[Senate Hearing 111-907]
[From the U.S. Government Publishing Office]
S. Hrg. 111-907
OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 18, 2009
__________
Serial No. J-111-63
__________
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
ARLEN SPECTER, Pennsylvania JON KYL, Arizona
CHARLES E. SCHUMER, New York LINDSEY GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland TOM COBURN, Oklahoma
SHELDON WHITEHOUSE, Rhode Island
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
AL FRANKEN, Minnesota
Bruce A. Cohen, Chief Counsel and Staff Director
Brian A. Benzcowski, Republican Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 220
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 3
WITNESSES
Holder, Eric H., Jr., Attorney General of the United States...... 6
QUESTIONS AND ANSWERS
Responses of Eric H. Holder to questions submitted by Senators
Leahy, Feinstein, Feingold, Schumer, Whitehouse, Sessions,
Hatch, Grassley, Kyl and Coburn................................ 71
SUBMISSIONS FOR THE RECORD
Department of Defense, Washington, DC, October 7, 2009, letter... 191
Foundry: http//blog.heritage.org, Ed Meese, article.............. 194
Holder, Eric H., Jr., Attorney General of the United States
Oral statement............................................... 195
statement.................................................... 198
mainjustice.com, John Ashcroft, November 23, 2009, article....... 222
National review Online, Andrew C. McCarthy:
November 10, 2009, article................................... 223
November 13, 2009, article................................... 226
November 16, 2009, article................................... 230
November 17, 2009, article................................... 233
9/11 Family Members and New York City Firefighters, November 19,
2009, joint letter............................................. 236
Sumner, Tim, Brother-in-law of FDNY Joseph G, Leavey, 45, Ladder
15, WTC and Debra Burlingame, Sister of Captain Charles F.
Burlingame III, pilot, American Flt 77, Pentagon, November 9,
2009, joint letter............................................. 238
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
Hon. Russell D. Feingold, a U.S. Senator from the State of
Wisconsin, Hon. Al Franken, a U.S. Senator from the State of
Minnesota, Hon. John F. Kerry, a U.S. Senator from the State of
Massachusetts and Hon. Benjamin L. Cardin, a U.S. Senator from
the State of Maryland, joint letter............................ 240
New York Times, John B. Bellinger II, July 18, 2009, article..... 242
Wyden, Hon. Ron, a U.S. Senator from the State of Oregon, Hon.
Russell D. Feingold, a U.S. Senator from the State of Wisconsin
and Hon. Richard Durbin, a U.S. Senator from the State of
Illinois, joint letter......................................... 245
Wall Street Journal, WSJ.com:
April 17, 2009, article...................................... 246
October 19, 2009, article.................................... 249
Washington Post:
November 6, 2009, article.................................... 252
November 20, 2009, article................................... 255
OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE
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WEDNESDAY, NOVEMBER 18, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:37 a.m., in
room G-50, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Kohl, Feinstein, Feingold,
Schumer, Durbin, Cardin, Whitehouse, Klobuchar, Kaufman,
Specter, Franken, Sessions, Hatch, Grassley, Kyl, Graham,
Cornyn, and Coburn.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning, everyone. I would note for
Senators, this is the first hearing to be held in this room now
that it has been rebuilt and reconstituted. Those of you who
have been here a long time know this thing was sort of like the
dark hole. It was probably the worst place to have to ever have
a hearing because it was so dark and awful, and now it--and I
commend the Architect of the Capitol and the Sergeant at Arms
and everybody else who put this together and have made it
better.
Attorney General Holder, welcome. Glad to have you here.
I commend the Attorney General for moving forward last week
with plans to proceed on several cases against those who seek
to terrorize the United States. He is using the full range of
authorities and capabilities available to us. Just as President
Obama is using our military, diplomatic, legal, law
enforcement, and moral force to make America safer and more
secure, the Attorney General is exercising his responsibilities
in consultation with the Secretary of Defense to determine
where and how best to seek justice against those who have
attacked Americans here at home and around the world. And after
nearly 8 years of delay, we may finally be moving forward to
bring to justice the perpetrators and murderers from the
September 11 attacks. I have great confidence in our Attorney
General, the capability of our prosecutors, our judges, our
juries, and in the American people in this regard. I support
the Attorney General's decision to pursue justice against
Khalid Sheikh Mohammed and four others accused of plotting the
September 11 attacks and to go after them in our Federal
criminal court in New York.
They committed murder here in the United States, and we
will seek justice here in the United States. They committed
crimes of murder in our country, and we will prosecute them in
our country. We are the most powerful Nation on Earth. We have
a justice system that is the envy of the world. We will not be
afraid. We will still go forward, and we will prosecute them.
War crimes, crimes of terror, and murder can successfully
be prosecuted in our Federal courts, and we have done it over
and over and over again. America's response to these acts is
not to cower in fear, but to show the world that we are strong,
resilient, and determined. We do not jury-rig secret trials or
kangaroo courts, as some of our adversaries do. We can rely on
the American justice system. I urge this Committee and the
American people to support the Attorney General as this matter
proceeds and urge the Congress to provide such assistance as
will be needed, including providing the victims of those events
the ability to participate. As many surviving family members of
those killed that day have said, after years of frustration, it
is time to have justice. And I will work with the Department of
Justice and our court system as I did in the trial of Timothy
McVeigh to make sure that there are ways that the victims can
watch these trials.
Federal courts have tried more than 100 terrorism cases
since September 11--more than 100 since September 11. They have
proved they can handle sensitive classified information,
security, and other legal issues related to terrorism cases.
And since the beginning of this year, more than 30 individuals
charged with terrorism violations have been successfully
prosecuted or sentenced in Federal courts. The Federal courts
located in New York City tried and convicted the so-called
Blind Sheikh for conspiring to bomb New York City landmarks and
Ramzi Yousef for the first World Trade Center bombing.
New York was one of the primary targets of the September 11
attacks. Those who perpetrated the attacks should be tried
there. They should answer for their brutality and for the
murder of thousands of innocent Americans. Like Mayor
Bloomberg, I have full confidence in the capacity of New York,
and I have full confidence in Commissioner Ray Kelly and the
finest police officers I have ever known and the New York City
Police Department.
The Attorney General personally reviewed these cases and,
along with Defense Secretary Gates and based on the protocol
that they announced this summer, determined to use our full
array of powers by proceeding against the September 11 plotters
in Federal court. And those charged with the attack on the
U.S.S. Cole outside this country will be tried before a
military tribunal, and he determined to go against Major Hasan
in a court-martial for the deadly attack at Fort Hood just 2
weeks ago.
I think the three different venues used for these three
sets of crimes are appropriate, and I commend you for that.
The President spoke at Fort Hood last week in a tribute to
the brave men and women of our armed forces there, and he
expanded on that matter in his weekly address over the weekend.
Every Member of Congress--every Member--joins the President and
the military community in grieving for the victims and their
families, and we pray for the recovery of those who were
wounded. Nidal Hasan has been charged with 13 counts of
premeditated murder. The Army is leading the investigation with
the support of the FBI, and the President has ordered a review
of what was known ahead of time, and I think that is
appropriate.
And I look forward, as this Committee conducts appropriate
oversight, to finding out exactly what happened, where steps
were taken, and especially where steps were not taken. But I
would caution everybody to do it in a manner that does not
interfere with the investigation and prosecution of this case.
We want the prosecutors to be able to go forward with the case
and not have anything we do interfere with it.
I have already written to John Brennan, the Assistant to
the President for Homeland Security and Counterterrorism, on
behalf of this Committee. I have asked him to provide us the
results of the internal investigation by the FBI, Army, and
intelligence agencies that is underway. In the interim, on
classified matters, both Senator Sessions and I should be
informed, and I have spoken both with the Attorney General and
with FBI Director Mueller, and yesterday the Ranking Member and
I, as well as the Chairman of the Intelligence Committee
Senator Feinstein, were briefed on the status of the
investigation. We should and we will conduct responsible
oversight. We will try not to do it in a reckless fashion
because we should not take steps that will interfere with the
ongoing investigation or stand in the way of military
prosecutors. I want them to be able to compile a thorough and
complete case.
Also yesterday, the Attorney General and Treasury Secretary
Geithner announced the creation of a financial fraud task
force. This is a significant step in our efforts to strengthen
fraud prevention and enforcement. It uses the authority we
provided in the Fraud Enforcement and Recovery Act. I worked
hard with Senator Grassley and Senator Kaufman to draft this
act and get it passed. I was pleased to be there when the
President signed it into law. He gives law enforcement new
tools and resources to investigate and prosecute the kinds of
financial frauds that are undermining our country. We are now
hard at work on measures that can help find, deter, and punish
health care fraud as well. Just the week, we learned that the
Government has paid more than $47 billion in questionable
Medicare claims, because as we prepare to consider health
reform legislation, we have to address these issues of health
care fraud. I hope that our new act that we worked on a
bipartisan way will help that. We have to complete our
legislative work on a media shield bill and the USA PATRIOT Act
Sunset Extension Act. And on these matters, I appreciate the
support we have from the Attorney General.
So, with that, let me yield to Senator Sessions and then
Attorney General Holder.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman, and I am glad we
could have this hearing today. We agree on a number of things.
On the matter of the prosecution of Khalid Sheikh Mohammed and
the 9/11 terrorists we do not agree.
Mr. Attorney General, I appreciate you, enjoy working with
you. You have got a tough job. When I complain to my wife about
this or that, she looks me straight in the eye and says,
``Don't blame me. You asked for the job.'' So you have got a
tough job, but you asked for it. With your experience, you knew
what you were asking before you got it.
Let me acknowledge several people in the audience today.
David Beamer from Florida and Alice Hoagland from California
are here. They came here for the hearing today. David lost his
son, Todd, and Alice lost her son, Mark, on Flight 93. Lisa
Dolan is here. She lost her husband, Navy captain Robert Dolan,
at the Pentagon on September 11th. Debra Burlingame I believe
is here. She lost her brother, a pilot. Also, we are honored
that Tim Brown from the New York Fire Department is here. Tim
worked night after night on the rescue and recovery efforts of
the World Trade Center. So it is a privilege to have each of
you with us today.
On September 11, 2001, our Nation was attacked by a savage
gang of terrorists, people who had previously stated, as bin
Laden did, that they were at war with the United States. Their
intent was to kill innocent Americans and bring ruin to the
United States. The death and destruction they caused in New
York, Washington, and Pennsylvania was an act of war.
Now, at the time that was crystal clear to us. If there is
now among some folks in Washington any confusion on that point,
it is because time, I think, has dulled their memory or because
other matters have clouded their judgment.
But the American people remember that day well, and they
know that the facts have not changed. President Bush responded
to the 9/11 terrorist acts swiftly and forcefully, and we have
been blessed that the dedicated work of millions of Americans
has prevented similar attacks of that scale.
Today we remain engaged in the two long struggles in
Afghanistan and Iraq. We wish the work there was easy, but it
is not, and this effort is not. As we sit in this chamber,
188,000 American men and women in uniform fight tirelessly to
root out terrorism from foreign battlefields. Our military and
intelligence personnel are, in fact, at war this very day, 7
days a week, under dangerous and adverse conditions, because
this Congress has authorized and asked them to go there, and we
sent them there.
The best way to honor these men and women is to work just
as hard and just as smartly to ensure that what we do supports
them and the goals that we have set for them. Regrettably, when
I look at the policies taking shape under the new
administration, I fear that that is not the case. I just am
worried about those decisions.
Over the past 9 months, we have seen the administration
continue to delay providing clear leadership to our troops in
Afghanistan, call for an investigation and potential
prosecution of CIA agents who risked their lives to capture
dangerous terrorists and who previously had been cleared of an
investigation. They have cut a deal on a media shield
legislation to protect individuals when they leak classified
information to the mass media in a way that I think is not
good. They concede to a weakened form of the PATRIOT Act, a
vital legislative tool for our intelligence community, and
declined to provide basic information, to date at least, that
we are going to have to have as we go forward with the Fort
Hood investigation, and now announce that they will bring
Khalid Sheikh Mohammed, the self-proclaimed mastermind of 9/11,
back to Manhattan to be treated as a common criminal in U.S.
courts.
Taken together, I think these policies signal to our
people, to our country, and to our military, and to the
international community that for the United States fighting
global terrorism is not the priority it once was, that we can
return to a pre-9/11 mentality.
The problem is this: al Qaeda does not agree. They continue
to seek to do us harm, as we all well know, and we must
continue to be vigilant as we track down these terrorists and
bring them to justice. And we must use all lawful tools to do
so. Lives are at stake.
Today's hearing will focus on, among other issues, the
Attorney General's decision to prosecute Khalid Sheikh Mohammed
and four other terrorists in U.S. courts rather than in
military courts. I believe this decision is dangerous. I
believe it is misguided. I believe it is unnecessary. It
represents a departure from our longstanding policy that these
kinds of cases should be treated under the well-established
rules of war.
