detainees without trial for an indefinite period of time? 

Attorney General HOLDER. The possibility exists that at the conclusion of our review with regard to the detainees, the people who 

are held at Guantanamo, that there will be a number of people 

whom we will seek to detain under the laws of war. We will do so 

in a way that is consistent with due process to make sure that 

those determinations are made in a way, as I said, that ensures 

that the decision is based in due process and that reviews are done 

on a periodic basis to ensure that anybody held under that regime 

remains a danger to the country and should continue to be held. 

But that possibility does exist. 

Senator FEINGOLD. In a status other than as prisoner of war? 

Attorney General HOLDER. No. Under the laws of war, these 

would be people who would be held under the laws of war. 

Senator FEINGOLD. We will need to pursue this at greater length 

later, but I want to flag my concern again. 

As several Senators have already discussed, we were all devastated by the tragedy at Fort Hood. It has been especially hard 

for Wisconsin, and Senator Kohl mentioned two brave Wisconsin 

soldiers who were murdered and several more were injured. And 

I know that the President has ordered a thorough governmentwide 

review of what the U.S. Government knew and what went wrong, 

and I am sure my colleagues on the Committee will be very interVerDate Nov 24 2008 09:56 Mar 31, 2011 Jkt 064953 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\64953.TXT SJUD1 PsN: CMORC
26 

ested in the outcome of that. I appreciate that there is not a lot 

you can say in public now, and it is important not to jump to conclusions, and especially not to jeopardize the murder prosecution. 

But I hope the review will be expedited. 

You discussed with Senator Leahy sharing the results of your review with members of this Committee which I appreciate, but I 

want the record to be clear. Will you commit to making public to 

the greatest degree possible the conclusions the executive branch 

reaches so that the American people—most of all, the families who 

lost loved ones—have an opportunity to understand what, if anything, could have been done to prevent this tragedy? 

Attorney General HOLDER. Yes, in a way that is consistent with 

ensuring that we do not do harm to the potential trial, I think it 

is our obligation to make clear to this Committee and to the American public what the results of our investigation are so that we 

have a way in which, working with this Committee, we prevent further tragedies like that which occurred at Fort Hood. 

Senator FEINGOLD. General, during town hall meetings and other 

exchanges I have had with a lot of Wisconsin law enforcement people over the last several years, I have heard that progress has actually been made in combating methamphetamine production and 

use, which is good news. Unfortunately, there has also been a significant increase in heroin coming into the State quite possibly as 

a replacement for meth, and this heroin is often very pure and, 

therefore, very dangerous. 

Wisconsin law enforcement reports not only that there is increasing violent crime associated with heroin trafficking, but there has 

also been a disturbing increase in heroin-related deaths. Rock 

County, my home county in south central Wisconsin, has already 

had 12 heroin-related deaths this year, and I am concerned this 

may be part of a larger nationwide trend. Senator Kohl and I have 

addressed this increase in Rock County by requesting that it receive funding through the High-Intensity Drug-Trafficking Assurance Program. We would like to know whether this trend is emerging in other States. And what steps is the Department taking to 

reduce heroin trafficking in Wisconsin and elsewhere? 

Attorney General HOLDER. Well, we certainly have seen an increase, chiefly from Mexico, in the movement of heroin into the 

United States. The problem that you have identified in Wisconsin 

is one that we see in other parts of the country. I know that Baltimore has a particular heroin problem, but we see it in other States 

as well. 

The Department of Justice, in conjunction—well, the DEA is part 

of the Justice Department—is using all of the tactics we have, all 

of the skills we have, to try to get at that emerging heroin problem. 

I think a lot of people thought that heroin was a problem of the 

past, but the concern that you are raising is a very, very legitimate 

one and one that we are focusing on. We have to combat heroin yet 

again, and we are doing so. 

Senator FEINGOLD. Thank you, General. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

Senator Kyl. 

27 

Senator KYL. Thank you. Mr. Chairman, first of all, Senator 

Grassley asked me just one thing here. 

Attorney General Holder, is my understanding correct that you 

will not commit to providing Senator Grassley a list of your 

recusals? 

Attorney General HOLDER. A list of my recusals? 

Senator KYL. Yes. The list of recusals that he was requesting 

when he examined you just a moment ago. 

Attorney General HOLDER. What I said was that I would consider 

that request. 

Senator KYL. Yes. So my understanding is correct that you are 

not committing to provide that for him. Is that correct? 

Attorney General HOLDER. I said I would consider it. 

Senator KYL. You have repeatedly said that your decision to try 

Khalid Sheikh Mohammed in Article III courts is because that is 

where you have the best chance to prosecute, that the chances of 

success are enhanced in Article III courts, and that you have access 

to all the evidence so you are in a better position to judge than 

those who are ignorant of that evidence are. 

How could you be more likely to get a conviction in Federal court 

when Khalid Sheikh Mohammed has already asked to plead guilty 

before a military commission and be executed? How could you be 

more likely to get a conviction in an Article III court than that? 

Attorney General HOLDER. Well, Senator, you are dealing 

with—— 

[Applause.] 

Chairman LEAHY. We will have order in these hearings. As I always do, whether people are supportive or opposed to any position 

I take, we must have order, we will have order. The police will remove those who do not—— 

Senator KYL. Mr. Chairman, let me say that your request for 

order is exactly appropriate, and I concur with that. 

Can you answer my question, Mr. Attorney General. 

Attorney General HOLDER. The determination that I make on 

where I think we can best try these cases does not depend on the 

whims or the desires of Khalid Sheikh Mohammed. He said he 

wanted to do that then. I have no idea what he wants to do now 

with regard to these military commissions that, as a result of the 

work that this Committee did and this Congress did, now has enhanced protections and I think are better than they once were before. He may still want to do that in the military commission. I 

have no idea. My job is to look at the possibilities—Article III, military commission. Where is my best chance of success? And—— 

Senator KYL. If I could interrupt, it would seem to me that given 

the fact—— 

Attorney General HOLDER.—I decided that Article III courts were 

the best place to do that. 

Senator KYL. Right, I know that is what you—— 

Attorney General HOLDER. Khalid Sheikh Mohammed is not 

making this decision. The Attorney General makes—— 

Senator KYL. Of course he is not. Mr. Attorney General, you have 

based this on where you think you are more likely to get a conviction. He talked about the best chance to prosecute, the chances of 

success are enhanced, and so on. One of the factors has to be the 

28 

fact that he has at least at some time to plead guilty. I mean, you 

had to have taken that into account. 

Attorney General HOLDER. That was then. I do not know what 

Khalid Sheikh Mohammed wants to do now, and I am not going 

to base a determination on where these cases ought to be brought 

on what a terrorist, what a murderer wants to do. He will not select the prosecution venue. I will select it. And I have. 

Senator KYL. But my understanding is that one of the key reasons for your decision is where you think you are going to have the 

best chance of success. One would think that his express desire to 

plead guilty in the military commission would have some effect on 

your decision. 

Attorney General HOLDER. Well, Senator Kyl, with all respect, 

today is—I do not know—November 16th, 17th—I am not sure 

what the date is. Do we know as a fact right now that that is, in 

fact, what he wants to do? Do we know that? Do I have some special information, do you have some special information that is what 

Khalid Sheikh Mohammed is planning to do or continuing to plan 

to do? 

Senator KYL. Why is it more likely that he will be convicted in 

a Federal court than he would before a military commission, particularly given the fact—surely you are not arguing that it is easier 

to get evidence in to an Article III court than it is in a military 

commission. I mean, you have made the point that you are aware 

of a lot of evidence in this case that others are not, of course. But 

the rules for admitting evidence are more lenient before military 

commissions than in Article III courts. So that cannot be the basis 

for your decision, is it? 

Attorney General HOLDER. That is not necessarily the case. With 

regard to the evidence that would be elicited in a military commission, evidence elicited from the detainees, from the terrorists as a 

result of these enhanced interrogation techniques, it is not clear to 

me at all that information would necessarily be admitted in a military commission, even with the use of a clean team, or that it 

would withstand appellate scrutiny. And on the basis of that concern and other things, my desire to go to an Article III court and 

to minimize the use of that kind of information, that kind of evidence, I thought was paramount. 

Senator KYL. Suppose that another terrorist of the same kind as 

KSM argues that he, too, should be tried in an Article III court, 

but he is one of the ones destined for a military commission. On 

what basis do you argue against that request since this appears to 

be simply a subjective judgment on your part as to which court it 

is easier to get a conviction? 

Attorney General HOLDER. It is not a question of where I think 

we can get an easier conviction. It is a question of looking at the 

protocol that exists, talking to the Secretary of Defense and other 

people in trying to make determinations of where cases are more 

appropriately held. 

The case, for instance, involving the Cole that involves Mr. 

Nashiri, an attack on an American warship, it seems to me is 

something that is uniquely situated for a military commission as 

opposed to an Article III court. 

29 

Senator KYL. But how do you answer the rationale that the more 

heinous crime is the killing of civilians and, therefore, is more ripe 

for resolution in a military commission than in an Article III court? 

Attorney General HOLDER. I am not making value judgments 

about which case is more heinous or which lives are more valuable. 

I am looking simply at the facts and at the protocols and trying to 

make determinations as to where cases are appropriately sited. 

Senator KYL. It is hard to understand a rationale, though, that 

when you kill 3,000, almost, civilians that that, therefore, calls for 

Article III as opposed to a military commission. The logic of that 

escapes me. Let—— 

Attorney General HOLDER. Well, the Federal law that governs 

the administration of the death penalty dictates that cases should 

be brought in the place where the offense occurred. So that is at 

least another factor that I think has to be used in trying to determine where the cases should be brought. 

Senator KYL. Well, that assumes that the person is in the United 

States for one thing, and he is not. 

Let me just close with this point. You said—and this really bothers me, Mr. Attorney General, with all due respect: ‘‘For 8 years, 

justice has been delayed for the victims of the 9/11 attacks.’’ 

I want to put in the record, Mr. Chairman, ask unanimous consent to insert in the record an article called ‘‘Justice Delayed,’’ by 

Andrew McCarthy. 

Chairman LEAHY. Without objection. 

Senator KYL. I will just quote two paragraphs from this. ‘‘This 

is chutzpah writ large,’’ he writes. ‘‘The principal reason there were 

so few military trials is the tireless campaign conducted by leftist 

lawyers to derail military tribunals by challenging them in the 

courts. Many of those lawyers are now working for the Obama Justice Department. That includes Holder, whose firm, Covington & 

Burling, volunteered its services to at least 18 of America’s enemies 

in lawsuits they brought against the American people.’’ 

And he concludes, ‘‘...within 2 years...KSM and four fellow war 

criminals stood ready to plead guilty and proceed to execution. But 

then the Obama administration blew into Washington. Want to 

talk about delay? Obama shut down the commission despite the 

jihadists’ efforts to conclude it by pleading guilty. Obama’s team 

permitted no movement on the case for eleven months and now has 

torpedoed a perfectly valid commission case—despite keeping the 

commission system for other cases—so that we can instead endure 

an incredibly expensive and burdensome civilian trial that will take 

years to complete.’’ 

[The article appears as a submission for the record.] 

Senator KYL. The witness can surely respond to what I said. 

Attorney General HOLDER. I do not even know where to begin, 

other than to say that, you know, this notion of ‘‘leftist lawyers’’ 

somehow prolonging this, the vast majority of the time in which 

these matters were not brought to trial, to fruition, happened in 

the prior administration. The Supreme Court—not, I think, a group 

of leftist lawyers—had concerns about the way in which the commissions were constructed. 

30 

The Congress reenacted, and I think appropriately so, the way 

in which the commissions were constructed. This is not a Congress 

peopled only with leftist lawyers, as Mr. McCarthy would say. 

So, you know, that makes for nice rhetoric, and it makes for, you 

know, good fodder on the talk shows and all of that stuff. But I am 

here to talk about facts and evidence, real American values, and 

not the kinds of polemics that he seems prone to. So, you know, 

that is—— 

Chairman LEAHY. Thank you. 

Attorney General HOLDER.—about Mr. McCarthy. 

Chairman LEAHY. I would put into the record the statistics since 

9/11. Since September 11, 2001, the Department of Justice has 

brought 119 terrorism cases in Federal court with a conviction rate 

of over 90 percent. Since January 1, 2009, more than 30 individuals 

charged with terrorism violations have been either successfully 

prosecuted and/or sentenced in Federal courts nationwide. And 

there are currently more than 200 inmates in Bureau of Prisons 

custody who have a history of or a nexus to international terrorism 

that were convicted by Federal courts. 

Our next—— 

Senator SESSIONS. Mr. Chairman, I would just add that I do not 

doubt that you can try people successfully in Federal court, but 

there are other issues that have been raised here about that. And 

I would—I understand Senator Kyl has asked for the names of 

these cases and the defendants but has not received information on 

that. Will you provide that? 

Attorney General HOLDER. The names of? 

Senator SESSIONS. The names of the cases and defendants that 

you say are pending or have been tried and convicted and what 

they have been tried and convicted of. 

Attorney General HOLDER. Of the material support charges? Is 

that—— 

Senator SESSIONS. You said there are 300 cases. I would like all 

300 of them, when they were tried, when they were convicted, and 

what they were charged with. 

Attorney General HOLDER. What I said was that there were 300 

people in the Federal system, the Federal Bureau of Prisons—— 

Senator SESSIONS. Well, will you provide the names and what 

they have been charged with and why they are being detained? If 

you haven’t done so, with Senator Kyl’s request—— 

Chairman LEAHY. I think we can let the witness—— 

Senator SESSIONS. No. I would just like a yes or no. 

Chairman LEAHY.—answer the question. Well, then—— 

Attorney General HOLDER. I do not think that was necessarily a 

request that was made, but I will certainly—at least I think Senator Kyl, I thought, was asking what Senator Grassley had asked 

about. That was not quite the same thing. 

Senator SESSIONS. Well, my understanding is previous to 

that—— 

Attorney General HOLDER. I will supply you with those 300 

names and what they were convicted of. I will be glad to do that. 

Senator SESSIONS. Thank you. 

[The information referred to appears as a submission for the 

record.] 

31 

Chairman LEAHY. The only member of this Committee who actually lives in New York City is—— 

Senator SCHUMER. Brooklyn. 

Chairman LEAHY. In Brooklyn, and proudly so. I have visited 

there with you. 

Senator SCHUMER. Yes, you did. 

Chairman LEAHY. Is Senator Schumer, and I yield to Senator 

Schumer. 

