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54–719 PDF 2010

S. HRG. 111–268 

OVERSIGHT OF THE U.S. DEPARTMENT OF 

JUSTICE 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

JUNE 17, 2009 

Serial No. J–111–30 

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 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

RON WYDEN, Oregon 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MATT MINER, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland, prepared statement ................................................................................................... 128 

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

prepared statement .......................................................................................... 143 

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

prepared statement .......................................................................................... 145 

WITNESSES 

Holder, Eric H., Jr., Attorney General, Department of Justice, Washington, 

D.C. ........................................................................................................................ 7 

QUESTIONS AND ANSWERS 

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

Feingold, Schumer, Whitehouse, Wyden, Hatch, Grassley, Kyl and Coburn .. 59 

SUBMISSIONS FOR THE RECORD 

Holder, Eric H., Jr., Attorney General, Department of Justice, Washington, 

D.C., statement .................................................................................................... 129 

(1) 

OVERSIGHT OF THE U.S. DEPARTMENT OF 

JUSTICE 

WEDNESDAY, JUNE 17, 2009 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:02 a.m., in room 

SD–226, 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, Sessions, Hatch, Kyl, Graham, Cornyn, and Coburn. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. I was talking with Senator Sessions just a couple of minutes ago. Like so many of us, he has to vote in another 

Committee, and I told him for a traditional opening statement, the 

Ranking Member, once he arrives, we will yield to him. But he said 

he had no objection to us going ahead. 

I do welcome Attorney General Holder back to the Senate Judiciary Committee. I do enjoy welcoming him as Attorney General and 

not as the nominee for Attorney General. And I want to commend, 

you, Mr. Attorney General, and your team for your hard work and 

your commitment to the task, an absolutely vital task in this country, to restore the Department of Justice back to being the Department of Justice. 

We have all talked on both sides of the aisle about the political 

manipulation that had occurred previously with the Department of 

Justice, particularly its law enforcement and civil rights functions, 

that struck a devastating blow to the credibility of Federal law enforcement and undermined the people’s faith in our system of justice, something that if that happens in a democracy it can be almost a fatal blow to democracy. So you have been given the job of 

restoring that trust, and I thank you for the start. 

You have recommitted the Department to aggressive investigation and prosecution of mortgage and financial fraud, and I am confident you will implement the Fraud Enforcement and Recovery 

Act, which was signed into law by the President a few weeks ago 

and backed by virtually everybody on this Committee. 

The Attorney General also recognized the need to include Federal 

assistance to State and local law enforcement in the Economic Recovery Act and is now working hard to get needed resources out to 

2 

our States and our cities and our towns to keep our communities 

safe and to strengthen economic recovery. 

It is my hope that the Justice Department will work with this 

Committee, with the Judiciary Committee, on such important 

issues as the state secrets privilege, shielding members of the press 

from being forced to reveal their sources, passing hate crimes legislation, and effectively cracking down on health care fraud. In addition, our Subcommittees are hard at work on a wide range of issues 

ranging from comprehensive immigration reform to the reauthorization of the PATRIOT Act. 

I have no bones of the fact that I have been troubled to see the 

continuation of the Bush administration’s practice of asserting the 

state secrets privilege in an attempt to shut down lawsuits. I believe that accountability is important and that access to the courts 

for those alleging wrongdoing by the Government is crucial. I support making use of the many procedures available to the courts to 

protect national security rather than completely shutting down important cases without true judicial review. I hope, Mr. Attorney 

General, that you will work with me and others on this Committee 

to find a mutually acceptable solution to what I see as an unacceptable situation. 

An issue on which I believe Attorney General Holder has shown 

great courage in the face of political pressure is his commitment to 

the process of safely and effectively closing the detention facility at 

Guanta ́namo Bay. I think this step will bring to an end a disgraceful period in our country’s history but also, more importantly, will 

help to restore our commitment to the rule of law and our reputation in the rest of the world. 

I believe strongly that we can ensure our safety and security. We 

can bring our enemies to justice. We can do it in ways that are consistent with our laws and our values. When we have strayed from 

that approach—when we have tortured people in our custody, when 

we have sent people to other countries to be tortured, or held people for years without even giving them the chance to go to court 

even to argue that, ‘‘Look, you picked up the wrong person’’—then 

we have hurt our national security immeasurably. 

Changing our interrogation policies to ban torture was an essential first step. By shutting the Guanta ́namo facility down and restoring tough but fair procedures, I think we can restore our image 

around the world, and we have to do that if we want to have a 

strong national security policy. 

Recent debate has focused on keeping all Guanta ́namo detainees 

out of the United States. I believe in that debate, political rhetoric 

has drowned out reason and reality. Our criminal justice system 

handles extremely dangerous criminals, and more than a few terrorists, and it does so safely and effectively. We are the most powerful Nation on Earth. We ought to be able to handle the worst of 

criminals. 

We have tried very dangerous people in our courts. We hold very 

dangerous people in our jails and prisons, from the little State of 

Vermont throughout the Nation. We have tried terrorists of all 

stripes in our Federal court system. Think of Oklahoma City bomber Timothy McVeigh, or Sheikh Omar Abdel-Rahman and others 

who planned the 1993 World Trade Center bombing, or Zacarias 

3 

Moussaoui. Senator Graham on this Committee, an experienced 

military prosecutor himself, said recently, ‘‘The idea that we cannot 

find a place to securely house 250-plus detainees within the United 

States is not rational.’’ 

We have spent billions of dollars on high-security facilities. We 

can do that. 

Now, key questions remain. Prolonged detention and military 

commissions, both of which are being discussed by the administration, carry with them the risk of abuse, and I expect, Attorney General, that you and President Obama will face these issues with the 

same commitment to our Constitution, our laws, and our values, 

and the same dedication to our security that you and the President 

have shown so far. I trust you will work with us to find the right 

solutions to these problems. 

Another area where we have to rapidly come together is the 

sadly resurgent problem of hate crimes. Last week’s tragic events 

at the Holocaust Museum, together with other recent incidents, 

have made it all too clear that violence motivated by bias and by 

hatred remains a serious problem with tragic real-world consequences. Senator Kennedy and I, together with a strong bipartisan group of cosponsors across the political spectrum, have once 

again introduced a bill that will take substantial and important 

steps to strengthen our enforcement of hate-based violence. It was 

crafted with due consideration of the First Amendment so that only 

those who engage in brutal acts of violence will be culpable. It has 

been stalled for too long. I believe it is now time to act. I know you 

have supported this. I know the President has. 

You have made important steps toward ensuring a more open 

and transparent Government. You have implemented a much improved Freedom of Information Act policy. I know Senator Cornyn 

and I have worked together on this for years, and I hope the direction will continue. 

I have thrown out a whole lot of things, but I think it is an important hearing, and I was talking a little longer than I was going 

to because I was waiting for Senator Sessions to come back. He is 

here, and I will put my full statement in the record. I yield to Senator Sessions. 

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

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Mr. Chairman, and I appreciated 

the opportunity to discuss with you some of the details of the confirmation hearing for Judge Sotomayor, and maybe we can develop 

a good plan for that. 

Attorney General Holder, I am glad you are here today to address the Committee as we fulfill our oversight responsibility for 

the Department of Justice. The Department plays a critical role in 

protecting the rule of law and preserving national security, and it 

must be free from political pressures and ideological excess. 

Mr. Holder, I supported your nomination to be Attorney General. 

I think I was in the minority in my party by doing so. But I do 

so because I believed that your previous experience within the Department would serve to elevate the Department and its mission 

4 

above politics and bad policy, and I was assured by your promises 

during the confirmation process to that effect. 

So it is difficult for me to tell you this: I am disappointed. During 

your confirmation hearing, you promised to adhere to the Constitution and put the rule of law over political or other considerations. 

You said you had learned from the past and that you would not return to pre-9/11 criminal law concepts in protecting the American 

people from terrorist attacks. You told Senator Lindsey Graham 

that you agreed with him that, ‘‘Every person who commits to 

going to war against America or any other peaceful nation should 

be held off the battlefield as long as they are dangerous.’’ And I do 

not think your actions that we have seen so far are consistent with 

that commitment. 

Since your confirmation, you have done a number of things, I 

think, that you pledged not to do. Time and again I find myself 

reading about political appointees who have overruled career Department attorneys to further some agenda or left-wing activity. 

One such instance came when you rejected the Office of Legal 

Counsel’s conclusion that Congress’ recent legislation on District of 

Columbia voting was unconstitutional, as it appears plainly to be. 

During your confirmation hearing, you emphasized that your review of OLC opinions would not be a political process. So when 

OLC, the Office of Legal Counsel, which is assigned this responsibility, had prepared an opinion for you that said that Congress’ legislation was unconstitutional, I would have expected you to have 

listened to their opinions and followed them, or to have explained 

precisely why you did not. Instead, you moved around them and 

sought a second opinion from the Solicitor General’s office, an office 

that is really required to defend whatever is passed, and asked 

them for their legal advice. 

You again, I think, followed pressure from the left to override 

common sense when you allowed the Department of Justice to release OLC opinions regarding interrogation, even though high-profile members of the intelligence community warned you that it was 

unwise to do so. Former Attorney General Michael Mukasey, a 

former Federal judge who has tried terrorism cases, and CIA Director Michael Hayden wrote a joint op-ed in the Wall Street Journal 

stating that the release of the memos would be ‘‘unnecessary as a 

legal matter’’—and I think they are clearly correct there—and ‘‘unsound as a matter of policy.’’ And I think that is correct. They predicted that the effect of the memos’ release ‘‘will be to invite the 

kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past and that we came sorely to 

regret on September 11, 2001.’’ 

The lawful and wise thing to do would have been to keep our secrets secret, yet you did not. Instead, you have now given a critical 

piece of information to our enemies. 

Just in the last 3 weeks, I received word again that, on May 

29th, the Washington Times had reported that the Department of 

Justice voluntarily dismissed a case against three Black Panther 

members for voter intimidation outside a polling place in Pennsylvania. In that case, three Black Panthers wore military-style uniforms, one armed with a nightstick, and used racial slurs to scare 

would-be voters at the polling location. Bartle Bull, a long-time 

5 

civil rights activist, called the conduct ‘‘an outrageous affront to 

American democracy and the rights of voters to participate in an 

election without fear.’’ 

DOJ had been working on the case for months and had already 

secured a default judgment on April 20, 2009. Inexplicably, political 

appointees at the DOJ overruled career attorneys, dropped the 

case, dismissing two of the men from the lawsuit entirely with no 

penalty, and won an order against the third man that simply prohibits him from bringing a weapon to future elections—something 

that is already prohibited. 

Instead of supporting the career attorneys who fought to protect 

the civil rights of voters in Pennsylvania, the political officials in 

the Department of Justice wiped out their good work. This flies in 

the face of your statement at your confirmation hearing about career attorneys at the Department that you would ‘‘listen to them, 

respect them, and make them proud of the vital goals we will pursue together.’’ 

It also, I think, contradicts your statement during your confirmation hearing that, ‘‘The Justice Department must also defend the 

civil rights of every American.’’ 

Another concern that this Committee raised with you during confirmation was whether you would operate under pre-9/11 criminal 

law mind-sets when fighting terrorists. You assured the Committee 

that you learned from the past, and that you would do your best 

to aggressively continue the war on terror. In fact, you listed as 

your first priority as Attorney General that you would ‘‘work to 

strengthen the activities of the Federal Government and to protect 

the American people from terrorism.’’ Yet, instead of taking the 

lead in protecting the American people, you have enacted some 

poor policies and stayed silent on other issues of importance. 

One primary example of this pre-9/11 mind-set is a recent report 

that the Obama administration is requiring that enemy combatants 

in Afghanistan be given Miranda warnings. Last week, Michigan 

Congressman Mike Rogers revealed that the administration had 

begun administering Miranda rights to enemy combatants detained 

in Afghanistan. Just this March, in a ‘‘60 Minutes’’ interview, 

President Obama mocked the giving of Miranda warnings to enemy 

combatants. He said, ‘‘Now, do these folks deserve Miranda warnings? Do they deserve to be treated like a shoplifter down the 

block? Of course not.’’ 

So what has changed in 3 months? The administration’s new Miranda approach to battlefield detainees will inevitably hamper intelligence gathering in the war on terror. Even though the new approach is something founded and intended to preserve a Federal 

court criminal prosecution, it is not necessary because we can use 

and should use and historically have used the military commission 

for battlefield captures. 

Under the Obama administration’s global justice initiative approach, even captured high-level al Qaeda operatives may be advised that they may remain silent and seek counsel before talking. 

According to Congressman Rogers, this has already begun to 

have an adverse effect. The International Red Cross has begun advising detainees, ‘‘Take the option. You want a lawyer.’’ The Weekly Standard reported, ‘‘In at least one instance, a high-level deVerDate Nov 24 2008 10:45 Feb 23, 2010 Jkt 054719 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54719.TXT SJUD1 PsN: CMORC
6 

tainee has taken that advice and requested a lawyer rather than 

talking.’’ 

Likewise, the American people remain in limbo as they have 

waited for your word about whether detainees at Guanta ́namo 

would be transferred into the United States. I think we got a letter 

from you either last night or this morning on that finally. The solutions that you have suggested, I think, are dangerous. In March, 

you said some detainees could be released into the United States. 

A few days later, the Director of National Intelligence expanded 

your statement to say, ‘‘Some sort of public assistance for them is 

necessary to start a new life.’’ The American people deserve to 

know what the plan is and how you are going to protect national 

security. 

I think you should have weighed in on dangerous legislation such 

as the State Secrets Act and the media shield law that has been 

opposed by your predecessors, and you have stood silent on bills 

that need to be passed this year, such as the reauthorization of the 

PATRIOT Act. We need your support on that. So I think you need 

to take the lead in a number of these areas. 

Mr. Holder, I am disappointed and I am worried. I do not think 

the American people are happy with the agendas that we are seeing now. I think these are very serious matters. When the Office 

of Legal Counsel attorneys told you something was unconstitutional, I am not happy that you ignored that and went around 

them. When security officials came to you and said, ‘‘We should 

keep our interrogation methods confidential,’’ you said no. When 

the civil rights of Americans were trampled on by members of the 

Black Panther Party at the voting place, you let the offenders get 

away. And as the American people look to you to lead in the war 

against terrorism, you have remained too silent. You even granted 

the release of dangerous detainees, including Jose Padilla’s alleged 

accomplice and another detainee who reportedly killed an American diplomat. 

There are some things that you are doing, I think, that deserve 

commendation. Your Department has defended the Nation’s secrets 

this year at least three times in Federal courts by invoking the 

state secrets privilege. That is something you need to do and it is 

right. In standing up for our Nation’s secrets, you faced a lot of 

criticism, I know, from the left. But I think you did the right thing. 

I am encouraged that you listened to Members of Congress and 

the intelligence community to oppose the release of interrogation 

photos. I thought the suggested release was an awfully unwise 

thing. The release of these photos was not necessary, and it would 

have placed American soldiers at greater risk. 

So even though I am disappointed by your long delay in answering my question about the Uyghurs, I am encouraged that you understood that there is not a legal authority to release them into the 

United States. 

So as I said at the time of your confirmation, I respect you. You 

know this Department well. I support you. I want you to succeed. 

I want to do what I can to help you. But some of these decisions 

you made are baffling to me. I do not think they are good. I think 

they will set a precedent for the future that is also not good. 

7 

I love the Department of Justice. I spent 15 years in it. I have 

the highest ideals for it. I hope that you will begin to evaluate 

some of these matters more critically, and sometimes you are going 

to have to tell people in the administration no, as you and I discussed during your confirmation. 

So I look forward to your testimony today, and you will be given 

a full opportunity to respond. And I want to tell you again: I believe we can work together on some important things, but I am 

troubled at this time. 

Chairman LEAHY. As you may have gathered, Attorney General 

Holder, there are somewhat differing views by the two leaders of 

this Committee. But we will let you speak for yourself. Please go 

ahead. And your full statement will be made part of the record, but 

go ahead. 

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

GENERAL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Attorney General HOLDER. Good morning, Chairman Leahy, 

Ranking Member Sessions, and Members of the Committee. Thank 

you for the opportunity to appear before you today to highlight the 

work and priorities of the United States Department of Justice. I 

would also like to thank you for your support of the Department. 

I look forward to working with the Committee and appreciate your 

recognition of the Department’s mission and the important work 

that we do. 

In the 41⁄2 months that I have been in office, we have begun to 

pursue a very specific set of goals: working to strengthen the activities of the Federal Government that protect the American people 

from terrorism within the letter and spirit of the Constitution; 

working to restore the credibility of a Department badly shaken by 

allegations of improper political interference; and reinvigorating 

the traditional missions of the Department in fighting crime, protecting civil rights, preserving the environment, and ensuring fairness in the marketplace. 

Now, before answering your questions, allow me to talk briefly 

about several of our current initiatives. I have also provided more 

detail on each of them in my written statement. 

The highest priority of the Department is to protect the American people against acts of terrorism. Working with our Federal, 

State, and local partners, as well as international counterparts, the 

Department has worked tirelessly to safeguard America and will 

continue to do so. 

We will continue to build our capacity to deter, detect, and disrupt terrorist plots and to identify terrorist cells that would seek 

to do America harm. And we are committed to doing so consistent 

with the rule of law and with American values. 

Consistent with our commitment to national security as the Department’s No. 1 priority, we are leading the work set out by the 

President to close Guanta ́namo and to ensure that policies going 

forward for detention, interrogation, and transfer of detainees live 

up to our Nation’s values. Congress has expressed strong views on 

this subject in the supplemental appropriations bill and elsewhere. 

We will continue to work with the legislative branch to ensure that 

8 

the appropriate disposition of individuals currently detained after 

the Guanta ́namo Naval Base occurs. 

The Department has developed and begun to implement a multipronged approach to confront the threat posed by the Mexican cartels and to ensure the security of our southwest border. Addressing 

the southwest border threat has two basic elements: policing the 

actual border to interdict and deter the illegal crossing of contraband goods, and confronting the large criminal organizations operating on both sides of the border. Our strategy involves using Federal prosecutor-led task forces that bring together Federal, State, 

and local law enforcement agencies to identify, disrupt, and dismantle the Mexican drug cartels through investigation, prosecution, and extradition of their key leaders and facilitators, and seizure and forfeiture of their assets. 