Khalid Sheikh Mohammed is a terrorist, is alleged to be a
terrorist. He is alleged not to be a common criminal, but who
has a desire not for ill-gotten gains but for the destruction
of our country. The correct way to try him is by military
tribunal. This distinction is important because the military
courts and civilian courts have different functions. The United
States court system was not designed to try unlawful enemy
combatants.
And, Mr. Holder, I do not think these are normal
defendants. These are people we are at war with, and we are
dropping bombs on them this very day, attacking their lairs
wherever they hide. The fabulous policewoman who went straight
to Hasan at Fort Hood firing her weapon was, in effect,
participating in a war effort. The enemy who could have been
obliterated on the battlefield on 1 day but was captured
instead does not then become a common American criminal. They
are first a prisoner of war once they are captured. The laws of
war say, as did Lincoln and Grant, that the prisoners will not
be released until the war ends. How absurd is it to say that we
will release people who plan to attack us again?
Second, as part of their military activities, if they
violate the laws of war, then and only then may they be tried
for crimes. That is what happened to the Nazi saboteurs in the
Ex Parte Quirin case in World War II when they were tried by
military commissions. Military commission trials are fair. They
are recognized not only by our country but by nations all over
the world. Far from seeing our actions as some sort of
demonstration of American fairness, I suspect our cold-blooded
enemies and our clear-eyed friends both must wonder what is
going on in our heads. Are we, they must ask themselves, still
serious about this effort?
As former Attorney General Michael Mukasey wrote in 2007,
``Terrorism prosecutions in this country have unintentionally
provided terrorists with rich sources of intelligence.''
Mr. Attorney General, we are concerned about what is
happening today. We respect and like you, but this is a serious
question, and we will raise a number of issues as we go through
the hearing.
Thank you.
Chairman Leahy. Well, obviously, Senator Sessions and I
have a differing view on this, but there will be differing
views here, and that is why we thank you for coming here--
although I must admit, Senator Sessions, that I am delighted to
hear somebody from Alabama quote approvingly Ulysses S. Grant
and Abraham Lincoln. The world has come full circle.
Senator Sessions. And they were winners, too.
Chairman Leahy. Well, I appreciate that acknowledgment,
too, but we probably best leave this one alone.
I would put in the record the letter I sent to John
Brennan, the Assistant to the President for Homeland Security
and Counterterrorism, asking when they finish their
investigation that this Committee be able to see what we have
found, both what went right and what went wrong.
[The letter appears as a submission for the record.]
Chairman Leahy. Attorney General Holder, thank you for
being here. Please go ahead, sir.
STATEMENT OF HONORABLE ERIC H. HOLDER, JR., ATTORNEY GENERAL OF
THE UNITED STATES
Attorney General Holder. Thank you, Mr. Chairman, Senator
Sessions, and other members of the Committee.
When I appeared before this Committee in January for my
confirmation hearing, I laid out several goals for my time as
Attorney General: to protect the security of the American
people, to restore the integrity of the Department of Justice,
to reinvigorate the Department's traditional mission, and, most
of all, to make decisions based on the facts and on the law,
with no regard for politics.
In my first oversight hearing in June, I described my early
approach to these issues. Five months later, we are deeply
immersed in the challenges of the day, moving forward to make
good on my promises to the Committee and the President's
promises to the American people.
First and foremost, we are working day and night to protect
the American people. Due to the vigilance of our law
enforcement and intelligence agencies, we have uncovered and
averted a number of serious threats to domestic and
international security. Recent arrests in New York, Chicago,
Springfield, and Dallas are evidence of our success in
identifying nascent plots and stopping would-be attackers
before they strike.
Violence can still occur, however, as evidenced by the
recent tragic shootings at Fort Hood. We mourn the deaths of
the 13 brave Americans, including Dr. Libardo Caraveo, a
psychologist with the Justice Department's Bureau of Prisons,
who had been recalled to active duty. The Federal Bureau of
Investigation is working diligently to help gather evidence
that will be used by military prosecutors in the upcoming trial
of the individual who is alleged to have committed this heinous
act.
We are also seeking to learn from this incident to prevent
its reoccurrence. Future dangerousness is notoriously difficult
to predict. The President has ordered a full review to
determine if there was more that could have been done to
prevent the tragedy that unfolded in Texas 2 weeks ago. We have
briefed the Chairman and Ranking Member of this Committee and
other Congressional leaders on our efforts and will continue to
keep Congress abreast of this review.
Now, my written statement addresses a number of other
issues before the Department, but I would like to use the rest
of my time allotted to me today to address the topic that I
know is on many of your minds: my decision last week to refer
Khalid Sheikh Mohammed and four others for prosecution in
Federal courts for their participation in the 9/11 plot.
As I said on Friday, I knew this decision would be a
controversial one. This was a tough call, and reasonable people
can disagree with my conclusion that these individuals should
be tried in Federal court rather than a military commission.
The 9/11 attacks were both an act of war and a violation of our
Federal criminal law, and they could have been prosecuted in
either Federal courts or military commissions. Courts and
commissions are both essential tools in our fight against
terrorism.
Therefore, at the outset of my review of these cases, I had
no preconceived notions as to the merits of either venue. And,
in fact, on the same day that I sent these five defendants to
Federal court, I referred five others to be tried in military
commissions.
I am a prosecutor, and as a prosecutor, my top priority was
simply to select the venue where the Government will have the
greatest opportunity to present the strongest case and the best
law. I studied this issue extensively. I consulted the
Secretary of Defense. I heard from prosecutors in my Department
and from the Defense Department's Office of Military
Commissions. I spoke to victims who were on both sides of this
question. I asked a lot of questions, and I weighed every
alternative. And at the end of the day, it was clear to me that
the venue in which we are most likely to obtain justice for the
American people is in Federal court.
Now, I know there are members of this Committee and members
of the public who have strong feelings on both sides. There are
some who disagree with the decision to try the alleged Cole
bomber and several others in a military commission, just as
there are some who disagree with prosecuting the 9/11 plotters
in Federal court.
Despite these disagreements, I hope we can have an open,
honest, and informed discussion about that decision today, and
as part of that discussion, I would like to clear up some
misinformation that I have seen since Friday.
First, we know that we can prosecute terrorists in our
Federal courts safely and securely because we have been doing
so for years. There are more than 300 convicted international
and domestic terrorists currently in Bureau of Prisons'
custody, including those responsible for the 1993 World Trade
Center bombing and the attacks on our embassies in Africa. Our
courts have a long history of handling these cases, and no
district has a longer history than the Southern District of New
York in Manhattan. I have talked to Mayor Bloomberg of New
York, and both he and Commissioner Kelly believe that we can
safely hold these trials in New York.
Second, we can protect classified material during trial.
The Classified Information Procedures Act, or CIPA, establishes
strict rules and procedures for the use of classified
information at trial, and we have used it to protect classified
information in a range of terrorism cases. In fact, the
standards recently adopted by the Congress to govern the use of
classified information in military commissions are based on and
derived from the very CIPA rules that we would use in Federal
court.
Third, Khalid Sheikh Mohammed will have no more of a
platform to spew his hateful ideology in Federal court than he
would have had in a military commission. Before the commissions
last year, he declared the proceedings an ``inquisition.'' He
condemned his own attorneys and our Constitution and professed
his desire to become a martyr. Those proceedings were heavily
covered in the media, yet few complained at that time that his
rants threatened the fabric of our democracy.
Judges in Federal courts have firm control over the conduct
of defendants and other participants in their courtrooms, and
when the 9/11 conspirators are brought to trial, I have every
confidence that the presiding judge will ensure appropriate
decorum. And if Khalid Sheikh Mohammed makes the same
statements he made in his military commission proceedings, I
have every confidence that the Nation and the world will see
him for the coward that he is. I am not scared of what Khalid
Sheikh Mohammed has to say at trial, and no one else needs to
be afraid either.
Fourth, there is nothing common--there is nothing common--
about the treatment the alleged 9/11 conspirators will receive.
In fact, I expect to direct prosecutors to seek the ultimate
and most uncommon penalty for these heinous crimes. And I
expect that they will be held in custody under special
administrative measures reserved for the most dangerous
criminals.
Finally, there are some who have said the decision means
that we have reverted to a pre-9/11 mentality or that we do not
realize that this Nation is at war. Three weeks ago, I had the
honor of joining the President at Dover Air Force Base for the
dignified transfer of the remains of 18 Americans, including
three DEA agents, who lost their lives to the war in
Afghanistan. These brave soldiers and agents carried home on
that plane gave their lives to defend the country and its
values, and we owe it to them to do everything we can to carry
on the work for which they sacrifice.
I know that we are at war. I know that we are at war with a
vicious enemy who targets our soldiers on the battlefield in
Afghanistan and our civilians on the streets here at home. I
have personally witnessed that somber fact in the faces of the
families who have lost loved ones abroad, and I have seen it in
the daily intelligence stream that I review each day. Those who
suggest otherwise are simply wrong.
Prosecuting the 9/11 defendants in Federal court does not
represent some larger judgment about whether or not we are at
war. We are at war, and we will use every instrument of
national power--civilian, military, law enforcement,
intelligence, diplomatic, and others--to win.
We need not cower in the face of this enemy. Our
institutions are strong, our infrastructure is sturdy, our
resolve is firm, and our people are ready.
We will also use every instrument of our National power to
bring to justice those responsible for terrorist attacks
against our people. For 8 years, justice has been delayed for
the victims of the 9/11 attacks. It has been delayed even
further for the victims of the attack on the U.S.S. Cole. No
longer. No more delay. It is time. It is past time to finally
act.
By bringing prosecutions in both our courts and military
commissions, by seeking the death penalty, by holding these
terrorists responsible for their actions, we are finally taking
ultimate steps toward justice. That is why I made the decision.
Now, in making this and every other decision I have made as
Attorney General, my paramount concern is the safety of the
American people and the preservation of American values. I am
confident that this decision meets those goals and that it will
also withstand the judgment of history.
Thank you.
[The prepared statement of Attorney General Holder appears
as a submission for the record.]
Chairman Leahy. Thank you, Attorney General, and as you
know, I have discussed with you several times that my belief is
that when people commit murder, commit murder here in the
United States, commit murder on this scale, they should be
prosecuted, and I would hope they would be convicted. I am glad
to see finally, after all these years, that they are being
prosecuted in the same way Timothy McVeigh, who committed mass
murder in this country, was prosecuted.
Let me go to another horrific tragedy. We have the murder
of 13 individuals, including 12 soldiers, the wounding of more
than 30 others on the Fort Hood Army Base in Texas. Our
thoughts and prayers are with these people. In my church on
Sunday, they prayed for the families--for those who died but
for the families left behind. And that is why I sent this
letter to John Brennan to find out what happened. I want the
results of the investigation ordered by the President. Several
of us were briefed yesterday morning--Senator Feinstein,
Senator Sessions, myself, and others--on what is happening. I
think--in fact, I know that you want to find out everything
that happened, not only what happened there but what may have
gone right and what may have gone wrong prior to that. We are
both former prosecutors, so we do not want to compromise a
prosecution.
What resources is your Department using to learn whether
steps were missed that could have been taken to avert this
tragedy?
Attorney General Holder. Well, the FBI is certainly
intimately involved in the investigation and working with the
military investigators and military prosecutors who will
ultimately try the case. All of the resources of the Justice
Department that have been requested have been made available
and will be made available in order to determine exactly what
happened at Fort Hood, and also to try to determine how we can
prevent future incidents like this from occurring.
Chairman Leahy. Certainly when the court-martial goes on,
the evidence will come out, and the American people will learn,
we will all learn more facts about what happened. I am mostly
interested in knowing if there were things that were overlooked
that could have been avoided it. Will you commit to share with
this Committee, if in your investigation--yours, the Justice
Department--you find that there were things that were missed
that should have been picked up prior to this tragedy?
Attorney General Holder. The President has directed that we
conduct exactly such an inquiry, and it would be our intention
to share the results of that inquiry. My only cautionary note
would be that we sequence this in such a way so that we do not
interfere with the ongoing investigation and the potential
prosecution. But, clearly, that information needs to be shared
with Congress generally and with this Committee specifically.
Chairman Leahy. I can assure you as Chairman of this
Committee that I want a successful prosecution. I also want to
know what happened. And I think we can sequence it in such a
way that we do not interfere with the prosecution.
The members of the Senate--incidentally, your letter
supporting the PATRIOT Act reauthorization bill that we passed
from this Committee is very helpful, and I appreciate that. We
have requested that the administration work with us to provide
more information on classified issues related to PATRIOT Act
authority. We sent a letter to the Department in June and again
this week. I am saying this rather broadly because you know the
particular classified areas we are looking for. Will the
Department schedule a briefing in the coming days so Senators
can be briefed fully on this prior to the debate on the floor?
Attorney General Holder. Yes, Mr. Chairman, we are working
on ways in which we can make available to Senators and
Congressmen who will be asked to vote on the reauthorization of
the PATRIOT Act, and that information will be made available in
a way that is consistent with the protection of those very
important tools that must remain classified. But that
information will be made available.