Senator SCHUMER. Thank you, and thank you, Mr. Attorney General. I also want to thank the families from New York who are here 

who have been such strong advocates on this and so many other 

issues. We all deeply live with the losses that New York and the 

rest of the Nation suffered in 2001. 

My first question relates to the practical matters of the trial in 

New York City. I spoke with Commissioner Ray Kelly yesterday 

about the strain that conducting trials in New York City will place 

on local law enforcement. Obviously, it is a large burden, which 

Commissioner Kelly willingly and Mayor Bloomberg willingly accept. Rough estimates from the city of New York which I received 

yesterday place the added cost of moving the trials of Khalid 

Sheikh Mohammed and the other terrorist suspects to New York 

somewhere in the ballpark of $75 million. That is a minimum. That 

is just for the year of the trial. The figure does not include costs 

of ramping up personnel, placing additional perimeter units around 

the courthouse and the Metropolitan Correctional Center in Lower 

Manhattan, and other consistent demands that will be placed on 

our police force as soon as the detainees are physically transferred. 

As you can imagine, such a high-profile case involving such dangerous subjects will require substantial manpower for the necessary enhanced security. The city will require the following: police 

officers to establish a secure perimeter around Lower Manhattan, 

many of those, obviously, the hours are going to vary, and so there 

will be overtime and other things like that; police officers and 

equipment for demonstration areas and crowd control police officers 

to enhance security units for City Hall and for police headquarters, 

both of which are near the courthouse and the MCC; as well as for 

our bridges and transit systems; increased traffic agents, aviation 

flyovers, sniper teams, and hazmat units. This list does not come 

from me, but from the police commissioner in New York. 

Commissioner Kelly estimated—this is a rough estimation at this 

early point, because I just asked him to do it yesterday—that as 

much as 90 percent of the additional outlays would need to go to 

overtime alone because they are not going to be able to hire new 

police officers for all of this. 

All of this comes at a time when, of course, we compete, New 

York City does, for Federal grants of the COPS hiring grant. We 

did not receive any money for that program last year. So I worry 

about safety first, obviously, but also the burden on the taxpayers 

of New York. 

In 1995, the city of New York was host to the trial of Sheikh 

Omar Abdel Rahman, the mastermind of the 1993 bombing at the 

World Trade Center, and costs associated with that trial were fully 

reimbursed by the Federal Government. 

32 

So my general question to you is: Will you recommend to the 

President that he include in his budget dedicated funding to cover 

all of New York City’s added security costs? 

Attorney General HOLDER. Yes, I think that is fair. America was 

attacked on September the 11th. That attack was of national consequence. What we are doing is a national responsibility, and although the trial will be hosted in New York, it seems to me that 

New York should not bear the burden alone. This is a national—— 

Senator SCHUMER. So you will recommend and, I presume, fight 

for these funds from OMB, which we know sometimes has other 

things on its mind? 

Attorney General HOLDER. With your help, I would—— 

Senator SCHUMER. You will have my full and undivided help. I 

just do not want—I mean, Mayor Bloomberg, the commissioner, 

they did not make the decision, but they stepped up to the plate 

and willingly agreed. I do not think either they or New York City 

or New York State should be left hanging out there paying any of 

the costs of this, and I take it you fully agree with that. 

Attorney General HOLDER. I do not disagree with that at all, 

Senator. 

Senator SCHUMER. OK. Second question—and just one other 

thing on this. There may be other costs that we cannot envision, 

and I take it we are not going to find somebody sort of trying to 

say, well, this was not in an original application or on an original 

request. I take it there will be flexibility and generosity because of 

New York’s generosity here. 

Attorney General HOLDER. You are going to be with me at OMB, 

yes, that does—— 

Senator SCHUMER. I will be there, believe me, with you or—gladly with you rather than alone. Thank you. 

Attorney General HOLDER. I look forward to working with you in 

that regard. 

Senator SCHUMER. OK, great. The next question is about the 

death penalty. As you know, because we discussed this back then, 

I was the primary author of the Federal death penalty provisions 

for terrorists in the 1994 omnibus crime bill, and you have already 

indicated you intend to seek the death penalty against Khalid 

Sheikh Mohammed and his cohorts, which I think is totally appropriate. 

Can you tell me if you currently see any legal impediments, that 

is, existing court cases, because what we worry about here—and 

this happened in the military courts with Hamdan and other 

cases—that would stand in the way, provided all the proper procedures were followed, of seeking and imposing the death penalty? 

Attorney General HOLDER. No. When I made that statement, I 

did so on an informed basis and looked at what the potential impediments were, and I do not see any legal impediments to our 

seeking the death penalty. We will obviously have to convince a 

jury of 12 people that the death penalty is appropriate. But I do 

not see any legal impediments in that regard. 

Senator SCHUMER. My guess is a normal jury of 12 people would 

clearly see that, but we have a jury system and we trust it. 

Khalid Sheikh Mohammed expressed a desire in the tribunal to 

plead guilty. If he wants to plead guilty in Federal court—and as 

33 

you correctly point out, we have no knowledge that he still wants 

to do that and cannot rely on the whims of him to make any decisions—but he waives his right to a jury trial for the penalty phase, 

will you agree to that to, for instance, avoid some of the theater 

that some people are justifiably worried about? 

Attorney General HOLDER. He certainly has the right to plead 

guilty, and if we are spared a trial and simply go to the penalty 

phase, that is something we would, I think, clearly agree to. 

Senator SCHUMER. Thank you. One quick other question. I know 

my time is coming to an end. This is about Fort Hood and guns. 

Senator Feinstein talked about the Lautenberg law and others to 

prevent terrorists and people on the watchlist from getting guns, 

and that makes sense. But there is another aspect here. There are 

restrictions on even notification. So, for instance, the people in one 

end of the justice system, the Joint Terrorism Task Force, were not 

notified when Major Hasan bought a gun. That is not talking about 

whether the law should allow it or not, but, clearly, there should 

be notification. Now the Tiahrt amendment, the 24-hour background check requirement, gets in the way of that. 

My question is: Will the Justice Department remove the Tiahrt 

24-hour background check destruction requirement from its 2011 

budget to allow the FBI to keep records of guns purchased by subjects of terrorist inquiries—I am just limiting it to that issue—like 

Major Hasan? 

Attorney General HOLDER. The position of the administration is 

that there should be a basis for law enforcement to share information about gun purchases. We fully respect the Second Amendment, 

fully respect the Heller decision. It does not seem to us that it is 

inconsistent to allow law enforcement agencies to share that kind 

of information—for that information to be retained and then to be 

shared by law enforcement. 

Senator SCHUMER. I would just urge that you urge they write it 

into the budget that they are going to bring to us, the administration. It would be very important. 

Attorney General HOLDER. I believe it is, but I have to check. 

But I believe it is. 

Senator SCHUMER. Thank you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. I was going to take a short break, 

but Senator Graham tells me he has a conflict, so why don’t I yield 

to you, Senator Graham. And then after Senator Graham’s questions, we will take a very short break while we reconnoiter. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Senator GRAHAM. Thank you, Mr. Attorney General. I have, quite 

frankly, enjoyed working with you on this difficult topic, and I am 

afraid we have reached different conclusions. But this is an important discussion for the American people to understand, you know, 

how this affects us now and in the future. 

The first thing I would like to make the public understand is 

that you are not suggesting that if by some one in a million fluke 

one of these defendants were acquitted or given a short sentence, 

they would be released anywhere, are you? 

Attorney General HOLDER. No. 

Senator GRAHAM. We would hold them as an enemy combatant. 

34 

Attorney General HOLDER. As I indicated to Senator—as I should 

have indicated to Senator Kohl when that question was initially 

asked of me, I think we have Congressional restrictions on how 

these people would be treated in such a circumstance so that, no, 

that would not be—— 

Senator GRAHAM. But the administration’s position would be— 

and this is not going to happen. I am here to tell you that I am 

sure he will get convicted in Federal court, but not because we are 

threatening the judge or the jury, but just because of the nature 

of the case. That is not really my concern about what happens to 

him because he will get his day, he will meet justice. But in the 

future, if one of these terrorists were taken to Federal court and 

somehow acquitted or given a short sentence and the administration still felt they presented a military threat to the country, you 

would have the legal authority to hold them as an enemy combatant, right? 

Attorney General HOLDER. I certainly think that under the regime that we are contemplating, the potential for detaining people 

under the laws of war, we would retain that ability. 

Senator GRAHAM. Yes. So in a Sheikh Mohammed case, we are 

never going to let him go if something happened wrong in the Federal court. 

Attorney General HOLDER. I do not anticipate that anything is 

going to go wrong in the Federal court—— 

Senator GRAHAM. Nor do I, but here is my concern. Can you give 

me a case in United States history where an enemy combatant 

caught on a battlefield was tried in civilian court? 

Attorney General HOLDER. I do not know; I would have to look 

at that. I think that, you know, the determination of—— 

Senator GRAHAM. We are making history here, Mr. Attorney 

General. I will answer it for you. The answer is no. 

Attorney General HOLDER. Well, I think—— 

Senator GRAHAM. The Ghailani case, he was indicted for the Cole 

bombing before 9/11, and I did not object to going into Federal 

court. But I am telling you right now, we are making history, and 

we are making bad history, and let me tell you why. 

If bin Laden were caught tomorrow, would it be the position of 

this administration that he would be brought to justice? 

Attorney General HOLDER. He would certainly be brought to justice, absolutely. 

Senator GRAHAM. Where would you try him? 

Attorney General HOLDER. Well, we would go through our protocol, and we would make the determination about where he should 

appropriately be tried. 

Senator GRAHAM. Would you try him—why would you take him 

someplace different than KSM? 

Attorney General HOLDER. Well, that might be the case. I do not 

know. I would have to look at all of the evidence, all of the—indicted—— 

Senator GRAHAM. Well—— 

Attorney General HOLDER. He has been indicted already in Federal court. 

35 

Senator GRAHAM. Does it matter if you use the law enforcement 

theory or the enemy combatant theory in terms of how the case 

would be handled? 

Attorney General HOLDER. Well, bin Laden is an interesting case 

in that he has already been indicted in Federal court. 

Senator GRAHAM. Right. 

Attorney General HOLDER. We have cases against him in Federal 

court. 

Senator GRAHAM. Right. Well, where would you put him? 

Attorney General HOLDER. It would depend on a variety of factors. 

Senator GRAHAM. Well, let me ask you this question. Let me ask 

you this. Let us say we capture him tomorrow. When does custodial 

interrogation begin in his case? If we captured bin Laden tomorrow, would he be entitled to Miranda warnings at the moment of 

capture? 

Attorney General HOLDER. Again, that all depends. I mean, if we 

capture—— 

Senator GRAHAM. Well, it does not depend. If you are going to 

prosecute anybody in civilian court, our law is clear that the moment custodial interrogation occurs, the defendant, the criminal defendant is entitled to a lawyer and to be informed of their right to 

remain silent. The big problem I have is that you are criminalizing 

the war, that if we caught bin Laden tomorrow, we have mixed 

theories and we could not turn him over to the CIA, the FBI, or 

military intelligence for an interrogation on the battlefield because 

now we are saying that he is subject to criminal court in the 

United States, and you are confusing the people fighting this war. 

What would you tell the military commander who captured him? 

Would you tell him, ‘‘You must read him his rights and give him 

a lawyer’’ ? And if you did not tell him that, would you jeopardize 

the prosecution in a Federal court? 

Attorney General HOLDER. We have captured thousands of people on the battlefield, only a few of which have actually been given 

their Miranda warnings. 

With regard to bin Laden and the desire or the need for statements from him, the case against him at this point is so overwhelming—— 

Senator GRAHAM. Mr. Attorney General—— 

Attorney General HOLDER.—that there is no need to—— 

Senator GRAHAM.—the only point I am making is that if we are 

going to use Federal court as a disposition for terrorists, you take 

everything that comes with being in Federal court. And what 

comes with being in Federal court is that the rules in this country, 

unlike military law—you can have military operations, you can interrogate somebody for military intelligence purposes, and the law 

enforcement rights do not attach. But under domestic criminal law, 

the moment the person is in the hands of the U.S. Government, 

they are entitled to be told they have a right to a lawyer and can 

remain silent, and if we go down that road, we are going to make 

this country less safe. That is my problem with what you have 

done. 

You are a fine man. I know you want to do everything to help 

this country be safe. But I think you have made a fundamental 

36 

mistake here. You have taken a wartime model that will allow us 

flexibility when it comes to intelligence gathering, and you have 

compromised this country’s ability to deal with people who are at 

war with us by interjecting into the system the possibility that they 

may be given the same constitutional rights as any American citizen. And the main reason that KSM is going to court apparently 

is because the people he decided to kill were here in America and 

mostly civilian, and the person going into military court decided to 

kill some military members overseas. I think that is a perversion 

of the justice system. 

Attorney General HOLDER. What I said repeatedly is that we 

should use all the tools available to us—military courts, Article III 

courts. The conviction of Osama bin Laden, were he to come into 

our custody, would not depend on any custodial statements that he 

would make. The case against him, both for those cases that have 

already been indicted, the case we could make him against for his 

involvement in the 9/11 case, would not be dependent on—— 

Senator GRAHAM. Mr. Attorney—— 

Attorney General HOLDER.—would not be dependent on custodial 

interrogations. And so I think in some ways you have thrown up 

something that is—with all due respect, I think is a red herring. 

It would not be something—— 

Senator GRAHAM. With all due respect, every military lawyer 

that I have talked to is deeply concerned about the fact that if we 

go down this road, we are criminalizing the war, and we are putting our intelligence gathering at risk. And I will have some statements from them to back up what I am saying. 

Chairman LEAHY. Senator Graham—— 

Senator GRAHAM. My time is up. I look forward to talking to you. 

There are some issues we can agree on. 

Attorney General HOLDER. One thing I would say, that with regard to those people who are captured on the battlefield, we make 

the determinations every day as to who should be Mirandized, who 

should not. Most are not Mirandized. And the people who are involved in that decision involve not only lawyers and agents but also 

military personnel who make the determination as to who should 

be Mirandized. 

But, again, the notion that a conviction of Khalid Sheikh Mohammed would depend on his getting Miranda rights is simply not 

accurate. 

Senator GRAHAM. I am not saying that. 

Chairman LEAHY. And, Senator Graham, you were out of the 

room when I put into the record some very significant, well-qualified military people who support what Attorney General Holder has 

done, as well as numerous other commentators. 