The Department is also fully committed to defending the civil 

rights of every American, and we are rededicating ourselves to implementing the range of Federal laws at our disposal to protect 

rights in the workplace, the housing market, and in the voting 

booth. I have made restoring the proper functioning of the Civil 

Rights Division a top priority for this Justice Department. 

Now, as many Americans face the adverse effects of a devastating economy and an unstable housing market, the administration announced a new coordinated effort across Federal and State 

government and the private sector to target mortgage loan modification fraud and foreclosure rescue scams. The new effort aligns 

responses from Federal law enforcement agencies, State investigators and prosecutors, civil enforcement authorities, and the private 

sector to protect homeowners seeking assistance under the administration’s Making Homes Affordable Program from criminals looking to perpetrate predatory schemes. 

I appreciate the Committee’s work in enacting the Fraud Enforcement Recovery Act which will enhance the Department’s 

criminal and civil tools and resources to combat mortgage fraud, securities and commodities fraud, money laundering, and to protect 

taxpayer money that has been expended on recent economic stimulus and rescue packages. 

With the tools and the resources that the bill provides, the Department and others will be better equipped to address the challenges that face this Nation in difficult economic times and to do 

their part to help the Nation respond to this challenge. In addition, 

the Department has been investigating and prosecuting financial 

crimes aggressively and has been very successful in identifying, investigating, and prosecuting massive financial fraud schemes, including securities and commodities market manipulation and Ponzi 

schemes. 

As part of the administration’s ongoing commitment to fiscal responsibility and accountability, the Department is working with 

the Department of Health and Human Services to combat the tens 

of billions of dollars that are lost every year to Medicare and Medicaid fraud. Those billions represent health care dollars that could 

be spent on services for Medicare and Medicaid beneficiaries, but 

instead are wasted on fraud and abuse. The Secretary of Health 

and Human Services, Kathleen Sebelius, and I have launched a 

new effort to combat fraud that will have increased tools and reVerDate Nov 24 2008 10:45 Feb 23, 2010 Jkt 054719 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54719.TXT SJUD1 PsN: CMORC
9 

sources and a sustained focus by senior leadership in both of our 

agencies. 

We recognize that health care fraud has a debilitating impact on 

our most vulnerable citizens—the elderly and those in long-term 

care facilities. Our Elder Justice and Nursing Home Initiative coordinates the activities of our attorneys and agents throughout the 

country to better understand and address the abuse, neglect, and 

financial exploitation of these victims and to bring to bear the full 

weight of my Department to ensure that these types of crimes are 

prevented and/or prosecuted. 

Finally, the American Recovery and Reinvestment Act of 2009 included $4 billion in Department of Justice grant funding. This 

funding is being used to enhance State, local, and tribal law enforcement efforts, including the hiring of new police officers to combat violence against women and to fight Internet crimes against 

children. In addition, it will help reinvigorate the Department’s traditional law enforcement missions, a key element of which is partnerships with local, State, and tribal law enforcement agencies, 

and is vital to keeping our communities strong. 

Chairman Leahy, Ranking Member Sessions, and members of 

the Committee, I want to thank you again for this opportunity to 

address the Department of Justice’s priorities, and I would be 

pleased to answer any questions that you might have. Thank you. 

[The prepared statement of Attorney General Holder appears as 

a submission for the record.] 

Chairman LEAHY. Thank you very much. 

Incidentally, there was some mention of the new Black Panther 

Party. I understand that a career attorney in the Department’s 

Civil Rights Division made the final decision regarding which defendants to charge and which defendants to dismiss. That is a career employee who was there during the Bush administration and 

past administrations. I just thought I would point that out so that 

it does not end up—I just want to have the facts here. 

And I am also glad the Department has decided to seek an injunction and civil penalties against the person who was charged 

with intimidating, again, career decisions being made. 

It would be helpful if we had the President’s nominee in the Civil 

Rights Division—and I would also note that we do not have that— 

to make these kind of decisions because my friends in the Republican Party have so far held up that nominee from confirmation. 

I want to make sure we have accurate views of what is happening. 

Now, last week’s tragic shooting at the Holocaust Memorial Museum here in Washington reminded us of the ongoing serious problems of violence motivated by bias and hatred. Certainly the reports I received both in open sources and in classified areas show 

that the number of hate groups is growing, and their positions are 

hardening. I think we have to strengthen the hand of law enforcement to respond to these very vile threats and vile crimes. 

A report issued yesterday by the Leadership Conference and 

Civil Rights Education Fund noted an increase in hate crimes in 

recent years linked to the rise in extreme anti-immigrant rhetoric 

on the Internet and throughout the country. In this free country of 

10 

ours, it is a blot to see these hate crimes. We should do everything 

we can to stop them. 

The Matthew Shepard Hate Crimes Prevention Act of 2009 

would give Federal as well as State and local law enforcement additional tools to prosecute hate crimes. It is long overdue. We owe 

it to the memories of Officer Stephen Johns, the murdered guard 

at the museum, and Matthew Shepard and so many others. 

Do you agree that this Hate Crimes Prevention Act that we have 

had pending for some time is a good tool for investigators and prosecutors? 

Attorney General HOLDER. Absolutely, Mr. Chairman. If there 

was ever a doubt about the need for this legislation, I think that 

has been pretty much done away with by the events that we have 

seen in our Nation here in Washington, D.C., what we saw in Kansas, and what we saw in Arkansas as well. Also, if you look at the 

statistics that indicate there has been a rise in hate crimes over 

the last few years, I am particularly troubled by the amount of 

hate crime violence that has been directed at Latinos. 

Ten years ago, I testified in favor of this bill, which is, I think, 

limited in its scope but rational in what it is trying to do. It expands the scope of the Federal hate crimes legislation to include 

gender, disability, sexual orientation, and does away with what I 

believe are unnecessary jurisdictional requirements and would 

allow the Federal Government to assist State and local counterparts in prosecuting and investigating these offenses. I think the 

time is right, the time is now for the passage of this legislation. 

Chairman LEAHY. Thank you. Last year, we passed the Foreign 

Intelligence Surveillance Amendments Act of 2008. I had objected 

to it because I felt there was a lack of adequate protections in it. 

Today, the New York Times is reporting that the National Security 

Agency is violating even the very permissive standards imposed by 

our collection authorities. It is collecting and reading immense 

numbers of e-mails to and from United States citizens, being done 

without any warrants. It calls to mind the abuses that we discovered in the FBI’s use of national security letters. 

I do not know how we justify continuing these expansive authorities, whether it is FISA or the search powers authorized by the PATRIOT Act, when they are being—even the expanded authorities 

are being abused this way. 

What is the Justice Department doing looking into these reports 

of abuse? 

Attorney General HOLDER. Well, the Department works closely 

with our partners in the intelligence community to ensure that national security is conducted in a way that is consistent with the 

legal authorities that are designed to protect privacy and our civil 

liberties. 

There is a framework, I believe, that we always try to follow. 

Congress establishes statutory safeguards in a variety of statutes, 

among them FISA. The Department of Justice and the intelligence 

agencies follow strict regulations when we actually do this surveillance. There are strict policies and guidelines. 

Chairman LEAHY. But the article today—and the concern I have 

is that more and more we find out about these kinds of abuses not 

from the intelligence agencies, not from our Government, but by 

11 

picking up the newspaper. We are reaching a point where we mark 

the New York Times ‘‘Top Secret’’ and we get the information 

quicker, we get it in more detail, and we get the crossword puzzle. 

I mean, what are we doing to correct that? Because if this continues, I do not know how we reauthorize any of these things if 

they are going to be abused that way. 

Attorney General HOLDER. Well, the Department and the intelligence agencies take very seriously the requirements that we are 

supposed to follow. In at least a couple of instances where the problems were detected by those of us in the Department, we halted the 

programs, informed the FISA Court, informed members of the Intelligence Committee and members of this Committee about what 

we had found, corrected the problem, and only after all those 

things had occurred did I reauthorize the beginning of the program 

again. 

Now, I have not had a chance to review in any great detail the 

article that appeared in the New York Times—— 

Chairman LEAHY. I wish you would because also I wrote to you 

about 3 months ago to ask you to provide the Department’s legislative proposals for extending or modifying PATRIOT Act authorities. 

We really need that answer. It has been raised on both sides of the 

aisle. If we are going to reauthorize it, we want to know what the 

Department wants. And I would hope that you would look at this 

article. I found it very troublesome because I have heard similar 

rumblings, and it is the first time I have seen it in any kind of detail. If the article is accurate, then we have some real problems. 

And we want us to be secure. We want us to be able to use the 

abilities to gather intelligence. But we also want Americans who 

are not the subject of any criminal investigation or terrorist investigation to at least feel they can send e-mails back and forth to 

their families and their friends and their businesses without it 

being read by somebody who is just having fun doing it. 

We had similar things when we saw the IRS looking through 

people’s reports because of interest, and this goes way beyond that. 

And I hope you will look into it, and I would also hope you will redouble your efforts to work with me on a media shield bill. 

I have gone over my time. I yield to Senator Sessions. But it is 

a matter—did you want to respond to any of that? 

Attorney General HOLDER. Well, I think all I would say is that 

with regard to PATRIOT Act reauthorization, I know that some 

members are frustrated at the lack of a position, at least at this 

point, with regard to those measures. And I think that what we 

have seen in the paper today is an indication of at least some of 

the things that we need to look at and consider. And one of the reasons why I think we have not yet settled on a firm position, we 

want to take into account how these measures have been used, see 

if there are issues/problems with the way in which they have been 

used before. We take a final position—I know they do not expire 

until December, and I know the time grows short. But to base our 

position on as much experiential information as we can I think is 

a wise course. 

Chairman LEAHY. Senator Sessions. 

Senator SESSIONS. Mr. Chairman, I just would say that with regard to these intercepts, legally I do not think there would be any 

12 

difference between intercepting an e-mail as part of a legitimate 

foreign intelligence operation and intercepting a telephone call. 

And there is no exceptional preference due one or the other, it 

seems to me. And we have wide authority to do that in foreign intelligence dealing with foreign intercepts. 

Senator COBURN. Mr. Ranking Member, would you mind yielding? I read the New York Times article this morning. I do sit on 

the Intelligence Committee, and I will assure you there are inaccuracies in that report. And the assumption that it is right is an 

erroneous assumption. 

Senator SESSIONS. Well—— 

Chairman LEAHY. As the Senator knows, I said in my question 

I asked him, if the article is right. 

Senator COBURN. It is not right. 

Chairman LEAHY. Well, I would like to hear this from the Attorney General. 

Senator SESSIONS. Thank you, Senator Coburn. I would offer for 

the record Senator Grassley’s statement, and, Mr. Holder, I have 

been disappointed that you have been so late in responding to my 

letter about the Uyghurs. Senator Grassley specifically says that he 

has three letters that have gone unanswered by the Department, 

and he has serious concerns about that. I am sure you will want 

to address that. 

Mr. Chairman, I would just briefly note, with regard to the hate 

crimes legislation, that I would suggest we have a hearing on that. 

It is a matter that is worthy of our attention, and I would offer for 

the record a June 16, 2009, letter from the United States Commission on Civil Rights. I believe six of the eight members signed it, 

and they write to us and the President and Vice President urging 

that we vote against the Hate Crimes Prevention Act. They think 

it will do ‘‘little good and great harm.’’ So I would offer that for the 

record, and hopefully we will be able to have a hearing and not just 

have it pop up in legislation on the floor. 

Mr. Holder, on January 22nd, President Obama signed an Executive order to establish procedures to close the Guanta ́namo detention facility and to review the case of every detainee to determine 

whether the detainee should be transferred, released, prosecuted, 

or handled in some other way. 

The Executive order makes clear that you as the Attorney General are the person responsible for coordinating the review, and I 

guess the other agencies of the Government, too. 

Do you agree that, as the person in charge of this Guanta ́namo 

task force, you bear responsibility for the release or transfer of detainees from Guanta ́namo Bay? 

Attorney General HOLDER. I think I bear responsibility along 

with the other Cabinet members who make up the principles committee, but I think I am primarily responsible for it, yes. 

Senator SESSIONS. They are looking to you to coordinate, at least, 

and file the consensus or set the agenda. The administration has 

released or transferred some controversial figures already without 

any form of military commission or criminal time. For example, on 

Friday, the administration transferred Ahmed Zuhair to Saudi Arabia. Zuhair is allegedly responsible for the murder of William Jefferson, a U.S. citizen and diplomat, in 1995; planting a car bomb 

13 

in Mostar, Bosnia, in 1997; and involvement with the attack on the 

USS Cole. 

Did you approve the release of Zuhair to Saudi Arabia? 

Attorney General HOLDER. I did, as did the former administration. He was approved for release by the Bush administration. The 

determination that we made was that there was not sufficient proof 

to bring a case against him. Also, he was transferred, not released—transferred to Saudi Arabia where he will be subject to judicial review and, in addition to that, to the reeducation program 

that they have. 

Senator SESSIONS. Was that based on a question of evidence that 

could not be utilized? I understand that military intelligence 

showed that Zuhair was responsible for the shooting death of William Jefferson when he was a diplomat to Bosnia. Was there evidence that you felt was inadmissible to make this case? 

Attorney General HOLDER. No. The determination that we made 

was that—and I think consistent with the Bush administration— 

there was insufficient proof to tie him to those very serious and regrettable crimes. It was not a question of the admissibility of the 

evidence; it was more with regard to the sufficiency of it. 

Senator SESSIONS. Another detainee, Binyam Muhammad, reportedly received instructions directly from Khalid Sheikh Mohammed and is believed to be Jose Padilla’s accomplice in the al Qaeda 

plan for a second wave of attacks after 9/11. Military commission 

charges against Muhammad tie him to a plot to blow up high-rise 

apartment buildings and explode a dirty bomb in the United 

States. 

Did you approve his release? 

Attorney General HOLDER. The releases that have occurred have 

all been done with my approval, and I take responsibility. 

Senator SESSIONS. And were you aware of the serious allegations 

that he was involved with or facing? 

Attorney General HOLDER. In the determinations that we made, 

we made the conclusion that with regard to any charges or allegations that had been lodged against people, there was either insufficient—there was insufficient proof to bring those cases. Anybody 

who poses a danger to the United States or who has committed an 

act against the United States or American interests will be held, 

will be tried. And the President has been clear about that. This 

process is designed to protect the American people, and that is 

what I have tried to do, to the best of my ability. 

Senator SESSIONS. Well, if he has been captured as part of the 

war on terror, is the United States, or any government in the 

world, really, entitled to maintain that person in custody until the 

hostilities are over or until you can assure us that the suspect is 

not a danger? 

Attorney General HOLDER. Well, I think the last part of your 

statement is where I would focus, to ensure that the person no 

longer poses a danger to the United States or American interests. 

And the determination that we made with regard to the releases 

that we have so far ordered, which I think are above 50 at this 

point, we have all made the determination based on the reviews 

that have been done by career people in the Justice Department 

and the intelligence agencies that these people do not pose a danVerDate Nov 24 2008 10:45 Feb 23, 2010 Jkt 054719 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54719.TXT SJUD1 PsN: CMORC
14 

ger to the United States and that, in releasing them or transferring 

them, we can do so with measures in place that we minimize the 

danger that they could pose to this country. 

Senator SESSIONS. Well, you are taking on an awesome responsibility to divine these peoples intent, people who pretty clearly had 

serious involvement in plans to attack and kill Americans and attack the United States. 

My time is up. I will not run over. I thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Senator Kohl. 

Senator KOHL. Thank you, Mr. Chairman. 

Mr. Attorney General, at your confirmation hearing you said that 

Guanta ́namo will be closed. The administration has been making 

progress in finding countries that will accept those detainees who 

have been cleared for release and recently began court proceedings 

for one detainee in Federal court in New York, and this is good 

progress. 

However, President Obama has indicated that some detainees 

may have to be held for ‘‘prolonged detention’’ because some detainees who pose significant threats cannot be tried for their crimes. 

Are we really meeting the goals behind closing Guanta ́namo if 

we simply bring detainees to the United States for what could be 

indefinite retention? 

Attorney General HOLDER. What we are trying to do, Senator, is 

make individualized determinations about what should happen to 

the people who are presently held at Guanta ́namo. Some we think 

will go into a category where they will be tried, either in Article 

III courts, Federal courts, or military commissions. Some can be 

transferred or released, and the possibility exists that some will be 

in a third category where they will be detained in a way that we 

think is consistent with due process, both in the determination as 

to whether or not they should be detained, and then with regard 

to periodic reviews as to how long that detention should occur. Do 

they continue to pose a danger to the United States? 

It is not clear to me that they are going to be people in that third 

category, but the President in his speech indicated the possibility 

exists that people could be placed in that category, but it would 

only happen pursuant to really, I think, pretty robust due process 

procedures. 

Senator KOHL. So there are some who might be retained indefinitely without due process? 

Attorney General HOLDER. No. With due process consistent with 

the laws of war. The due process that I would focus on would be 

in the initial determination. Due process would be afforded them 

with regard to making the decision that they would be placed into 

that detention mode and then a periodic review that would be 

done. 

We would want to work with members of this Committee and 

with Congress to come up with the exact parameters of that due 

process, but we would only want to do that in conjunction with 

Congress and with the assurance that what we are doing is consistent with our values and with our commitment to due process. 

Senator KOHL. Last week, the Washington Post reported that the 

administration has ‘‘all but abandoned plans to allow Guanta ́namo 

15 

detainees who have been cleared for release to live in the United 

States.’’ Is this true? In the last week, multiple countries have either agreed to accept detainees or have already accepted detainees. 

But what will happen if there are others who do not have countries 

to go to? What will we do with them? 

Attorney General HOLDER. Well, we are going to work with our 

allies, with our friends to try to place these people who have been 

approved for transfer or for release. I think we made pretty significant progress last week where nine people were placed in different 

countries. The Italians have indicated a willingness to accept three 

additional ones. We are in constant conversation with our allies in 

attempting to place these people. 

So we will continue our efforts. The State Department is working 

with us. Dan Fried is working with us. Dan Fried is flying all over 

the world meeting with people, meeting with various countries, trying to come up with ways in which we place these people. So those 

efforts will continue. 

Senator KOHL. And those for whom we cannot find a place overseas, what will we do with them? 