Chairman Leahy. On the PATRIOT Act, Senator Sessions and I
and others have been working on a managers' amendment to
address a few remaining issues in the reported version of the
bill. These do not concern operational matters, and I hope that
we can circulate that to the members of this Committee. Are you
satisfied that nothing in the bill reported by the Committee
endangers your ability to use those tools effectively to keep
us safe and secure?
Attorney General Holder. Yes, I am confident, based on my
own examination and my interaction with members of the
intelligence community, talking also to FBI Director Mueller,
that the reauthorization of those provisions in the way in
which it has been proposed will not have any negative impact on
our ability to use them in an effective way.
Chairman Leahy. And I think I know the answer to this next
one, but would you agree that it is important that we get the
bill reauthorized?
Attorney General Holder. It is absolutely important. These
are vital tools that we have to have in this fight against
those who would do us harm.
Chairman Leahy. Now, when the President first took office
in January, I encouraged the Obama administration and the many
supporters of a Federal shield law to work together to reach
consensus, and I congratulated the Department of Justice, in
fact, all the shareholders, for working together in good faith
to reach this consensus. We have a compromise bill that
restores important protections that I helped craft to protect
bloggers and freelance journalists.
Attorney General Holder, in the letter you and Director of
National Intelligence Blair, Admiral Blair, sent to me earlier
this week, you said that the compromise Federal shield bill
provides ``appropriate protection for national security.'' Do
you support the compromise bill?
Attorney General Holder. I do. I think that it is a better
version than that which had previously been considered. There
were a number of concessions made with regard to the concerns
that I raised, that were raised by the intelligence community,
and I think that the bill we have strikes a good balance. It is
a compromise between the concerns that we had in law
enforcement, in the intelligence side, and the legitimate
interests, I think, of the media.
Chairman Leahy. Because we have so many, I want to try and
make sure we stay within the time. My last question is this--I
have a lot more questions, but my last one is this: In 2004,
Democrats and Republicans worked together to pass the Justice
For All Act to try to make our criminal justice system more
efficient, effective, and fair. Now, a key component of that
was the Debbie Smith Rape Kit Backlog Reduction Act,
significant funding for the testing of--or to reduce the
backlog of untested rape kits so victims do not have to live in
fear of while these kits languish in storage. I have worked to
make sure it is consistently and fully funded.
Now, I have been disturbed to learn recently in our
hearings that, despite the legislation and the hundreds of
millions of dollars in funding, substantial backlogs remain in
communities around the country, and victims still face
inexcusable delays in seeking justice. We have found 12,500
untested rape kits in the Los Angeles area, with other cities
reporting almost as severe. You found in the Justice Department
that in 18 percent of open, unsolved rape kit cases, evidence
had not even been submitted to a crime lab.
Can we work together in your Department and find out what
went wrong, find out how we get these rape kits tested, how we
do it in a way that protects the victims and gives us a chance
to prosecute the people who committed the rapes?
Attorney General Holder. Mr. Chairman, I not only pledge
that we should, we have to work on this. For every crime that
remains unsolved, there is a rapist who is potentially still
out there and ready to strike again.
The Justice Department looks forward to working with this
Committee to come up with a way in which we do away with that
backlog and fully comply with the intent of what I think was a
very good piece of legislation 5 years ago.
Chairman Leahy. Thank you very much.
Senator Sessions, and then Senator Kohl.
Senator Sessions. Thank you, Mr. Chairman.
These are very, very important issues, this decision on how
to try the people who attacked us on 9/11. It has
ramifications. It is not cowering in fear of terrorists to
decide the best way for this case to be tried is to be tried by
military commission.
You have indicated that military commissions can be used,
that, therefore, I assume you believe, Mr. Holder, that a
military commission can fairly and objectively try certain of
these cases.
Attorney General Holder. Yes, I think that is right, and
that is why I sent five of those trials to military
commissions. I expect that as I make further determinations, I
will be sending other cases to the military commissions as
well.
Senator Sessions. So military commissions are a legitimate
way, historically, that other nations have used, as well as the
United States, to try people who have violated the rules of
war. Is that right?
Attorney General Holder. That is correct and, when
appropriate, I will make use of those commission?
Senator Sessions. Well, I just want to tell you, I think
this is causing quite a bit of concern. I see today that
Governor Thomas Kean of New Jersey, who chaired the 9/11
Commission, says he thinks this is a mistake, that it will
provide Khalid Sheikh Mohammed the position to be a martyr and
a hero among al Qaeda sympathizers around the world.
I would note that Mary Jo White, New York United States
Attorney under President Clinton, said it may take 3 years to
try these cases, and the decision has been strongly criticized,
as you know, by Rudy Giuliani, who was mayor of New York when
the attack occurred, who also served as Associate Attorney
General, was a Federal prosecutor himself, and United States
Attorney in Manhattan. I take his views seriously. I served
under him when he was Associate Attorney General, and he has
complained about--Attorney General Mukasey, former Attorney
General Mukasey has also criticized this decision.
I do not think the American people are overreacting. I do
not think they are acting fearfully. I think they think that
this is war and that the decision you have made to try these
cases in Federal court represents a policy or a political
decision. Wouldn't you agree?
Attorney General Holder. No.
Senator Sessions. Well, it is a policy decision at least,
is it not?
Attorney General Holder. It was a policy decision. It was a
decision that was case driven. It is a decision based on the
evidence I know that, frankly, some of the people who have
criticized the decision do not have access to. The decision I
made was based on my judgment looking at all of the evidence,
talking to the people who have gathered that evidence, and the
determination made by me as to where we can best prosecute
these cases and come up with the best chances for success.
There was not a political component to my decision.
Senator Sessions. I would offer for the record, also, Mr.
Chairman, a statement from the 9/11 family members and New York
firefighters strongly opposing this decision.
Chairman Leahy. Without objection.
[The letter appears as a submission for the record.]
Senator Sessions. You indicated in one of your factors--
well, first of all, President Obama and you have established a
review committee. As I understand it, that committee--the
Detainee Policy Task Force I guess is the correct name of it--
concluded that there is a ``presumption that, where feasible,
referred cases will be prosecuted in an Article III court''--
that is, a Federal criminal court. Is that still the policy of
the Department of Justice that there is a presumption that the
cases will be tried in Federal court?
Attorney General Holder. That is the presumption, but it is
also clearly a presumption that can be overcome, as evidenced
by the fact that five of the people about which I made the
determination and announced last Friday will be going to
military commissions. We make these decisions on a case-by-case
basis using the protocol that you mentioned, and a part of that
is this presumption. But it is not an irrebuttable presumption.
It is a presumption, and only that.
Senator Sessions. Well, that has baffled me from the
beginning. I know that was part of the last campaign, and the
President criticized President Bush continuously--and many of
his allies did--for his conduct of the war on terrorism. But I
think the idea that a captured combatant who, if eligible to be
tried because they have committed violations of the laws of
war, would be tried in military commissions is only common
sense and part of our history.
Isn't it true that to avoid the presumption, your task
force said it would take compelling factors to change that?
Attorney General Holder. I am not sure I would say
compelling factors. There are a variety of circumstances that
have to be examined, but I also think we have to look at the
history of these military commissions that are held out as
these shining examples of what ought to be done.
There were, as I count, three trials, three proceedings
brought before these military commissions over the great many
years that they existed. They had to be reformed as a result of
the way in which they were initially set up. We have the
Article III courts that have tried these matters before. We
have judges who I have great confidence in, prosecutors who I
have great confidence in. I also have confidence in the people
of New York to sit down and fairly judge these cases and to
mete out the appropriate punishment.
Senator Sessions. I do not think the people are happy with
the decision. I think there are clear advantages to trying
cases by military commission as opposed to what can become a
spectacle of a trial with high-paid defense lawyers and others
focused on using that as a forum. There are a lot of reasons
that I think are compelling that these commission cases can be
tried fairly and effectively without many of the problems of
the public normal trial.
With regard to the specific decision that you made, I
noticed you referred to the Cole and to another case in which a
military person was killed. But isn't it true that on 9/11 the
United States Pentagon, the center of our defense
establishment, was directly attacked by the people who had
declared war upon us?
Attorney General Holder. Yes, there is no question that is
true. That is one of the factors I considered in making this
determination. The people who were killed on 9/11 were largely
civilians. There was obviously a very grievous and heinous act
that occurred at the Pentagon. But because of the fact that
this was an act that occurred on our shores with a victim
population that was largely civilian, among other things,
including the admissibility, my desire to ensure that certain
evidence would be admitted, it was my determination that
bringing that case in an Article III court made the most sense.
Senator Sessions. Well, certainly military personnel were
killed on 9/11. They attacked our Pentagon, and I do not think
we should give a preference to military commission trials
simply because the enemy attacked civilian people rather than
military people.
Thank you very much.
Chairman Leahy. Thank you.
I will also put in the record a number of items in support
of what you are doing, a whole lot of names--I will not read
them all--ranging from a former Ambassador to the United
Nations to Barry Goldwater, Jr., to John Whitehead, the
President of Rutherford Institute, and so forth. That will be
placed in the record in support of what you are doing.
I would also place in the record a letter from a number of
people, including a former Commandant of the Marine Corps and
other military people, in support of what you are doing.
I will put into the record a group including Bob Barr,
David Keene, Chairman of the American Conservative Union,
Grover Norquist, and others in support of what you are doing.
And a letter from a number of the families of those who were
killed on 9/11 in support of what you are doing, and I will
place that in the record also.
[The information referred to appears as a submission for
the record.]
Chairman Leahy. Senator Kohl.
Senator Kohl. Thank you, Mr. Chairman.
Mr. Attorney General, last January, I was pleased by your
commitment to close the detention center at Guantanamo Bay. For
too long, it has tarnished our image around the world and
complicated our efforts to combat terrorism. Although you have
faced greater than expected hurdles, you have made significant
progress in closing the facility. Nevertheless, I am
disappointed that this morning President Obama said that we
would not meet his goal of closing Guantanamo Bay by January
22, 2010.
I would like to get an update on where you are in this
process. Currently 215 detainees remain at Guantanamo.
Administration officials have said that 40 to 50 will be
transferred to the United States to face prosecution in Federal
courts or military tribunals and about 100 will be transferred
to other countries. What is your timeline for accomplishing
these goals? What will you do with the remaining detainees? And
when do you think that we will meet our goal of closing
Guantanamo?
Attorney General Holder. Yes, the President did announce
today that we will not be able to meet that deadline. We had
unexpected difficulties in trying to reach that goal.
We have made tremendous progress in closing Guantanamo. We
have more than 100 detainees who have been approved for
transfer; 25 have been transferred overseas to date. More than
40 detainees have been referred for prosecution, and we will be
making additional forum decisions on the remaining detainees in
the near future.
The decisions for the remaining detainees are still pending
approval, but we expect to have decisions for all detainees
well before even the January 22nd deadline. It will be a
question of trying to, among other things, determine where
those people who have been approved for transfer can be placed.
I think that is going to be our biggest problem in ultimately
closing Guantanamo.
Senator Kohl. Do you have some idea of when that may
finally arrive at its conclusion?
Attorney General Holder. Well, I saw a report on what the
President indicated during his remarks, and I think he says
sometime this year we ought to be able to do that.
Senator Kohl. Wisconsin lost two brave service members
during the shooting rampage at Fort Hood. It is a tragedy that
while preparing to defend us from threats around the world,
these brave soldiers face danger here at home.
As you know, Major Hasan came to the attention of the FBI
last December because of e-mails that he had written to a known
terrorist suspect. But the FBI did not pursue an investigation
of him because they concluded that the e-mails were consistent
with his research at Walter Reed and no contact was made with
the Department of Defense.
I understand that a thorough investigation will take time
to complete, but we need to protect our troops now, as I am
sure you would agree. Going forward now, what changes have you
made or will you make to prevent something like this from
happening again?
Attorney General Holder. Well, I think what we have to do
is understand exactly what happened that led to that tragedy.
Were there flags that were missed? Were there miscommunications
or was there a lack of communication? And once we have a handle
on that, I think that we can propose and work with this
Committee on ways in which we can prevent such a tragedy from
occurring again.
We are at close to the beginning stages of this inquiry,
and I think we have to determine on the basis of a sound
investigation exactly what happened. I will say that on the
basis of what I know so far, it is disturbing to know that
there was this interaction between Hasan and other people. That
I find disturbing.
Senator Kohl. But you do recognize, I am sure, that there
is an urgency about that mission to arrive at some decisions
with respect to better protecting our troops?
Attorney General Holder. Yes, there is certainly an
urgency, and the President has given us, I guess, another 2
weeks or so--until the end of November--to come up with some
findings, some determinations, and so I think that is an
indication of how serious we take this and how quickly we want
to try to get to the bottom of it.
Senator Kohl. Thank you.