I would also put into the record statements of those who have 

called for the closing of Guantanamo: General Colin Powell, Defense Secretary Robert Gates, Chairman of the Joint Chiefs of Staff 

Admiral Mullen, the CENTCOM Commander General David 

Petraeus, the Director of National Intelligence Admiral Blair, 

former Guantanamo Commander Marine Corps Major General Michael Lehnert, former Navy General Counsel Alberto Mora, and 

Senator John McCain. 

37 

Senator SESSIONS. That is to close Guantanamo but not dealing 

with what Senator Graham talked about. 

Chairman LEAHY. We have already put into the record statements across the political spectrum, including military who take a 

different view than Senator Graham. 

[The statements appear as a submission for the record.] 

Chairman LEAHY. We will stand in recess for 10 minutes. 

[Recess 11:32 a.m. to 11:46 a.m.] 

Chairman LEAHY. The Committee will come to order. 

We have finished with Senator Graham, so next is Senator Durbin. Senator Durbin, I yield to you. 

Senator DURBIN. Thank you, Mr. Chairman. 

Mr. Attorney General, thank you for your appearance. I would 

like to call your attention to a matter which has been discussed 

here, a matter of discretion by the Attorney General of trying an 

accused terrorist before the tribunals of our land that are available. 

In fact, the terrorist who was being tried was accused of being the 

20th hijacker on 9/11, and the decision was made by the previous 

administration to try that terrorist in an Article III court in the 

Eastern District of Virginia, literally 15 minutes away by car from 

the Pentagon, where on 9/11 innocent lives were lost and families 

still grieve to this day, and we join them in that grief. 

That decision was made in 2006 to try Zacarias Moussaoui in the 

Eastern District of Virginia. I do not recall any complaints from either the Republican side of the aisle of their President, President 

Bush’s decision through his Department of Justice, to try that case 

in an Article III court, or on our side of the aisle either. And I ask 

you, as you reflect on the parallels between Khalid Sheikh Mohammed’s prosecution in New York and this prosecution in the Eastern 

District of Virginia, can you tell me what the distinction might be, 

why Khalid Sheikh Mohammed should be tried in a military commission? 

Attorney General HOLDER. Well, again, we have learned, I think, 

a great deal from the Moussaoui trial which I think will assist us 

in the conduct of the Khalid Sheikh Mohammed trial and the other 

four. Again, I think determinations are made as to what is the best 

forum for a particular case. What I have tried to do is make individualized determinations looking at each of these matters and trying to decide what is in the best interests of the American people 

in terms of safety, what is consistent with our values, and I have 

made determinations that some should go to our Article III courts 

and some should go to the reformed military commissions. 

Senator DURBIN. I would like to quote former Mayor Giuliani, 

who has been outspoken about the trial of Khalid Sheikh Mohammed, in what he said about the Moussaoui trial, tried in an Article 

III court. He said, ‘‘At the same time, I was in awe of our system. 

It does demonstrate that we can give people a fair trial, that we 

are exactly what we saw we are. We are a nation of law. I think 

it is going to be a symbol of American justice.’’ 

That was the trial of an accused terrorist, 20th hijacker, 9/11, in 

an Article III court, within a minute’s drive away from the scene 

of that horrific loss of life at the Pentagon. And I struggle to find 

the difference, but I want to draw one point, too. You refer, accurately so, to the reformed military tribunals, reformed military 

38 

commissions, and it reflects the fact that because of Supreme Court 

decisions in Hamdan and actions by Congress, at the time controlled by the Republicans, that we have changed the laws when 

it relates to military tribunals to try to come in conformance with 

Supreme Court requirements. You have noted that since 9/11, only 

three have been successfully tried before military tribunals accused 

of terrorism, and I want to ask you this question: As you referred 

the five to military tribunals under the reform, are you not also 

aware of the possibility that some will challenge this new procedure as to whether or not it conforms with earlier Supreme Court 

decisions, which may lead to procedural delays and some delay in 

the final outcome of those tribunals? 

Attorney General HOLDER. No, that is a distinct possibility and 

something that we will have to try to deal with, or the prosecutors 

in that case will have to deal with, and that is something we will 

certainly not have to deal with in bringing Khalid Sheikh Mohammed and his cohorts in the Article III court in Manhattan. We have 

a 200-year history of trying cases, these kinds of cases. And so the 

question of legitimacy is not an issue that we will have to deal with 

at all. 

Senator DURBIN. So we have a very close parallel where the 

Bush administration decided on the 20th hijacker for 9/11 to prosecute him in the Article III court, in a venue very close to the scene 

of the horrific tragedy. We have a situation now where some are 

calling for any future trials to be in military tribunals or commissions, which have procedures still not ruled upon by the Supreme 

Court which could lead to some ultimate delay in the outcome of 

those proceedings. 

I think those are things which should be made part of this record 

in our hearing today. 

I would like to move, if I can, to the issue of the future of Guantanamo. I support the administration’s decision in closing Guantanamo. It is consistent with positions taken by General Colin Powell, who said, ‘‘If I had my way, I wouldn’t close Guantanamo tomorrow. I’d close it this afternoon.’’ 

Secretary of Defense Robert Gates, under both President Bush 

and President Obama, has called for the closure of Guantanamo because of the danger that it presents to our troops in the field. 

President Bush on eight separate occasions called for the closure 

of Guantanamo. Admiral Mullen, Chairman of the Joint Chiefs of 

Staff, called for the closure of Guantanamo. General David 

Petraeus called for the closure—all believing that the existence of 

Guantanamo was, in fact, an incitement for those who would do 

harm to our soldiers and to the American people. 

And so now there is a possibility that we will find another venue, 

and one of the opportunities or possibilities is in my home State 

of Illinois in the small town of Thompson, fewer than 1,000 people, 

in the northwestern part of our State, a rural area. And the Bureau of Prisons and Department of Defense have been out to look 

at this site. It is my understanding that they are considering the 

configuration of this facility if it is chosen, and one of the things 

they are proposing is to put a new perimeter fence beyond what 

currently exists at this maximum security prison, built 8 years ago 

and never fully occupied. And it is my understanding that if this 

39 

new perimeter fence is installed, this would indeed be the most secure, the safest maximum security prison in America. Is that correct? 

Attorney General HOLDER. That is correct. 

Senator DURBIN. And to date, we have never had an escape from 

a supermax facility in the United States. 

Attorney General HOLDER. That is also correct. 

Senator DURBIN. You mentioned some 300-plus convicted terrorists, domestic and international, being held; in our State, some 35. 

And, incidentally, one of those happens to be a man accused of 

being in a sleeper cell for al Qaeda, al-Bari, who is serving in the 

Marion Federal penitentiary, without any danger to the surrounding community. 

I might also ask, one of the congressional critics in my State has 

said that there would be a requirement if we brought the Guantanamo detainees to Thompson, Illinois, that they would be allowed 

up to ten visitors, which means if there were 100 transferred, we 

would, in his words, have 1,000 jihadist followers going through 

O’Hare, trekking across Illinois to visit, as, he said, they were legally entitled to do. My understanding is that those held in military facilities—and this would be a military facility for Guantanamo detainees—are denied access to any visitors, family or 

friends, and the only visitation is from legal counsel. Is that your 

understanding as well? 

Attorney General HOLDER. That is my understanding. 

Senator DURBIN. So the statement that has been made about a 

thousand jihadist followers streaming across the highways of Illinois is inconsistent with the law. 

Attorney General HOLDER. That is not consistent with my understanding of how people are held in military detention. 

Senator DURBIN. Thank you, Mr. Holder. I appreciate your testimony. 

Chairman LEAHY. Thank you very much Senator Durbin. 

Senator Cornyn. 

Senator CORNYN. Thank you. 

Mr. Attorney General, please forgive my voice. We are going to 

try to croak through this together. 

Attorney General HOLDER. OK. 

Senator CORNYN. Let me just ask, do you acknowledge the legitimacy of military commissions? 

Attorney General HOLDER. Absolutely. I think that what Congress has done in response to the Supreme Court concerns in reforming the military commission, military tribunals, has legitimized them and makes them places in which people can be referred and tried. And it was one of the reasons why I sent five of 

those people there last Friday. 

Senator CORNYN. And so your decision to try some of these 9/11 

co-conspirators in an Article III court is not compelled by any law. 

It was a matter of your judgment and discretion. 

Attorney General HOLDER. A matter of my judgment, my discretion, my experience, my interaction with the Secretary of Defense, 

my interaction with prosecutors both on the military side and on 

the civilian side. All of that went into making that determination. 

40 

Senator CORNYN. Does the President of the United States agree 

with you? 

Attorney General HOLDER. I believe that he does. I have not had 

a direct conversation with him. I have seen reports indicating that 

he agrees with the decision that I made. But the decision I made 

I think is consistent with his Archives speech where he laid out 

how he viewed how the detainees at Guantanamo should be handled. 

Senator CORNYN. Well, you acknowledge that you work for the 

President of the United States, that he could fire you if he disagreed with you, that he could overrule you. Correct? 

Attorney General HOLDER. Yes, he could do that. 

Senator CORNYN. Well, I want to ask you, you mentioned that we 

are currently offering Miranda rights or reading Miranda rights to 

suspected terrorists on the battlefield. Is that correct? 

Attorney General HOLDER. No. What I said was that happens 

very, very rarely. It happened during the Bush administration. It 

happens very rarely. I have talked to the FBI about this. There 

was some misreporting about the notion that people captured on 

the battlefield were automatically being read their Miranda warnings and that the reality is there are thousands of people who are 

captured and a very, very small number have been read Miranda 

warnings after military lawyers, civilian lawyers, investigators 

from both sides made the determination that there was some reason to give Miranda warnings to those captives. 

Senator CORNYN. And you support that decision to give Miranda 

rights to some suspected terrorists? 

Attorney General HOLDER. Well, give them Miranda warnings if 

that means it is going to preserve an option for us. I think that is 

why it is done. 

Senator CORNYN. And you support it? 

Attorney General HOLDER. Well, I would support it to the limited 

extent that it is done. I defer to the people in the field who make 

these determinations and, I think, are capable of making those determinations given the facts that they have to confront that are 

right in front of them. 

Senator CORNYN. And should Khalid Sheikh Mohammed have 

been read his Miranda rights? 

Attorney General HOLDER. There was no need. We do not need 

his statements. 

Senator CORNYN. With all due deference, you are not going to be 

the ultimate arbiter of that decision. It will be a judge, won’t it, at 

the trial or appellate level? Correct? 

Attorney General HOLDER. That is true, if that is an issue that 

they raise on appeal, should there be an appeal. But I am confident 

that the way in which this case is going to be structured, given the 

way in which and the various places in which we will be able to 

find statements that he made, there was no need for Miranda 

warnings. 

Senator CORNYN. Well, he did ask for a lawyer, didn’t he, when 

he was detained? 

Attorney General HOLDER. I frankly do not know. 

Senator CORNYN. You are not aware of the fact that he asked for 

a lawyer and he said he wanted to go to New York? 

41 

Attorney General HOLDER. Yes, I do remember that. Yes, that is 

correct. ‘‘I want a lawyer’’ and ‘‘I want to go to New York,’’ I remember those two, yes. 

Senator CORNYN. And he is getting his wish, I guess. When did 

he first get a lawyer, do you know? 

Attorney General HOLDER. No, I do not know the exact date. 

Senator CORNYN. Do you acknowledge the possibility that a 

judge, consistent with what you believe to be the sound policy of 

providing Miranda rights to some suspected detainees, would conclude that Khalid Sheikh Mohammed was denied his rights and, 

thus, he cannot be prosecuted for the crimes for which you anticipate charging him? 

Attorney General HOLDER. Well, Senator, you have been a judge; 

I have been a judge. And there is no—I cannot say, you cannot say, 

no one can say with any 100-percent degree of certainty that a 

judge would not look at a particular set of facts and rule in a particular way. And yet, as I look at the facts surrounding the interaction with Khalid Sheikh Mohammed, the detention of him, the 

evidence that we will present at trial, I am very confident that Miranda issues are not going to be a part of that trial. 

Senator CORNYN. Well, General Holder, you have been a judge, 

I have been a judge, and you are correct to acknowledge the fact 

that you will not make that decision. 

Attorney General HOLDER. Right. 

Senator CORNYN. I will not make that decision. Some judge will 

make that decision. Just like you said you are not going to defer 

to Khalid Sheikh Mohammed in determining the venue where he 

is going to be tried, you are the one making that decision. But isn’t 

it the fact that you will not be the one making that decision, ultimately—if an attempt to transfer venue based on the notoriety of 

this event on 9/11 is such, just like Timothy McVeigh, who killed 

so many Americans in Oklahoma, he was tried in Colorado. Isn’t 

it a distinct possibility that a judge would transfer this case based 

on a local prejudice? 

Attorney General HOLDER. Sure, that is entirely possible. There 

may be a motion for a venue change. But just as in the McVeigh 

case, the venue change did not have a material negative impact on 

the outcome of the trial. He was convicted and he was executed. 

Senator CORNYN. Well, in terms of local security arrangements, 

I mean, this case might be tried in Connecticut or Vermont or some 

other part of the Second Circuit. And you cannot control that; I 

cannot control that. The judge is ultimately going to make that decision, correct? 

Attorney General HOLDER. Well, I would think that one of the 

things a judge would take into account—again, we are speculating 

here about the possibility of this case being moved. I would hope 

that a judge—— 

Senator CORNYN. Well, you have to consider all the possibilities, 

don’t you, consider the risk—— 

Attorney General HOLDER. We consider the possibilities, and I 

would hope that the judge would take into account in deciding 

where the case would be tried the very real security concerns that 

this trial would present. 

42 

Senator CORNYN. And you said that if Khalid Sheikh Mohammed 

is acquitted, he will not be released. What if a Federal judge orders 

the Department of Justice to release him? Will you defy that order? 

Attorney General HOLDER. We have taken the view that the judiciary does not have the ability necessarily to certainly require us, 

with regard to people held overseas, to release them. It is hard for 

me to imagine a set of circumstances given the other things that 

we could do with Khalid Sheikh Mohammed. There are other 

things that we can do with him aside from simply immigration. 

There are other legal things we can do with him. It is hard for me 

to imagine a set of circumstances under which, if he were acquitted, that he would be released into the United States. There are 

other matters. There are other things that we have the capacity to 

do, other legal matters that we can bring. 

Senator CORNYN. Well, you recognize the Supreme Court has 

said you cannot hold somebody indefinitely, for example, who cannot be repatriated to their home country. 