Attorney General HOLDER. Well, I would say I am not sure that 

we are not going to be able to. I think that by sharing information 

about who these people are, responding to the questions that are 

posed by our allies who might be the recipients of these people, 

that we can come up with a way in which we can assure them that 

they will not pose a danger to their countries, will not pose a danger to us. And I think that we are going to be successful in placing 

these people. 

Senator KOHL. At your confirmation hearing, you committed to 

restoring the integrity of the Justice Department by ensuring its 

independence from politics. What steps have you taken to accomplish this goal? 

Attorney General HOLDER. Well, I have certainly—with regard to 

the Civil Rights Division, for instance, I have met every employee 

of the Civil Rights Division in a series of meetings to make sure 

that they understand, as the Division that I think had the greatest 

amount of political harm done to them, that is no longer what is 

going to be accepted; that they are to not be timid in the enforcement of civil rights laws; that they are to report to me any kind 

of political interference that they might detect; and that they are 

to work in the tradition of good Justice Department lawyers in the 

Civil Rights Division have always worked under, be it under Republican or Democratic Attorneys General. So we have tried to get 

that message out. 

I visited with and continue to visit with other divisions and have 

tried to bring that message there as well. Telling people that, you 

know, it is a new day in the Justice Department, and especially in 

those places where there was the greatest amount of political interference in the past. 

Senator KOHL. Mr. Attorney General, under current law the Department of Transportation has the power to grant antitrust immunity to international aviation alliances. This enables international 

airlines to form alliances in which they can jointly set fares, coordinate schedules, and market the alliance together. 

16 

Critics of such alliances argue that they can lead to higher prices 

for consumers and make it difficult for smaller airlines to compete. 

Critics also argue that it is not appropriate for the Department of 

Transportation to grant such antitrust immunity as its agency has 

little expertise in antitrust policy and often pays little heed to competition concerns. 

What is your view? Do you think that it is appropriate for the 

Department of Transportation to be able to grant antitrust immunity to international airline alliances without input, recommendations, and coordination with the Department of Justice? 

Attorney General HOLDER. Senator, that is actually a very timely 

question. There is presently under consideration by the Department of Transportation one of those alliances, and we have reached 

out to the Department of Transportation. The Deputy Attorney 

General has spoken to the Deputy Secretary. I have had conversations with Secretary LaHood. And they have said that they will 

work with us in making a determination about how this particular 

alliance should be viewed. So the Justice Department will have 

input into that determination, and I think we will come to a joint 

resolution of how that issue should be resolved. 

Senator KOHL. Well, that is very good to hear. If I am interpreting what you are saying, it is that the Department of Transportation as well as the Department of Justice will be working together on these matters and hopefully will arrive at some kind of 

a joint agreement as to how to proceed. 

Attorney General HOLDER. That is correct. Our Antitrust Division will be working with attorneys from the Department of Transportation in trying to resolve that issue. 

Senator KOHL. Thank you so much. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator Kohl. 

I am advised by Senator Sessions that Senator Graham is next. 

Senator Graham. 

Senator GRAHAM. Thank you, Mr. Chairman. 

Mr. Attorney General, one of the reasons that we would contemplate closing Gitmo is that our commanders in the field have 

suggested it would help the overall war. Are you familiar with their 

statements? 

Attorney General HOLDER. Yes, I looked at the statements from 

General Petraeus, Senator McCain; I have actually looked at a couple statements that you have made. 

Senator GRAHAM. Well, and I am just echoing what they are saying. The people on the ground in different regions of the world indicate to me that Gitmo has hurt our effort to bring people over to 

our side, and starting over with detainee policy would probably be 

a good idea. Do you share that view? 

Attorney General HOLDER. Yes, I do. I mean, as I look at it and 

have spoken with members of the military about the impact that 

Guanta ́namo has had as a recruiting tool and as a thing that has 

alienated us from people, nations that should be our allies, I think 

that the closure of Guanta ́namo—the decision to close Guanta ́namo 

by the President was a correct one. 

17 

Senator GRAHAM. And I think Secretary Clinton shares the view 

that it would help us abroad if we had kind of a start-over regarding detainee policy. 

Attorney General HOLDER. Yes, that is correct. 

Senator GRAHAM. And one thing I would just like to mention to 

my colleagues on the Committee, in every war detainee policy becomes very important. It can hurt the war effort or it can help the 

war effort. The way you treat people in your capture really does 

matter. The German and Japanese prisoners that were housed 

here in the United States were, I think, well taken care of, and it 

made it easier for us to win over the German and the Japanese 

people over time. And I see a chance to start over here, but the 

problem the American people have—and I think members of the 

Committee on both sides of the aisle—is that we need a plan. And 

let us talk about how we view the Guanta ́namo population. 

There are basically three buckets: those that can be repatriated—that is one pathway forward. Is that correct? 

Attorney General HOLDER. That is correct. 

Senator GRAHAM. Now, some of the countries that we are talking 

about repatriating these detainees concern me. Bermuda is probably OK, but I am not so sure Bermuda is going to take many more 

than the Uyghurs. 

The Saudi Arabian rehabilitation program, what is your view of 

that program? How successful has that been? 

Attorney General HOLDER. Well, I think it has been successful, 

pretty successful. There have certainly been people who have gone 

through the program who have returned to the battlefield. I mean, 

we have to—— 

Senator GRAHAM. Well, that is true in our own system. 

Attorney General HOLDER. We have to be honest about that. And 

so it has not been 100 percent correct or right, and yet I think it 

provides a useful tool. I think if you combine that program, for instance, with what we will be doing on our side in making determinations as to who can be transferred, then we can probably increase the success rate of that program. And I would hope that we 

would be using that tool in at least the transfer or release of some 

of the people who are presently held at Guanta ́namo. 

Senator GRAHAM. I would certainly urge you to do that. And as 

you try to find countries to repatriate the detainees, I think it is 

important to look at the security of that country, their willingness 

to make sure these people are followed and taken good care of. So 

that is one bucket. 

The second bucket is the people that will actually be tried in a 

United States court. You know my position. I prefer the military 

commission system. But of the 250 people we have at Guanta ́namo 

Bay, what percentage do you think at the end of the day will go 

through a military commission or Article III court? 

Attorney General HOLDER. It is hard to say at this point. I am 

not sure the trends have necessarily developed. We have gone 

through about half of the detainees at this point. I do not think we 

are going to have a very huge number. 

Senator GRAHAM. Would you say less than 25 percent, 25 percent 

or less? 

Attorney General HOLDER. That might be about right. 

18 

Senator GRAHAM. Yes, I just want the public to understand that 

in terms of disposition forward, repatriation has its limits, but a 

possibility. Trial is a way forward. It is the preferred way forward. 

But only, I think, about 25 percent will actually ever go to trial, 

and that leaves us with a third bucket of people that we have in 

our custody that we are not going to repatriate, that we are not 

going to go through a criminal process. It goes back to Senator 

Kohl’s view. 

That third bucket is the most problematic, but as I understand 

the administration’s thinking on this, it is that we want to make 

sure that we have a legal system that would allow every detainee 

in that third bucket to have their day in Federal court, that no one 

would be held indefinitely in this country without a Federal judiciary review. Is that correct? 

Attorney General HOLDER. Yes. As I said, we want to work with 

members of the Committee and with Congress and determine exactly what the parameters would be. But the thought we had was 

that it would be some kind of review with regard to the initial determination, and then a periodic review with regard to whether or 

not that person should continue to be detained. 

Senator GRAHAM. I think you are on the right track. The one 

thing we want to avoid is to say to the world that anyone who is 

in a military prison or a civilian prison held as an enemy combatant without their day in court, I want an independent judiciary basically validating what the intelligence community and the military 

says about this person. And if the labeling is correct in the eyes 

of an independent judiciary, we would want an annual review process or some collaborative effort that would meet on a regular basis 

to ensure that the detainee has a pathway forward. 

Is that sort of what we are looking at? 

Attorney General HOLDER. Yes, something along those lines. 

Again, as I said, the exact parameters of which we want to work 

with Congress. 

Senator GRAHAM. Sure. 

Attorney General HOLDER. But I think what we want to stress 

is that due process has to be a part of this component should people end up in—— 

Senator GRAHAM. I could not agree more. It has to be robust and 

it has to be transparent, and no one would be held based on an arbitrary decision by one group. It would be a collaborative effort. So 

I think you are on the right track. 

Now, when it comes to Bagram Air Base, I know you have been 

to—have you been to Afghanistan? 

Attorney General HOLDER. I have not. Not yet. 

Senator GRAHAM. I would encourage you to go because I think 

beyond Guanta ́namo Bay detainees, there is a group within 

Bagram Air Base that are foreign fighters, that are non-Afghan 

fighters, that are probably never going to go into the Afghan legal 

system for lots of reasons. Some of them have been there 3 or 4 

years, quite frankly, and we need to sort of evaluate that population and see if we can reintegrate—bring them back to this new 

system, whatever it is, reintegrate them into this new system. 

I would urge you to do that, Mr. Attorney General, to get some 

of your folks to look at the Bagram detainee population, because 

19 

I think some of them are going to have to be brought back here 

in our system, and we are likely to capture more during the upcoming surge of troops. 

Finally, the photo issue, the detainee photo issue. I know I have 

only got 30 seconds here. I appreciate your willingness to appeal 

the Second Circuit decision. The President has said publicly that 

he would so what is necessary to prevent these photos from seeing 

the light of the day. I am working with my colleagues here in the 

Senate to see if we can have a legislative fix that would protect the 

photos from being released, working with Democrats and Republicans to achieve that goal. 

But can you tell me the game plan of the administration, if necessary, the time limits of an Executive order? If the court rules 

against the administration, I think the Second Circuit order 

stands. When would the Executive order, if necessary, when should 

it be issued in this case? 

Attorney General HOLDER. Well, we hope obviously that we will 

be successful in the courts, and if we are not, we will consider the 

options that we have. The President has made the determination 

that he thinks the release of those photos would have a negative 

impact on our soldiers in the battlefield, and it was for that reason 

that he made the decision to withhold the release of them. That 

concern continues. It was based on his interaction with the commanders in the field. So if we were not successful in court, we 

would then have to consider our options. But the concern that the 

President expressed and that I believe in would remain. 

Senator GRAHAM. Mr. Chairman, could I ask one follow-up question? I apologize. 

Chairman LEAHY. Go ahead. 

Senator GRAHAM. My concern is the timeliness of the order. The 

one thing, we are a Nation of laws, and an Executive order just 

cannot wipe out a court decision. The courts will not stand for that. 

If the Supreme Court denies the petition for certiorari, then the 

Second Circuit order to release stands. What would you do in that 

case? If you lose in court or the Supreme Court refuses to hear the 

case, wouldn’t the order to release the photos be imminent, go forward? And how would the Executive order stop it then? 

Attorney General HOLDER. Well, again, I would have to look at 

the Second Circuit order, see what flexibility there is there, what 

options we would have. The concern, as I said, that the President 

expressed and that I agree with remains. We do not think that the 

release of these photos would be a good thing for our troops, and 

we would want to, consistent with the law, work with Congress and 

consider our own options to ensure that these photos are not released. 

Chairman LEAHY. Thank you. 

Senator Feinstein. 

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

I would just like to clear up a bit of repartee between you and 

Senator Coburn on the e-mail surveillance concerns that were written up on the front page of the New York Times, and I would like 

to speak as Chairman of the Intelligence Committee. 

We saw the April article. The Intelligence Committee held a 

hearing. We asked the questions. We were assured that it was not 

20 

correct. I have since spent time with General Alexander. I have 

gone over this chapter and verse. I do not believe that any content 

is reviewed in this program. We will hold another hearing, and we 

will go into it again. 

I am surprised by this article because they are two very good 

journalists that have written it, and yet everything that I know so 

far indicates that the thrust of the story, that there are flagrant 

actions essentially to collect content of this collection just simply is 

not true, to the best of my knowledge. 

Now, we will look more deeply into, Mr. Chairman, and I would 

be very pleased to let you know what we find. 

Chairman LEAHY. Once you have, if you could brief Senator Sessions and myself and cleared staff on that issue. 

Senator FEINSTEIN. We would be happy to do that. 

Chairman LEAHY. Thank you. 

Senator FEINSTEIN. And we are well aware of the concerns about 

it. So we will continue with this. 

If I may, welcome, Mr. Attorney General. 

Attorney General HOLDER. Thank you. 

Senator FEINSTEIN. And I am one that thinks you are a refreshing breath of fresh air in the Department, so welcome. 

Attorney General HOLDER. Thank you. 

Senator FEINSTEIN. For almost a year, I asked the Attorney General, naming Mukasey, to release a 2001 OLC opinion, as has the 

Chairman and others on the Committee. And that opinion concluded that the Fourth Amendment did not apply to military operations on United States soil. 

The opinion was finally made public this March. It was released 

together with a memo written in 2008, which instructed attorneys 

that ‘‘caution should be exercised before relying’’ on the 2001 opinion, called the opinion’s conclusions incorrect or highly questions, 

and rendering much of the opinion void. 

What I would like to know is: Has this opinion ever been withdrawn in its entirety? 

Attorney General HOLDER. Senator, I would have to check on 

that. I believe so, but let me just check to make sure on that and 

maybe get back to you. I am not sure about—I do not have in my 

memory right now what the impact of the President’s withdrawal 

of a variety of OLC opinions early on, whether that was concluded 

in—— 

Senator FEINSTEIN. Well, this is a big opinion on the Fourth 

Amendment with respect to American citizens and American military. So I think it is important that we clarify it. 

Could you bring us up to date on what you are doing to review 

the OLC opinions and what actions you have taken? 

Attorney General HOLDER. Well, we released some of the OLC 

opinions some weeks ago. I am not sure exactly when. The review 

that led to that release continues, and as we finish that review and 

make the determination that opinions can be released in a way 

that is consistent with our national security and protects also internal deliberations of the executive branch, we will make further releases. 

One of the things that would be very helpful in that regard is 

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sive, but it would be great to have Dawn Johnsen confirmed as the 

head of OLC. That is, I think, a critical part in getting that review 

underway, having the person who will ultimately head that critical 

part of the Department in place. 

But the people there now are doing the best that they can, and 

we will continue the process that led to the release of those other 

opinions. 

Senator FEINSTEIN. Thank you very much. 

Recently, I had a meeting in the San Diego area on the southwest border. It was a meeting of the top officials of all of the Departments—FBI, DEA, DA, et cetera. And I learned something 

quite surprising, and I would like to say what it is and ask you to 

take a good look. That is, virtually all of the narcotics traffic in this 

country, the routes that drugs travel, the people who control those 

drugs, the hits that are ordered are essentially controlled by certain gangs in Federal prisons and some State prisons today. And 

they even gave me the names of the prisons. 

I spoke to Bob Mueller. I have told him about this. I want to 

bring it to your attention publicly. It is not acceptable that narcotics-trafficking directions be given out of Federal or State prisons, 

and I would like to ask you to make a thorough investigation. I 

would be happy to give you the information that I have that I am 

not going to discuss here, but what I am asking you for is a commitment to take a big, strong, in-depth look at this. 

Attorney General HOLDER. Sure, I will certainly do that. There 

are certainly measures in place—the monitoring of telephone calls, 

the monitoring of people who visit with people who are detained 

certainly in the Federal system for which I am responsible. But I 

will certainly look at the information that you have expressed concern about and see if there are things that we need to do better 

on the Federal side and also interact with our State partners to see 

if there are ways in which we can help them in that regard. 

Senator FEINSTEIN. Thank you very much, and I am happy to fill 

you in. 

I wanted to just pick up on what Senator Kohl and Senator Graham said about this one group of detainees. As you said, the laws 

of war provide for the detention of a combatant for the length of 

the conflict. Once a military commission declares somebody an 

enemy combatant and the decision is made that they remain a national security risk, there is a necessity, as we have all discussed, 

to provide a due process review of that individual periodically. 

Has that due process review been decided upon? If so, who would 

conduct it? And how often would those reviews take place? 

Attorney General HOLDER. No, we have not decided that, both 

with regard to where that review would occur and how frequently 

it should occur. We are discussing that internally. It is something, 

though, that I think we would want to work with the members of 

this Committee and Congress more generally in coming up with 

how that should occur, who should be responsible for both the initial determination and the review, and then how frequently it 

should occur. We are going to have ideas, but we want to interact 

with, as I said, members of the Committee to get your ideas as well 

so that the process that ultimately is put in place is one that will 

have the support of Congress. 

22 

Senator FEINSTEIN. Well, please do. Senator Graham and I have 

discussed this. Others have. We are very interested and I think 

have a point of view that we would like the opportunity to express 

to you. Thank you. 

Let us go back to the southwest border for a minute. More than 

10,000 people, as we all know, have been killed in Mexico by drug 

violence since December of 2006. And Mexico’s Attorney General, 

Mr. Mora, estimates that $10 billion worth of drug proceeds crosses 

the United States into Mexico each year in the form of bulk cash. 

We held a hearing; we talked to the Attorney General of the 

State of Arizona, who more or less confirmed a lot of this. 

So my question is: How much of that cash has been intercepted 

at the border in 2009? And what role today does the BATF and the 

DEA play in stemming this flow? 

Attorney General HOLDER. I would have to get you some numbers on how much we have intercepted in 2009, but we have certainly stepped up our efforts in conjunction with our partners at 

DHS. Secretary Napolitano and I went to Mexico, I guess in the 

early part of the year, to talk with our Mexican counterparts about 

the inflow of bulk cash and weapons into Mexico, and we are trying 

to come up with ways in which we interdict and stop that amount. 

DEA has moved significant resources, about 20 agents, toward 

the southwest border. ATF has moved about 100 to the southwest 

border. The FBI has put together a new intelligence capability 

along the southwest border—all designed to stop the flow of that 

material into Mexico, but also to stop the flow of drugs from Mexico 

into our country. This is a priority for us. 

Senator FEINSTEIN. Thank you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

Senator Coburn. 

Senator COBURN. Thank you, Mr. Chairman. 

Mr. Attorney General, welcome. Thank you for your service. At 

your confirmation hearing, we talked about the Emmett Till unresolved civil rights crimes, and you had made a commitment to me 

at that time that you would do whatever you could in your power, 

if Congress failed to act, to make sure that that was funded. 

Number 1, my first question is: Have you been successful? And, 

Number 2, the group that actually motivated the response for that 

bill—and Senator Dodd and myself had an amendment to try to 

fund that that was rejected by our colleagues on the omnibus bill— 

would like to have a meeting with the Justice Department and 

have been turned away. And I just think in the nature of your commitment to me, can you answer what have you done to get the 

funding for the Emmett Till bill? And, Number 2, would you agree 

to meet with the principals of that organization so that we can get 

these crimes resolved? 