Mr. Holder, last week, you announced that the Department
will bring the Guantanamo detainees accused of planning the 9/
11 attacks to trial in Federal court in New York, as we have
talked about this morning. On Friday, you said that you would
not have authorized prosecution if you were not confident that
the outcome would be successful.
However, many critics have offered their own predictions
about how such a trial might well play out. One concern we have
heard from critics of your decision is that the defendants
could get off on legal technicalities, in which case these
terrorists would walk free.
Does this scenario have any merit? If not, why? And in the
worst-case scenario that the trial does not result in a
conviction, what would be your next steps?
Attorney General Holder. Many of those who have criticized
the decision--and not all, but many of those who have
criticized the decision have done so, I think, from a position
of ignorance. They have not had access to the materials that I
have had access to. They have not had a chance to look at the
facts, look at the applicable laws, and make the determination
as to what our chances of success are.
I would not have put these cases in Article III courts if I
did not think our chances of success were good--in fact, if I
did not think our chances of success were enhanced by bringing
the cases there.
My expectation is that these capable prosecutors from the
Justice Department will be successful in the prosecution of
these cases.
Senator Kohl. But taking into account that you never know
what happens when you walk into a court of law, in the event
that, for whatever reason, they do not get convicted, what
would be your next step? I am sure you must have talked about
it.
Attorney General Holder. What I told the prosecutors--and
what I will tell you--is that failure is not an option. Failure
is not an option. These are cases that have to be won. I do not
expect that we will have a contrary result.
Senator Kohl. Well, that is an interesting point of view. I
will just leave it at that. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Kohl.
Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman.
It is good to see you again, General, and I appreciate the
work you are trying to do down there, although I have a lot of
problems with what you have just done in this area.
Several events have transpired since your last appearance
before this Committee, and I hope to cover hopefully all of
them in my short time. In my opinion, a significant event was
the FBI's disruption of three separate terror plots in Texas,
Illinois, Colorado, and New York. To me, these plots and the
men who were eager to carry them out remind me that we are
still engaged in this war against terror.
You will recall that at your confirmation hearing you
expressed your belief that the United States is currently
engaged in a war. But last week, during your press conference
to announce the transfer of Khalid Sheikh Mohammed, KSM, you
referred to the actions of KSM and his co-conspirators as
``extraordinary crimes.''
Now, you made reference to the attacks of 9/11 as an act of
war and a ``violation of Federal law.'' Last week, during your
announcement, you referred to the actions of KSM as an
``extraordinary crime.''
Do you still believe that the United States is engaged in a
war on terror?
Attorney General Holder. As I indicated in my opening
remarks, the United States is at war. There is no question
about that. And the acts that Khalid Sheikh Mohammed
perpetrated are not only crimes, they are acts of war. I do not
think--there is no question about it.
Senator Hatch. OK. I just wanted to establish that. As I
just referenced, last week you announced the Justice
Department's intent to bring Khalid Sheikh Mohammed, KSM, to
the United States to stand trial in New York City. Now, I do
not agree with that decision, I want you to know right off the
bat, not because I do not think the Federal Government can
detain dangerous terrorists, not because bringing them to a
metropolitan area will create an even bigger bull's eye on that
city; it is because I believe, as the longest-serving person on
the Senate Select Committee on Intelligence, that military
commissions are the preferable venue to protect national
security information and prevent disclosure of sources and
methods.
Now, that is not to say that Article III courts cannot
handle terrorist prosecutions for providing material support of
terrorism. That same conclusion was reached by the 9/11
Commission. In its findings, the Commission concluded that an
``unfortunate consequence'' of excellent investigative and
prosecutorial efforts in the initial 1993 al Qaeda attack on
New York created an impression that the law enforcement and
criminal justice systems were well equipped to cope with
terrorism. But let us just examine the overall record of
``successful prosecutions.''
There are some numbers floating out there that some 195
terrorists have been ``successfully'' prosecuted since 9/11.
However, I believe that the actual number is a fraction of
that. Since 9/11, approximately 26 terrorist attacks have been
disrupted.
So what is the actual number of successful Justice
Department prosecutions of persons convicted of providing
material support to al Qaeda since 9/11? And how many of those
defendants were investigated and captured on U.S. soil?
Attorney General Holder. Well, I know that we have over 300
people who are in our prisons at this point who have been
convicted of either domestic or international----
Senator Hatch. I am talking about those convicted of
providing material support to al Qaeda, not other categories.
Attorney General Holder. I was going to say who have been
convicted of domestic or international terrorism, and that
would include people who were convicted of material support
charges. I do not have at my fingertips the numbers of people
who have been convicted of material support, but that
information I can get to you, Senator.
Senator Hatch. I believe that number is probably closer to
50 than it is the 195 that has been bandied about. And I would
like to have that answer, Okay?
[The information referred to appears as a submission for
the record.]
Senator Hatch. I would like to shift to what is considered
a ``successful prosecution.'' In June, you announced the
transfer of Ahmed Ghailani from Guantanamo to stand trial for
his role in the bombings of the U.S. embassies in Kenya and
Tanzania. As you are aware, Ghailani was previously indicted
for this international terrorist act by a Federal grand jury in
New York, and during your announcement you mentioned that four
co-defendants in this case were already ``successfully
prosecuted.''
However, I would not exactly characterize these
prosecutions as ``successes.'' I base this on the fact that
these terrorists were not given the death penalty. The
Government did, in fact, seek the death penalty, but a juror,
despite knowing that he was deciding a capital case, later
disclosed that he could not, in fact, support a verdict that
would result in imposing the death penalty on the four
terrorists, and because of this, the Government was not able to
obtain a sentence of death after conviction. And for reasons
that escape me, the Government has not chosen to seek the death
penalty against Mr. Ghailani.
So will the Government seek the death penalty in the trials
of Khalid Sheikh Mohammed and his co-conspirators? And I would
also add: Why did the Government not elect to seek the death
penalty in the case of Ghailani?
Attorney General Holder. As I have indicated, it is my
intention, after the processes are gone through at the
Department, to seek the death penalty with regard to the 9/11
plotters. We made the decision not to seek the death penalty
with regard to Mr. Ghailani. There were four defendants in that
case. The prior administration decided not to seek the death
penalty with regard to two, did seek the death penalty with
regard to the other two, and a jury made the determination not
to impose the death penalty.
As we looked at Mr. Ghailani's role, it seemed to us that
his role was more consistent with that of the two defendants in
which the prior administration decided not to seek the death
penalty, and on that basis we decided not to seek the death
penalty for Mr. Ghailani.
Senator Hatch. Former Attorney General Michael Mukasey was
the trial judge in the prosecution of the blind sheikh, Omar
Abdel Rahman and also heard motions in the Jose Padilla case.
Now, Judge Mukasey, an experienced Federal judge, has
always asserted that the trials of the conspirators in the 1993
World Trade Center bombing damaged national security. For
example, the prosecution is compelled by the rules of discovery
to provide a list of unindicted co-conspirators to the
defendants. In 1995, this list made it all the way to Sudan and
into the hands of Osama bin Laden.
During the trial of Ramzi Yousef, the nephew of KSM and
mastermind of the 1993 World Trade Center bombing, testimony
about a cell phone tipped off terrorists that their
communications had been compromised. The end result was the
disclosure of a source and method and the loss of useful
intelligence. Now, I could go on and on and cite numerous other
examples from these trials, and I know you are familiar with
them, having been at the Department of Justice back then.
What I would like to know--and my time is just about up,
but let me just ask this last question. What I would like to
know is: How do you intend to ensure that sensitive national
security information does not end up in the hands of terrorists
or their associates, especially if KSM or other detainees
decide to represent themselves? Is the Classified Information
Procedures Act, CIPA, really sufficient to safeguard classified
information if these detainees do or do not have counsel?
Attorney General Holder. Well, it has been argued that
bringing these cases in Article III courts will somehow reveal
information that otherwise might not be revealed or could be
better protected in the military commissions. The reality is
that the Information Protection Act that exists in military
commissions is based on CIPA that we use in Article III courts.
If I might, there have been misinformation with regard to
this whole question of this co-conspirator list and about the
phone records allegation. The co-conspirator list was not a
classified document. Had there been a reason to try to protect
it, prosecutors could have sought a protective order, but that
was not a classified document.
With regard to the phone record allegations, during the
embassy bombings trial, the admission of phone records--the
allegation is that the admission of these phone records alerted
bin Laden to the fact that his cell phone was monitored and
then he stopped using it. This allegation is simply wrong. Bin
Laden stopped using the phone long before that information was
disclosed in court proceedings. The phone records were used in
the embassy bombing trials, not the Ramzi Yousef trial, as has
been reported. Bin Laden's phone was not used after October the
9th of 1998. Production of discovery in the embassy bombings
case did not begin until December 17th of 1998, and the phone
records were not disclosed in court until March 20th of 2001.
So with regard to those allegations and those contentions,
there is a factual problem. There are factual inaccuracies that
deal with--that underlie those contentions. And it is my firm
belief that through the use of CIPA we can protect information
in Article III courts in the same way that they can be
protected in military commissions.
Chairman Leahy. Thank you.
Senator Hatch. If I could just add, there is no question
that in the Federal courts there will be much more information
that will be revealed that would not be revealed in a----
Chairman Leahy. Well, if you want to add that, I would just
note that Patrick Fitzgerald, whom we all acknowledge was a
good prosecutor in the embassy bombing case, he said, ``When
you see how much classified information was involved in that
case and when you see that there weren't any leaks, you get
pretty darn confident the Federal courts are capable of
handling these prosecutions.'' That is what U.S. Attorney
Fitzgerald said.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
Welcome, General. I have thought quite a bit about your
decision to try these five people in Federal court, and I just
want you to know that I fully support it. I have been on this
Committee for 17 years now. I happen to believe that our
Federal courts are our finest. I happen to believe that our
Federal judges are our best. And I happen to believe that New
York City is able to handle this in a very professional and
definitively legal manner.
In my service on Intelligence, I have watched the failure
of the military commissions for the past 7 years. As you have
pointed out, only three cases have essentially been tried, and
there has been a great deal of controversy surrounding those
decisions.
The attack in New York, as you point out, was both a major
attack of war and a major and horrific criminal event. It is
something none of us in America ever thought could happen, but
it did. And I think the fact that these men are going to be
tried in the finest of the American judicial system by strong
prosecutors and by a fair judge is really very, very important.
I assume that the reason that you made the decision is
because you believe that there is sufficient untainted evidence
to obtain a conviction. Is that correct?
Attorney General Holder. That is correct, and that was one
of the main drivers in my decision, to deal with what evidence
could I present or could we present in whatever forum and to
try to minimize the chances that we would have to deal with
this issue of tainted evidence.
Senator Feinstein. Thank you very much. Let me move to
another subject.
In August, President Obama announced the creation of the
High-Value Detainee Interrogation Group, known in this city of
acronyms as HIG. It would be made up of experts from several
intelligence and law enforcement agencies. The interrogation
unit will be housed at the FBI, but will be overseen by the
National Security Council.
Can you describe with some specificity the role that the
FBI will be playing in this effort and the type of oversight
that will be placed on interrogation?
Attorney General Holder. Well, what we have come to call
the HIG is an effort to gather people in anticipation of the
capture of high-value detainees, to have a group of people who
are steeped in who these people are, and have determined how we
can successfully interrogate them using methods that are
consistent with our values as an American Nation. The FBI,
along with the members of the intelligence community, will play
a part in acquiring this information and also devising
interrogation techniques that will be effective with regard to
the specific person that is in front of them. There will be a
team of people for each of those potential high-value
detainees.
Senator Feinstein. When could we expect the announcement of
the director? And when will it be operative?
Attorney General Holder. I am not sure what our timeframe
is. I know that we are in the process of gathering the people.
The underlying work is underway, and I would hope that we would
have an ability to identify perhaps not the members of it but
certainly the people who would be running it relatively soon.
Senator Feinstein. And I would assume the auspices that
they would follow would be the Army Field Manual plus any
additions that the task force has made?
Attorney General Holder. Right. Those are the conditions
under which they will be operating as set out by President
Obama.
Senator Feinstein. Thank you. Let me go to another subject.
In 2008, the Federal Bureau of Prisons staff confiscated
1,519 cell phones from Federal prisons and 255 cell phones from
secure Federal institutions. I was in San Diego talking with an
FBI agent, and he pointed out that most of the narcotics
trafficking is actually done out of the prison system in the
United States, particularly the California prison system, and
he mentioned one prison, Pelican Bay, in specific. And then I
came back and I found that there are all these cell phones in
prisons which enables a group--namely, the Mexican mafia--to
essentially use cell phones to give directives right out of
prisons, on hits, on territories, on dealers. And I think this
is a very serious thing.
I have introduced legislation that would make cell phones
contraband in Federal prisons with possession punishable by up
to an additional year in prison. What do you think of this?
What are you doing? It is a real problem, Mr. Attorney General.