Attorney General HOLDER. You can certainly hold people in connection with matters that are pending, and we have the capacity 

to make sure that Khalid Sheikh Mohammed is not released into 

the United States. 

Senator CORNYN. My time has expired. Thank you. 

Chairman LEAHY. Thank you. Of course, I might say on half-facetiously, I suspect that a lot of people in New York would not mind 

having him released onto the streets of New York. I suspect he 

would not want to be released onto the streets of New York. 

Senator Cardin. 

Senator CARDIN. Thank you, Chairman. 

Attorney General, it is a pleasure to have you before the Committee. There is risk involved in any trial, whether it is a military 

trial or whether it is a civilian trial. And I think you have gone 

over that very well. You give us great confidence of the confidence 

that you have in this trial of our terrorists. So I think we need to 

also underscore the advantages of trying the terrorists in the civilian courts, Article III courts. It gives us an established process that 

has been used before. It gives us the credibility of our system, 

which is internationally understood and respected. And it gives us 

the ability to showcase that we are using the American values to 

hold the terrorists responsible. So I think there are a lot of positive 

reasons to use Article III courts, particularly considering the history of how we have not only ignored international laws, we have 

ignored our own laws, as the Supreme Court has held on previous 

occasions. 

I want to follow up on Senator Kohl’s point where we are talking 

about the closing of Guantanamo Bay, which I strongly support, 

and Senator Feingold’s point of how you have made informed decisions as to how to basically classify the detainees at Guantanamo 

Bay, those who are going to be relocated to other countries, those 

who are going to be tried in military courts, those who are going 

to be tried in our Article III courts; and then in response to Senator 

Feingold, your ability to detain these individuals basically indefinitely under certain circumstances. 

When you previously testified before us, you indicated that there 

was going to be a process, a more open process with accountability. 

43 

Can you just share with us how that is progressing as to how we 

can showcase to the world that, in fact, we are using fair procedures that everyone who is detained has their opportunity to challenge the methods that we are using? 

Attorney General HOLDER. Well, that is something that we are 

still in the process of trying to put together. Actually, it is something that I have worked a great deal with or talked about with 

Senator Graham—about the mechanism that we would use in order 

to detain somebody under the laws of war. But it certainly would 

involve a due process determination at the outset, that this was a 

person who could be detained under the laws of war with some 

periodic review to ensure that the continued detention of that person was appropriate, that that person continued to be a danger to 

the United States. It would not simply be placing somebody in a 

gulag and never hearing from or seeing that person again. There 

would be continuous reviews, as I said, to make sure that that person’s continued detention was appropriate. 

Senator CARDIN. I would just encourage you to be as open as you 

can on the procedures that are being used so that we can, in fact, 

justify the issues. I do not think anyone disagrees with the need 

to preserve public safety and the need to deal with the urgencies 

of war. But we want to make sure that it is not an arbitrary decision and is one that can withstand international scrutiny, and the 

more transparency that you bring to that process I think would be 

valuable for our country. 

Attorney General HOLDER. Senator Cardin, what I want to assure you and all the members of this Committee and the American 

people is that if we were to put such a regime in place, we would 

seek the approval of Congress—hold hearings, however that is to 

be done—to ensure that the mechanisms that we put in place have 

the support, perhaps generated by the executive branch, but have 

the support of the legislative branch. That is where the executive 

is most powerful, when it works in conjunction with the legislature. 

Senator CARDIN. Thank you. I want to mention another area of 

concern on terrorist activities in the United States, and that is cybersecurity. I held a hearing yesterday in the Subcommittee on 

Terrorism and Homeland Security, and the Department of Justice 

was represented very ably at that hearing. We also had the Department of Homeland Security and NSA. 

I think the consensus there was that the line responsibility rests 

with the Department of Justice, although there are interagency 

working groups now. The vulnerability of America is great here. 

The assessment was made that we might be able to prevent 80 percent of the attacks, and I made the comment we would never do 

a defense budget based upon an 80-percent efficiency. We have to 

do better than that. 

I just want to get your assessment as to how high a priority you 

are placing on dealing with this issue. There have been some recommendations made about establishing a cybersecurity person who 

is principally responsible on the interagency issues. There are the 

legal matters as to whether our current laws are adequate to deal 

with this from the point of view of both protecting our country 

against cyber attacks, as well as protecting individual liberties of 

the people in America. 

44 

It is a complicated area, but it is an area that is changing every 

day and making us more at risk every day. 

Attorney General HOLDER. You are absolutely right, Senator 

Cardin, and I think that the hearing that you held yesterday was 

an important one because I think it draws attention to something 

that has not gotten the attention that it needs. 

The cyber issues present problems for us when it comes to espionage, when it comes to terrorism, when it comes to economic harm 

that is done to our country. The potential in all those areas is 

great, and unless we have an effective response, an effective defensive capability in that regard, I worry about what the future could 

look like. And so I think we have to devote attention. We are doing 

that at the Justice Department. We are working with our partners 

in the executive branch. But we also need the help of Congress to, 

as you have done, examine these issues, propose legislation where 

that is appropriate. We have to be partners in dealing with this 

very real 21st century issue. 

Senator CARDIN. Thank you. I look forward to working with you 

on that. 

I just really want to point out for the Committee, in your report 

to us the section you have on civil rights, I do not want this hearing to go by without just applauding you and urging you to continue to make civil rights a priority. We know the problems we had 

in the last administration, and we are very pleased that we have 

moved forward with Tom Perez as the head of the Civil Rights Division. And I noticed that you are taking action on voting rights, 

as you did for military personnel and absentee ballots. We think 

that is absolutely the right thing to do, that you are moving forward with Native Americans. We would urge you to continue an 

aggressive policy, as we get into redistricting and the challenges 

that one has to protect Americans’ rights of voting as well as the 

other civil rights issues that have been, I think, not given the priority that they deserve in the previous administration and restoring that confidence to the Civil Rights Division. 

Attorney General HOLDER. Well, as I said at my confirmation 

hearing, my primary focus I think has to be on the national security responsibilities that I have, but the Justice Department also 

has to do the traditional things that it has always done under Republican as well as Democratic Attorneys General. And a revitalized, reinvigorated Civil Rights Division that I believe in some 

ways is the conscience of the Justice Department remains a priority for me. The confirmation and now the installation of Tom 

Perez as the head of that Division I think will help a great deal. 

I think there is a sense, as I walk around, that there is a greater 

sense of mission among the lawyers, the career folks in the Civil 

Rights Division, and I think we are starting to see that in the statistical things that I see in terms of number of cases filed, where 

they have investigations open. I think the Civil Rights Division is 

coming back. 

There is still more work to be done, but I think we are on a good 

path. 

Senator CARDIN. Thank you. 

Thank you, Mr. Chairman. 

45 

Chairman LEAHY. Thank you very much, and I would also put 

in the record a number of military and other national security and 

terrorism experts, their support for the closing of Guantanamo. 

[The information referred to appears as a submission for the 

record.] 

Chairman LEAHY. Senator Coburn, you are next. Thank you for 

waiting. 

Senator COBURN. Mr. Attorney General, welcome. We are about 

through here. I appreciate your patience. 

Just to clear up some small things, I sent you a letter on March 

30th about thousands of Oklahomans that are freedmen, and I 

have not gotten a response from you. I would just appreciate it if 

you would get us a response on that. 

Attorney General HOLDER. OK. 

Senator COBURN. That affects thousands of people in my State, 

and I would very much appreciate it. 

Attorney General HOLDER. Senator, I will get you that response. 

Senator COBURN. Thank you. Also, I am not going to spend a 

whole lot of time on what has been the main subject, and you do 

not have to answer these because I do not expect you to have the 

answer right now, but I do want to put into the record and ask that 

you answer it at a later time. 

During your press conference you noted that Federal prosecutors 

have successfully prosecuted—and you have alluded to it today— 

a number of terrorists who are now serving lengthy sentences in 

our prisons. And the three questions about that that I would have 

that I do not expect you to answer now: How many of those convicted terrorists were picked up during firefights in Pakistan or Afghanistan or elsewhere? How many of them were held without 

being Mirandized? And how many of them were interrogated by the 

CIA to gather intelligence about pending plots? If you could answer 

that, I would appreciate it very much. 

Attorney General HOLDER. All right. We will answer those questions. 

[The information referred to appears as a submission for the 

record.] 

Senator COBURN. And one other question I have, we have recently—on October 30th, the Recovery and Accountability Transparency Board issued a list of recipients of Federal funds who submitted reports to the Government that were fraudulent on information as pertaining to a judge. Does the Department have a plan to 

prosecute that fraudulent behavior or that fraudulent reporting, especially not just in this instance, but in all instances related to the 

recovery? 

Attorney General HOLDER. Yes. In fact, that was one of the 

things that we mentioned yesterday in the announcement of that 

task force, that economic crimes task force. One of the areas that 

we are going to be focusing on is the misuse of Recovery Act funds, 

fraud connected to the Recovery Act funds. We will be working 

with our partners both at Treasury, SEC, other Federal agencies, 

as well as our State and local counterparts. That is one of the priority areas, I would say, of the four or five priorities that we identified yesterday. That is one of them. 

46 

Senator COBURN. It is going to be big because the Special Inspec- tor General says it is going to be over $50 billion. So it is a lot of 

money to play with, but a lot of negative things can happen. 

At our last oversight hearing, you were kind enough to talk with 

me about the hate crimes issue, and I had asked you about the 

murder of some of our recruiters in Arkansas and whether or not 

that would apply, and you said you would have to think about that 

and get back to me. It has been 5 months. I wonder if you have 

given any thought to that, especially in light of what has happened 

now at Fort Hood. 

Attorney General HOLDER. Well, I think that we now have, you 

know, a hate crimes bill that, in fact, does say that such actions 

are potentially hate crimes. 

Again, there is, I believe, a mandatory minimum sentence that 

Senator Sessions introduced with regard to the hate crimes bill 

that deals with the set of facts that you are talking about. 

Senator COBURN. OK. Thank you. 

One other issue—and you really do not have to go into it now, 

but I wanted to raise it with you because it—and it has to do with 

the Voting Rights Act, and it has to do with Kingston, North Carolina. I do not know if you are familiar with that or not. But, in fact, 

in North Carolina, only 9 out of 551 localities hold their election 

on a partisan basis, and in Kingston, seven of the nine minority— 

which actually in Kingston is the majority—voted to eliminate that, 

and then the Civil Rights Division went back and, because they fall 

under the Voting Rights Act, having to have that approved, reversed that. And I would just like to hear the comments about that 

and why that was seen, because 73 percent of which the vast majority of those are African Americans, voted by over 2:1 to remove 

party labels, and yet what we did in Washington was tell them, 

‘‘You cannot decide that because you fall under the Voting Rights 

Act.’’ 

And so there are a lot of complicated questions with that, and 

I understand that, but I would appreciate you giving me a written 

response justifying how we would reverse what the majority of African-Americans in that town thought to be prudent for them when 

they are doing local elections. 

Attorney General HOLDER. All right, Senator. I will get you a 

written response on that. I do not know enough about the case at 

this point, I think, to respond to you today, but we will get—I am 

familiar with it, but not as well as I think I need to be to respond 

intelligently. 

Senator COBURN. I understand, and I do not expect you to have 

to—— 

Attorney General HOLDER. But I will get you a written response 

to that. 

Senator COBURN. Thank you. 

[The information referred to appears as a submission for the 

record.] 

Senator COBURN. Thank you. 

Now, here is the area that I really want to get into because I am 

really concerned. As a practicing physician, I have dealt with lots 

of drug abuse in this country and know the significant power of 

marijuana use to lead to other drug use. On October 12th, Deputy 

47 

Attorney General David Ogden issued a memorandum to U.S. Attorneys in all the States that have laws authorizing the use of medical marijuana directing prosecutors not to focus Federal resources 

on individuals whose actions are in clear and unambiguous compliance with State law. Never mind the fact that it violates U.S. Federal law. It is a dramatic break with previous administration policies, both the Clinton and the Bush administration policies, which 

demanded the prosecution of marijuana distributors, even those 

acting in accordance with State law. It is prohibited for any use 

under Federal law, meaning that no matter what the States’ laws 

are, it is still a Federal crime to use it or to distribute it. 

The Obama Justice Department is saying that it simply will not 

enforce those Federal laws as long as you are legal in your State, 

and I think that is kind of the summation of where you all are. 

And I know that you have limited resources, so I understand there 

can be a—did you personally approve of the issuance of this new 

policy? 

Attorney General HOLDER. I did. 

Senator COBURN. Do you agree that this is a dramatic break 

from past administration policies? 

Attorney General HOLDER. It is certainly a break. I will let other 

people decide whether it is dramatic. It—— 

Senator COBURN. It is a break. I will cancel the word ‘‘dramatic.’’ 

Attorney General HOLDER. It is certainly a break, but it seems 

to me it is a logical break given, as you indicated, the limited resources that we have, the use of marijuana in the way that these 

State laws prescribe, which is for medical purposes. But what that 

directive from the Deputy Attorney General, I guess on October 

19th, indicated was that we are not blind, and to the extent that 

people are trying to use these State marijuana laws to do things 

that are not consistent with State law, that are not being used for 

medicinal purposes, that are not being used to help cancer patients, 

for instance, the Federal role is still there, and we will be vigorous 

in our prosecutions. And on, I guess, page 2 of that memo, there 

are a number of factors that are set out that are, we think, indicia 

of a non-compliance with State law. 

The Mexican cartels make most of their money from the importation of marijuana from Mexico into the United States, and so this 

continues to be a priority for this administration. 

Senator COBURN. The fact is that 90 percent of the people that 

have a medical marijuana prescription in California do not have a 

real illness. What they have is a desire to smoke marijuana, and 

yet we are allowing State law to usurp Federal law. 

I would quote former Clinton White House Director of Public Affairs, White House Office of National Drug Policy, Bob Weiner, was 

recently quoted warning the administration, Be careful about the 

new lax enforcement policy for medical marijuana because you may 

get way more than you bargained for. Prescription marijuana use 

has exploded for healthy people. And there is no question about 

that that it has. I want to make sure that you are concerned with 

that as well, and this will be my last question. 

You know, pay attention to this because 2 years ago I released a report on the Justice Department that outlined the $1 billion of 

waste a year that most Americans would concur with in terms of 

48 

low priorities. And if, in fact, there is 10 percent truth to that report, which I believe it is very accurate, those monies could certainly be used to enforce the drug laws. The No. 1 risks for our kids 

is not obesity. It is illicit marijuana. 