Attorney General HOLDER. I would have to look and see, Senator, 

quite frankly, where we stand with regard to the budget for next 

year. I just do not offhand remember how much money, if any 

money at all, was dedicated to the project that you talk about. But 

I will check that and get back to you. 

But I would be glad to meet with the people you are talking 

about, the organization that you are speaking with, and I will—— 

23 

Senator COBURN. I will communicate that today. That is Mr. 

Alvin Sykes. He is the president of that organization. 

Attorney General HOLDER. That is fine. 

Senator COBURN. You know, it really is interesting. We pass a 

bill and we pound our chests around here, and then we do not give 

the money to do it on a very real issue that time is a major factor. 

Because if we do not fund this in an appropriate time, we are not 

going to solve those, and we are not going to bring to justice those 

people who should be brought to justice. 

Attorney General HOLDER. As I said at my confirmation hearing 

and I will reiterate today, I am going to share the concern that you 

expressed, and I will do what I can to give life to the mechanism 

that is in place. But I want to give you—— 

Senator COBURN. I will be happy to help you shuffle that money 

around. I put out a report last year on $10 billion worth of waste 

at the Justice Department, so I will be happy to offer a critique, 

if I might, on where you might find that money. 

I am a little concerned about what happened in Arkansas and 

also what happened in Kansas and the differential in response. Do 

you view the murder of one of our soldiers in Arkansas as a hate 

crime? 

Attorney General HOLDER. I do not know all the facts there, but 

it is potentially a hate crime. The response that we use with regard 

to what happened to the killing of Dr. Tiller was one where the 

Justice Department has historically used its resources to protect 

doctors who engage in reproductive activities. 

With regard to the killing of the recruitment officer, that is one 

the Department of Defense has primary responsibility for, though 

we have offered our assistance in that regard. 

Senator COBURN. The prosecution of that would be outside of the 

Department of Justice? 

Attorney General HOLDER. Oh, no, no. I thought you were talking about the protection efforts. 

Senator COBURN. No, no. I am not talking about the—I am talking about the prosecution of that. 

Attorney General HOLDER. That would be the responsibility of 

the Justice Department in conjunction with our local partners. As 

happened in Kansas, a component of that is being done by the local 

prosecutor; some will be done by us. 

Senator COBURN. I understand. Do current hate crimes laws 

cover that act in Arkansas? 

Attorney General HOLDER. If there were a determination made 

that the killing was based on the race of the victim, yes, I think 

it is at least arguable that that is. But if the motivation was because of his military status, I do not think that would be cognizable 

under the hate crimes statute that President—— 

Senator COBURN. Regardless of what his stated motivations 

might have been? 

Attorney General HOLDER. Well, I mean, that would be one of 

the things we would have to consider, what is the motivation of the 

person. 

Senator COBURN. Should we consider legislative proposals to protect U.S. soldiers at recruiting offices? 

24 

Attorney General HOLDER. Well, I guess we would have to look 

at the extent of the problem. That is not to minimize the seriousness of what happened there. I mean, what happened there was deplorable and not something that should in any way be tolerated. 

But I think we would want to look at what is the nature and extent 

of the hate crime that we are trying to legislate. The categories 

that we have now, I think we can certainly show that there are 

substantial numbers of crimes that happen, and also with regard 

to the categories that the administration thinks we ought to expand it to. 

With regard to military personnel, I would want to look and see 

what the statistics shows and what the facts shows. 

Senator COBURN. OK. Thank you. Well, we will get into that 

again. 

One of the other things that you and I discussed during your 

hearing—and you and I have a different position on this, and I respect your position. But a commitment you made was to rigorously 

review Heller prior to making any commitments or recommendations on additional laws restricting the Second Amendment. Have 

you, in fact, done that? And did you, in fact, do that before you 

issued your recommendation on so-called assault weapons? 

Attorney General HOLDER. I was going to say, I am not sure that 

I have done anything with regard to weapons. I am obviously cognizant of the Heller determination, Heller decision, but I do not 

think the Department has issued any rules or regulations with regards to weapons. At least that—— 

Senator COBURN. Well, in terms of a recommendation, though, 

basically you are on record of wanting us to re-propose an assault 

weapons ban, and the comment that you made during your confirmation hearing was, in fact, that you would do a rigorous review 

of Heller before any recommendations were made. And my question 

simply is: Did you do that? And what were the results of that rigorous examination of Heller that caused you to propose a new assault weapons ban? 

Attorney General HOLDER. Well, I do not think that I have, in 

fact, said that we need a new assault weapons ban. What I have 

said is that we need to look at the situation that we have, look at 

the violence that we have that is gun related, and come up with 

measures that will effectively deal with that issue. 

Senator COBURN. Actually, on February 25th at a news conference, you said you endorsed reinstating the ban on assault 

weapons. February 25th. And my question is—the commitment you 

made to this Committee was that you would do a rigorous analysis 

of Heller before you made any recommendations, and all I am 

wanting to know is: Did you do that, or was this just impromptu 

at this press conference? 

Attorney General HOLDER. Well, there is a firearms review that 

is ongoing and obviously will take into account the Heller decision. 

But the administration has not taken a position with regard to reinstituting the assault weapons ban. 

Senator COBURN. All right. I thank you very much for your answer to my question. 

I do have a few additional questions I would like to submit to the 

record, Mr. Chairman. 

25 

Chairman LEAHY. Of course. 

Senator COBURN. Thank you again. 

Chairman LEAHY. All Senators have that right, and we will keep 

the record open throughout this week. 

Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

I understand, Mr. Attorney General, you had exchanges with 

Senators Graham and Feinstein and Kohl about the issue of prolonged detention. I chaired a hearing on this topic last week and 

would simply urge you and the Department to consider the various 

legal and policy concerns that are involved. Any system of indefinite detention raises those kinds of issues. I would say even with 

the kind of due process protections that you discussed, I do think 

this could be a very big mistake, especially because of how such a 

system could be perceived around the world, frankly, after some of 

the progress that the administration is making through the President’s good work on our relationships around the world. 

On another topic, I wrote to the President Monday about my continued concern that the administration has not formally withdrawn 

certain legal opinions, including the January 2006 white paper that 

provided legal justifications for the Bush administration’s 

warrantless wiretapping program. The letter was prompted in part 

by a recent speech by the Director of National Intelligence in which 

he asserted that the program was not illegal. 

In a speech to the American Constitutional Society in June 2008, 

you said the following: ‘‘I never thought that I would see the day 

when a President would act in direct defiance of Federal law by authorizing warrantless NSA surveillance of American citizens.’’ The 

President himself also said several times as Senator and during the 

campaign that the program was illegal. 

Now that you are the Attorney General, is there any doubt in 

your mind that the warrantless wiretapping program was illegal? 

Attorney General HOLDER. Well, I think that the warrantless 

wiretapping program as it existed at that point was certainly unwise in that it was put together without the approval of Congress 

and as a result did not have all the protections, all the strength 

that it might have had behind it, as I think it now exists with regard to having had congressional approval of it. 

So I think that the concerns that I expressed in that speech no 

longer exist because of the action that Congress has taken in—— 

Senator FEINGOLD. But I asked you, Mr. Attorney General, not 

whether it was unwise but whether you consider it to have been 

illegal, because that is certainly the implication of the quote I read 

and the explicit statement of the man who is now President of the 

United States. 

Attorney General HOLDER. Yes, well, what I was saying in that 

speech was that I thought the action that the administration had 

taken was inconsistent with the dictates of FISA. I think I used the 

word ‘‘contravention.’’ And as a result, I thought that the policy 

was an unwise one, and I think that the concerns that I expressed 

then have really been remedied by the fact that Congress has now 

authorized the program. 

Senator FEINGOLD. But did you think it was illegal? 

26 

Attorney General HOLDER. Well, I thought that, as I said, it was 

inconsistent with the FISA statute and unwise as a matter of policy. 

Senator FEINGOLD. Has something happened that has changed 

your opinion since your June 2008 statement that would make it 

hard for you to just simply say what the President said, that it is 

illegal? 

Attorney General HOLDER. No, I do not think so, and I do not 

think what I am saying now is necessarily inconsistent with what 

I said at the ACS convention speech that I gave. 

Senator FEINGOLD. Well, it sounds awfully mild compared to 

some very clear statements and a very important principle here, 

which is not only that this has to do with the scope of the FISA 

law, but the underlying constitutional issue that people like me 

and many other people believe, that if the statute is that explicit 

under the third test, under Justice Jackson’s test, that it is, in fact, 

unconstitutional for the President and illegal, of course, for the 

President to override the express will of the Congress. 

Attorney General HOLDER. Well, as I said, I think I said ‘‘contravention of,’’ ‘‘inconsistent with.’’ I am not sure I have used the 

term ‘‘illegal.’’ And I would adhere to what I said then, and I think 

what I am saying now is consistent with what I said in the speech. 

Senator FEINGOLD. Well, that may well be, but I would hope you 

would use the word ‘‘illegal’’ now, and I requested in the letter I 

sent to the President on Monday and also in a letter dated April 

29th that the administration withdraw the January 2006 white 

paper and other classified OLC memos providing legal justification 

for the program. I know you have initiated a review of the Bush 

era OLC memos, and, of course, certain memos that authorized torture have been withdrawn. Apparently, you discussed this a bit already with Senator Feinstein. 

What is the status of your review of the memos concerning the 

warrantless wiretapping program? 

Attorney General HOLDER. Well, I asked the Office of Legal 

Counsel to review these prior opinions, including those that deal 

with surveillance with a goal of making as many of these opinions 

public as we can consistent with our national security interests and 

also consistent with ensuring that robust debate can happen within 

the executive branch. 

It is my hope that that process, which is ongoing, will lead to the 

release of several opinions in a relatively short period of time. 

Senator FEINGOLD. I just want to reiterate how important it is 

for the legal justification for this program to be withdrawn. I am 

concerned these memos that make unsupportable claims of executive power will come back to haunt us if they remain in effect. And 

if you believe, as I think the President has indicated in the past, 

that the program was illegal, they cannot stand. 

In his national security speech on May 21st at the National Archives, the President indicated that he is concerned about the overuse of the state secrets privilege. He stated that the administration 

is undertaking a thorough review of the practice and then said 

that, ‘‘Each year we will voluntarily report to Congress when we 

have invoked the privilege and why, because as I said before, there 

must be proper oversight of our actions.’’ 

27 

Since February, I have been seeking a classified briefing from the 

Department about its position in the three cases in which it has 

continued to assert the state secrets privilege. These are controversial cases, and I want to understand why the administration is asserting the privilege. I am a member of the Intelligence Committee 

and the Judiciary Committee, and as you know, state secrets legislation is before the Committee. 

I think my request is consistent with the President’s desire to 

brief Congress and cooperate with oversight. Will you make sure 

that I can receive this briefing? 

Attorney General HOLDER. I will try to get the information to 

you, Senator. What we are trying to do is look at the state secrets 

issue in such a way that—we are looking in two ways: one to see 

whether or not the doctrine was properly invoked with regard to 

the 20 or so cases in which it has been used, and then what can 

we do going forward. 

We have some proposals that we have been working on that I 

think we are going to make public in a matter of days that we 

would put forth for consideration by this Committee and by Congress generally about the way in which we think we should handle 

the state secret issue. 

Senator FEINGOLD. Is there any reason why I cannot get this 

briefing at this time? 

Attorney General HOLDER. No, as I said, we will try to get the 

information to you and make you aware of the things that you 

sought. 

Senator FEINGOLD. I thank you, Mr. Attorney General. 

Chairman LEAHY. Thank you. 

Senator Hatch. 

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

Welcome, General. We are happy to have you here. We know you 

have a difficult job, and we always want to be helpful to you if we 

can. 

There is something that really bothers me over this last weekend. After a 2-year investigation, the FBI, in cooperation with the 

Department of Interior, arrested 19 Utahans trafficking in Indian 

artifacts from Federal lands. Now, I am extremely concerned by the 

manner in which these warrants were executed. They came in in 

full combat gear, SWAT team gear, like they were going after, you 

know, the worst drug dealers in the world, and in the process— 

now, I do not believe anybody should be taking Indian artifacts, to 

establish that right off. But in the process, one of the leading figures in the whole county down there who is a leading doctor, had 

delivered almost everybody who lived in the county as a doctor, 

committed suicide. He was by all intents and purposes an upstanding member of the community, a decent, honorable man, critical to 

the community from a health and welfare standpoint. And the way 

they came in there—I mean, you know, I have no problem with 

going after people who violate the law. But they came in there like 

they were the worst common criminals on Earth, and in the process this man—it became overwhelming to him, I suppose—a really 

strong individual, a good person, goes out and commits suicide. 

Now, you know, this bothered me. 

28 

Now, media reports state that over 100 Federal agents were used 

in this operation, and that extreme show of force and presence has 

been perceived by the community out there and the civic leaders 

in San Juan County as not only unnecessary but brutal. 

Now, I am questioning the motivation of some of the higher-ups 

at Justice and of the Interior. The day after these raids were conducted, Secretary Salazar and Deputy Attorney General David 

Ogden appeared before the media touting how successful this investigation was. 

Now, I have been in the Senate for—now in my 33rd year, and 

I felt like it was a dog-and-pony show to me. I know one when I 

see it, and this has all the classic signs of one. 

The offenses for which these warrants were issued were nonviolent offenses. One has to think that the manpower and resources 

allocated to this operation were usually reserved for, like I say, arresting truly violent felons. 

Now, let me contrast this case and compare it to another Federal 

sweep that also occurred last week. In North Texas, after a 2-year 

investigation, the FBI arrested 17 people involved in a large drugtrafficking organization that extended from Texas to Massachusetts. The FBI seized cash, weapons, real estate, and vehicles. FBI 

officials say that this ring allegedly distributed $22 million in cocaine. Ironically, there was not a major press event regarding the 

drug sweep in which the Deputy Attorney General Ogden addressed the media. 

And I guess what I am saying, I know you well. We have been 

friends all these years. I have great respect for you. We may differ 

on some things, but that is normal, as far as I am concerned. 

But for all these reasons, can you just explain to me what, if any, 

factors were used to measure the appropriate level of force and personnel for the Utah operation? Here is the article on the 17 arrests 

for these violent drug situations. That is about it. But give me 

some reason for all this. Our people out there are up in arms, and 

I think properly so. 

Attorney General HOLDER. Well, first let me express my sympathy for the family of the doctor who took his own life. Obviously, 

that is a very sad thing, and if it was related to this operation, it 

is something that saddens me. It is not something certainly that 

we intended to have happen. 

Senator HATCH. It has completely destroyed good feelings toward 

the Government in that whole community. 

Attorney General HOLDER. The arrests that were done were felony arrests, and as best as I can tell, they were done in accordance 

with the FBI and Bureau of Land Management standard operating 

procedures. 

When arrests are made in even cases that seem to be nonviolent, 

there is always a danger for the law enforcement officer who is effecting that arrest, and it is a difficult thing to ask them to assume 

certain things as they are—— 

Senator HATCH. I am with you on that, but in this case, this is 

a doctor who everybody respected, everybody loved in the community. I am just centering on his case since he was so overwrought 

by it he took his life. And that community—you know how hard it 

29 

is to get upstanding doctors to move into some of these rural communities and do what this man was doing. 

Now, again, I do not justify stealing or taking Indian artifacts, 

if that is what happened here, but I would, I guess—nor do I want 

to put you through a lot of pain here. I hope you will do something 

about that type of activity in the future. You can bring all the force 

you want against drug dealers and people who clearly are violent 

felons where our people might be in danger. But in this case, there 

was not the slightest possibility anybody could have been in danger 

down in that county. 

Attorney General HOLDER. Well, we want to use the appropriate 

amount of force that is necessary, but we also want to keep in mind 

the protection—the responsibility I have to make sure that the 

lives of law enforcement officers engaged in these operations are 

not put at risk. 

Senator HATCH. I am with you, but, again, I would say in that 

instance, that should not happen. 

Let me just change the subject for a minute because I am concerned about the state secrets privilege. General Holder, the Department of Justice has been conducting a review of pending cases 

in which the state secrets privilege has been invoked by the Bush 

administration. In the first 100 days of the Obama administration, 

the Department of Justice elected to defend this privilege three 

times. I have no problem with that at all. I think it has been correct. 

The administration has picked up where the Bush administration left off in three pending cases: Al-Haramain Islamic Foundation v. Obama, Mohamed v. Jeppesen Dataplan, and Jewel v. NSA. 

Now, during an April television interview, you stated that, in 

your opinion, the Bush administration correctly applied the state 

secrets privilege in these cases. Now, tomorrow, the Senate Judiciary Committee will begin marking up a bill entitled ‘‘The State Secrets Protection Act.’’ Last year, after hearings were held on this 

matter in the 110th Congress, Attorney General Mukasey sent a 

letter to the Senate Judiciary Committee expressing the Justice 

Department’s views on the State Secrets Protection Act. The Department of Justice had several concerns regarding this legislation. 

Chief among them was the constitutional questions raised by the 

proposed legislation. This bill seriously limits the ability of the executive branch to protect national security information under the 

well-established standards articulated by the Supreme Court in 

U.S. v. Reynolds. 

My time is up, but let me just finish this question, if you would, 

Mr. Chairman. I would be grateful for that courtesy, but I also do 

not want to get on the wrong side of the Chairman. 

Chairman LEAHY. You never have. 

Senator HATCH. I never have, that is for sure. Any attempt to reallocate national security decisionmaking from the executive to the 

judicial branch usurps the executive branch’s power to make such 

determinations. 

Now, that was the Department’s view last year after hearings 

were held on the state secrets privilege. The same bill has been introduced again, and there were no changes in the language and no 

30 

attempt on the part of the bill’s authors to address the Justice Department’s concern. 

Now, this bill has been on the Committee’s calendar since late 

April, and we have yet to hear the Justice Department’s view on 

this legislation. So while I have you here, would you be kind 

enough to give the Justice Department’s view on the State Secrets 

Protection Act of 2009? 