Attorney General Holder. It is a real problem, Senator. I
had experience with that when I was the United States Attorney
here in Washington, D.C. Rayful Edmond, who was a very
notorious and large drug dealer in Washington, D.C., was
convicted, sent to jail, and then continued to run his drug
enterprise from prison, and was convicted again for that.
The maintenance of cell phones in prison I think is
unacceptable, and I think we have to find ways in which we
confiscate them. I think you are right, they ought to be
considered contraband, and I think we ought to also look at
what technological means we have that might possibly block the
use of cell phones in prison for those that, for whatever
reason, we are unable to get from prisoners.
Senator Feinstein. Would you take a look at my legislation?
And your support would be appreciated.
Attorney General Holder. I certainly will do that.
Senator Feinstein. Thank you.
Attorney General Holder. I think the idea that you have,
though, and the concern that you have is a very legitimate one
and one that we have to deal with.
Senator Feinstein. Thank you.
In June of 2009, the GAO released a report indicating that
individuals on terrorist watchlists succeeded in purchasing
guns an astonishing 865 times between 2004 and 2009. This
dangerous loophole in Federal law is known as ``the terror
gap,'' and it has continued to allow the individuals on the
FBI's terrorist watchlist to purchase guns, despite the fact
they are not allowed to fly on an airplane.
The Bush administration's Justice Department drafted and
supported Federal legislation to close this gap in the 110th
Congress, and identical legislation has been introduced in the
111th Congress.
Does the Justice Department support closing this gap? And
will you support that legislation?
Attorney General Holder. Yes, we will support that
legislation. It seems incongruous to me that we would bar
certain people from flying on airplanes because they are on the
terrorist watchlist and yet would still allow them to possess
weapons. I think that the legislation that was initially
proposed by the Bush administration was well conceived, and we
will continue to support that.
Senator Feinstein. Excellent. Thank you very much, General.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Feinstein.
Senator Grassley.
Senator Grassley. I have an observation and a couple
questions.
My observation, which I do not want you to respond to, is I
do not know how you can make a statement that failure to
convict is not an option when you have got juries in this
country. I think a lot of Americans thought O.J. Simpson ought
to be convicted of murder rather than being in jail for what he
is in jail for now. It seemed to me ludicrous. You know, I am a
farmer, not a lawyer, but I just want to make that observation.
A question: You previously pledged----
Chairman Leahy. I think it is only fair he ought to be able
to respond to that.
Senator Grassley. OK, but as long as it does not come out
of my time.
Attorney General Holder. Well, that is fine, and maybe I
should have been more--maybe I should have been more expansive
in my response to the question that Senator Kohl put to me. I
mean, certainly we have thought, I have thought about that
possibility. And one of the things that this administration has
consistently said, in fact, Congress has passed legislation
that would not allow for the release into this country of
anybody who was deemed dangerous. And so that if there were the
possibility that a trial was not successful, that would not
mean that that person would be released into our country. That
is not a possibility.
But, again, I want to emphasize that I am confident that we
will be successful in the trial of these matters.
Senator Grassley. Yes, and it is my understanding that if
he is not convicted and somehow the judge lets him off on a
technicality or something, then he becomes an enemy combatant,
and you are right back where you started. So what do you gain?
But, anyway, you understand the law. I do not. I am just trying
to bring a little common sense to this.
You previously pledged to respond ``fully and in a timely
fashion'' to Judiciary Committee inquiries. Senator Leahy and I
wrote you in October with a list of outstanding unanswered
requests. I do appreciate your courtesy reply and your
willingness to have your staff meet with mine to work out this
backlog of requests. But I am disappointed that your reply to
Chairman Leahy and me indicates that you are considering not
answering pre-2009 Committee questions to the Department. This
position is completely unacceptable to me. These unanswered
questions deal with serious matters such as national security,
whistleblower law enforcement. You are not upholding your
pledge to respond to all outstanding requests as you told me
you would when you came to my office prior to confirmation? I
even tried to help you by giving you a big, thick file of
things that were unanswered from the previous administration. I
wanted to save you an embarrassment, I wanted to save President
Obama any embarrassment for what the previous administration
did not do right in responding to proper requests.
So why are you and the Department not willing to answer
these questions?
Attorney General Holder. Well, what we have tried to do is
certainly answer all of those questions that have been
propounded to us that pertain to this administration, and I
think we are up to date in that regard.
I do remember that booklet that you gave me, and I think
that we have done a pretty good job in responding to those. I
know our staffs are meeting, I believe on Monday or Tuesday of
next week, to try to discuss this. It is our hope that we can
find a way to stay current with the questions that are given to
us and also deal with the backlog that you are discussing.
It is not a question of us not trying to do that. We really
were trying just to prioritize the way in which we responded to
these questions. And I hope our staffs will be able to work
together and find a way through this.
Senator Grassley. Well, Senator Leahy has committed to me
that he will work with me to get that job done, and thank you
very much, and I hope we will be successful.
On Guantanamo, the decisions to bring detainees to the
United States and afford them civilian trials is highly
questionable. I want to know more about who is advising you on
these decisions. There are attorneys at the Justice Department
working on this issue who either represent Guantanamo detainees
or work for groups who advocated for them. This prior
representation I think creates a conflict of interest problem
for these individuals.
For instance, Principal Deputy Solicitor General Neil
Katyal represented Osama bin Laden's driver and bodyguard in
his case challenging the earlier versions of the Military
Commissions Act that Congress passed on a bipartisan basis. I
am quoting National Journal: ``Mr. Katyal has not recused
himself and is still working on detainee matters at the Justice
Department.'' The article indicates that other attorneys with
previous involvement in detainee issues are also on detainee
issues at the Department.
Another example, the New York Post reported that your
Department hired Jennifer Daskal to serve in the National
Security Division. She also serves on a task force deciding the
future of terrorist detainees. According to the article, Ms.
Daskal has no national security experience and no prosecutorial
experience. She has, however, a background of advocating for
detainees. One example of her advocacy is from a 54-page report
that criticized Guantanamo Bay's treatment of the terrorist
detainees where she stated one detainee described as a self-
styled poet ``found it was nearly impossible to write poetry
anymore because the prison guards would only allow him to keep
a pen or pencil in his cell for short periods of time.''
As a consequence of these three examples, I want to know
more about these potential conflicts. Would you provide me and
members of the Committee with the following information: the
names of political appointees in your Department who represent
detainees or who work for organizations advocating on their
behalf; the cases or projects that these appointees worked with
respect to detainees prior to joining the Justice Department;
and the cases or projects relating to detainees that have
worked on since joining the Justice Department? Would you
please provide that information to me and the Committee?
Attorney General Holder. I will certainly consider that
request, but I want to make sure that you understand that the
people in the Department understand their ethical obligations,
and to the extent that recusals are appropriate on the basis of
prior representations or prior connections, people in the
Department have recused themselves from specific cases.
I have been recused from a couple of the habeas cases that
are pending here in the district court of the District of
Columbia because my firm--not because I did, but because my
firm represented or had some connection to the person who was
subject of that habeas proceeding.
So we are very sensitive to that concern and are mindful of
it, and people who should not be participating in certain
decisions do not do so.
Senator Grassley. But I asked you for information. Will you
provide it?
Attorney General Holder. I will consider that request.
Senator Grassley. Well, let me tell you then, I think your
Department probably is doing what is usual, but let me quote a
law professor, dean of college of law, Don Burnett: ``What is
unusual is the size of the cluster of the individuals who are
affected.'' And so, you know, you have got a big job ahead of
you that you have taken on, moving this stuff from military
commissions. It seems to me we need to know who is involved in
it and what their predilections are.
I yield back.
Attorney General Holder. Well, let me say this about the
people who work in the Justice Department and who work on these
cases. They are fine public servants who have sacrificed a
great deal to work in the Department. They apply the law as
best they can. They are patriots. They are concerned about the
security of the American people. And whatever their previous
roles, I am confident that they can put those aside or recuse
themselves, and I am confident that the people who I am
speaking with and relying on have the best interest of the
American people, including the national security, uppermost in
their minds.
Senator Grassley. The very least you can give me is a list
of the recusals.
Attorney General Holder. I will consider that.
Chairman Leahy. Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman.
General, I want to commend you for your decision to try
Khalid Sheikh Mohammed and other 9/11 plotters in Federal
court. It is about time that we bring these criminals to
justice, and your decision shows the world that this country
stands firmly behind its legal system and the Constitution.
As you know, I do not agree with every decision you have
made in this area. I remain skeptical about the decision to try
five other Guantanamo detainees in military commissions. But
too much of the criticism directed at using our Federal courts
has not been based in fact. Some conservative commentators have
gone so far as to call it scare-mongering, and they have called
for it to stop.
More than 200 terrorism defendants have been prosecuted in
our Federal court system since 9/11, and Federal prisoners
securely hold more than 300 inmates whose cases were terrorism
related. Zacarias Moussaoui was successfully prosecuted and
convicted in Federal court of conspiring with al Qaeda on the
9/11 attacks and is serving a life sentence. And yet I do not
remember hearing the kind of uproar about the decision to try
Moussaoui in Federal court that we are hearing now. So it is a
little disheartening that critics of your decision seem to have
so little faith in our system of justice.
So, Mr. Attorney General, how does your decision to seek
justice in Federal court support our fight against terrorism?
Attorney General Holder. Well, I have great faith in our
system, and it is not a speculative faith. It is based on
experience. The cases that you mentioned, the familiarity I
have from the Federal courts, having been a prosecutor in those
courts, gives me the belief that we are going to have an
ability to maintain courtrooms in a way that is consistent with
what I think we want. There will be a level of decorum. I think
that we will have an ability to introduce the evidence that we
seek to introduce, and that our courts are capable of handling
this whole concern that people have expressed about the
dispersal of classified information. We have done it in the
past, and I am confident that we can do it with regard to these
five individuals.
Senator Feingold. I have been raising concerns for a while
now about the possibility of establishing a so-called
indefinite detention regime. Recently, a statement rejecting
indefinite detention without charge was issued by more than 130
former Members of Congress, diplomats, Federal judges,
prosecutors, high-level military officers, and national
security experts representing the full political spectrum. The
declaration said this: ``Instituting a system of indefinite
determination without charge in the United States for terrorism
suspects would threaten the constitutional protections
enshrined in our justice system and is simply bad policy.''
General, can you tell us yet whether there will be any
Guantanamo detainees who will be neither prosecuted nor
transferred to another country? And is the administration
currently contemplating holding some detainees without trial
for an indefinite period of time?
Attorney General Holder. The possibility exists that at the
conclusion of our review with regard to the detainees, the
people who are held at Guantanamo, that there will be a number
of people whom we will seek to detain under the laws of war. We
will do so in a way that is consistent with due process to make
sure that those determinations are made in a way, as I said,
that ensures that the decision is based in due process and that
reviews are done on a periodic basis to ensure that anybody
held under that regime remains a danger to the country and
should continue to be held. But that possibility does exist.
Senator Feingold. In a status other than as prisoner of
war?
Attorney General Holder. No. Under the laws of war, these
would be people who would be held under the laws of war.
Senator Feingold. We will need to pursue this at greater
length later, but I want to flag my concern again.
As several Senators have already discussed, we were all
devastated by the tragedy at Fort Hood. It has been especially
hard for Wisconsin, and Senator Kohl mentioned two brave
Wisconsin soldiers who were murdered and several more were
injured. And I know that the President has ordered a thorough
governmentwide review of what the U.S. Government knew and what
went wrong, and I am sure my colleagues on the Committee will
be very interested in the outcome of that. I appreciate that
there is not a lot you can say in public now, and it is
important not to jump to conclusions, and especially not to
jeopardize the murder prosecution. But I hope the review will
be expedited.
You discussed with Senator Leahy sharing the results of
your review with members of this Committee which I appreciate,
but I want the record to be clear. Will you commit to making
public to the greatest degree possible the conclusions the
executive branch reaches so that the American people--most of
all, the families who lost loved ones--have an opportunity to
understand what, if anything, could have been done to prevent
this tragedy?
Attorney General Holder. Yes, in a way that is consistent
with ensuring that we do not do harm to the potential trial, I
think it is our obligation to make clear to this Committee and
to the American public what the results of our investigation
are so that we have a way in which, working with this
Committee, we prevent further tragedies like that which
occurred at Fort Hood.
Senator Feingold. General, during town hall meetings and
other exchanges I have had with a lot of Wisconsin law
enforcement people over the last several years, I have heard
that progress has actually been made in combating
methamphetamine production and use, which is good news.
Unfortunately, there has also been a significant increase in
heroin coming into the State quite possibly as a replacement
for meth, and this heroin is often very pure and, therefore,
very dangerous.
Wisconsin law enforcement reports not only that there is
increasing violent crime associated with heroin trafficking,
but there has also been a disturbing increase in heroin-related
deaths. Rock County, my home county in south central Wisconsin,
has already had 12 heroin-related deaths this year, and I am
concerned this may be part of a larger nationwide trend.