Chairman LEAHY. I tried to give and have given extra time to the 

Senator, but—— 

Attorney General HOLDER. All I would say is, Senator Coburn, is 

that one of the purposes of the guidance that was issued by the 

Deputy Attorney General, as I indicated to you in my response to 

your question that I approved, was to make clear to people in the 

field that this remains a priority enforcement for us. And to the extent that we have people who are misusing these State laws or 

using these State laws for traditional marijuana importation or 

growing purposes, the Federal Government, the DEA, the Justice 

Department, will be vociferous in our enforcement efforts. 

Chairman LEAHY. Thank you. 

Senator Whitehouse. 

Senator COBURN. Mr. Chairman, may I—— 

Chairman LEAHY. The what? 

Senator COBURN. To have questions submitted for the record. 

Chairman LEAHY. Oh, of course, and we will keep the record 

open until the end of the week. 

Senator Whitehouse. 

Senator WHITEHOUSE. I believe Senator Klobuchar was here before me, Mr. Chairman. I am happy to yield to her. 

Chairman LEAHY. Sorry. I did have a list, and I neglected to look 

at it. 

Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, and thank you, Senator Whitehouse. I would have said it was fine, but I have some 

people waiting out there from Minnesota. 

Thank you very much for being here today, Attorney General 

Holder. You mentioned the tragedy at Fort Hood in your opening 

statement, and that terrible crime weighs heavily on all our minds. 

I was one of several Senators on this Committee that went to Fort 

Hood to that memorial service. We had a young man, Kham Xiong, 

who was killed there. He was waiting in line for a physical, ready 

to deploy. His family had come over from—they fought in the wars 

in Laos, were then relocated to Thailand, ten kids, in St. Paul, 

Minnesota. He has three himself. And the saddest thing I remember from that memorial service is that family huddled next to his 

picture propped next to the combat boots. 

So we are very interested in a thorough investigation here—I 

know the Justice Department has a hand in this—and that no 

stone is left unturned, that we get the results not only for a strong 

prosecution but also so that we can make sure that this does not 

happen again. 

Attorney General HOLDER. Well, I think President Obama has 

given us unequivocal direction that we are to find out what happened there, how do we prevent what happened there from occurring again, and it is our intent to, again, share the findings of that 

inquiry with the Committee and with the American people. 

Senator KLOBUCHAR. Today I want to focus on some of the breadand-butter law enforcement issues, but I want to quickly summaVerDate Nov 24 2008 09:56 Mar 31, 2011 Jkt 064953 PO 00000 Frm 00052 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\64953.TXT SJUD1 PsN: CMORC
49 

rize. So much of the questions have been understandably about 

your decision about the trial. This resonates for me because it was 

in Minnesota where some diligent citizens caught Moussaoui, so we 

watched that with great interest, the trial in Virginia. 

First of all, of course, my focus is on security, and I think you 

have talked about how you consulted with the mayor and with the 

police chief, and Senator Schumer went over that at length. But, 

obviously, most of us are interested in getting these guys. 

Senator Leahy mentioned that the conviction rate I think is 90 

percent—is that right?—of people tried in—— 

Attorney General HOLDER. It is about 94 percent. 

Senator KLOBUCHAR. 94 percent, and you feel that you have a 

strong case. Could you just briefly talk about your decision to do 

this in New York and why you picked that particular jurisdiction 

in terms of the expertise of the U.S. Attorneys that will be handling that case? 

Attorney General HOLDER. We are going to have a joint team 

that involves lawyers from the Eastern District of Virginia as well 

as lawyers from the Southern District of New York. New York is 

a place that has tried these kinds of cases before. You have a hardened detention facility. You have a hardened courthouse. You have 

a means by which a person can go from the jail to the courthouse 

without seeing the light of day. 

I had a Marshals Service report done looking at all of the potential venues if we were going to do this in an Article III court, and 

the recommendation from the Marshals Service was that this be 

done in New York City. That is the place that was the most secure, 

and did not have to have any construction work done in order to 

try to harden those facilities. And so for that reason and for other 

reasons, that was why I made the determination that New York 

was the appropriate place to try these cases. 

Senator KLOBUCHAR. Focusing now on some of these domestic 

issues, Senator Kaufman has a bill on health care fraud enforcement. I am a cosponsor, a number of us are. I have my own bill 

with Senator Snowe that complements that bill. And I know in 

May—and this is a question from me and Senator Kaufman, who 

is presiding over the Senate. I know that in May you and Secretary 

Sebelius created a Health Care Fraud Prevention and Enforcement 

Action Team to work on coordinating the Federal Government’s response to this issue. Could you say more about what that group 

has been working on since it was formed? Because we just had a 

report, $47 billion lost in Medicare fraud. The health reform that 

we are working on now must contain provisions that make it easier 

to go after this kind of fraud, because it is an outrageous amount 

of money. 

Attorney General HOLDER. Yes, the creation of the HEAT task 

forces, as we call them, are, I think, critical tools in trying to deal 

with an immense problem. We have seen the misuse of Medicaid, 

Federal health care funds for procedures that never occur, for devices that are never bought. We have actually seen people who 

were once engaged in drug dealing and in organized crime activities moving into this area because they determined that it is safer, 

it is easier, and we are determined to put an end to that. We will 

50 

have to work with our partners at HHS. Secretary Sebelius and I 

have been giving particular attention to this. 

We made the announcement I think in—I believe in April or 

May. We have already announced significant numbers of arrests 

that have occurred in a variety of cities. We are in four cities now. 

We are going to be expanding those task forces into other cities as 

well. This is a national problem. 

Senator KLOBUCHAR. Right, and I am hoping we can give you 

more tools in this bill. One of the things I found most interesting 

was that areas where you seem to have hot spots of this crime tend 

also to be areas that have high-cost health care, disorganized 

health care systems, which is something we should be looking at 

as well. 

A second thing I wanted to raise is the important reauthorization 

that we are going to be handling in the Violence Against Women 

Act. Senator Leahy mentioned the rape kit issue and the backlog. 

There are also other issues as well with the rural services—we had 

a hearing on this recently—as well as child protection issues. Could 

you talk about what your priorities will be as we work to reauthorize this important piece of legislation? 

Attorney General HOLDER. If we want to get a handle on the 

crime problem that we have had success in knocking down to historically low numbers, we have to deal with the problem of violence 

against women, and we have to deal with the problem of children 

who are exposed to violence and who often see that in a domestic 

violence context. We have to deal with these issues. 

This Senate, this Congress, our Government, 15 years or so ago 

made a commitment in the Violence Against Women Act. It seems 

to me that we need to celebrate the successes that we have had, 

the consciousness that we have raised in our Nation, but we need 

to do more. 

There are still issues, you know, the whole question of rape kits. 

I mean, we have to deal with that. We have people on the streets 

who, because we have not analyzed those kits, are free to commit 

these acts yet again. 

The whole question of children who are exposed to violence and 

who are the victims of violence I think is part and parcel of this 

same issue. And if we are ever to get a handle on this crime problem, we have to deal with those who are most vulnerable. We are 

doing much better than we have, but not as well as I think we can 

do. 

Senator KLOBUCHAR. Thank you very much. 

Chairman LEAHY. Thank you very much. 

Next will be Senator Franken, then Senator Whitehouse, and 

Senator Specter. 

Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. I will just pick up 

on the rape kit matter that both the Chairman and Senator Klobuchar brought up. 

I think it is important for people to realize that this is pro-law 

enforcement rape kit management. It puts criminals behind bars. 

It protects people who are innocent, and it brings victims closure 

and justice. 

51 

In Hennepin County, Minnesota, one prosecutor has recently 

filed charges in eight separate rape cases as a result of cold hits 

produced by cleaning up their backlog, and they have done this in 

New York, and it has also increased the number of convictions that 

they have gotten. I think they have gone from 40 percent to 70 percent of the convictions just because they cleaned up the backlog. 

I am just wondering—and maybe this is an answer you cannot 

give me right now, but what has gone wrong with this? Because 

we had, you know, this act, the Debbie Smith Rape Kit Reduction 

Law Act in 2004 with $500 million to address the problem, and we 

still have this problem. So it is just that we do not seem to have 

a regular system in place to specifically track rape kit backlogs 

around the country. 

Can you tell me what you are doing about it? And if you do not 

have an answer right now, get back to me or us? 

Attorney General HOLDER. What I would like to do is give you 

a more fulsome response maybe in a written form, but to tell you 

that what you are talking about is exactly right—what you said in 

the early part of your comment. This is an ultimate law enforcement tool, and the ability to process these kits and then compare 

the results from those analyses to the data bases that exist will, 

as you have indicated, solve cases and put people behind bars who 

are responsible for really heinous and very serious crimes. 

Exactly why the prior legislation which was designed to avoid 

the very situation we find ourselves in—— 

Senator FRANKEN. Which, by the way, the Chairman was a great 

leader on. 

Attorney General HOLDER. I do not know why it has not worked. 

But we in the Department are trying to come up with ways in 

which we can work with our State and local partners to effectuate 

that act and would look forward to working with you on this Committee and in Congress, again, to identify why it has not worked 

as well as we thought in the past and how we can prevent that 

from happening in the future. But this is something that, for me, 

matters a great, great deal. I know you have devoted a lot of attention to this, but these are crimes that we can solve. And inability 

to do that is extremely frustrating. 

Senator FRANKEN. I am going to get to just a macro issue here 

on the United States and crime and the number of people we have 

incarcerated. We have 5 percent of the world’s population and 25 

percent of the world’s prisoners. And so many of these people are 

in because of drug addiction or mental health problems, and very 

many of these people have no history of anything violent or any 

even high-level drug activity. We are essentially sending kids who 

are in possession of drugs and sending them to crime school. We 

put them in prison, and then they learn from other criminals how 

to do crime. And two-thirds of them come back when they are released within 3 years. 

More than a third of the counties in Minnesota have drug courts 

that stop this cycle. These are special courts for nonviolent drug offenders that steer them toward rehabilitation and treatment. In 

Minnesota, offenders who use our drug courts are ten times more 

likely to continue their treatment than other offenders. 

52 

Can you tell us about drug courts, what they are, and what your 

Department is doing to support them? 

Attorney General HOLDER. Well, we certainly have supported 

them in connection with the budgets that the President has proposed to increase the use of drug courts. I am familiar with the one 

that we have here in Washington, D.C., that started I guess a little 

after I left the D.C. Superior Court and has proved to be, I think, 

very successful in dealing with people who are selling drugs because they are addicted to drugs. These are the low-level dealers, 

not the people who live in penthouses and drive big cars and all 

that. And so I think that drug courts are an effective way at getting at the problem, and their expansion is something that this administration supports. 

In terms of those macro issues that you were talking about, we 

have a sentencing group that is looking at a whole variety of issues 

now that I put together to look at that whole question of recidivism. Are we doing the right things? I think we should ask ourselves—we should always be asking ourselves: is the criminal justice system that we have in place truly effective? 

My thought is that we should have a data-driven analysis to see 

exactly who is in jail. Are they in jail for appropriate amounts of 

time? Is the amount of time that they spend in jail a deterrent? 

Does that have an impact on the recidivism rate? And so this group 

will be reporting back to me I hope within the next couple of 

months, and it is on that basis that we will be formulating policy 

and working with the Committee with, I hope, some interesting 

and innovative ideas. 

Senator FRANKEN. And in doing that, might I suggest an increase 

in drug rehabilitation within prison? Because there are people in 

prison who are—a lot of people in prison who have addiction problems who should be in prison, but are going to get out, and it would 

be nice if while they were in there they got treatment. 

I just wanted to mention one thing on health care fraud, which 

is I would like to see those people go to prison. I know I may be 

contradicting myself by saying we have too many people in prison. 

It seems like health care fraud folks might belong there more than 

people who are simply addicted to drugs. 

If I could quickly just touch on trafficking in women, it is a subject I just want to touch on. I am running out of time, but trafficking of Native American women is a big problem that I think is 

being ignored. And in international trafficking, there are women 

who are trafficked into this country for prostitution who, because 

some of these cases are sent to ICE, these women have a disincentive to report these crimes. And I think that is something that 

needs to be looked at. 

Attorney General HOLDER. That is an issue, I think, that is worthy of examination. We are paying particular attention to the 

plight of women on reservations. I was in Minnesota I think about 

3 or 4 weeks or so ago for a listening conference, and if you look 

at the levels of violence that young girls and women are subjected 

to on the reservation, sometimes ten times as high as the national 

averages with regard to particular crimes, that is simply unacceptable in our country, and it is something that the President followed 

up on by having a listening conference at the White House. 

53 

The international trafficking of women and youngsters is something that we need to look at as well, and to the extent that ICE— 

or their interaction with ICE somehow prevents us from being very 

effective in our enforcement efforts, I will work with Secretary 

Napolitano and with members of the Committee to see if we can 

come up with ways in which we can be really effective in dealing 

with the problem that we have to get a handle on. 

Senator FRANKEN. Thank you, General. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Mr. Chairman. And welcome, 

Attorney General Holder. 

Now that we are toward the end of the hearing, I would just like 

to take a moment and react to two things that I think have come 

out during the course of the hearing today. One is, I think, perhaps 

inadvertently, a disparaging tone about Federal prosecutors and 

our United States law enforcement mechanism. I hope it is inadvertent, but I want to take a moment to say that, having had some 

experience in that world, I am extremely proud of our Federal law 

enforcement officers, of our career prosecutors. I have had prosecutors have to go to court in body armor. I have had prosecutors have 

to go home to their families and explain why a security system 

needs to be put in their home because of threats. They take this 

on day in and day out, and as you know, they do not get paid a 

great deal. And they are, I think, among the best lawyers in our 

country, and I just want to make that point because I did not like 

the tone that I was detecting. 

The second point that I want to make is one in favor of prosecutorial independence, and to the extent that you have been criticized 

that your decision is unpopular, I think people looking at this 

should bear in mind that the implication of that is that prosecutors 

should seek to make decisions that meet with popular opinion. And 

from my perspective, popular opinion is a very dangerous bellwether as a standard to hold prosecutors to, and I would not want 

that to emerge from this hearing as an unchallenged point. 