Attorney General HOLDER. Well, we want to work with this Committee and with Congress in dealing with this whole issue of state 

secrets and the doctrine of state secrets privilege. We have and are 

about to release, I think, what our views are as to how this problem can be handled, to the extent that it is one. I think it is our 

view that the proposals that we are going to make will deal with 

many of the concerns that I think generated the feeling in some 

people that there was a need for legislation. 

So I would hope that we would have a chance to have members 

of this Committee and Congress to look at the proposal that we are 

going to make and see if that will be sufficient, and then work with 

the members of the Committee on any legislation that might be 

contemplated. 

I actually think, though, that the proposals that we are going to 

make I think will be sufficient. 

Senator HATCH. When are you going to release those to us, do 

you know? 

Attorney General HOLDER. It would be my hope that we can do 

this within a matter of days. This is not something that I think is 

going to—— 

Chairman LEAHY. I might note for the Senator from Utah, as the 

Attorney General knows, I have been pushing for that kind of a response because, otherwise, we will mark up the bill. I would like 

to have, as I would with any Department of either party, I would 

like to have the Department’s views. But if we don’t have them, we 

will go ahead and mark up the legislation. 

Senator HATCH. That is incentive enough right there, it seems to 

me. 

Attorney General HOLDER. You will have our views. 

Senator HATCH. Thank you, Mr. Chairman. 

Chairman LEAHY. Senator Durbin. 

Senator DURBIN. Mr. Attorney General, thank you for being here. 

First, I would like to ask a question related to an issue in Chicago. I recently met with Ron Huberman, who is the head of the 

Chicago Public School System, and he told me an absolutely stunning statistic. In this last school year recently completed, over 500 

school children in Chicago were shot, at least 36 of them fatally. 

I think you will share my view that this is unacceptable in Chicago 

or any place in America. 

I think under the Second Amendment people have the right to 

own a gun responsibly and legally, but children also have the right 

to be able to walk to school without being caught in the cross-fire 

of a gang war. 

I would like to ask for your help, along with the help of Secretary 

of Education Arne Duncan and other members of the administration, to work with Mayor Daley and State and local officials to deal 

with this serious problem in President Obama’s hometown. 

31 

Attorney General HOLDER. Yes, the problem that you have detailed is simply unacceptable. I met with Mayor Daley last week 

here in Washington, and we discussed that problem and some 

other crime issues in Chicago. And what I told him then and what 

I will tell you now is that we are committed to working with him 

as partners in trying to come up with ways in which we can deal 

with that issue. 

You know, one is too great a number, but the numbers that are 

coming out of Chicago are simply unacceptable, and we have to 

take really strong measures to try to come up with ways in which 

we deal with it. 

Senator DURBIN. There are many aspects of it. Gang activity is 

clearly one of them; the proliferation of the sale of guns to these 

drug gangs by irresponsible gun dealers. There is a Federal aspect 

of this, and I appreciate your being willing to help us and cooperate 

in dealing with that. 

There were two investigations you inherited from the Bush administration related to activity that preceded your arrival. One was 

a Bush administration investigation of the destruction of CIA interrogation videotapes, and the second involved an investigation of 

Jay Bybee, John Yoo, and Steven Bradbury, the Justice Department attorneys who authorized the use of abusive interrogation 

techniques like waterboarding. 

Senator Whitehouse and I asked then-Attorney General Mukasey 

to give us a copy of the investigation and report of the Office of 

Professional Responsibility about the activities of these three persons. He did not do that. Although I understand that the OPR completed its investigation, he determined that he would do something 

which I thought was extraordinary. He submitted the report before 

he gave it to the public or Congress to those who had been investigated to review and comment on the investigation. I understand 

that they have submitted their replies to that some 6 weeks ago. 

So the obvious question is: When can we expect to receive a copy 

of this report? 

Attorney General HOLDER. I sat down just yesterday, actually, 

and talked to Mary Pat Brown, who is the head of the Office of 

Professional Responsibility, and this is one of the things that we 

discussed. They are pretty close to getting to the end of their process. It was lengthened by the responses that they received from the 

people who are the subject of the investigation. Ms. Brown indicates that what they wanted to do was to look at those responses, 

and there are some changes they are making to the report in light 

of the contentions that were contained in the responses that they 

examined. 

So I think that we are pretty close to the end of that, and my 

hope is to share as much of that report as I can with Members of 

Congress and with the public. There are some potentially classified 

portions of that report that I think we want to work to declassify 

because it has been expressed by the head of OPR—and I agree 

with her—that you cannot get the full context for this report unless 

the entirety of the report or close to the entirety of the report is 

declassified. 

32 

Senator DURBIN. Can you give me a timeframe when we can expect to receive the declassified or unclassified portions of this report? 

Attorney General HOLDER. I think we are talking about a matter 

of weeks. I think they are pretty close to the end, and then I think 

we have to try to work through the declassification process. But we 

would be in a position to release the classified portion—though I 

really worry about that because as people look at the work that the 

OPR has done, I would like them to have the full range of information that OPR had and considered, and that is why I think the declassification process is so important. I would not want to put in 

the public record an incomplete report, so we have to work our way 

through that as well. 

Senator DURBIN. Mr. Attorney General, you made a point, which 

we have discussed before, about the question of race and justice in 

America. It was one of your earliest statements. You are aware, as 

all of us are, that African Americans are incarcerated nearly 6 

times the rate of whites in our country. One of the major reasons 

for that is the so-called crack/powder disparity when it comes to cocaine. I use this simply as an illustration that, under our current 

laws, someone who is guilty of selling this amount of cocaine is 

subject to the same incarceration as someone who sells this amount 

of crack cocaine. 

This disparity, sadly, I voted for. Many of us did, 20 years ago. 

We did not know how terrible crack would be, but we were told it 

would completely change narcotics in America. It was so cheap, so 

plentiful, and so devastating that we had to do something extraordinary. The net result was this 100:1 disparity in terms of sentencing. 

There are men and women presently incarcerated in the United 

States for 10 and 20 years because of this 100:1 disparity between 

two forms of cocaine. 

We held a hearing in the Crime Subcommittee of Judiciary, and 

we had expert testimony, not just from those who said there is no 

scientific basis for this disparity, but also from law enforcement officials, including a gentleman who came to us from Miami, Florida, 

and said that—John Timony, the Miami police chief, who said police departments face a much more difficult challenge gaining trust 

of their communities because of the glaring inequities in the justice 

system that are allowed to persist. 

I know you have come out for ending this disparity, but I would 

like to ask you if we need to move with dispatch on this issue to 

restore justice and to restore confidence in our justice system 

among people in America who are presently the victims of this disparity. 

Attorney General HOLDER. Senator, I do think we need to move 

with dispatch. This is one of the first initiatives that we had people 

testify about. The Assistant Attorney General for the Criminal Division, Lanny Breuer, testified against the disparity, and I think 

you are exactly right that the disparity as originally intended— 

originally proposed and enacted I think was well intentioned. I do 

not think anybody had any negative motives. But as we have seen 

how it has played out—and I think in the graphic demonstration 

that you have made—and also when one looks at the racial impliVerDate Nov 24 2008 10:45 Feb 23, 2010 Jkt 054719 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54719.TXT SJUD1 PsN: CMORC
33 

cations of the crack/powder disparity, it has bred disrespect for our 

criminal justice system. It has made the job of those of us in law 

enforcement more difficult. And I think it is time for us to make 

the determination that is consistent with what the science tells us, 

consistent with what law enforcement officials on the State and 

local levels have told us, certainly something that I observed as a 

judge here in Washington, D.C., that it is time to do away with 

that disparity. That will have, I think, an immediate impact on 

how people—not only people of color, but people generally look at 

our criminal justice system, and it will be a very positive thing for 

those of us in law enforcement. 

Senator DURBIN. Thank you, Mr. Attorney General. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Just so we know where we are, Senator Cornyn will be next, Senator Cardin, Senator Kyl, and I know a lot 

of the Senators have been going back and forth. In a discussion 

with Senator Kyl, he is working on health care, which a number 

of us are. 

On the thing that Senator Durbin raised, on the crack cocaine/ 

powder cocaine, I would like to see us move legislation this year 

to remove that disparity, make it more realistic. I understand some 

of the negotiating room it gives prosecutors, but I also have this 

image of people, wealthy people, well-established in society, using 

their powder cocaine with virtual immunity, and a lot of young people from a far less affluent area, often minorities, getting hit on 

crack cocaine. And I think as a disparity it is destructive to our 

whole penal system and our justice system and to our respect for 

the rule of law. 

I will work with Senators on both sides of the aisle who have expressed for some time the problem with this disparity. I do not 

want what appears to many people to be one rule for white America and a different rule for black America. 

Senator SESSIONS. Mr. Chairman, could I just say—— 

Chairman LEAHY. Sure, of course. 

Senator SESSIONS. I share those concerns. Senator Hatch and I 

have, I guess for 9 years, had legislation to make a substantial improvement in that. Senator Cornyn and Senator Pryor and former 

Senator, now Secretary, Salazar have all pushed a bipartisan bill, 

and four former Attorneys General have also supported substantial 

improvements in the way that is done. I think it is not healthy 

now. We need to fix it. 

I would just note one reason we are having a hard time, Mr. 

Chairman, on our side is the Finance Committee. Those masters of 

the universe are setting our health care policy. Senator Grassley 

let me know that he is, of course, ranking on that Committee. Senator Hatch, Senator Cornyn, and Senator Kyl are also members of 

that important Committee. So I am glad they can at least be here 

for a while. 

Chairman LEAHY. Thank you. I am glad, too, and, of course, I 

will keep the record open for the rest of the week for additional 

questions to be submitted. 

Senator Cornyn. 

Senator CORNYN. Thank you, Mr. Chairman. Welcome, Attorney 

General Holder. And I just want to note for the record, Mr. ChairVerDate Nov 24 2008 10:45 Feb 23, 2010 Jkt 054719 PO 00000 Frm 00037 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54719.TXT SJUD1 PsN: CMORC
34 

man, there is no more important Committee in the Senate than the 

Judiciary Committee. 

[Laughter.] 

Chairman LEAHY. I liked you, anyway. You did not have to say 

that. No, but I do think the Finance Committee and the HELP 

Committee are taking a lot of our members, and I understand why. 

Senator CORNYN. Mr. Attorney General, I just have two areas I 

want to ask you questions about. In November 2008, the Department of Transportation declared the record complete in the Continental Airlines, which is headquartered in Houston, Texas, their 

application to join Star Alliance, an antitrust-immunized alliance of 

international airlines. According to the U.S. Code, this means that 

the Secretary of Transportation was obligated to make a final decision by May 31, 2009. In late April 2009, the Secretary issued a 

preliminary decision tentatively approving that membership in 

Star Alliance, but then the May 31 deadline came and went. 

I wanted to ask you about this because some have indicated that 

the Transportation Secretary’s failure to meet the statutory deadline was due in part to requests from the Department of Justice, 

specifically the Antitrust Division, encouraging the Secretary to 

delay the decision until the DOJ Antitrust Division could have 

some input. 

I am concerned about the deadline having come and gone and 

sort of the open-ended nature of this and wonder if you can shed 

any light on why that deadline was not met and what you anticipate the timetable might be. I think Senator Kohl asked some 

questions about this. 

Attorney General HOLDER. Yes, Senator Kohl asked the question 

earlier. We did ask the Transportation Department to allow our 

Antitrust Division to have input into the decision that he will ultimately reach, and the Secretary agreed to allow us to participate 

in that. I do not think that this will extend the time. It is regrettable that the deadline has passed, but I do not think this will extend it a matter of months or even beyond a few weeks. And I expect that the determination will be made by the Secretary of 

Transportation after having consulted with the lawyers in our 

Antitrust Division. 

Senator CORNYN. I can certainly understand the desire to have 

input, and I appreciate that. However, I know there are others who 

would appreciate a decision as soon as practicable, so I would appreciate that. 

I want to ask you a little bit about the D.C. voting rights issue, 

and as you know, I wrote a letter to you expressing my concerns 

about a Washington Post story that said you had solicited a second 

opinion from the Solicitor General’s office after the Office of Legal 

Counsel originally concluded that the D.C. Voting Rights Act was 

unconstitutional. I requested that you produce the OLC memorandum questioning the bill’s constitutionality, and in response, as 

you will recall, you said that you declined to make that memorandum public, saying that it was not final. And so I wanted to ask 

you about that. 

What is there that remains to be done before that opinion will 

be final? 

35 

Attorney General HOLDER. Well, I guess no decision has actually 

been made by the administration yet with regard to the position it 

is going to take concerning the constitutionality of the statute. So 

that process is still ongoing, and as long as that is ongoing—and 

also the concern I think I expressed was it reflected—I was concerned about releasing documents that reflected internal deliberations in the Justice Department. 

So those were the two concerns that I—if I did not express both, 

those were certainly the two concerns I have now with regard to 

the release of the documents. 

Senator CORNYN. Given the fact that the memorandum was 

signed by the acting head of the Office of Legal Counsel, in what 

sense was the memorandum not final? Is it because the—you say 

the administration will now make a decision whether or not it disagrees with the Office of Legal Counsel or not? 

Attorney General HOLDER. Yes, the determination has not been 

made by the President, by the administration, as to what the position is going to be of the administration. And so while that matter 

is ongoing, that was one of the two concerns I expressed about releasing the materials that you requested. 

Senator CORNYN. Well, would you foresee a situation where the 

Office of Legal Counsel would render a legal opinion that a statute 

was unconstitutional where the President would take a contrary 

position? 

Attorney General HOLDER. You have to look at, you know, the 

specific fact situation. OLC has some of the best and the brightest 

in the Justice Department, but even the best and the brightest can 

get it wrong. We look at what they say. I review what it is that 

they say. Great deference is given to what OLC says. It is extremely rare for an Attorney General to take a contrary position. 

And I understand that is why this has at least gotten some—generated some interest. 

But it is possible—I mean, the OLC has delegated power from 

the Attorney General. I think ultimately it is my responsibility to 

make sure that the opinion that comes out of the Justice Department, even an OLC opinion, is one that I am fully comfortable 

with. 

Senator CORNYN. I understand the difference between lawyers 

having different opinions. That happens all the time. But what you 

are suggesting is that the President of the United States would 

make a policy decision on a question of law and essentially overrule 

the decision of the Office of Legal Counsel? Is that what you are 

suggesting? 

Attorney General HOLDER. No, I am not saying that. I mean, one 

of the things the President has got to decide in preparing policies, 

making policy judgments, there are a whole variety of legal things 

that come in from the Justice Department, legal opinions. There 

are obviously policy considerations. I would not say that the President for pure policy reasons would necessarily overrule an OLC 

opinion. The President might have a different legal view than the 

Office of Legal Counsel, a different view than the Justice Department with regard to a particular statute or policy initiative. 

Senator CORNYN. Well, I certainly understand the role of the 

OLC in informing the executive branch about what the law, in fact, 

36 

is. Indeed, in the area of enhanced interrogations and rendition 

and other controversial areas that you are well familiar with and 

I am as well, the question is what is the law. And, of course—but 

here, on the discrete issue on the constitutionality of a statute, how 

in the world would the President of the United States have an 

opinion that would be anything other than a political decision that 

might overrule a legal judgment of the Office of Legal Counsel? 

Isn’t that the kind of politicization that we have heard decried here 

in this Committee and in Congress over the last few years? 

Attorney General HOLDER. Well, you are talking about a hypothetical, the likes of which I am not sure I have ever heard. But 

it would seem to me—— 

Senator CORNYN. Well, excuse me, but you are the one who said 

that the President, the administration may or may not agree with 

the opinion, so that is not a hypothetical in that sense, I would 

submit. 

Attorney General HOLDER. Well, I think I was focused really 

more on the Attorney General not necessarily agreeing with what 

an OLC opinion—an OLC position might be. 

The OLC plays an important role, a vital role in saying what the 

Justice Department’s view is on the constitutionality of a statute 

and a whole variety of other things. The President, in formulating 

policy, takes into account a wide range of things, things that come 

from the Justice Department, opinions that come from other places. 

There are policy determinations that go into it. And it is not—I do 

not know. I am not as bothered as you are apparently by the notion 

that a President in taking into account the wide range of advice 

and opinions that he or she gets comes up with a determination 

that might be different from what the Justice Department has recommended. 

Senator CORNYN. Well, would that have to be based on a legal 

argument, or could that be based purely on political considerations? 

Attorney General HOLDER. I mean, usually the experience that 

I have had is that—we are talking about legal arguments. The Justice Department takes a view, I do not know, maybe the State Department, the Defense Department takes a different view with regard to a legal determination. The President weighs those legal determinations and then decides one way or the other which legal 

view he thinks is most appropriate. 

Chairman LEAHY. Senator Cornyn—— 

Senator CORNYN. Mr. Chairman, I know my time is up. I find 

troubling, though, the idea that the Office of Legal Counsel would 

render an opinion on the constitutionality of a statute and that the 

administration might in its discretion overrule that decision. I understand informing policy by saying what the law is, is going into 

an overall policy judgment. But on a discrete legal question involving the constitutionality of a statute, I am troubled—— 

Chairman LEAHY. And probably all the more reason why we 

should get on with confirming the head of OLC. 

Senator CORNYN. Well, not if we are going to overrule him at the 

White House. I do not think that makes—— 

Chairman LEAHY. Well, we—— 

Attorney General HOLDER. Just to be clear here, I mean, with regard to the particular thing that we are talking about, the D.C. 

37 

voting rights, this did not involve the President. This involved me. 

It was my determination that the better view of the statute was 

that it was constitutional. I based that on my review of the constitutional authorities who, in fact, said the same thing, among 

them Ken Starr, Viet Dinh, people who are certainly conservative 

in their views, but who I thought had a better view of the constitutionality of the statute. The President was not involved in this at 

all. Let us be clear. This was the determination that I made. 

Senator CORNYN. But just to be clear, the reason you will not release the memo is because you disagree with the legal conclusion? 

Attorney General HOLDER. No. The reasons that I think the 

memos should not be revealed is because this is an ongoing matter, 

and also because I am concerned about revealing internal deliberations in the executive branch, and specifically within the Justice 

Department. 

Senator CORNYN. Thank you, Mr. Chairman. 

Chairman LEAHY. Senator Cardin. 

Senator CARDIN. Attorney General Holder, it is a pleasure to 

have you here, and I very much appreciate your comments, particularly as it relates to the Civil Rights Division and the message that 

you have sent in so many other areas. I want to talk about a few. 