Senator Kohl and I have addressed this increase in Rock County
by requesting that it receive funding through the High-
Intensity Drug-Trafficking Assurance Program. We would like to
know whether this trend is emerging in other States. And what
steps is the Department taking to reduce heroin trafficking in
Wisconsin and elsewhere?
Attorney General Holder. Well, we certainly have seen an
increase, chiefly from Mexico, in the movement of heroin into
the United States. The problem that you have identified in
Wisconsin is one that we see in other parts of the country. I
know that Baltimore has a particular heroin problem, but we see
it in other States as well.
The Department of Justice, in conjunction--well, the DEA is
part of the Justice Department--is using all of the tactics we
have, all of the skills we have, to try to get at that emerging
heroin problem.
I think a lot of people thought that heroin was a problem
of the past, but the concern that you are raising is a very,
very legitimate one and one that we are focusing on. We have to
combat heroin yet again, and we are doing so.
Senator Feingold. Thank you, General.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
Senator Kyl.
Senator Kyl. Thank you. Mr. Chairman, first of all, Senator
Grassley asked me just one thing here.
Attorney General Holder, is my understanding correct that
you will not commit to providing Senator Grassley a list of
your recusals?
Attorney General Holder. A list of my recusals?
Senator Kyl. Yes. The list of recusals that he was
requesting when he examined you just a moment ago.
Attorney General Holder. What I said was that I would
consider that request.
Senator Kyl. Yes. So my understanding is correct that you
are not committing to provide that for him. Is that correct?
Attorney General Holder. I said I would consider it.
Senator Kyl. You have repeatedly said that your decision to
try Khalid Sheikh Mohammed in Article III courts is because
that is where you have the best chance to prosecute, that the
chances of success are enhanced in Article III courts, and that
you have access to all the evidence so you are in a better
position to judge than those who are ignorant of that evidence
are.
How could you be more likely to get a conviction in Federal
court when Khalid Sheikh Mohammed has already asked to plead
guilty before a military commission and be executed? How could
you be more likely to get a conviction in an Article III court
than that?
Attorney General Holder. Well, Senator, you are dealing
with----
[Applause.]
Chairman Leahy. We will have order in these hearings. As I
always do, whether people are supportive or opposed to any
position I take, we must have order, we will have order. The
police will remove those who do not----
Senator Kyl. Mr. Chairman, let me say that your request for
order is exactly appropriate, and I concur with that.
Can you answer my question, Mr. Attorney General.
Attorney General Holder. The determination that I make on
where I think we can best try these cases does not depend on
the whims or the desires of Khalid Sheikh Mohammed. He said he
wanted to do that then. I have no idea what he wants to do now
with regard to these military commissions that, as a result of
the work that this Committee did and this Congress did, now has
enhanced protections and I think are better than they once were
before. He may still want to do that in the military
commission. I have no idea. My job is to look at the
possibilities--Article III, military commission. Where is my
best chance of success? And----
Senator Kyl. If I could interrupt, it would seem to me that
given the fact----
Attorney General Holder.--I decided that Article III courts
were the best place to do that.
Senator Kyl. Right, I know that is what you----
Attorney General Holder. Khalid Sheikh Mohammed is not
making this decision. The Attorney General makes----
Senator Kyl. Of course he is not. Mr. Attorney General, you
have based this on where you think you are more likely to get a
conviction. He talked about the best chance to prosecute, the
chances of success are enhanced, and so on. One of the factors
has to be the fact that he has at least at some time to plead
guilty. I mean, you had to have taken that into account.
Attorney General Holder. That was then. I do not know what
Khalid Sheikh Mohammed wants to do now, and I am not going to
base a determination on where these cases ought to be brought
on what a terrorist, what a murderer wants to do. He will not
select the prosecution venue. I will select it. And I have.
Senator Kyl. But my understanding is that one of the key
reasons for your decision is where you think you are going to
have the best chance of success. One would think that his
express desire to plead guilty in the military commission would
have some effect on your decision.
Attorney General Holder. Well, Senator Kyl, with all
respect, today is--I do not know--November 16th, 17th--I am not
sure what the date is. Do we know as a fact right now that that
is, in fact, what he wants to do? Do we know that? Do I have
some special information, do you have some special information
that is what Khalid Sheikh Mohammed is planning to do or
continuing to plan to do?
Senator Kyl. Why is it more likely that he will be
convicted in a Federal court than he would before a military
commission, particularly given the fact--surely you are not
arguing that it is easier to get evidence in to an Article III
court than it is in a military commission. I mean, you have
made the point that you are aware of a lot of evidence in this
case that others are not, of course. But the rules for
admitting evidence are more lenient before military commissions
than in Article III courts. So that cannot be the basis for
your decision, is it?
Attorney General Holder. That is not necessarily the case.
With regard to the evidence that would be elicited in a
military commission, evidence elicited from the detainees, from
the terrorists as a result of these enhanced interrogation
techniques, it is not clear to me at all that information would
necessarily be admitted in a military commission, even with the
use of a clean team, or that it would withstand appellate
scrutiny. And on the basis of that concern and other things, my
desire to go to an Article III court and to minimize the use of
that kind of information, that kind of evidence, I thought was
paramount.
Senator Kyl. Suppose that another terrorist of the same
kind as KSM argues that he, too, should be tried in an Article
III court, but he is one of the ones destined for a military
commission. On what basis do you argue against that request
since this appears to be simply a subjective judgment on your
part as to which court it is easier to get a conviction?
Attorney General Holder. It is not a question of where I
think we can get an easier conviction. It is a question of
looking at the protocol that exists, talking to the Secretary
of Defense and other people in trying to make determinations of
where cases are more appropriately held.
The case, for instance, involving the Cole that involves
Mr. Nashiri, an attack on an American warship, it seems to me
is something that is uniquely situated for a military
commission as opposed to an Article III court.
Senator Kyl. But how do you answer the rationale that the
more heinous crime is the killing of civilians and, therefore,
is more ripe for resolution in a military commission than in an
Article III court?
Attorney General Holder. I am not making value judgments
about which case is more heinous or which lives are more
valuable. I am looking simply at the facts and at the protocols
and trying to make determinations as to where cases are
appropriately sited.
Senator Kyl. It is hard to understand a rationale, though,
that when you kill 3,000, almost, civilians that that,
therefore, calls for Article III as opposed to a military
commission. The logic of that escapes me. Let----
Attorney General Holder. Well, the Federal law that governs
the administration of the death penalty dictates that cases
should be brought in the place where the offense occurred. So
that is at least another factor that I think has to be used in
trying to determine where the cases should be brought.
Senator Kyl. Well, that assumes that the person is in the
United States for one thing, and he is not.
Let me just close with this point. You said--and this
really bothers me, Mr. Attorney General, with all due respect:
``For 8 years, justice has been delayed for the victims of the
9/11 attacks.''
I want to put in the record, Mr. Chairman, ask unanimous
consent to insert in the record an article called ``Justice
Delayed,'' by Andrew McCarthy.
Chairman Leahy. Without objection.
Senator Kyl. I will just quote two paragraphs from this.
``This is chutzpah writ large,'' he writes. ``The principal
reason there were so few military trials is the tireless
campaign conducted by leftist lawyers to derail military
tribunals by challenging them in the courts. Many of those
lawyers are now working for the Obama Justice Department. That
includes Holder, whose firm, Covington & Burling, volunteered
its services to at least 18 of America's enemies in lawsuits
they brought against the American people.''
And he concludes, ``...within 2 years...KSM and four fellow
war criminals stood ready to plead guilty and proceed to
execution. But then the Obama administration blew into
Washington. Want to talk about delay? Obama shut down the
commission despite the jihadists' efforts to conclude it by
pleading guilty. Obama's team permitted no movement on the case
for eleven months and now has torpedoed a perfectly valid
commission case--despite keeping the commission system for
other cases--so that we can instead endure an incredibly
expensive and burdensome civilian trial that will take years to
complete.''
[The article appears as a submission for the record.]
Senator Kyl. The witness can surely respond to what I said.
Attorney General Holder. I do not even know where to begin,
other than to say that, you know, this notion of ``leftist
lawyers'' somehow prolonging this, the vast majority of the
time in which these matters were not brought to trial, to
fruition, happened in the prior administration. The Supreme
Court--not, I think, a group of leftist lawyers--had concerns
about the way in which the commissions were constructed.
The Congress reenacted, and I think appropriately so, the
way in which the commissions were constructed. This is not a
Congress peopled only with leftist lawyers, as Mr. McCarthy
would say.
So, you know, that makes for nice rhetoric, and it makes
for, you know, good fodder on the talk shows and all of that
stuff. But I am here to talk about facts and evidence, real
American values, and not the kinds of polemics that he seems
prone to. So, you know, that is----
Chairman Leahy. Thank you.
Attorney General Holder.--about Mr. McCarthy.
Chairman Leahy. I would put into the record the statistics
since 9/11. Since September 11, 2001, the Department of Justice
has brought 119 terrorism cases in Federal court with a
conviction rate of over 90 percent. Since January 1, 2009, more
than 30 individuals charged with terrorism violations have been
either successfully prosecuted and/or sentenced in Federal
courts nationwide. And there are currently more than 200
inmates in Bureau of Prisons custody who have a history of or a
nexus to international terrorism that were convicted by Federal
courts.
Our next----
Senator Sessions. Mr. Chairman, I would just add that I do
not doubt that you can try people successfully in Federal
court, but there are other issues that have been raised here
about that. And I would--I understand Senator Kyl has asked for
the names of these cases and the defendants but has not
received information on that. Will you provide that?
Attorney General Holder. The names of?
Senator Sessions. The names of the cases and defendants
that you say are pending or have been tried and convicted and
what they have been tried and convicted of.
Attorney General Holder. Of the material support charges?
Is that----
Senator Sessions. You said there are 300 cases. I would
like all 300 of them, when they were tried, when they were
convicted, and what they were charged with.
Attorney General Holder. What I said was that there were
300 people in the Federal system, the Federal Bureau of
Prisons----
Senator Sessions. Well, will you provide the names and what
they have been charged with and why they are being detained? If
you haven't done so, with Senator Kyl's request----
Chairman Leahy. I think we can let the witness----
Senator Sessions. No. I would just like a yes or no.
Chairman Leahy.--answer the question. Well, then----
Attorney General Holder. I do not think that was
necessarily a request that was made, but I will certainly--at
least I think Senator Kyl, I thought, was asking what Senator
Grassley had asked about. That was not quite the same thing.
Senator Sessions. Well, my understanding is previous to
that----
Attorney General Holder. I will supply you with those 300
names and what they were convicted of. I will be glad to do
that.
Senator Sessions. Thank you.
[The information referred to appears as a submission for
the record.]
Chairman Leahy. The only member of this Committee who
actually lives in New York City is----
Senator Schumer. Brooklyn.
Chairman Leahy. In Brooklyn, and proudly so. I have visited
there with you.
Senator Schumer. Yes, you did.
Chairman Leahy. Is Senator Schumer, and I yield to Senator
Schumer.
Senator Schumer. Thank you, and thank you, Mr. Attorney
General. I also want to thank the families from New York who
are here who have been such strong advocates on this and so
many other issues. We all deeply live with the losses that New
York and the rest of the Nation suffered in 2001.
My first question relates to the practical matters of the
trial in New York City. I spoke with Commissioner Ray Kelly
yesterday about the strain that conducting trials in New York
City will place on local law enforcement. Obviously, it is a
large burden, which Commissioner Kelly willingly and Mayor
Bloomberg willingly accept. Rough estimates from the city of
New York which I received yesterday place the added cost of
moving the trials of Khalid Sheikh Mohammed and the other
terrorist suspects to New York somewhere in the ballpark of $75
million. That is a minimum. That is just for the year of the
trial. The figure does not include costs of ramping up
personnel, placing additional perimeter units around the
courthouse and the Metropolitan Correctional Center in Lower
Manhattan, and other consistent demands that will be placed on
our police force as soon as the detainees are physically
transferred.
As you can imagine, such a high-profile case involving such
dangerous subjects will require substantial manpower for the
necessary enhanced security. The city will require the
following: police officers to establish a secure perimeter
around Lower Manhattan, many of those, obviously, the hours are
going to vary, and so there will be overtime and other things
like that; police officers and equipment for demonstration
areas and crowd control police officers to enhance security
units for City Hall and for police headquarters, both of which
are near the courthouse and the MCC; as well as for our bridges
and transit systems; increased traffic agents, aviation
flyovers, sniper teams, and hazmat units. This list does not
come from me, but from the police commissioner in New York.
Commissioner Kelly estimated--this is a rough estimation at
this early point, because I just asked him to do it yesterday--
that as much as 90 percent of the additional outlays would need
to go to overtime alone because they are not going to be able
to hire new police officers for all of this.
All of this comes at a time when, of course, we compete,
New York City does, for Federal grants of the COPS hiring
grant. We did not receive any money for that program last year.
So I worry about safety first, obviously, but also the burden
on the taxpayers of New York.