I think it gets worse when you move from popular opinion to legislative opinion. There are very significant separation-of-powers 

reasons why I as a prosecutor did not want to hear from the legislature, why the Founding Fathers set up a system in which the legislature was kept for good and prudent reasons out of these prosecutorial decisions. We are entitled to our opinions. Everybody has 

one. Fine. We can come here and ventilate. But nobody watching 

this should not react to the proposition that a prosecutor should either listen to the threats or criticisms—I mean, obviously with 

courtesy you should, and you did. But I want to assert the proposition here that a prosecutor should not make their decision or 

allow their decision in any way to be influenced by legislative opinion. And if there is any way to make it worse, it would be to allow 

it to be influenced by talk show opinion, and there has been a whiff 

of that here today. 

This country is going to last a long time, long after Khalid 

Sheikh Mohammed is safely either in prison for life or executed, or 

whatever the outcome is, and we want to stand by the principles 

54 

that have gotten us through 220 years and that will get us through 

to the future. And one of them is that people like us—and I say 

this as a sitting Senator—have no business attempting to influence 

the prosecutorial decisions of our law enforcement officials. 

In evaluating this, I do want to make an additional point and get 

your reaction to it. In Article III courts, we have probably had tens 

of thousands of criminal prosecutions. Almost every possible permutation of law and fact and procedure has at one point or another 

reared its head in Article III courts and been disposed of and left 

a trail of precedent for future prosecutors to follow. 

Military commissions, no matter how well we may have drafted 

them in our recent repair of the original flawed military commissions, have now, as I understand it, only achieved three convictions, and one came by plea. So in terms of the military commission, however properly statutorily established, being able to contribute the same kind of reliability and resilience that Federal 

courts have obtained through those tens of thousands of cases and 

through the exploration of all those different permutations, it 

strikes me that even a perfect military commission still bears some 

risk of unreliability in that you are either in new territory, in 

which case there are questions about where you go on appeal, or 

you are modeling yourself on an Article III existing legal structure, 

in which case you might as well stick with it; but that they are to 

a very significant extent, even if properly constituted, still untested. 

I wonder if you share that view. 

Attorney General HOLDER. Well, first, I would like to thank you 

for the statement that you made in support of the career people 

who work at the Justice Department and other parts of the executive branch and at the State and local level as well. I mean, you 

were a great U.S. Attorney and a great Attorney General in Rhode 

Island. I am proud to say that you were my colleague. But your 

comments are really appreciated. 

To the extent that people have any question about the determination of the people who work in the Justice Department and 

who will be responsible for these cases, about their abilities, they 

should put those fears to rest. These people are among the best of 

the best. They could be in other places making a lot more money, 

but they serve their country, and they do it quite well. And I am 

proud to say that I am their colleague. So I really thank you for 

that. 

In terms of the question of Article III versus the military commissions, I think there is no question that there is a greater experiential base on Article III courts, and I think your observation is 

correct. We have seen virtually every permutation. I am not naive. 

I know that Khalid Sheikh Mohammed in an Article III court will 

do as he tried to do in the military commission—spew his ideology, 

his hate, you know, whatever. 

Article III judges have dealt with these issues before. The unique 

issues that I think in some ways sound unique are not going to be 

found to be unique. In the Article III courts over the past 200 

years, we have dealt with, as you said, just about every permutation. There is going to be precedent for almost every decision that 

55 

a judge is going to have to make, from obstreperous defendants to 

questions of admissibility of evidence. 

I do not want to denigrate, however, the fact that these reformed 

military commissions, though not having that experiential base, 

are, I think, much better than they were. I think the action that 

Congress took in reforming them is significant. And I think they 

are a legitimate place in which we can try some of these defendants. But there is no question that in terms of the experience, the 

Article III courts have an advantage. 

Senator WHITEHOUSE. Mr. Chairman, it was certainly not my intention to denigrate what has been accomplished with the military 

commissions. It was simply—and I agree with the Attorney General that there is this experiential base differential. If I could ask 

unanimous consent that three questions for the record be propounded by me. 

One has to do with where we are on the Drug Enforcement Administration’s new rules that will allow them to move off paper 

records so that we can move to e-prescribing, so that we can buildup our electronic health record network, as the President wishes, 

timing on that determination. 

The Second is we have people in our present bankruptcy courts 

who are being, I think, harshly treated under the new law. We 

have a U.S. Trustee vacancy. When will we have a U.S. Trustee 

recommendation from the Department of Justice? 

And, finally, as you probably have come to expect from me, when 

is OPR going to put out its report on the Office of Legal Counsel? 

And I think my time has expired, so I will have to take those for 

the record. 

Attorney General HOLDER. Well, maybe I could say with regard 

to the first two, we will certainly send you something in writing, 

but I think given the fact that you have asked this question before—and I think this is a matter of great public interest, the 

whole question of the OPR report—if I could be allowed to respond 

to that. 

Chairman LEAHY. Sure. 

Attorney General HOLDER. The report is completed. It is being 

reviewed now. It is in its last stages. There is a career prosecutor 

who has to review the report. We expect that that process should 

be done by the end of the month, and at that point the report 

should be issued. It took longer than we anticipated and certainly 

longer than I anticipated when I testified I think 5 months or so 

ago because of the amount of time that we gave to the lawyers who 

represented the people who are the subject of the report an opportunity to respond, and then we had to react to those—people in 

OPR had to react to those responses. 

The report, as I said, is complete and is now simply being reviewed by that last career person in the Justice Department, and 

my hope is that by the end of the month it should be complete. 

Senator WHITEHOUSE. I thank you, Chairman, and I extend my 

gratitude to my colleagues for that little extra time. 

Chairman LEAHY. Thank you. I appreciate that. I also wanted to 

associate myself with what you said about the role of a prosecutor. 

Those of us who—and there are several on this panel who have had 

56 

the privilege of serving in law enforcement as prosecutors, and I 

concur with what Senator Whitehouse said. 

Senator Specter. 

Senator SPECTER. Thank you, Mr. Chairman. 

Attorney General Holder, thank you for your service, coming 

back to head up the Department of Justice. Tomorrow this Committee will take up the issue of a reporter’s shield, which has been 

very carefully crafted to try to provide some balance so that we do 

not have reporters jailed, as so many have been, or threatened. Judith Miller, 85 days in jail, no justification yet explained. 

Just one question, which I will cite tomorrow if your answer is 

right, and that is, are you confident that the compromises crafted 

will protect the national security interests of the United States? 

Attorney General HOLDER. Yes, I think that the bill as it presently exists, as opposed to the form that it was in before, now gives 

us the tools to protect the national security, to go after leaks if we 

desire. What—— 

Senator SPECTER. I do not want to interrupt you, Attorney General Holder, but I have only got 7 minutes, and I heard your ‘‘yes’’ 

answer. 

Attorney General HOLDER. OK. Yes. 

Senator SPECTER. A report publicized within the past several days is that out of the $440 billion a year for Medicare, $47 billion 

is a result of waste—or fraud, rather, criminal fraud. We are working hard to craft a health care reform bill, and the President is 

committed not to sign one which adds to the deficit, and I am committed not to vote for one which adds to the deficit. 

Medicare and Medicaid fraud are enormously consequential. So 

many cases result in fines, and that really results in being added 

to the cost of doing business. Jail sentences, as we know, are a deterrent. Others look at them and do not want to be sent to jail. 

Would you submit to the Committee an action plan as to what 

you can do to see to it that there are jail sentences as a matter of 

a very active governmental policy? I know you agree with the 

thrust, but we do not have time to discuss it within the 7 minutes 

that each of us has. But if you would submit in writing how you 

will aggressively attack this issue with jail sentences. 

Attorney General HOLDER. Sure. I will work the folks in the 

Criminal Division, and we will have a response. But I agree with 

your overall thrust in that regard. 

Senator SPECTER. The Bureau of Prisons does a good job, I think, 

with very limited funding, and among the many challenges you 

have and the many jobs you have, I would like you to undertake 

a personal review of the adequacy of their funding on rehabilitation. There have been some real studies which show that a twopronged attack to violent crime would be successful in America, 

perhaps reducing violent crime by as much as 50 percent, with life 

sentences for career criminals, as, for example, under the armed 

career criminal bill. And we passed the Second Chance Act, the 

Biden-Specter bill. The President signed it last year. And it seems 

to me that we need more funding on detoxification, job training, literacy training, reentry. No surprise when a functional illiterate 

leaves prison without a trade or skill, they go back to a life of 

crime. And I would like you to take a look at that. 

57 

I would also like you to take a look at the issue on attacks on 

prison guards, a rash of them because of the very substantial overcrowding. And I wrote to the Director of the Federal Bureau of 

Prisons, Mr. Lappin, who I think is doing an excellent job, with 

some suggestions about giving the guards some protective measures. Some suggestions have been made about pepper spray. Some 

suggestions have been made about the breakaway batons, stabproof vests. 

I would appreciate it if you would take a look at those items and 

others which could provide safeguards for prison guards. 

Attorney General HOLDER. I will do so. I have actually had a 

meeting with the head of the union who represents these guards, 

and he is actually, I thought, a very considerate person and has 

raised some issues and potential solutions to the problems you 

have identified. 

Senator SPECTER. I want to ask you in the remaining 2 minutes 

that I have about the distinction between trying some of the terrorists in Article III court as opposed to the military commissions, 

and, preliminarily, let me agree with what Senator Whitehouse has 

had to say about the standards you apply. I am confident you will 

apply them as you see them professionally. 

As I take a look at the protocol which has been issued by the Department of Justice, I have a hard time in seeing the discretionary 

judgments. If you talk about the strength of the interest, it looks 

to me like they are very, very similar. I do not think the location 

of where the offense occurred in Yemen as opposed to New York 

City is very important since extraterritorial jurisdiction applies all 

over the world as a result of amendments we made in 1984. The 

point on protecting intelligence sources and methods looks to me to 

be in line. With respect to the evidentiary problems there could be, 

the decision to make these trials in Article III courts is quite a testimonial to our criminal justice system to try these horrendous 

criminals with the rights of a criminal court, constitutional rights, 

is a great credit to the United States. And military commissions 

have been crafted after a lot of starts and stops. 

But what standards do you apply to try the terrorists one place 

instead of the other? 

Attorney General HOLDER. Well, we do it on a case-by-case basis 

using the protocol that I think you have in front of you. There are 

evidentiary questions. I think the location of the crime can be a factor, and I think you are right, given the extraterritoriality—— 

Senator SPECTER. Are you saying you have less evidence than 

necessary in a commission as opposed to an Article III court? 

Attorney General HOLDER. No. I focus more on the admissibility 

of the evidence and where the possibility exists, if there are problems in one forum or the other with regard to the admissibility of 

evidence. 

Senator SPECTER. Can you give me an example? 

Attorney General HOLDER. Well—— 

Senator SPECTER. Just one. 

Attorney General HOLDER. I have one that I—the kind of interrogation perhaps that a person was subjected to might lead you to 

want to use one forum as opposed to another. There might be quesVerDate Nov 24 2008 09:56 Mar 31, 2011 Jkt 064953 PO 00000 Frm 00061 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\64953.TXT SJUD1 PsN: CMORC
58 

tions of techniques that were used, and one forum might be more 

hospitable than another to the admission of such evidence. 

No one should read into that anything more than what I have 

said. This administration has indicated that we will not use evidence that was derived as a result of torture. But even saying that, 

there is at least a possibility that some techniques were used that 

might be better received in one forum than another. 

Chairman LEAHY. Thank you. I would note that this is Attorney 

General Holder’s fourth appearance before this Committee this 

year, and I appreciate that. Every Senator on the Committee has 

asked questions, both Democrat and Republican, and I understand 

the Republicans have a couple more questions on 5-minute rounds. 

I am asking Senator Klobuchar if she would chair for me. 

And I just want to note that one of the good things about this, 

Attorney General Holder, I think the American public, having been 

told by some commentators and others, that the 9/11 suspects will 

gain access to classified material and they will be able to block the 

admission of evidence obtained by torture, I think those claims 

have been refuted very directly today, and I appreciate that. In 

fact, some of those same protections were adopted into the revised 

military commissions that Congress passed last summer. The concern I have is that military commissions before have been repeatedly overturned by the Supreme Court. They have comparatively 

little precedent. I like the fact that our Federal courts have 200 

years of precedent and a track record of successfully convicting terrorists and murderers. Prosecutors know how the systems work. 

The courts have established systems. And we have a lot of confidence that following that, convictions can be upheld. 

So I am pleased that you have the preference to use the Federal 

courts whenever you can, and as Chairman of this Committee, I 

want to acknowledge the 9/11 families that are here present today. 

I want to recognize their losses. They and their families have been 

constantly in my prayers and my thoughts, along with the victims 

and the survivors of the Fort Hood shooting. 

Senator Kyl, we are going to go out of order. I realize you have 

other matters, and I thank Senator Sessions for agreeing to that. 

Please go ahead, sir, for 5 minutes. 

Senator KYL. Thank you, Mr. Chairman, and thank you, Senator 

Sessions. 

Mr. Attorney General, I had some other questions on the subject 

we have mostly dealt with this morning, and I will ask those for 

the record. But I want to turn to the media shield discussion which 

you and I talked about on November 4th. You had indicated your 

willingness to address that at more length in a hearing, and I am 

hopeful that the Chairman will call a hearing at which you could 

express your views in more detail than you did in the views letter 

that was sent to us recently. 

Did you consult with Secretary Gates in determining to support 

the current version of the legislation, the media shield legislation? 

Attorney General HOLDER. Secretary Gates? 

Senator KYL. Yes, the Secretary of Defense. The reason I ask is 

that you said in your confirmation hearing that you would do so. 

Attorney General HOLDER. I believe we have had conversations, 

but I do not—I am trying to remember the extent to which I have 

59 

had this conversation. I do not think we have had a major conversation about this, but I think I have discussed it with him. 

Senator KYL. Well, the reason I ask is, I will just quote a small 

portion of the letter that he wrote to us concerning the bill. He 

said, ‘‘The bill would undermine our ability to protect national security information and intelligence sources and methods and could 

seriously impede investigations of unauthorized disclosures.’’ 

In view of that strong opinion—and, incidentally, he was joined 

in that by several other members, people in position of authority 

in our intelligence and national security community—it seems to 

me that it would be important for us to hear from them and certainly, Mr. Attorney General, for you to weigh their views before 

expressing absolute support for a bill which you say should not be 

amended in any additional way. 

Attorney General HOLDER. Well, I think, first off, the letter that 

you quote from Secretary Gates deals with a prior version of the 

bill. 