Let me first, if I might, talk about predatory lending. The civil 

rights movement was responsible for the passage of significant legislation that was intended to end discrimination in housing—the 

Fair Housing Act, the Equal Credit Opportunity Act, the Home 

Mortgage Disclosure Act, the Community Reinvestment Act, just to 

mention a few. And I think it did an incredible job in ending redlining. But the problem today is that we have reverse redlining 

where minority communities have been targeted particularly for 

subprime loans. Let me just give you some of the statistics that we 

have for 2006, leading up to the current housing crisis. 

We find that the high-cost loans, that 35 percent who were 

placed in these high-cost mortgages could have been placed in traditional fixed-rate loans. But the disturbing fact is that of those 

placed in high-cost loans, it was 53.3 percent for black borrowers, 

46.2 percent for Latino, and 17.7 percent for white borrowers. The 

subprime rate of foreclosure is much higher than in the traditional 

fixed-rate loans. 

Now, let me, if I might, quote from—the National Association for 

the Advancement of Colored People Legal Defense and Education 

Fund noted that, ‘‘A case brought by the Civil Rights Division of 

the Department of Justice reverberates throughout the community, 

the State, and the region. It can have industry-wide impact in 

terms of deterrence and reform. The broad-based injunctive relief 

that the Division can pursue cannot be matched through the efforts 

of individuals or private lawsuits.’’ 

My question is that we have not seen a case brought since 2000 

as it relates to predatory lending by the Department of Justice. I 

sent you a letter about a week ago concerning the circumstances 

in Maryland where minority communities were targeted with 

subprime mortgages. My question to you or my request is that the 

Department of Justice investigate and look at the circumstances 

concerning predatory lending particularly in minority communities 

to see whether there is a need for aggressive action by the DepartVerDate Nov 24 2008 10:45 Feb 23, 2010 Jkt 054719 PO 00000 Frm 00041 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54719.TXT SJUD1 PsN: CMORC
38 

ment of Justice in order to protect our communities. And I would 

just request that you do this and get back to us on it. 

Attorney General HOLDER. Sure, we will do that, although, Senator, I will tell you now that I think there is the need for aggressive action by the Justice Department in this field. We announced 

an initiative, a joint initiative with the Treasury Department, the 

FTC, the Department of Housing and Urban Development, and the 

Justice Department, and the Justice Department component of that 

initiative was to look at the very thing that you have talked 

about—that is, the use of these mortgage instruments disproportionately in areas where minorities are found and the impact that 

that has had, the devastating impact that has had on minority 

communities as people have not been able to make payments and 

have abandoned their houses, with all the negatives that then flow 

from that. So this is something that we will aggressively be looking 

at. 

Senator CARDIN. I thank you. It is not just in home mortgages 

to buy homes. We find that in refinancing the minority communities were targeted, and a large number were convinced to go into 

refinancing in the subprime market and now are losing their 

homes. So it appears like it was an intentional effort, and I think 

the Department of Justice activities here could be very helpful to 

make it clear that we will not tolerate reverse redlining. 

Attorney General HOLDER. Right. 

Senator CARDIN. Let me weigh in on the Guanta ́namo Bay 

issues, and I must tell you, I thank you very much for your comments as it relates to placing due process in regards to those that 

are going to be detained. And I agree with the analysis that was 

made by Senator Graham and others about that process. 

I chair the Terrorism Subcommittee, and we intend to have some 

hearings. The Chairman has authorized us to have some hearings, 

and Senator Feingold has already had hearings in regards to the 

long-term detainees. As you start, as Senator Graham said, a fresh 

start and how we are going to deal with detainees, it is important 

that it be an open process. And I just would urge us, we need to 

develop what is right for America. But we also need to engage the 

international community because we need to have better understanding from the international community as to what America is 

doing in regards to its detention policies as we try to lead internationally on human rights issues. 

I would just urge you as part of this process to be open and go 

beyond just our country in trying to get better understanding as to 

what we intend to do and the reasons why we are pursuing these 

policies. 

Attorney General HOLDER. I think you are absolutely right, Senator. I have made two trips to Europe so far and have spent a good 

portion of both of those trips talking about the issue of 

Guanta ́namo with our allies. The State Department has a gentleman, Dan Fried, who has been literally traveling the world to 

talk about this issue with other countries. And so what we are trying to do is to make the world understand that we are trying a different approach, and an approach that I think is consistent with 

who we are as a Nation and that I think will stop the ability of 

our adversaries to use Guanta ́namo as a recruiting tool and I think 

39 

rehabilitate some of the relationships with other countries that 

have been frayed over the last few years. 

Senator CARDIN. Well, I think you are off to a good start there. 

I think some of the things that you have already announced are 

helpful. We want to be supportive, and as has been indicated on 

both sides of the aisle, I think there is support for what you are 

trying to do. 

The last point I want to bring up is what some of my colleagues 

have already brought up, and that is the surveillance statutes. Let 

me just focus on the three that expire at the end of this year, and, 

again, the Terrorism Subcommittee is going to do some work here. 

We have the lone-wolf provisions, the revolving wiretaps—roving 

wiretaps, and the business records. Those three expire at the end 

of this year, and I very much appreciate the fact that you need adequate time to review the effectiveness of these provisions, whether 

they need to be extended, and if they need to be extended whether 

there needs to be further modifications, but understand that we 

have an incredibly busy schedule here in Congress as far as floor 

time is concerned, and these issues are not always without controversy. 

I would just urge you as quickly as possible to share information 

with this Committee so that we can make adequate judgments on 

the reauthorization of these tools that at least the FBI Director 

said are important for national security. 

Attorney General HOLDER. We will endeavor to do this as quickly 

as we can because we are mindful of the fact that this is obviously 

a very busy Committee, a very busy Congress. But we want to 

make sure also that we have a good gauge of how effective these 

tools are, whether or not modifications, slight or major, need to be 

made. We want to be cognizant of the fact that there are civil liberties interests that have to be examined as well as the law enforcement equities that we have. 

So we will be getting, I think, our views to you all relatively 

soon, and certainly I think with enough time so that they can be 

considered as you will have to consider the reauthorization question. 

Senator CARDIN. Thank you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

Senator Kyl. 

Senator KYL. Thank you, Mr. Chairman. 

I second Senator Cardin’s motion and appreciate your response. 

The sooner we get your views on these three issues, the sooner we 

will be able to deal with them in appropriate way. 

Second, since I am the Ranking Member on the same Subcommittee and I have been advised we are going to have a hearing 

on the detainees at Guanta ́namo, I would like to also ask you to 

get some information to us on that. I had asked in a letter that I 

sent back in May for some information following up on the President’s speech when he talked about the fact that our super-max facilities hold hundreds of convicted terrorists. I had written asking 

if you could break that down for us. I do not have a response, so 

let me just do this. I am going to submit for the record a question, 

because I know you cannot answer it just sitting here, but to find 

40 

out who they are, what kind of categories of folks they are, if there 

are any that are really comparable to the high-value detainees that 

are at Guanta ́namo today. That would be very helpful to us. 

Second, if you would like to comment on it right now, fine, but 

to get a sense of what kind of capacity we have. My understanding 

is that we are way overcrowded in the super-max facilities today. 

By the way, can you just tell us, do you know whether that is true 

or not right now? Or do you want to respond for the record? 

Attorney General HOLDER. Whether they are overcrowded? 

Senator KYL. Yes. My understanding is there is a capacity of like 

13,000-something, and there are like 20,000 being held. 

Attorney General HOLDER. Senator, I would have to get you 

those statistics. I just do not know offhand. 

Senator KYL. All right. I appreciate that. 

Two other follow-up questions on that same matter. One has to 

do with the recruitment of terrorists in jail. We know that is a big 

problem with this particular kind of militant Islamist, and it is 

something that the FBI Director testified in the House of Representatives about. Is there anything that you would like to offer 

us today on that question about how we could prevent that from 

occurring? Or if you would like to respond in the same way, I am 

happy to receive that. 

Attorney General HOLDER. I understand the concern, but I think 

there are measures that can be taken to minimize that possibility. 

Terrorists, people who are considered terrorists, are generally held 

out of the general population, so there is not the ability to interact 

with other prisoners in the way that some might and have an ability then to try to radicalize them. And then beyond that, what we 

have tried to put in place are programs to deal with, to occupy the 

time of the people who are in these facilities so that they have alternatives, they have the ability to think of a life outside the prison; and if they have options, if they think that they have a life that 

they can lead on the right side of the law, they are far less susceptible to these radicalization efforts. 

Senator KYL. Of course, Guanta ́namo was constructed in such a 

way as to accommodate this particular requirement. It may be 

more difficult to do that with the super-max facilities. Without asking you to respond to that today, would you include some information in your response to this? I think all of this would be helpful 

in preparation for our hearing. 

Attorney General HOLDER. We will detail for you how we think 

the facilities that we have can be used to minimize the concerns 

that you have expressed. 

Senator KYL. Good. And then the final question in this area is 

Senator Sessions has pointed out that it would be against the law 

today to release a terrorist or accused terrorist into the United 

States, into our society. Can you comment on—if that is not an option, in other words, the resolution of the President’s dilemma here 

about closing Guanta ́namo, does not mean releasing anyone into 

the United States, then I guess we do not have to worry about it. 

But if it does include that option, what is your response to the 

point that existing law, the Immigration and Nationality Act, 

would make that a crime—or would prevent it from happening? 

41 

Attorney General HOLDER. Well, certainly the House has already 

passed as part of a supplemental appropriations bill—I guess it is 

going to be considered by the Senate, and what I am hearing, my 

intelligence tells me it is going to be passed by the Senate, so there 

will be provisions in that bill that would forbid the bringing into 

the United States of people who are presently detained at 

Guanta ́namo. And, obviously, we will respect that law, and efforts 

are underway to try to—to those people who would be either transferred or released, to place them in other countries. That is the 

focus of our efforts. 

Senator KYL. Thank you. Let me quickly switch now to immigration and drug violence on the border. I tie the two together because, unfortunately, as you undoubtedly know better than most of 

us, the cartels that are now controlling the drugs have basically 

taken over control of all of the things that are being smuggled, including illegal immigrants, much to their disadvantage as individual human beings, I might add. 

Two general lines of questioning here, and, again, I can ask you 

to respond to some of this for the record if it would be easier for 

you. 

You and I talked about Operation Streamline. This is the idea 

where we use existing law to actually prosecute people who are 

caught crossing the border. They get jail time, and as a result of 

that, it is a huge disincentive for them to cross because they cannot 

do what they want to do, which is mostly to work, if they are in 

jail. And I asked you if you would get some information for us that 

would be helpful in seeing whether or not we could pursue this 

across more of the border than just in the Del Rio, Yuma, and Tucson sectors, since it does seem to be a program that is really working. We met on May 5th, and I asked you to provide me with the 

estimate of resources, increases in personnel and so on that would 

be required for this. 

Do you know whether your folks have been able to come up with 

that yet? 

Attorney General HOLDER. I do not know as yet if we completed 

it. I know that we are working on it. I am not sure that we have 

completed that yet. 

Senator KYL. OK. Well, then, let me include that question in the 

record as a reminder of the information we were seeking, and as 

soon as you can get that to us, I think it would be very helpful because we cannot get the funding for these things until you tell us 

what is needed. And, obviously, we have already gone by one budget cycle. 

Also helpful in that regard would be information—and I will just 

ask this for the record—of how many people have been involved in 

this program, how well we think it has worked and so on, if you 

would provide that for us. 

Attorney General HOLDER. Sure. We will do that. 

Senator KYL. Finally, on the matter of the State criminal alien 

and assistance program, you are aware that the Federal Government is authorized to pay States money as compensation for the 

housing of illegal immigrants who have committed crimes. Our 

former Governor, Janet Napolitano, now Secretary of Homeland Security, used to write the Attorney General every year and demand 

42 

payment. Senator Feinstein and I actually got an authorization of 

$975 million a year. 

We need to know whether the Department of Justice has sought 

that funding. There was no funding in the President’s budget. Is 

there any way that you can ask for supplemental funding to cover 

that? And, second, will you ask for funding for at least a portion 

of that authorized amount in the budget for next year? 

Attorney General HOLDER. I think the administration has made 

the determination that in dealing with that issue there are better 

ways to do it than through the use of the program that you mentioned, and I think that is why that is reflected as having been zeroed out in the 2010 budget. So as I said, I think that is the administration’s position at this point. 

Senator KYL. Well, my time is up, but that certainly did not used 

to be Governor Napolitano’s position, and I would be very curious 

to know whether she agrees with the proposition given the fact 

that she understands what the burdens on States are as a result 

of the Federal Government failing to do its job in controlling the 

border. 

Attorney General HOLDER. I think, regardless of the position that 

the administration has taken, that you do raise a valid point, and 

that is that the Federal Government has to be sensitive to the burdens that are placed on our State and local partners as a result of 

enforcement efforts that happen along the border, and we have to 

find ways in which we alleviate those burdens in working with 

them. 

I think that the administration’s position is that, with regard to 

this particular program, there are better ways perhaps that we 

could do this. 

Senator KYL. And I would submit Operation Streamline is one of 

them, so let us pursue that. 

Attorney General HOLDER. OK. 

Senator KYL. Thank you. 

Chairman LEAHY. Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Mr. Chairman. And welcome, 

Attorney General Holder. 

Very briefly, let me first express my view that the release of the 

OLC opinions was proper, was necessary, and was wise, and was 

particularly important in light of the damage that had been done 

to that office by its politicization during the Bush era. Frankly, 

those were opinions that had to be seen to be believed. And it really, I think, gave the legal community around the country a far better appreciation of the depth of the dive that that office took in 

that period to have those out, entirely apart from all the other considerations. I think it was the right call, and I respectfully but completely disagree with our Ranking Member on that subject. 

Following up on OLC, Senator Durbin asked a few questions 

about the OPR investigation and its status. When we first asked, 

we were told on February 18th of 2008 that this investigation was 

already pending. So we know it pre-dated February 18th of 2008. 

We know that OPR completed its investigation and provided a 

draft report in late December of 2008. We know that on May 4th 

of this year the comment period for those who were the subjects of 

the investigation closed in their chance to respond to the draft. And 

43 

we also know that the CIA was given an opportunity for both substantive comment and for classification review. 

My first question is: Is it now the CIA, through its request for 

either substantive comment or through its role in classification review, that is holding up the release of this report? 

Attorney General HOLDER. No, it is not. Though that process 

might not be complete, there are other things that still have to be 

done within the Justice Department. I met yesterday with the head 

of OPR, who indicates there are still some things that they are 

working on in the preparation of the report, chiefly in response to 

the responses that were received, I guess in early May or so, and 

they are dealing with that. She is new to the Office of Professional 

Responsibility, understands the seriousness of this particular report, and that has also had an impact on the timing of the release. 

Senator WHITEHOUSE. The role of the CIA both in substantive 

comment and in classification review raises some interesting potential conflicts of interest. Can you tell me what assurances the Department of Justice has received from the CIA that those who seek 

to influence the OPR report through substantive comment or those 

who have the effect of delaying the report through classification review are not complicit or involved in the underlying conduct? Have 

you got essentially a clean scrub of those at the CIA who are involved in those processes to assure that they are not tainted by the 

program that is the subject of the report? 

Attorney General HOLDER. As I think I testified earlier, it is our 

hope to release as complete a report as we can, and one of the 

things that I think we want to do is to declassify as much of this 

report as we can so that when people read it, either in this body 

or the general public, they will have a full feeling for what it is our 

lawyers in the Office of Professional Responsibility dealt with and 

what is the basis for the conclusions that they reached. And so we 

will be pushing, as I said, to declassify as much of this report as 

we can so that the American people will have a real sense of what 

it is that drove the conclusions that we reach. 

Senator WHITEHOUSE. I appreciate that, but it does not address 

the question of whatever assurances you got from the CIA that in 

the discharge of their either substantive comment or classification 

review roles, that the people involved in that you can assure us actually had clean hands with respect to this program and are giving 

legitimate, untainted, unbiased, unimplicated advice. 

Attorney General HOLDER. Yes, I do not think we have gotten 

anything yet from the CIA, at least nothing that I am aware of, 

with regard to what their position is concerning the declassification 

issue. And so I think I have to wait for that and see—this may be 

not an issue at all. And to the extent that it is an issue, then I 

would interact with Director Panetta and raise the questions that 

you raise in addition to just our general feeling that we want to 

have as much of this declassified as we possibly can. It will be the 

Director, I think, who will ultimately make the decision, who I do 

not think is actually tainted by it. I would be dealing with him in 

trying to make determinations as to what should be and should not 

be declassified. 

44 

Senator WHITEHOUSE. And on the question of their substantive 

comment on the contents of the report, how do you assure that that 

is not tainted by people who are implicated in the program? 

Attorney General HOLDER. I am actually less—— 

Senator WHITEHOUSE. Isn’t that an important point? I mean, 

maybe we are talking across each other. 

Attorney General HOLDER. Yes, yes. No, I—— 

Senator WHITEHOUSE. Is it not important that the CIA in exercising its substantive comment role that it sought and in performing the declassification review should be doing so in a manner 

that keeps the agency’s hands clean of implication in the underlying subject of the report? 

Attorney General HOLDER. Yes, I am less worried about the substantive comments. I think we certainly would invite the comments 

from any involved agency, but ultimately it would be the Justice 

Department lawyers who will make the determination as to what 

goes in the report, the conclusions that the report reaches, and so 

I certainly want to give them the opportunity to express whatever 

their views are. But that—but the content—— 

Senator WHITEHOUSE. Would they be likely to evaluate the recommendations of the CIA differently if, on the one hand, the CIA 

had not assured the Department that its recommendations were 

coming from individuals who had clean hands versus those who did 

not? Is that not an important factor in evaluating the substantive 

comment that the CIA would seek to propose? 

Attorney General HOLDER. Yes, I guess those are things that one 

would take into consideration, but so much of this is really fact 

driven. That I think is what people will find in the report. It is fact 

driven, really, and the conclusions that one draws from the facts 

I guess can differ. But ultimately it will be the Justice Department’s view that will control based on the facts that we have uncovered but, as I said, taking into account whatever other views 

people have of those same facts. 

Senator WHITEHOUSE. Thank you, Attorney General. My time 

has expired, Chairman. 

Senator CARDIN. [Presiding.] Thank you very much. 

Senator Klobuchar. 