In 1995, the city of New York was host to the trial of
Sheikh Omar Abdel Rahman, the mastermind of the 1993 bombing at
the World Trade Center, and costs associated with that trial
were fully reimbursed by the Federal Government.
So my general question to you is: Will you recommend to the
President that he include in his budget dedicated funding to
cover all of New York City's added security costs?
Attorney General Holder. Yes, I think that is fair. America
was attacked on September the 11th. That attack was of national
consequence. What we are doing is a national responsibility,
and although the trial will be hosted in New York, it seems to
me that New York should not bear the burden alone. This is a
national----
Senator Schumer. So you will recommend and, I presume,
fight for these funds from OMB, which we know sometimes has
other things on its mind?
Attorney General Holder. With your help, I would----
Senator Schumer. You will have my full and undivided help.
I just do not want--I mean, Mayor Bloomberg, the commissioner,
they did not make the decision, but they stepped up to the
plate and willingly agreed. I do not think either they or New
York City or New York State should be left hanging out there
paying any of the costs of this, and I take it you fully agree
with that.
Attorney General Holder. I do not disagree with that at
all, Senator.
Senator Schumer. OK. Second question--and just one other
thing on this. There may be other costs that we cannot
envision, and I take it we are not going to find somebody sort
of trying to say, well, this was not in an original application
or on an original request. I take it there will be flexibility
and generosity because of New York's generosity here.
Attorney General Holder. You are going to be with me at
OMB, yes, that does----
Senator Schumer. I will be there, believe me, with you or--
gladly with you rather than alone. Thank you.
Attorney General Holder. I look forward to working with you
in that regard.
Senator Schumer. OK, great. The next question is about the
death penalty. As you know, because we discussed this back
then, I was the primary author of the Federal death penalty
provisions for terrorists in the 1994 omnibus crime bill, and
you have already indicated you intend to seek the death penalty
against Khalid Sheikh Mohammed and his cohorts, which I think
is totally appropriate.
Can you tell me if you currently see any legal impediments,
that is, existing court cases, because what we worry about
here--and this happened in the military courts with Hamdan and
other cases--that would stand in the way, provided all the
proper procedures were followed, of seeking and imposing the
death penalty?
Attorney General Holder. No. When I made that statement, I
did so on an informed basis and looked at what the potential
impediments were, and I do not see any legal impediments to our
seeking the death penalty. We will obviously have to convince a
jury of 12 people that the death penalty is appropriate. But I
do not see any legal impediments in that regard.
Senator Schumer. My guess is a normal jury of 12 people
would clearly see that, but we have a jury system and we trust
it.
Khalid Sheikh Mohammed expressed a desire in the tribunal
to plead guilty. If he wants to plead guilty in Federal court--
and as you correctly point out, we have no knowledge that he
still wants to do that and cannot rely on the whims of him to
make any decisions--but he waives his right to a jury trial for
the penalty phase, will you agree to that to, for instance,
avoid some of the theater that some people are justifiably
worried about?
Attorney General Holder. He certainly has the right to
plead guilty, and if we are spared a trial and simply go to the
penalty phase, that is something we would, I think, clearly
agree to.
Senator Schumer. Thank you. One quick other question. I
know my time is coming to an end. This is about Fort Hood and
guns. Senator Feinstein talked about the Lautenberg law and
others to prevent terrorists and people on the watchlist from
getting guns, and that makes sense. But there is another aspect
here. There are restrictions on even notification. So, for
instance, the people in one end of the justice system, the
Joint Terrorism Task Force, were not notified when Major Hasan
bought a gun. That is not talking about whether the law should
allow it or not, but, clearly, there should be notification.
Now the Tiahrt amendment, the 24-hour background check
requirement, gets in the way of that.
My question is: Will the Justice Department remove the
Tiahrt 24-hour background check destruction requirement from
its 2011 budget to allow the FBI to keep records of guns
purchased by subjects of terrorist inquiries--I am just
limiting it to that issue--like Major Hasan?
Attorney General Holder. The position of the administration
is that there should be a basis for law enforcement to share
information about gun purchases. We fully respect the Second
Amendment, fully respect the Heller decision. It does not seem
to us that it is inconsistent to allow law enforcement agencies
to share that kind of information--for that information to be
retained and then to be shared by law enforcement.
Senator Schumer. I would just urge that you urge they write
it into the budget that they are going to bring to us, the
administration. It would be very important.
Attorney General Holder. I believe it is, but I have to
check. But I believe it is.
Senator Schumer. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you. I was going to take a short
break, but Senator Graham tells me he has a conflict, so why
don't I yield to you, Senator Graham. And then after Senator
Graham's questions, we will take a very short break while we
reconnoiter.
Senator Sessions. Thank you, Mr. Chairman.
Senator Graham. Thank you, Mr. Attorney General. I have,
quite frankly, enjoyed working with you on this difficult
topic, and I am afraid we have reached different conclusions.
But this is an important discussion for the American people to
understand, you know, how this affects us now and in the
future.
The first thing I would like to make the public understand
is that you are not suggesting that if by some one in a million
fluke one of these defendants were acquitted or given a short
sentence, they would be released anywhere, are you?
Attorney General Holder. No.
Senator Graham. We would hold them as an enemy combatant.
Attorney General Holder. As I indicated to Senator--as I
should have indicated to Senator Kohl when that question was
initially asked of me, I think we have Congressional
restrictions on how these people would be treated in such a
circumstance so that, no, that would not be----
Senator Graham. But the administration's position would
be--and this is not going to happen. I am here to tell you that
I am sure he will get convicted in Federal court, but not
because we are threatening the judge or the jury, but just
because of the nature of the case. That is not really my
concern about what happens to him because he will get his day,
he will meet justice. But in the future, if one of these
terrorists were taken to Federal court and somehow acquitted or
given a short sentence and the administration still felt they
presented a military threat to the country, you would have the
legal authority to hold them as an enemy combatant, right?
Attorney General Holder. I certainly think that under the
regime that we are contemplating, the potential for detaining
people under the laws of war, we would retain that ability.
Senator Graham. Yes. So in a Sheikh Mohammed case, we are
never going to let him go if something happened wrong in the
Federal court.
Attorney General Holder. I do not anticipate that anything
is going to go wrong in the Federal court----
Senator Graham. Nor do I, but here is my concern. Can you
give me a case in United States history where an enemy
combatant caught on a battlefield was tried in civilian court?
Attorney General Holder. I do not know; I would have to
look at that. I think that, you know, the determination of----
Senator Graham. We are making history here, Mr. Attorney
General. I will answer it for you. The answer is no.
Attorney General Holder. Well, I think----
Senator Graham. The Ghailani case, he was indicted for the
Cole bombing before 9/11, and I did not object to going into
Federal court. But I am telling you right now, we are making
history, and we are making bad history, and let me tell you
why.
If bin Laden were caught tomorrow, would it be the position
of this administration that he would be brought to justice?
Attorney General Holder. He would certainly be brought to
justice, absolutely.
Senator Graham. Where would you try him?
Attorney General Holder. Well, we would go through our
protocol, and we would make the determination about where he
should appropriately be tried.
Senator Graham. Would you try him--why would you take him
someplace different than KSM?
Attorney General Holder. Well, that might be the case. I do
not know. I would have to look at all of the evidence, all of
the--indicted----
Senator Graham. Well----
Attorney General Holder. He has been indicted already in
Federal court.
Senator Graham. Does it matter if you use the law
enforcement theory or the enemy combatant theory in terms of
how the case would be handled?
Attorney General Holder. Well, bin Laden is an interesting
case in that he has already been indicted in Federal court.
Senator Graham. Right.
Attorney General Holder. We have cases against him in
Federal court.
Senator Graham. Right. Well, where would you put him?
Attorney General Holder. It would depend on a variety of
factors.
Senator Graham. Well, let me ask you this question. Let me
ask you this. Let us say we capture him tomorrow. When does
custodial interrogation begin in his case? If we captured bin
Laden tomorrow, would he be entitled to Miranda warnings at the
moment of capture?
Attorney General Holder. Again, that all depends. I mean,
if we capture----
Senator Graham. Well, it does not depend. If you are going
to prosecute anybody in civilian court, our law is clear that
the moment custodial interrogation occurs, the defendant, the
criminal defendant is entitled to a lawyer and to be informed
of their right to remain silent. The big problem I have is that
you are criminalizing the war, that if we caught bin Laden
tomorrow, we have mixed theories and we could not turn him over
to the CIA, the FBI, or military intelligence for an
interrogation on the battlefield because now we are saying that
he is subject to criminal court in the United States, and you
are confusing the people fighting this war.
What would you tell the military commander who captured
him? Would you tell him, ``You must read him his rights and
give him a lawyer'' ? And if you did not tell him that, would
you jeopardize the prosecution in a Federal court?
Attorney General Holder. We have captured thousands of
people on the battlefield, only a few of which have actually
been given their Miranda warnings.
With regard to bin Laden and the desire or the need for
statements from him, the case against him at this point is so
overwhelming----
Senator Graham. Mr. Attorney General----
Attorney General Holder.--that there is no need to----
Senator Graham.--the only point I am making is that if we
are going to use Federal court as a disposition for terrorists,
you take everything that comes with being in Federal court. And
what comes with being in Federal court is that the rules in
this country, unlike military law--you can have military
operations, you can interrogate somebody for military
intelligence purposes, and the law enforcement rights do not
attach. But under domestic criminal law, the moment the person
is in the hands of the U.S. Government, they are entitled to be
told they have a right to a lawyer and can remain silent, and
if we go down that road, we are going to make this country less
safe. That is my problem with what you have done.
You are a fine man. I know you want to do everything to
help this country be safe. But I think you have made a
fundamental mistake here. You have taken a wartime model that
will allow us flexibility when it comes to intelligence
gathering, and you have compromised this country's ability to
deal with people who are at war with us by interjecting into
the system the possibility that they may be given the same
constitutional rights as any American citizen. And the main
reason that KSM is going to court apparently is because the
people he decided to kill were here in America and mostly
civilian, and the person going into military court decided to
kill some military members overseas. I think that is a
perversion of the justice system.
Attorney General Holder. What I said repeatedly is that we
should use all the tools available to us--military courts,
Article III courts. The conviction of Osama bin Laden, were he
to come into our custody, would not depend on any custodial
statements that he would make. The case against him, both for
those cases that have already been indicted, the case we could
make him against for his involvement in the 9/11 case, would
not be dependent on----
Senator Graham. Mr. Attorney----
Attorney General Holder.--would not be dependent on
custodial interrogations. And so I think in some ways you have
thrown up something that is--with all due respect, I think is a
red herring. It would not be something----
Senator Graham. With all due respect, every military lawyer
that I have talked to is deeply concerned about the fact that
if we go down this road, we are criminalizing the war, and we
are putting our intelligence gathering at risk. And I will have
some statements from them to back up what I am saying.
Chairman Leahy. Senator Graham----
Senator Graham. My time is up. I look forward to talking to
you. There are some issues we can agree on.
Attorney General Holder. One thing I would say, that with
regard to those people who are captured on the battlefield, we
make the determinations every day as to who should be
Mirandized, who should not. Most are not Mirandized. And the
people who are involved in that decision involve not only
lawyers and agents but also military personnel who make the
determination as to who should be Mirandized.
But, again, the notion that a conviction of Khalid Sheikh
Mohammed would depend on his getting Miranda rights is simply
not accurate.
Senator Graham. I am not saying that.
Chairman Leahy. And, Senator Graham, you were out of the
room when I put into the record some very significant, well-
qualified military people who support what Attorney General
Holder has done, as well as numerous other commentators.
I would also put into the record statements of those who
have called for the closing of Guantanamo: General Colin
Powell, Defense Secretary Robert Gates, Chairman of the Joint
Chiefs of Staff Admiral Mullen, the CENTCOM Commander General
David Petraeus, the Director of National Intelligence Admiral
Blair, former Guantanamo Commander Marine Corps Major General
Michael Lehnert, former Navy General Counsel Alberto Mora, and
Senator John McCain.
Senator Sessions. That is to close Guantanamo but not
dealing with what Senator Graham talked about.
Chairman Leahy. We have already put into the record
statements across the political spectrum, including military
who take a different view than Senator Graham.
[The statements appear as a submission for the record.]
Chairman Leahy. We will stand in recess for 10 minutes.
[Recess 11:32 a.m. to 11:46 a.m.]
Chairman Leahy. The Committee will come to order.
We have finished with Senator Graham, so next is Senator
Durbin. Senator Durbin, I yield to you.
Senator Durbin. Thank you, Mr. Chairman.
Mr. Attorney General, thank you for your appearance. I
would like to call your attention to a matter which has been
discussed here, a matter of discretion by the Attorney General
of trying an accused terrorist before the tribunals of our land
that are available. In fact, the terrorist who was being tried
was accused of being the 20th hijacker on 9/11, and the
decision was made by the previous administration to try that
terrorist in an Article III court in the Eastern District of
Virginia, literally 15 minutes away by car from the Pentagon,
where on 9/11 innocent lives were lost and families still
grieve to this day, and we join them in that grief.