Senator KYL. It does indeed. There were a couple of major 

changes made—actually several changes, a couple of which in my 

view would, arguably, make the situation worse. But what I am 

going to propose is that we talk to all of the people who have expressed a view about the previous legislation since many of its provisions remain in the bill that you have supported. 

Did you consult with the FBI Director? 

Attorney General HOLDER. Yes, I have talked to Bob about that. 

Senator KYL. Did you tell him that this was going to be the result, or did you elicit his—did he express any concerns? 

Attorney General HOLDER. We certainly have discussed it. I 

know that he has taken a different position, at least with regard 

to a prior bill. I think that he understood the position that I took, 

and I think he accepted where I was coming from with regard to 

this present form of the media shield legislation. 

Senator KYL. I appreciate he had expressed as recently as September that his views were the same as previously expressed in opposition to the bill, which is why I asked. 

United States Attorney Patrick Fitzgerald, who has been commented on, has recommended that the law include another provision, and I want to just specifically ask you about this. It is in effect an offer of proof under which the information that is being 

sought by the Government would be provided to the court in camera, and only if the Government prevailed, utilizing all of the provisions of the law, would the information be then turned over. If the 

Government did not prevail, then obviously it would not. 

You have previously, again, in the confirmation hearing, said 

that that seemed like a reasonable requirement. Would you be open 

to having a provision like that added to the legislation? I know in 

your views letter you said you do not want to see any other amendments, but there are a few amendments, it seems to me, make 

sense, and that clearly is one that both you and I and Mr. Fitzgerald think is reasonable. 

Attorney General HOLDER. Well, the bill as it presently exists is 

a compromise, and I can—— 

Senator KYL. Excuse me. It is a compromise between the journalists and you all and Democratic Members of the Senate. Nobody 

60 

has talked to me, and I have been noting my concerns about this 

bill for a long time. 

Attorney General HOLDER. Well, I think this is right, but I think 

Senator Graham on the Republican side is a cosponsor. I believe 

that that is true. 

Senator KYL. That is right. None of us who are opposed to it 

were consulted when the so-called compromise was put together. I 

just wanted to make it clear in case you had any doubt about that. 

Attorney General HOLDER. Well, that is fair. That is fair. And so 

the views letter was to express the concern I think that we had 

that in its present form this is something that is satisfactory to us 

in law enforcement. 

Senator KYL. Could I just interrupt you? I have only got 19 seconds left. Just to make the point that I would hope you would be 

open to the suggestion that I just made and a couple of others, if 

I could bring those to your attention. 

And, last, your letter did not comment on the new, in effect, absolute privilege in one sense, and I am curious about why you—and 

would, again, elicit your views on that in the future if not today— 

on the privilege extending to protect those who actually violate 

Federal law by leaking the information itself. In other words, that 

act of leaking would be subject to the privilege, would be privileged. 

And I just wonder—the letter did not express itself on that, and 

that seemed to me to be new and odd, and I really wanted to get 

your views on that. 

Attorney General HOLDER. I did not see an absolute privilege to 

leak. I mean, it seems to me that there are provisions within the 

bill that deal with leaks and how they can be dealt with, and there 

are certain steps that the Government has to go through in order 

to prosecute or get information from a reporter in connection with 

a leak investigation. But I do not think that the steps that the Government has to go through are necessarily going to frustrate our 

efforts to identify and ultimately prosecute leakers. 

Senator KYL. Good. Then what I want to do, since I am over the 

time, is to show you Section 3 and have you show me why that 

does not provide, in effect, an absolute privilege here not to disclose 

information where the crime itself is the leak. I hope we will have 

a further opportunity to talk about that and some other concerns 

that I have about the bill. Thank you. 

Attorney General HOLDER. That is fine. 

One thing, if I could just add, in response to—Senator Kyl I 

guess was asking the question on behalf of Senator Grassley before. 

I did not mean to be flip when I said that I would consider the request about turning over the names of people who had previous 

representations that might conflict with their duties as Department 

of Justice attorneys. When I said I would consider it, I only meant 

to say that I do not know if there are ethical concerns with regard 

to attorney-client privilege and things of that nature and I needed 

to consider those before I would actually be able to respond to the 

question. So I was not trying not to be responsive or not taking seriously a question that was posed, I guess initially by Senator 

Grassley and then by you, Senator Kyl. I just wanted to talk to the 

experts back at the Department about whether there is an ethical 

concern in responding to the question. 

61 

Senator KYL. Thank you. I suspect that you and Senator Grassley will have more conversations about that. 

Senator KLOBUCHAR. [presiding.] Thank you, Senator. 

Senator Cornyn. 

Senator CORNYN. Thank you very much, Madam Chairman. I do 

not know if we are going to get through this or not, but let us try. 

I want to follow up on a question that Senator Specter asked 

about admissibility of evidence in deciding in which forum you 

would try these defendants. Is it your position that it is going to 

be easier to get evidence of their guilt in an Article III court than 

it would be in a military commission? 

Attorney General HOLDER. I am not sure I view it that way, 

what evidence would be used in the Article III courts in connection 

with the cases that I have already made the determination should 

go there as opposed to the way in which the military prosecutors 

wanted to conduct the case. 

Senator CORNYN. Well, surely you would not decide in your discretion to try a case in a tribunal where it would be harder to get 

actual conviction, would you? 

Attorney General HOLDER. No. I mean, what I take into account 

are all of the factors that are part of the protocol. 

Senator CORNYN. You mentioned the Marshals report on the potential venues where this case could be tried, and as you noted, a 

judge could, contrary to your wishes, contrary to my wishes, transfer to another venue other than New York City. Based on the Marshals report, in what other venues are you prepared to try this 

case? 

Attorney General HOLDER. Well, I asked the Marshals not to look 

at the entirety of the United States but really just to look at two 

districts and the courthouses in two districts and to make a determination as to where in those two districts the case could be best 

tried, and—— 

Senator CORNYN. And where was the other one? 

Attorney General HOLDER. I looked at the Eastern District of 

Virginia as well as the Southern District of New York. 

Senator CORNYN. And those are the only two? 

Attorney General HOLDER. Those are the two I asked the Marshals Service to look at. 

Senator CORNYN. When the detainees come to the United States, 

will they have some immigration status? 

Attorney General HOLDER. I am not an immigration expert. I do 

not know what their status might be. I am confident, however, that 

given the fact that they would be here under the supervision of and 

as a result of their being charged in a Federal court, that we would 

be able to detain them, that we would be able to hold them, as we 

would do anybody who is charged with such serious crimes. 

Senator CORNYN. Are you aware of any bar to their ability to 

claim asylum or argue that they should not be removed from the 

U.S. because of the Convention Against Torture? 

Attorney General HOLDER. Again, I am not an immigration expert. One can be paroled into the United States solely for this purpose, but there is no right to be here after. I cannot imagine a situation in which these people would be paroled into the United 

States for that purpose. 

62 

Senator CORNYN. So is it your position they will not be conferred 

rights that they did not previously have by virtue of their coming 

to the United States? 

Attorney General HOLDER. That is my belief, but, again, I am not 

an immigration expert. I am confident—my expertise deals more on 

the Department of Justice side, and I am confident that on that 

side we can detain them safely and prevent them from ever walking the streets of the United States. 

Senator CORNYN. I understand we cannot all be an expert in everything in the law. It is complicated. But will you acknowledge 

that it is possible—or let me ask you if you will look into whether 

if a detainee claims an immigration status by virtue of their presence on U.S. soil, it will allow them to immediately trigger tandem 

administrative and Federal judicial immigration proceedings? Will 

you look into that? 

Attorney General HOLDER. OK. I can look into that, because I 

would not be able to answer that question today. 

Senator CORNYN. And if the detainee is acquitted or there is a 

mistrial, let us say one juror decides to hang up this jury, on what 

basis do you believe that you can permanently detain Khalid 

Sheikh Mohammed or any other of the 9/11 detainees? Is that on 

the basis of a Supreme Court decision? On the basis of a statute 

that Congress has passed? What is the foundation of that belief? 

Attorney General HOLDER. Well, the initial determination that a 

judge would make for the detention of Khalid Sheikh Mohammed 

would be one that would last beyond a mistrial. If, for instance, 

there were a trial and a determination made—a hung jury, we 

would—I suppose the defense could move to have his detention status changed. It is hard for me to imagine that a judge, having 

heard the evidence and making that initial determination, as I am 

confident a judge would, to hold him, seeing that he is a danger 

and a flight risk, would then change that status of Khalid Sheikh 

Mohammed between the time of a hung jury and the next trial. 

Senator CORNYN. I believe the Supreme Court has held that you 

cannot indefinitely detain somebody under the Zadvydas case, but 

let me just ask a final question. Are you concerned that a judge 

may say you have made an election to try these terrorists as a 

criminal and you are bound by that election and you cannot go 

back and revert to the laws of war in order to claim that you can 

indefinitely detain that individual? Are you worried about that? 

Attorney General HOLDER. No, I am not. I think that under the 

Congressional provisions that we have and the laws of war, you 

cannot perhaps indefinitely detain somebody, but you certainly can 

detain somebody for lawful reasons. 

Again, I do not think that we are going to be facing that possibility. We are talking about very extreme hypotheticals, I believe, 

based on my understanding of the evidence and the law and the 

ability of our prosecutors to present a very strong case. 

Senator CORNYN. I hope you are right. 

Senator KLOBUCHAR. Thank you very much, Senator Cornyn, and 

we hope your voice improves. I know Attorney General Holder will 

join me in saying you are sitting dangerously close to Senator Graham, and we would never want to muzzle Senator Graham, so I 

hope it is not contagious. 

63 

Senator GRAHAM. I wish more people felt that way. 

[Laughter.] 

Senator KLOBUCHAR. Senator Graham. 

Senator GRAHAM. This is an important point here that, you 

know, the idea of preventive detention, I do not think Senator Feingold is high on that idea. But I am, not because I like keeping people in jail for the hell of it; I just think when you are at war and 

the people you have in your capture the commander-in-chief has 

determined through a rational process are part of the enemy force 

or may go back to the fight, that America is not a better place for 

letting them go. Do you agree with that general concept? 

Attorney General HOLDER. I agree with that general concept. It 

is something that the President talked about in his Archives 

speech, about the possibility of detaining somebody, again, pursuant to the laws of war and dialing in due process. 

Senator GRAHAM. Well, and I would like to help—do you believe 

that Congress needs to weigh in here, or do you have the authority 

as the executive branch to make that decision without any Congressional involvement? 

Attorney General HOLDER. I personally think that we should involve Congress in that process, that we should interact with, I 

guess in the first instance, this Committee in crafting a law on detention process or program. 

Senator GRAHAM. I totally agree with you, and, you know, obviously we parted ways on some of this, but these are not easy decisions, so I do not—you know, I think the Bush administration 

made their fair share of mistakes and also did some good things, 

too, and preventive detention is a concept only known in military 

law. 

Is there any theory under domestic criminal law where the Government can hold someone without trial indefinitely? 

Attorney General HOLDER. Indefinitely? 

Senator GRAHAM. Yes. There are speedy trial rights, which—— 

Attorney General HOLDER. There are speedy trial rights. I do not 

think that holding somebody—you can certainly preventively detain somebody with the expectation that there is going to be a trial 

without an adjudication of guilt. 

Senator GRAHAM. Right. And under military law, you can hold 

somebody without any expectation of trial if they are, in fact, part 

of the enemy force. That is the big difference, right? 

Attorney General HOLDER. Right. I mean, there is certainly 

precedent throughout history of holding combatants for the duration of the war. 

Senator GRAHAM. Right. And, Mr. Attorney General, my problem 

with what we are doing here is that—let us play this forward. In 

Afghanistan, Pakistan, you name the venue, in the future we capture a suspected al Qaeda member. Under your rationale, the decision as to whether they go into Federal criminal court or military 

commissions would not be known at the point of capture. Is that 

correct? You would make that decision later? 

Attorney General HOLDER. Yes, I think that is correct. 

Senator GRAHAM. Now, from the protocols that we would institute from the military side, what would you recommend that our 

military commanders, intelligence officials do at the point of capVerDate Nov 24 2008 09:56 Mar 31, 2011 Jkt 064953 PO 00000 Frm 00067 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\64953.TXT SJUD1 PsN: CMORC
64 

ture? Because under domestic criminal law, if that is where they 

wind up, once they are in the hands of the Government suspected 

of a crime, that is when custodial interrogation Miranda rights attach. Under military law, there is no such concept. Under military 

commissions, there is no requirement for Miranda warnings or Article 31 rights. You expect the person to be interrogated for military intelligence purposes, not worrying about the criminal aspects. 

What do we tell our soldiers and our commanders when they capture somebody about how to interrogate and when to interrogate? 

Attorney General HOLDER. Well, first I would say that, you 

know, this notion of when a person is in custody is something that 

there are lots of cases that people have to deal with and that the 

automatic capture of a person is not necessarily going to be viewed 

as in custody by our courts, though I think that is something we 

certainly—— 

Senator GRAHAM. If you were a defense attorney, would you not 

raise that? I mean, I would. I have no desire—— 

Attorney General HOLDER. Sure. 

Senator GRAHAM. But, you know, I would defend anybody because I think defending the worst among us makes us all better. 

So let me tell you what I would do, Mr. Attorney General. If you 

took my client who was suspected to be a member of al Qaeda and 

they were captured on the battlefield into Federal court, I would 

argue that at that moment in time any questioning of my client 

without Miranda warnings would be a violation of criminal domestic law. What would your answer be? 

Attorney General HOLDER. Well, it would depend again on the 

circumstances. You know, again, ‘‘in custody’’ is defined in a variety 

of ways, and that is something that we have to be sensitive to. 

Senator GRAHAM. In custody, custodial interrogation, you lose the 

freedom to leave? 

Attorney General HOLDER. That is certainly a factor. But I think 

what we have to understand is that these determinations are being 

made now and have been made during the prior administration 

with thousands of people who have been captured—— 

Senator GRAHAM. If I may, because our time is—no one in the 

past up until now has ever worried about this, because no one ever 

envisioned that the detainee caught on a foreign battlefield would 

wind up in domestic criminal court with the same constitutional 

rights of American citizens. They have never worried about that before. Now I think we have to seriously worry about that, and what 

I am afraid of is the war on terror has become a police action, and 

I think that undermines our National security. 

But at the end of the day, I look forward to working with you 

about what we can do with preventive detention and see if we can 

find a way forward as a Nation. Thank you. 

Senator KLOBUCHAR. OK. Thank you. 