Senator KLOBUCHAR. Mr. Chairman, thank you. Thank you for 

being here, Attorney General Holder. I was listening to some of my 

colleagues going through some of the cases and the concerns that 

they had and, I think, a misplaced argument about politicization. 

And as you were talking, I was thinking what was the most highprofile case that you have dismissed, white-collar case, since you 

came into office. What would you say that is? 

Attorney General HOLDER. Well, I would probably say it was the 

Senator Stevens case. 

Senator KLOBUCHAR. That would be correct, yes, the Republican 

Senator. Then I was also thinking of a decision you made early on 

to allow the Republican-appointed U.S. Attorneys to stay in place 

until new U.S. Attorneys had been appointed. Was that the policy, 

do you know, when Bush came into office of allowing the previous 

U.S. Attorneys to stay on for a length of time? 

Attorney General HOLDER. To be honest with you, I do not know 

what exactly the policy was. The concern that we had, though, was 

45 

to maintain continuity in the U.S. Attorneys’ Offices and to leave 

in place those people who were doing a good job. There has been 

turnover, but we have not pushed anybody out. We are starting 

now to get our nominees before this Committee and hope to have 

them confirmed and in place relatively soon. 

Senator KLOBUCHAR. And how many nominees have been confirmed by this Committee so far for the U.S. Attorney? 

Attorney General HOLDER. None so far. 

Senator KLOBUCHAR. OK. So you would like to move that along, 

I would hope. 

Attorney General HOLDER. Yes, that would be for us a priority, 

to get our U.S. Attorneys in place as quickly as possible. It is good 

for the offices. It is good for our law enforcement effort. It is good 

for us as we try to get our program together. 

I would also urge, respectfully, that this Committee and the Senate act on the other nominees for other Justice Department positions that have been sent up, everything from Tax to the Environmental and Natural Resources Division, OLC. There are a variety 

of positions that are still awaiting Senate approval. 

Senator KLOBUCHAR. Very good. And I can tell you in our State 

it has worked very well. We had, as you know, a lot of uproar over 

a political appointment, and then Attorney General Mukasey put 

someone new in. He is still staying on until the person I suggested 

who has now been recommended by the President, and we are hoping that we can get him in there soon. We have some major cases 

pending in our jurisdiction. 

The other interesting thing, this is just my most interesting 

thing I learned this week, Attorney General Holder, as I recommended a marshal. Do you know—there are 94 marshals. Do 

you know how many are women in the country? 

Attorney General HOLDER. No, I do not. 

Senator KLOBUCHAR. There is only one, in the State of Florida, 

and I thought that was quite interesting. I thought I would share 

that with my colleagues as we recommend people as we go forward. 

I am going to just ask a few questions about things that are a 

little closer to home that people have been focused on in my State, 

and that is, some of the white-collar fraud. The Madoff case hit a 

lot of people in our State. As we know, that came out through a 

whistleblower to the SEC, and nothing was done. Could you talk 

about what is going on with the initial steps to implement FERA 

as well as some of the other changes to enforce some of the whitecollar laws, as we look at a large amount of money going out there, 

we look at the TARP money, things like that, that there could be 

even more white-collar fraud. 

Attorney General HOLDER. We are in the process of ironing out 

what I will call the last wrinkles in what is going to be a comprehensive announcement about the program that we are going to 

have with regard to financial fraud, white-collar crimes more generally, mortgage fraud. We have been working with our State and 

local counterparts, with the other Federal agencies, to come up 

with this effort. 

This is a priority for this Department of Justice to hold people 

accountable who have defrauded huge numbers of people with almost unheard of amounts of money or those who would seek to 

46 

misuse the recovery money that is now trickling into the economy. 

These are things that we will be taking very close looks at and will 

be emphasizing in our enforcement efforts. 

Senator KLOBUCHAR. And I know you are also working with Secretary Sebelius on the health care fraud prevention. As we are 

going into the summer focusing on health care, there is still a significant problem with health care fraud. Estimates could be 3 to 10 

percent of the total amount of spending, you know, amounting to 

billions of dollars. I saw cases myself as a prosecutor of identity 

theft in hospital settings and things like that. 

I think that it will be very important as we move into this health 

care debate that the work that you are doing with this new focus 

is understood. Do you want to talk a little bit about that? 

Attorney General HOLDER. I would totally agree with that. If you 

look at the statistics for last year, I think it was about $1.2 billion 

that was recovered as a result of the fraud found in the health care 

system. That is why Secretary Sebelius and I have made this a priority, and it is why we have announced a joint effort to look at 

these issues in two additional cities in addition to what we are 

doing more generally. I mean, that is a lot of money when you 

think about it, $1.2 billion in actual money received by the Federal 

Government as a result of its enforcement efforts, and we plan to 

keep those efforts as strong as they are, as robust as they are. 

Senator KLOBUCHAR. And one of the things that came out in the 

FBI’s financial crimes report for 2007 was that they are actually 

seeing some cases—and I care about this a lot because I come from 

a State where we really value high-quality health care, and we 

have not had a lot of issues with this. But there have been recent 

health care fraud cases which included medical professionals risking patient harm with unnecessary surgeries and things like that. 

What are you doing to combat this particular kind of fraud? 

Attorney General HOLDER. That is a very good point. There is 

not only an economic consequence to some of the fraud that we see; 

there are health care outcomes that get affected in a negative way 

by at least some of the things that we have seen. And that I found, 

to be very honest with you, very surprising when I became Attorney General and saw the results of some of these FBI efforts. And 

so we are going to be looking not only at the financial aspect of this 

but in some ways the ultimate fraud, whether or not patients are 

getting the care or the Government’s getting the care for which it 

is paying, and whether or not people’s lives are being put at risk. 

To the extent that we prioritize this, although the financial component obviously will be important, what we really will emphasize 

is making sure that no one’s life is put at risk and that the kinds 

of treatment that people are expecting to get they are, in fact, actually receiving. 

Senator KLOBUCHAR. And one last issue, and I can talk to you 

about it later, but it is just the upcoming reauthorization for the 

Violence Against Women Act. We had a very good hearing here 

that Chairman Leahy conducted, and we had a focus on some of 

the new trends and things that are happening there. And one of 

them is, just because of economic problems, States not being willing or are unable to pay and help with things like rape kits and 

other things, and a line-up—I think L.A. County is the worst of 

47 

these tests that have not been done on some of the rape kits, when, 

in fact, we could be potentially finding and prosecuting people who 

are committing sexual assault. And so that is just something I am 

sure we talk about in the future, but it is something I am very concerned about. 

Attorney General HOLDER. I look forward to working with you on 

that. 

Senator KLOBUCHAR. Thank you. 

Senator CARDIN. Senator Specter. 

Senator SPECTER. Thank you, Mr. Chairman. 

Mr. Attorney General, I join my colleagues in welcoming you 

here and compliment you on your many abilities, including handling a marathon. I begin on the question of the immunity for the 

telephone companies. It has been subject to a lot of analysis and 

a lot of consideration by the Congress. I had pressed an amendment to substitute the Government for the telephone companies as 

the party’s defendant. The provision on immunity I thought very 

troublesome because what it does, in effect, is take away the jurisdiction from the district court to determine what has happened. It 

is a more sophisticated way for court stripping, which on constitutional issues I find unacceptable. It is not the Supreme Court of the 

United States, but Marbury v. Madison established judicial supremacy here. And the position which I pressed was to have the 

Government substituted as the party defendant. I thought the telephone companies were good citizens; they ought not to be subject 

to damages, not subject to the costs of litigation. 

What is wrong with that as the preferable course to immunity 

which keeps the courts open to determine what happened and not 

deprive party’s plaintiff of their constitutional rights and let the 

Government bear the cost of whatever is involved, because it is 

something for the benefit of the Government? 

Attorney General HOLDER. Well, this was obviously something 

that was debated at great length months or so ago, many months 

or so ago, I think, and a determination made that given what the 

telecom companies had done, the reasons why they had done it, 

their interaction with the Government that the immunity provision 

was appropriate. 

We have been conducting ourselves on the basis of what I consider to be at this point settled law, and as I said, I think the debate was a robust one. There are people who certainly have disagreed—— 

Senator SPECTER. This debate within the Department of Justice? 

Attorney General HOLDER. No. I meant in Congress, and more 

generally, I suppose. 

Senator SPECTER. Well, I know about that debate. I wouldn’t say 

it was robust. I would say it was fallacious. But how about the Attorney General’s position, the position of the Department of Justice? Why not do that, have a substitution? 

Attorney General HOLDER. Well, I think the administration has 

taken the position that we are now dealing with a determination 

that has been made by Congress. We are dealing with existing law, 

and we are proceeding in that way. 

48 

Senator SPECTER. On the issue of the substitution, this is not obviously determinative, but then-Senator Obama voted in favor of 

the substitution. Would that influence you at all? 

Attorney General HOLDER. Well, I will talk—I mean, you know, 

if this were something the President wanted to revisit, I would certainly listen to where he is now. I do not know if he is in the same 

place—— 

Senator SPECTER. Do you think there is a difference in institutional approach from being a Senator to being a President? 

Attorney General HOLDER. Possibly. Possibly. He may have the 

same position, he may not. I do not know, but he is my boss so I 

would listen to him. 

Senator SPECTER. Well, Mr. Attorney General, Attorney General 

Mukasey, your predecessor, invoked the immunity defense. Did you 

make an independent determination after becoming Attorney General as to whether the immunity defense should be invoked? 

Attorney General HOLDER. Should be—I did not hear the—— 

Senator SPECTER. Should be invoked. 

Attorney General HOLDER. I am not sure I—— 

Senator SPECTER. There was a period of time before the court decided the case after you became Attorney General, and there was 

speculation, at least in the media, that the new administration 

might not seek to invoke the immunity defense in that case. And 

my question to you is: Did you consider not using the immunity defense? 

Attorney General HOLDER. Well, as I said, I think we dealt with 

the question based on the law as it existed, and given the fact that 

Congress had spoken, it did not seem to me that there was a huge 

amount of flexibility that the Department had. And so it seemed 

to me, the immunity having been conferred, that that pretty much 

settled the question. 

Senator SPECTER. Well, you are the Attorney General. I recollect 

that even district attorneys have discretion as to how you handle 

cases, quasi-judicial, if you think it is an unfair defense, you do not 

have to invoke it. But let me move on. 

Chief Judge Walker has some really fascinating cases in front of 

him in a number of directions, and I am concerned about having 

a determination made on these matters by the Supreme Court of 

the United States. I have introduced legislation, Senate bill 877, 

which would mandate the Supreme Court to take up issues like the 

Terrorist Surveillance Program. That case was never decided. The 

Federal court in Detroit found the Terrorist Surveillance Program 

unconstitutional. The Sixth Circuit reversed on grounds of standing, a very flexible standard, with the dissent, in my opinion, being 

much more authoritative than the majority opinion. It looks to me 

like it is a matter they just did not want to decide. And then the 

Supreme Court of the United States denied certiorari. And there 

you have a classic case of conflict between congressional authority 

under the Foreign Intelligence Surveillance Act, which provides the 

exclusive means for obtaining warrants and the assertion of the 

President of his Article II power as Commander-in-Chief. 

One of the questions that I intend to explore with the nominee, 

Judge Sotomayor, is her standards for what cases should be taken. 

I would not ask her a question as to how she would decide someVerDate Nov 24 2008 10:45 Feb 23, 2010 Jkt 054719 PO 00000 Frm 00052 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54719.TXT SJUD1 PsN: CMORC
49 

thing, but I think it is fair to ask a question, sometimes it is more 

important what cases the Court turns down than what they decide 

in cases. 

Would you think it worthwhile, would you think it appropriate 

to have a mandate that the Court take cases like the Terrorist Surveillance Program? 

Attorney General HOLDER. I am not familiar—I have not read 

the proposed statute. I would be a little concerned about—I do not 

know—you know, I am not sure if this has been done in the past, 

but it is just a separation of powers concern about mandating Supreme Court review in a particular matter. Obviously, the Court’s 

jurisdiction can be defined in some way by—— 

Senator SPECTER. Well, Congress has the authority to do that 

and has done it in a fair number of cases. 

Attorney General HOLDER. Right. But, I mean, my only concern 

would be, you know, not a technical separation of powers question, 

because I think the Congress probably does have that ability, but 

whether or not it is an appropriate use of Congress’ authority. As 

I said, I have not had a chance to review the proposed bill, and I 

would have to look at that before I can comment in a more intelligent way. 

Senator SPECTER. Would you take a look at the proposed legislation and respond? 

Mr. Chairman, I ask consent that a letter that I sent to Attorney 

General Holder be included in the record concerning health care 

costs. The Subcommittee had a hearing on that, and we had testimony that there are some people who are claiming money under 

Medicare and Medicaid who are deceased and doctors who are submitting claims who are deceased, and looking at ways to save 

money, that is really on the front burner. If you could take a look 

at that letter and respond, I would appreciate it. 

Senator CARDIN. Without objection, the letter will be made part 

of the record. 

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

Attorney General HOLDER. Thank you, Senator. 

Senator CARDIN. Senator Schumer. 

Senator SCHUMER. Thank you, Mr. Chairman. It is good to call 

you ‘‘Mr. Chairman.’’ I have three questions. We will try to get 

them done quickly. I know you have to get to the House and do 

the same thing here. So my appreciation and sympathies. 

First, on hate crimes, I know you have spoken about the need to 

pass improved hate crimes legislation. I think we have to move this 

legislation quickly. It is hard for me to believe that people oppose 

hate crimes legislation, you know, aimed to protect any group, 

whether it be religious, racial, ethnic, or sexual orientation. 

Would the administration support a move to bring hate crimes 

up very quickly here and help us try to get that through? 

Attorney General HOLDER. Absolutely, Senator. This is a priority 

for us. I testified on behalf of this hate crimes bill 10 years ago 

when I was the Deputy Attorney General, so I do not think this 

is something that we are doing in great haste. I mean, this is something we have been thinking about for a decade, and given the reVerDate Nov 24 2008 10:45 Feb 23, 2010 Jkt 054719 PO 00000 Frm 00053 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54719.TXT SJUD1 PsN: CMORC
50 

cent events that we have seen in this Nation, I think the need for 

this legislation is all that much more apparent. 

Senator SCHUMER. Second, as you know, my staff has been working with yours and the White House on a reporter’s shield bill. Senator Specter and I, when we were on opposite sides of the aisle, 

had a bipartisan bill. Now it is, I guess—it is still a bipartisan bill. 

There are other members of the other side who support it, although 

they are welcome to come over like Senator Specter did and make 

it a partisan bill. But, in any case, we are talking about it. 

Two questions. Can the Department of Justice support a wellbalanced reporter’s shield bill? And can you commit to working 

with Senator Specter, myself, and, of course, Chairman Leahy to 

get such a bill to the floor as quickly as possible so we can pass 

it this year? 

Attorney General HOLDER. Yes, I think the Department can support, the administration can support such a bill. The concern we 

have, again, is with protecting, making sure that the bill does not 

impede our ability to protect national security or our ability to 

prosecute those who would leak national security information. But 

even given those concerns, I think there is a way in which we can 

construct a bill that all would find acceptable. 

Senator SCHUMER. Good. I would just urge—your staff and my 

staff have had good negotiations, but to move those and conclude 

those. I do not think we are that far apart. 

Attorney General HOLDER. I think that is right. 

Senator SCHUMER. And I think we can still protect whistleblowers and people like that, and at the same time not deal with 

state secrets. There was a bill, as you know, that was way over and 

just said almost no recognition of either secrecy, grand jury secrecy, 

or things like that, or secrets. That is not our bill. Our bill is a balanced bill, and we need you to get on board as quickly as possible, 

and we are willing to make changes. 

The third and last question I have is ICE authority. Senator 

Feinstein talked a little about some drug trafficking, and we are 

facing a sustained and organized effort by sophisticated cartels. 

But ICE does not have clear Title 21 authority to deal with all 

forms of illegal contraband, particularly in the context of border enforcement and enforcement at our ports. The issue was just raised 

yesterday in the New York Times by a senior Bush adviser on 

homeland security. It makes no sense for the main agency stationed along the border to lack power to arrest criminals there. 

So two questions, my two last: Do you intend to remedy the arrangement you currently have with ICE to give ICE agents authority to arrest drug smugglers on the border? And what is the status 

of any discussions you are having with the Department of Homeland Security about remedying this problem? 

Attorney General HOLDER. This is an unbelievably timely question. As we left the White House last night at about 7:15, 7 o’clock, 

Secretary Napolitano and I were talking about—— 

Senator SCHUMER. Yes, I talked to her about it this week. 

Attorney General HOLDER. Right. We were talking about this 

very issue, and I think we are in a position to announce that we 

have an agreement. I do not want to steal anybody’s thunder here, 

51 

but we have reached, I think, essentially an agreement, and I think 

it is going to be announced within days. 

Senator SCHUMER. Well, I think you just announced it, and I am 

glad you did. 

Attorney General HOLDER. Don’t count this as the formal announcement. 

Senator SCHUMER. It is not a formal announcement. It is an informal announcement of an agreement, but it makes eminent sense 

to do, and it really hampers our ability to control our borders when 

the agency that is doing all the patrolling has to call somebody up, 

they have to get in a car, especially when you are dealing with people you are tracking down and chasing and everything else. And so 

I am glad that you and Secretary Napolitano have come to an 

agreement. I spoke to her last week about it, and she seemed very 

positive as well. 

Mr. Chairman, I yield my remaining 2 minutes and 25 seconds 

so that the Attorney General can have some lunch before he has 

to get over to the House. 

Senator CARDIN. With your indulgence, Mr. Attorney General, 

there are a few members who would like to have a second round, 

and I think we can handle it pretty quickly, if you are prepared to 

continue. 

Attorney General HOLDER. That is fine. 

Senator CARDIN. Senator Sessions. 

Senator SESSIONS. Thank you. 

Mr. Attorney General, with regard to the questions earlier about 

the Inspector General’s report of the OLC memorandum, I understand that the Department of Justice under your leadership has 

stated that they think it was appropriate to allow the lawyers who 

participated in that to be able to respond to the report’s initial 

draft. Is that right? 

Attorney General HOLDER. Sure. I think that is fine, yes. 

Senator SESSIONS. Somebody suggested otherwise, but that is 

what the Government Accountability Office does. When they make 

a report, they give the people a chance to respond. And I understand that Attorney General Mukasey and maybe others have 

asked that they be able to submit a letter as a part of that report. 

Have you decided whether they would be able to have their response made a part of that record? 

Attorney General HOLDER. Yes, we actually have views expressed 

by former Deputy Attorney General Filip and former Attorney General Mukasey. It would be my intention, subject to their approval, 

to include their comments, their views as part of the release of the 

report. I have not checked with them, but I assume that they 

would not have objection to that. And assuming they did not, I 

would make that a part of the report. 

Senator SESSIONS. Previously you have heard reference to 

warrantless wiretapping, suggesting this was a great violation of 

constitutional rights. But for the most part, as I understand these 

difficulties, they arise from a lawful intercept, maybe in a foreign 

country, maybe of a satellite phone or something in Afghanistan. 

Those are legally intercepted—and I think e-mails could be, too— 

as part of an intelligence-gathering operation, and that is lawful. 

It is lawful with regard to that individual. 

52 

Now, if they all of a sudden make a phone call to some terrorist 

cell in the United States, someone could argue that that is illegally 

wiretapping an American citizen. But, in truth, the intercept is of 

a person identified as part of an intel operation outside the United 

States, and that has never been considered something that is controlled by warrants. 

Attorney General HOLDER. So you are saying that you actually 

have existing authority on somebody who is overseas who happens 

to place a call into the United States. 

Senator SESSIONS. That is correct. 

Attorney General HOLDER. It would seem to me—— 

Senator SESSIONS. That is what we have been arguing over, 

frankly. If you wiretap a Mafia leader and he calls somebody whom 

the court does not have an approval for, you can listen in on that 

conversation. Isn’t that right? Isn’t that part of the approval? So if 

you have a lawful tap on a foreign person, I think the principle is 

the same. That is all I am saying, and I think we have exaggerated 

the extent to which this is somehow violative of our Constitution. 

That is just my personal view of it. 

Attorney General HOLDER. I would agree with that, except there 

are obviously minimization requirements that—— 

Senator SESSIONS. There are minimization requirements, and if 

you go to the center here that deals with that, they have incredible 

discipline on those issues. But with regard to your statement concerning the Office of Legal Counsel’s opinion apparently concluding 

that the D.C. voting bill that was passed, is unconstitutional, you 

say you are hesitant to release those internal memoranda. But apparently members of this Committee think it is right to demand 

those kinds of releases and have demanded, for example, the terrorist interrogation memoranda, and actually they have had the 

legal analysis of that for some time. But it bothers me that you had 

no real concern, or the President did not, about releasing portions 

of those memoranda that deal explicitly with techniques that could 

be used, information that I think could be helpful to the enemy. 

That is the way I would see that. 

Attorney General HOLDER. Well, with regard to those memos, the 

decision the President made was based on, I guess, a couple of factors. One, the information that was contained in those reports was 

largely public. The techniques that were described in those memos 

had been banned by the President. And we also thought that the 

continued use of those techniques—or the thought that those techniques were going to be continued to be used also gave a propaganda victory to those who wanted to do us harm. And for all those 

reasons, we thought that the release of those OLC memos was appropriate. 

Senator SESSIONS. Well, it was disapproved of by your predecessor, Judge Mukasey, and Mr. Hayden, the CIA Director. They 

did not approve of that at all. And I do not think it was necessary, 

and I think it makes your opinion that you are hesitant to release 

internal memoranda concerning the D.C. voting less persuasive, 

frankly. 

Attorney General HOLDER. Well, I would disagree because I 

think they are fundamentally different, but I—you know. 

53 

Senator SESSIONS. One is political and one has to do with life 

and death. They are different, in my opinion. 

Attorney General HOLDER. Well, no, I would not agree with that. 

I think we use neutral and detached principles in making the decisions in both cases. There is not a political component in the decision to seek the—in releasing some material and withholding others. There is no political consideration on my part at all. 

Senator SESSIONS. Well, one involves nothing but a matter of important legislation of a political nature here in the Congress, and 

that is what you do not want to release, but you were willing to 

release matters that the DNI and the Attorney General believed 

were damaging to our national security. 

Attorney General HOLDER. Well, one Attorney General thought 

that. I am the Attorney General of the United States, and it is this 

Attorney General’s view that the release of that information was 

appropriate, as well as the President of the United States. I respect 

their opinions, but I had to make the decision holding the office 

that I now hold. 

Senator SESSIONS. With regard to Guanta ́namo, I just would 

offer that we do perform a thorough initial review when someone 

is brought into Guanta ́namo, and we give them an annual status 

review. So I am not sure what else you are going to add to that. 

I am willing to hear, but we are doing those things, and Senator 

Graham has worked to try to make them effective and appropriate 

under the case law and statutes of our country. 

Do you think, with regard to the firearms question, that the right 

to keep and bear arms is a fundamental right under the Constitution? 

Attorney General HOLDER. Sure. It is a Second Amendment 

right. 

Senator SESSIONS. And it is a fundamental right? 

Attorney General HOLDER. Yes. The Supreme Court has indicated as such. 

Senator SESSIONS. Actually, they have not. 

Attorney General HOLDER. I am sorry. I did not—— 

Senator SESSIONS. Actually, they have not. It is a matter of some 

significance that in the Heller case they simply held that the Second Amendment applied to the Federal Government. They 

footnoted that they were not saying whether or not it applied to the 

states, and apparently, the test as to whether it applies to the 

States is a question of whether it is a fundamental right. 

Attorney General HOLDER. That is a good point, and I need to 

go back to law school. You raise a very good point, Senator. 

Senator SESSIONS. It is a big deal, because the Second Amendment will be eviscerated if it is not considered to be a fundamental 

right and made applicable to the States. 

Thank you. My time is up. I look forward to working with you. 

We will disagree on some things. You are a good advocate for your 

views. I congratulate you on that. But this is a serious matter we 

are dealing with—national security. 

Attorney General HOLDER. Sure, and obviously, you know, we 

have worked together well. You have been supportive of me when 

you thought that was appropriate; you have taken me to task when 

54 

you thought that was also appropriate. And you have actually been 

a teacher for me today, so thank you for that. 

Senator CARDIN. Senator Graham. 

Senator GRAHAM. Thank you, Mr. Chairman. 

I know you have got to go to lunch, and I appreciate your patience. You have done a very good job of testifying before the Committee. 

I just talked to the White House a moment ago, Rahm Emanuel, 

and he has indicated to me that the President will not let these 

photos see the light of day, that he would prefer the Congress to 

act. Have you seen the Lieberman-Graham amendment to the supplemental that would prohibit the release of these photos for a 3- 

year period if the Secretary of Defense certifies them to be a danger to our troops and civilians overseas? 

Attorney General HOLDER. I have not seen that, Senator, but 

that—— 

Senator GRAHAM. OK. Fair enough. I will get it to you. And do 

you agree with me that it would be the preferred route, in terms 

of impressing the Court, that Congress would act on this subject 

matter rather than an Executive order? 

Attorney General HOLDER. Yes, I think that having Congress act 

would be a preferred way in which to—— 

Senator GRAHAM. Would give us a stronger hand and the better 

way to deal with this issue. 

Attorney General HOLDER. Yes, I do think—— 

Senator GRAHAM. And I would just like to let the Committee 

know, my beef is not with the courts. I think unless these documents are classified or Congress acts, the courts are making a reasonable interpretation of the Freedom of Information Act as it exists today. And I want to applaud the administration for asking 

them to stay and have the Supreme Court review that case. But, 

quite frankly, Mr. Attorney General, I would be very—I would not 

be surprised if the Supreme Court decided not to hear this case or 

honor your petition for certiorari and let the order stand. So I think 

it is very imperative that one of us act, the Congress or the administration. I have been assured by Rahm Emanuel and yourself, I 

think, that the President’s position is not to let these photos see 

the light of day. The Majority Leader is going to give us another 

vote in the Senate, and I would ask the administration after that 

vote to urge the House to take it up, because that is the best way 

to protect the troops. Do you agree with that? 

Senator GRAHAM. I do. I think that there are compelling reasons 

why these photos should not be released. 

Senator GRAHAM. Sure, and I would like to introduce into the 

record the statements of Generals Odierno and Petraeus that were 

filed by the Government as part of the—their declarations, as part 

of the lawsuit indicating the danger to our troops if the photos 

were released, to back up what you are saying. 

Now, the military—— 

Senator CARDIN. Without objection, that will be included in the 

record. 

Senator GRAHAM. Thank you, Mr. Chairman. 

The Military Commissions Act, I am amazed. We are 8 years into 

this war, basically, since 9/11. This September will be the eighth 

55 

anniversary, and we are still talking about how to do this. And it 

is very complicated, and most of your questioning today has been 

about matters, legal matters surrounding the war. And I will continue to call it war. You can call it anything you would like. But 

the Military Commissions Act, the administration would like to 

make some changes. I agree with that. I am working with Senators 

Levin and McCain in the Armed Services Committee to make some 

changes in the next few weeks for the defense authorization bill. 

I would urge you to get with us soon. Will you do that? 

Attorney General HOLDER. Yes, we will. We have been discussing 

this internally. We have some thoughts and proposals, and I think 

it is time for us to share those. 

Senator GRAHAM. And I would like to do more than just amend 

the Military Commissions Act, and I would like to deal with this 

third bucket, the folks who may not be subject to trial but too dangerous to let go. And the reason I say that is that we are losing, 

you know, whatever damage we are trying to repair with the international community over Guanta ́namo Bay, we are losing the public here about closing the facility. When you look at the polling 

data, there has been a severe change against the idea of closing 

Guanta ́namo Bay. Have you noticed that? 

Attorney General HOLDER. Believe me, I have noticed. 

[Laughter.] 

Senator GRAHAM. I am sure the President has. 

Attorney General HOLDER. I think it was raised, I don’t remember by whom, one of the Senators, about the notion of having our 

plan out there. And I think that is something that we are planning 

to do and that we need to do as quickly as possible. I think we need 

to have our views on the entirety of this—— 

Senator GRAHAM. Exactly. 

Attorney General HOLDER. Our comprehensive views on buckets 

one, two, and three, and all the related things out as quickly as we 

can. 

Senator GRAHAM. And habeas review, one, I want to congratulate 

you for appealing the district court’s decision to apply habeas corpus rights to detainees at the Bagram Air Base. Why did you do 

that? 

Attorney General HOLDER. It is our view of the law—I mean, he 

is a very good judge, a person whom I have worked with. 

Senator GRAHAM. Sure. 

Attorney General HOLDER. I think that the judge is just wrong. 

I just do not think that habeas applies to theaters of war. 

Senator GRAHAM. It would really disrupt the war effort if our 

troops and their commanders would be subject to appearing before 

Federal judges, called off the battlefield all the way back to the 

United States. It would really be disruptive, and something that 

has never been done before. Is that correct? 

Attorney General HOLDER. As far as I know, and that was the 

reason why we decided to seek the appeal. 

Senator GRAHAM. Now, Senators Leahy and Specter a couple 

years ago introduced a habeas reform bill allowing detainees at 

Guanta ́namo Bay, who now have habeas rights, a one-time shot at 

it, and they could not bring money damages suits against our 

troops. Are you supportive of making sure that any habeas petition 

56 

does not allow the terrorist, the accused terrorist to sue our own 

military members? 

Attorney General HOLDER. I have not looked at that bill, but I 

have to tell you they have a visceral positive reaction to that view. 

Clearly, we want to have habeas rights that protect the welfare of 

the people who are being detained. But the notion that our troops 

might be the subject of lawsuits is something that I would be very 

wary of. 

Senator GRAHAM. And the only reason I mention it is because 

lawsuits were brought against an army doctor for medical malpractice by one of the detainees. So we have streamlined habeas 

procedures in other areas of domestic law. Is that correct? Post-conviction relief? 

Attorney General HOLDER. We do. 

Senator GRAHAM. So there is no right of anybody to an unlimited 

habeas appeal. 

Attorney General HOLDER. That is true. I mean, I would like to 

look at what the specific proposal might be. 

Senator GRAHAM. Sure. What I want you to consider is that since 

these detainees have habeas rights that we can look at consolidating their cases, the uniform standards, so we do not have different standards by different judges and to, you know, put the burden on the Government to make sure that we have a uniform way 

of looking at this. And this is something we need to talk about 

sooner rather than later, because as the Armed Services Committee 

moves forward on amending the Military Commissions Act, I think 

there will be a comprehensive proposal coming out from Senator 

McCain and myself, and I would like to work with you about how 

to do that. 

Attorney General HOLDER. Sure. I look forward to working with 

you. 

Senator GRAHAM. Final thing. If we are following a satellite 

phone in Afghanistan, and we believe the person in question is a 

member of the enemy force, what is your understanding of the law 

if they are talking to someone else in Afghanistan, but due to the 

routine system it goes through an American interchange? Do we 

have to get a warrant in that situation? And does that make sense, 

if we do? 

Attorney General HOLDER. So we have two parties overseas, two 

parties in Afghanistan—— 

Senator GRAHAM. Being monitored by our military. 

Attorney General HOLDER. Monitored by the military. 

Senator GRAHAM. Right. They are active combatants. They are 

being monitored by our mortgage intelligence services. They are 

talking to each other in Afghanistan. And the only connection to 

the United States is that due to the phone system in question, they 

have to go through an interchange in the United States. What is 

your view of the law as to that circumstance? 

Attorney General HOLDER. It is not my view that we would need 

a warrant, if that is the question you are asking me, in order to 

intercept that conversation. But let me make absolutely certain 

that is—I do not believe we would need a warrant. I think it depends on the location of the parties. 

57 

Senator GRAHAM. The only reason I mention this—and I know I 

have run over my time—is that when we had the two soldiers kidnapped in Iraq, during this whole debate about wiretapping, they 

picked up communications from one of the kidnappers to someone 

else in Iraq, and because it went through an exchange in the 

United States, it took 2 hours to get approval to continue to monitor that conversation, and we lost valuable time. 

Please look at this and make sure that we are not, in the name 

of, you know, making ourselves to be a rule-of-law Nation, not 

doing something unrequired and, quite frankly, stupid. I do not 

want Americans to be monitored as being suspected fifth column 

movement members of al Qaeda. If you think I am a member of 

al Qaeda, I want you to go get a warrant if I am talking to somebody overseas. I want you to—you know, any American in that situation. But when it comes to battlefield communications, let us do 

not let this debate hamper our ability to protect our troops. And 

I am afraid that is where we are headed. 

Attorney General HOLDER. Yes, again, just to clarify, if we have 

two non-U.S. persons speaking to one another, I do not think there 

is the need for—— 

Senator GRAHAM. But I can tell you in this case, because an 

American phone company’s interchange was involved, they lost valuable time. Please look at that, and I will talk with you further 

about it. 

Attorney General HOLDER. OK. Thank you. 

Senator CARDIN. Attorney General Holder, let me ask you, if I 

might, about voting rights cases, because we have not really 

touched on that too much during this hearing. Section 5 of the Voting Rights Act, we all know that this is on appeal—this is on hearing now before the Supreme Court. I was there during the oral arguments. But the preclearance Congress has felt was a very valuable tool to deal with potential and actual discrimination against 

voters. And Congress recently acted to reauthorize the Voting 

Rights Act. 

I just want to get your views as to how important you think the 

preclearance provisions are and how you will be monitoring what 

the Supreme Court decision might restrict. 

Attorney General HOLDER. Well, obviously, we await the Supreme Court’s decision, but that portion of the Voting Rights Act 

is a key for our efforts in trying to protect the voting rights of all 

Americans. 

If you look at just the numbers, the number of—even though we 

have made great progress in this Nation, the number of cases that 

are brought under that section have not dwindled. The fact that 

Congress unanimously 3 years ago, 2 years ago, reauthorized the 

Act I think is a recognition on the part of Congress that the need 

still exists. 

We argued, I think, very strongly for the continued viability of 

that section, and it is our hope that the Court will agree. We will 

see what the Supreme Court opinion is and then obviously have to 

react to it. But it is our view, it is this administration’s view, that 

Section 5 is a critical part of the Voting Rights Act. 

Senator CARDIN. Well, I am glad to hear that. I strongly agree 

with you, and I think most of the Members of Congress strongly 

58 

agree with you, with that statement, and we hope the Supreme 

Court will likewise see the relevancy of continuing the Voting 

Rights Act in preclearance. But it needs to be monitored closely, 

and one of the issues that I have raised in previous hearings with 

you is the aggressive action of the Department of Justice in protecting the fundamental rights of all Americans to be able to cast 

their votes and to have those votes properly counted. And we will 

continue to monitor that situation. 

I just want to also add my support for your statements in regards to the hate crimes statute in response to your initial statement and Senator Schumer’s comments. We really are looking for 

an opportunity to advance the statute for all the reasons that you 

have said in your statement and response to questioning. 

Then, last, I just want to make sure I put on the record legal 

services and pro bono. I mention it frequently, and I do not want 

this hearing to go without a strong effort to make sure that the Department of Justice is the leader in access to our legal services by 

all of the people of this Nation. I think the Attorney General and 

the Department of Justice can play a very important role. 

Attorney General HOLDER. I agree with that. We talked about 

this during my visit with you during the confirmation process, and 

the concerns that you raised at that point I think are extremely legitimate ones. I think the Attorney General has to take a leadership role in this in the way that President Clinton did and Attorney General Reno did and the Lawyers for One America project 

that I had a role in effectuating. So I think that your concerns are 

very serious ones and ones that we will try to work with you on. 

Senator CARDIN. We thank you for that, and it has been very refreshing to hear from the Attorney General here today and such 

candid responses to our questions. I think you have restored the 

confidence of the American people in the Department of Justice 

being there for all the citizens of our country, and we look forward 

to continuing to work in a constructive way as we deal with some 

very difficult challenges, whether it is how we handle the detainees 

at Guanta ́namo Bay or in Afghanistan, or how we deal with the 

surveillance programs of this country. These are all issues in which 

we have to work together. We will not always agree, but I think 

it is important that we have these candid discussions. 

We thank you very much for your attendance here today. 

Attorney General HOLDER. Thank you. 

Senator CARDIN. With that, the Chairman has indicated that the 

record will stay open for questions from the members of the Committee. With that, the Committee will stand adjourned. Thank you 

very much. 

Attorney General HOLDER. Thank you, Mr. Chairman. 

[Whereupon, at 1:03 p.m., the Committee was adjourned.] 

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

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