Senator Sessions. 

Senator SESSIONS. Thank you, Madam Chairman, and I know 

you are knowledgeable about all these issues, but I would just say, 

Mr. Attorney General, that if a police officer stops someone on the 

street and his gun is in his holster and asks questions, that can 

be considered custody. If the individual has any sense they are not 

65 

free to go, then that is considered custody. I cannot imagine somebody captured on the battlefield not being considered in custody. 

I went through this with Mr. Mueller, the Director of the FBI, 

and eventually he flatly conceded that if you are going to try an 

individual in Federal civilian court and they are captured, you 

should give them Miranda warnings or the statements they make 

would probably be suppressed. I mean, that is the rule in civilian 

Federal courts. And it is not constitutional, the Supreme Court still 

says it must be given, but it is not really required by the Constitution. So the military commissions, that is one of the differences, I 

think, that we have in those matters. 

And Senator Graham is raising a point that you cannot avoid, 

and that point is, if the presumption is, according to the U.S. Department of Justice, your Department, that individuals who are 

terrorists would be tried in Federal court and not in military commissions, then it is almost an absolute requirement that people apprehended need to be given Miranda warnings and told they can 

have a lawyer and they do not have to talk. 

When our military is in a life-and-death struggle to win a victory 

over the enemy and one of the key things the 9/11 Commission 

drove home to us is that intelligence is the way to do that in this 

kind of battle we are in. So I think that that is not a matter that 

can be lightly dismissed. I also—— 

Attorney General HOLDER. Senator, I would not lightly dismiss 

it, but what I am saying is that we have a great deal of flexibility. 

I do not think that the military commissions are an illegitimate 

forum in which to bring these cases, and on a case-by-case basis 

what we would do would be to look at the admissibility of evidence, 

the quantum of evidence that could be introduced, and make that 

determination. That is one of the factors. Although there is a presumption of Article III, it is not an irrebuttable presumption, and 

the proof is in the pudding. Five of the people I talked about last 

week are going to go to military commissions as opposed to Article 

III courts. 

Senator SESSIONS. Well, if the presumption is these cases will be 

tried in civilian courts, then I do not know why the soldier he talks 

to on the battlefield is not instructed to give Miranda warnings. 

I would also just note that there has been a hostility by the 

President toward military commissions. For example, soon after 

taking office, he suspended military commissions immediately and 

later issued an order suspending all military commission trials, 

and we have not had one since. 

Attorney General HOLDER. But I do not think that necessarily indicates a hostility toward military commissions as opposed to a desire to perfect them, and I think that we are now in a position 

where we have a much improved military commission system that 

I think can stand on its own, that is legitimate, and in which we 

can place, as I have—— 

Senator SESSIONS. The Supreme Court did raise questions about 

the military commissions, and Congress passed some laws, I think, 

that improved that. But the Congress did some things that make 

it clear to me that normally for these kinds of cases, you are better 

trying them in the commissions. For example, reliable hearsay is 

available, so you do not have to bring people off the battlefield, perVerDate Nov 24 2008 09:56 Mar 31, 2011 Jkt 064953 PO 00000 Frm 00069 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\64953.TXT SJUD1 PsN: CMORC
66 

haps, and it is easier to have in camera hearings. We have them 

all the time in Federal court trials. But you have to have a real 

high reason to do that in a normal civilian trial to go in camera. 

They are on the record, of course. In the military commissions, you 

can go on the record, but in camera and take more evidence and 

protect our intelligence sources and methods better. I do not think 

there is any doubt about that. 

Anyway, I just would disagree there and would point out that 

General Mukasey has expressed concerns about New York City. He 

tried the blind sheikh case as a Federal judge, your predecessor, 

and he is afraid that New York City would ‘‘become the focus for 

mischief in the form of murder by adherents to Khalid Sheikh Mohammed.’’ That was his view of it. I do not think that is an irresponsible analysis. And do you remember the case involving Mr. 

Salim, who was a co-founder of al Qaeda, held in Federal court for 

the bombing of the Kenya and Tanzania murders? And he attempted to escape using tabasco sauce and pepper and put it in the 

eye of one of the guards and stabbed him in the brain with a makeshift knife and blinded him, and he is unable to fully speak today. 

I mean, these are dangerous people, and I would just ask you that. 

Two more things, and I will wrap up. Senator Coburn’s concern 

about medical marijuana, having been involved in that for many 

years, attempting to do what we could to drive down the use of illegal drugs in America, working with the Partnership for Youth and 

a Drug-Free Mobile and that kind of thing, I have seen a little bit 

of the history of it. We need to send that clear message, and we 

are sending a bad message with the medical marijuana laws. 

States are making a mistake when they do this, and the Federal 

Government really needs to speak out against it and show some 

leadership there. 

And, second, I really want to affirm that I will be supportive of 

your efforts to enhance medical fraud prosecutions and recoveries. 

Every President I think has tried to do something about it, but it 

is going to take a sustained effort, not just a press conference, over 

a period of years. And I think, Mr. Attorney General, with your experience both as a prosecutor and as a judge, you could probably 

help make this become more effective than it has been in the past. 

Attorney General HOLDER. Well, I think there are a number of 

U.S. Attorneys on this panel who, I think if we put our heads together, we can come up with an effective way in which we can deal 

with this problem of health care fraud. We need to ask ourselves 

some tough questions and be honest about the failures that we 

have had in the past in trying to do this. I think you are absolutely 

right that this is something that has to be sustained over time, 

which includes funding, maybe dedicated resources. But I think we 

will make money back on the provision of additional prosecutors, 

investigators, and people at HHS, auditors, to do these kinds of 

things. They will more than pay for themselves, and I think we 

should be cognizant of that. 

With regard to the concerns that you raise, just kind of in summary, I do believe that we can protect sources and methods within 

the Article III courts, and I would note, as I said in my opening 

statement, that the provisions designed to protect sources and 

methods in the military commissions are based on the CIPA Act 

67 

that we use in Article III courts. I have great respect for Judge 

Mukasey. He was, I think, a great Attorney General. He is obviously a great judge. He helped the healing process that has begun 

at the Justice Department. The only thing that he did not have at 

the Department, I think, was the gift of time. We owe him a great 

deal for starting to right the ship, and I am trying to continue the 

work that he began. 

But I disagree with him about New York. New York is—and this 

is not a secret—New York is a target for al Qaeda and for those 

who would do this Nation harm. I am not at all certain that the 

bringing of these trials necessarily means that New York is at 

greater risk. And with regard to what happened in the jail, that 

is an unfortunate, tragic incident that I think we probably have 

learned from, and I am confident that the marshals, the Bureau of 

Prisons officials who will be responsible for the detention of these 

individuals will handle them in a way that will be consistent with 

our values, but also allow them to protect themselves. 

I do not take lightly, though, the issues and the concerns that 

were raised by Judge Mukasey. He is a person I have great respect 

for—great respect for—and one of the things that I actually read 

in trying to make this determination was an article that he wrote, 

I believe it was for the Wall Street Journal—I am not sure—but 

I remember reading that article and kind of underlining things 

that he said and asking the people who were part of our group to 

respond to the things that Judge Mukasey had raised. That is the 

degree of respect that I have for him, both as a lawyer, a judge, 

and as a great Attorney General. 

Senator SESSIONS. Thank you. 

Senator KLOBUCHAR. Thank you very much, Attorney General 

Holder. I just wanted to follow up on a few of my colleagues’ questions. 

You were asked about evidence and if there were Miranda rights 

read or not. Could you just go through again this notion that you 

raised at the beginning that that is one of the considerations that 

you have when you look at whether you are going to use the military commissions or whether you are going to use Article III 

courts? 

Attorney General HOLDER. Yes. One of the things that we look 

at, one of the things that we consider is the admissibility issue, 

where can we get admitted the evidence that is going to be necessary to be most successful. And that is something that really is 

important in the determination that I made with regard to the use 

of the Article III courts concerning Khalid Sheikh Mohammed and 

his four colleagues. 

I would also say that the people in the field have been making 

this determinations about giving Miranda warnings or not for some 

time now. They have had thousands of people who have come into 

our custody; only a small number of them have been given Miranda 

warnings. And I have faith in the ability of the people in the field 

to make those kinds of determinations, and to the extent that there 

is a problem with regard to admitting a piece of evidence—and I 

think that is the other thing we have to remember. The trials that 

we will bring will not only be based on admissions, confessions, 

68 

there will be other ways in which we will prove the guilt of the people that we charge. 

So I have discretion, and I want to have the maximum use of the 

tools that I have been given by Congress and by the President in 

making these determinations, and on a case-by-case basis using the 

protocol that we have, that is what I will do. 

Senator KLOBUCHAR. And you said at the beginning of your testimony today, you talked about how you were being as forthcoming 

as you could be, describing your decisionmaking process. But you 

also said that there was some evidence you could not share with 

us today, which I think is always difficult for prosecutors—I know 

this from my own work—where you are, you know, explaining 

things to people and you want so much to tell them about the real 

factor that led you to a decision, but you cannot until the trial is 

going on or until the trial is over. Could you expand on that a little, 

not telling us what the evidence is, but explaining that there is 

some evidence that you cannot discuss right now in this forum? 

Attorney General HOLDER. Yes, there is really, from my perspective, very compelling evidence that I am not at liberty to discuss 

now that probably will not be revealed until we are actually in either a trial setting or perhaps a pretrial setting. Once these cases 

have been indicted, a judge has been assigned, motions perhaps 

have been filed to the extent—you know, at some point an Assistant United States Attorney will reveal that which I cannot talk 

about now, but the evidence that I am not talking about, as I said, 

I think is compelling, is not tainted, and I think will be proved to 

be decisive in this case. 

Senator KLOBUCHAR. Thank you. And then I wanted to move just 

last to some of these general issues. As we look at what you are 

facing, whether people on this Committee agree or disagree with 

some of your decisions, I think we are unified in wanting to give 

you the tools that you need to do your work. And there clearly have 

been issues in the past—you just raised this—with morale in the 

Justice Department. I think everyone knows that. And you mentioned and praised Attorney General Mukasey for some of the work 

that he did in trying to right that ship. I certainly know he worked 

hard with our Minnesota U.S. Attorney General’s office and with 

me and others in trying to fix some of the issues there. And I think 

that we are well on their way, as you know, with Frank McGill and 

now our newest appointee, Todd Jones, to do that. 

But could you discuss more generally at the Justice Department 

what you have been doing to work on this morale issue and improvements you think have been made? 

Attorney General HOLDER. Well, first, one of the things is to 

make people again believe in the mission of the Department and 

to reassure people that some of the unfortunate things that happened in the past and that are identified in the Inspector General 

reports, that that is not the way in which this Justice Department 

is going to be run—we are not going to be inventing things. It is 

not going to be a new way of doing things at the Department. It 

is really going to be a return to the old ways. 

I served as a line attorney in the Justice Department under Republican as well as Democratic Attorneys General and had great 

respect for all of them and the way in which they dealt with me 

69 

as a career person, and that is what I have tried to reassure people 

at the Department, that we are going back to that way of doing 

things, that they are only expected to do their jobs. There are no 

political consequences; there are no political litmus tests with regard to case decisions, with regard to who gets to be a lawyer at 

the Justice Department. This is the way things have always been 

done at the Department. It is the great tradition of a very, very 

special place that I have had the good fortune to be associated with 

most of my professional life. 

I think one of the things that would help with regard to morale— 

this is kind of an advertisement, I guess—would be for confirmation of those remaining Assistant Attorneys General who—I think 

we have three left now. To get them confirmed I think would help. 

To get U.S. Attorneys confirmed I think would help—— 

Senator KLOBUCHAR. Right, and I understand. I just checked this 

to get the numbers. We have three pending on the floor, and I am 

sure you would like to get those done, say, before Thanksgiving? 

That would be nice? 

Attorney General HOLDER. Tomorrow would be good. 

Senator KLOBUCHAR. OK. And then I think there are six pending 

before this Committee, and I am sure you would like to get those 

through this Committee, because when I look at your workload 

that you are facing here, not only with these newest trials, but 

with this major investigation going on at Fort Hood, with the Medicare fraud that we all want you to focus on, as every person in this 

country should want you to do, with the new and revived focus on 

white-collar crime, which I think is long overdue, from the Madoff 

case, which I think that has been completed here, but there are offshoots from that, and there are other white-collar cases all across 

the country, to not have, you know, some of these nominations 

clogged up a bit here just cannot be what you want. And so I know 

I want to move forward on those as soon as possible as well as any 

personnel that you need in the Justice Department. 

Attorney General HOLDER. I appreciate that. 

Senator KLOBUCHAR. All right. Thank you very much. You have 

one more thing, Senator Sessions. 

Senator SESSIONS. One thing. I offered for the record a letter earlier, and I failed to note that—from the 9/11 victims that, according 

to their letter, when word of the letter got out, some 3,000 firefighters across the country joined us and added their names; less 

than 24 hours after the Attorney General’s announcement last Friday, 100,000 people signed our letter before our computers crashed. 

And this is the box of signatures and confirmations. I just feel like 

I should make that statement for the record because I do think the 

victims felt strongly about it, and they are asking that the Attorney 

General reconsider. 

Attorney General HOLDER. Well, there certainly have been those 

who have opposed the decision that I made. There have been many 

people who have supported it as well. I expected that when I made 

the decision. These are tough decisions that an Attorney General 

is called upon to make, and all I can do is look at the evidence, 

look at the facts, and look at the law and try to make the best decision that I can. And I hope people would understand that. 

70 

Senator KLOBUCHAR. Thank you very much, Attorney General 

Holder. I want to thank you for so thoroughly and respectfully answering all the questions from the members of this Committee. I 

want to thank those who have been very respectful in the gallery 

here as well. I know that not all of you agree with every decision 

here, but I want to thank you for your respect. And for those of you 

who are family members, firefighters, thank you so much for your 

service. And as Senator Schumer said, we cannot even imagine 

what you have been going through, so I want to thank you for that. 

And I think we would all agree in this room that we want you, 

Attorney General Holder, to go back and whatever disagreements 

there may be, but to make sure you put the best people on this 

case, that they do their work, that we get the toughest penalties 

here, and we wish you well. So thank you very much, Attorney 

General. 

Attorney General HOLDER. Thank you. 

Senator KLOBUCHAR. The record will stay open for 1 week for 

this hearing, and the hearing is now adjourned. Thank you. 

[Whereupon, at 1:37 p.m., the Committee was adjourned.] 

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

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