That decision was made in 2006 to try Zacarias Moussaoui in
the Eastern District of Virginia. I do not recall any
complaints from either the Republican side of the aisle of
their President, President Bush's decision through his
Department of Justice, to try that case in an Article III
court, or on our side of the aisle either. And I ask you, as
you reflect on the parallels between Khalid Sheikh Mohammed's
prosecution in New York and this prosecution in the Eastern
District of Virginia, can you tell me what the distinction
might be, why Khalid Sheikh Mohammed should be tried in a
military commission?
Attorney General Holder. Well, again, we have learned, I
think, a great deal from the Moussaoui trial which I think will
assist us in the conduct of the Khalid Sheikh Mohammed trial
and the other four. Again, I think determinations are made as
to what is the best forum for a particular case. What I have
tried to do is make individualized determinations looking at
each of these matters and trying to decide what is in the best
interests of the American people in terms of safety, what is
consistent with our values, and I have made determinations that
some should go to our Article III courts and some should go to
the reformed military commissions.
Senator Durbin. I would like to quote former Mayor
Giuliani, who has been outspoken about the trial of Khalid
Sheikh Mohammed, in what he said about the Moussaoui trial,
tried in an Article III court. He said, ``At the same time, I
was in awe of our system. It does demonstrate that we can give
people a fair trial, that we are exactly what we saw we are. We
are a nation of law. I think it is going to be a symbol of
American justice.''
That was the trial of an accused terrorist, 20th hijacker,
9/11, in an Article III court, within a minute's drive away
from the scene of that horrific loss of life at the Pentagon.
And I struggle to find the difference, but I want to draw one
point, too. You refer, accurately so, to the reformed military
tribunals, reformed military commissions, and it reflects the
fact that because of Supreme Court decisions in Hamdan and
actions by Congress, at the time controlled by the Republicans,
that we have changed the laws when it relates to military
tribunals to try to come in conformance with Supreme Court
requirements. You have noted that since 9/11, only three have
been successfully tried before military tribunals accused of
terrorism, and I want to ask you this question: As you referred
the five to military tribunals under the reform, are you not
also aware of the possibility that some will challenge this new
procedure as to whether or not it conforms with earlier Supreme
Court decisions, which may lead to procedural delays and some
delay in the final outcome of those tribunals?
Attorney General Holder. No, that is a distinct possibility
and something that we will have to try to deal with, or the
prosecutors in that case will have to deal with, and that is
something we will certainly not have to deal with in bringing
Khalid Sheikh Mohammed and his cohorts in the Article III court
in Manhattan. We have a 200-year history of trying cases, these
kinds of cases. And so the question of legitimacy is not an
issue that we will have to deal with at all.
Senator Durbin. So we have a very close parallel where the
Bush administration decided on the 20th hijacker for 9/11 to
prosecute him in the Article III court, in a venue very close
to the scene of the horrific tragedy. We have a situation now
where some are calling for any future trials to be in military
tribunals or commissions, which have procedures still not ruled
upon by the Supreme Court which could lead to some ultimate
delay in the outcome of those proceedings.
I think those are things which should be made part of this
record in our hearing today.
I would like to move, if I can, to the issue of the future
of Guantanamo. I support the administration's decision in
closing Guantanamo. It is consistent with positions taken by
General Colin Powell, who said, ``If I had my way, I wouldn't
close Guantanamo tomorrow. I'd close it this afternoon.''
Secretary of Defense Robert Gates, under both President
Bush and President Obama, has called for the closure of
Guantanamo because of the danger that it presents to our troops
in the field.
President Bush on eight separate occasions called for the
closure of Guantanamo. Admiral Mullen, Chairman of the Joint
Chiefs of Staff, called for the closure of Guantanamo. General
David Petraeus called for the closure--all believing that the
existence of Guantanamo was, in fact, an incitement for those
who would do harm to our soldiers and to the American people.
And so now there is a possibility that we will find another
venue, and one of the opportunities or possibilities is in my
home State of Illinois in the small town of Thompson, fewer
than 1,000 people, in the northwestern part of our State, a
rural area. And the Bureau of Prisons and Department of Defense
have been out to look at this site. It is my understanding that
they are considering the configuration of this facility if it
is chosen, and one of the things they are proposing is to put a
new perimeter fence beyond what currently exists at this
maximum security prison, built 8 years ago and never fully
occupied. And it is my understanding that if this new perimeter
fence is installed, this would indeed be the most secure, the
safest maximum security prison in America. Is that correct?
Attorney General Holder. That is correct.
Senator Durbin. And to date, we have never had an escape
from a supermax facility in the United States.
Attorney General Holder. That is also correct.
Senator Durbin. You mentioned some 300-plus convicted
terrorists, domestic and international, being held; in our
State, some 35. And, incidentally, one of those happens to be a
man accused of being in a sleeper cell for al Qaeda, al-Bari,
who is serving in the Marion Federal penitentiary, without any
danger to the surrounding community.
I might also ask, one of the congressional critics in my
State has said that there would be a requirement if we brought
the Guantanamo detainees to Thompson, Illinois, that they would
be allowed up to ten visitors, which means if there were 100
transferred, we would, in his words, have 1,000 jihadist
followers going through O'Hare, trekking across Illinois to
visit, as, he said, they were legally entitled to do. My
understanding is that those held in military facilities--and
this would be a military facility for Guantanamo detainees--are
denied access to any visitors, family or friends, and the only
visitation is from legal counsel. Is that your understanding as
well?
Attorney General Holder. That is my understanding.
Senator Durbin. So the statement that has been made about a
thousand jihadist followers streaming across the highways of
Illinois is inconsistent with the law.
Attorney General Holder. That is not consistent with my
understanding of how people are held in military detention.
Senator Durbin. Thank you, Mr. Holder. I appreciate your
testimony.
Chairman Leahy. Thank you very much Senator Durbin.
Senator Cornyn.
Senator Cornyn. Thank you.
Mr. Attorney General, please forgive my voice. We are going
to try to croak through this together.
Attorney General Holder. OK.
Senator Cornyn. Let me just ask, do you acknowledge the
legitimacy of military commissions?
Attorney General Holder. Absolutely. I think that what
Congress has done in response to the Supreme Court concerns in
reforming the military commission, military tribunals, has
legitimized them and makes them places in which people can be
referred and tried. And it was one of the reasons why I sent
five of those people there last Friday.
Senator Cornyn. And so your decision to try some of these
9/11 co-conspirators in an Article III court is not compelled
by any law. It was a matter of your judgment and discretion.
Attorney General Holder. A matter of my judgment, my
discretion, my experience, my interaction with the Secretary of
Defense, my interaction with prosecutors both on the military
side and on the civilian side. All of that went into making
that determination.
Senator Cornyn. Does the President of the United States
agree with you?
Attorney General Holder. I believe that he does. I have not
had a direct conversation with him. I have seen reports
indicating that he agrees with the decision that I made. But
the decision I made I think is consistent with his Archives
speech where he laid out how he viewed how the detainees at
Guantanamo should be handled.
Senator Cornyn. Well, you acknowledge that you work for the
President of the United States, that he could fire you if he
disagreed with you, that he could overrule you. Correct?
Attorney General Holder. Yes, he could do that.
Senator Cornyn. Well, I want to ask you, you mentioned that
we are currently offering Miranda rights or reading Miranda
rights to suspected terrorists on the battlefield. Is that
correct?
Attorney General Holder. No. What I said was that happens
very, very rarely. It happened during the Bush administration.
It happens very rarely. I have talked to the FBI about this.
There was some misreporting about the notion that people
captured on the battlefield were automatically being read their
Miranda warnings and that the reality is there are thousands of
people who are captured and a very, very small number have been
read Miranda warnings after military lawyers, civilian lawyers,
investigators from both sides made the determination that there
was some reason to give Miranda warnings to those captives.
Senator Cornyn. And you support that decision to give
Miranda rights to some suspected terrorists?
Attorney General Holder. Well, give them Miranda warnings
if that means it is going to preserve an option for us. I think
that is why it is done.
Senator Cornyn. And you support it?
Attorney General Holder. Well, I would support it to the
limited extent that it is done. I defer to the people in the
field who make these determinations and, I think, are capable
of making those determinations given the facts that they have
to confront that are right in front of them.
Senator Cornyn. And should Khalid Sheikh Mohammed have been
read his Miranda rights?
Attorney General Holder. There was no need. We do not need
his statements.
Senator Cornyn. With all due deference, you are not going
to be the ultimate arbiter of that decision. It will be a
judge, won't it, at the trial or appellate level? Correct?
Attorney General Holder. That is true, if that is an issue
that they raise on appeal, should there be an appeal. But I am
confident that the way in which this case is going to be
structured, given the way in which and the various places in
which we will be able to find statements that he made, there
was no need for Miranda warnings.
Senator Cornyn. Well, he did ask for a lawyer, didn't he,
when he was detained?
Attorney General Holder. I frankly do not know.
Senator Cornyn. You are not aware of the fact that he asked
for a lawyer and he said he wanted to go to New York?
Attorney General Holder. Yes, I do remember that. Yes, that
is correct. ``I want a lawyer'' and ``I want to go to New
York,'' I remember those two, yes.
Senator Cornyn. And he is getting his wish, I guess. When
did he first get a lawyer, do you know?
Attorney General Holder. No, I do not know the exact date.
Senator Cornyn. Do you acknowledge the possibility that a
judge, consistent with what you believe to be the sound policy
of providing Miranda rights to some suspected detainees, would
conclude that Khalid Sheikh Mohammed was denied his rights and,
thus, he cannot be prosecuted for the crimes for which you
anticipate charging him?
Attorney General Holder. Well, Senator, you have been a
judge; I have been a judge. And there is no--I cannot say, you
cannot say, no one can say with any 100-percent degree of
certainty that a judge would not look at a particular set of
facts and rule in a particular way. And yet, as I look at the
facts surrounding the interaction with Khalid Sheikh Mohammed,
the detention of him, the evidence that we will present at
trial, I am very confident that Miranda issues are not going to
be a part of that trial.
Senator Cornyn. Well, General Holder, you have been a
judge, I have been a judge, and you are correct to acknowledge
the fact that you will not make that decision.
Attorney General Holder. Right.
Senator Cornyn. I will not make that decision. Some judge
will make that decision. Just like you said you are not going
to defer to Khalid Sheikh Mohammed in determining the venue
where he is going to be tried, you are the one making that
decision. But isn't it the fact that you will not be the one
making that decision, ultimately--if an attempt to transfer
venue based on the notoriety of this event on 9/11 is such,
just like Timothy McVeigh, who killed so many Americans in
Oklahoma, he was tried in Colorado. Isn't it a distinct
possibility that a judge would transfer this case based on a
local prejudice?
Attorney General Holder. Sure, that is entirely possible.
There may be a motion for a venue change. But just as in the
McVeigh case, the venue change did not have a material negative
impact on the outcome of the trial. He was convicted and he was
executed.
Senator Cornyn. Well, in terms of local security
arrangements, I mean, this case might be tried in Connecticut
or Vermont or some other part of the Second Circuit. And you
cannot control that; I cannot control that. The judge is
ultimately going to make that decision, correct?
Attorney General Holder. Well, I would think that one of
the things a judge would take into account--again, we are
speculating here about the possibility of this case being
moved. I would hope that a judge----
Senator Cornyn. Well, you have to consider all the
possibilities, don't you, consider the risk----
Attorney General Holder. We consider the possibilities, and
I would hope that the judge would take into account in deciding
where the case would be tried the very real security concerns
that this trial would present.
Senator Cornyn. And you said that if Khalid Sheikh Mohammed
is acquitted, he will not be released. What if a Federal judge
orders the Department of Justice to release him? Will you defy
that order?
Attorney General Holder. We have taken the view that the
judiciary does not have the ability necessarily to certainly
require us, with regard to people held overseas, to release
them. It is hard for me to imagine a set of circumstances given
the other things that we could do with Khalid Sheikh Mohammed.
There are other things that we can do with him aside from
simply immigration. There are other legal things we can do with
him. It is hard for me to imagine a set of circumstances under
which, if he were acquitted, that he would be released into the
United States. There are other matters. There are other things
that we have the capacity to do, other legal matters that we
can bring.
Senator Cornyn. Well, you recognize the Supreme Court has
said you cannot hold somebody indefinitely, for example, who
cannot be repatriated to their home country.
Attorney General Holder. You can certainly hold people in
connection with matters that are pending, and we have the
capacity to make sure that Khalid Sheikh Mohammed is not
released into the United States.
Senator Cornyn. My time has expired. Thank you.
Chairman Leahy. Thank you. Of course, I might say on half-
facetiously, I suspect that a lot of people in New York would
not mind having him released onto the streets of New York. I
suspect he would not want to be released onto the streets of
New York.
Senator Cardin.
Senator Cardin. Thank you, Chairman.
Attorney General, it is a pleasure to have you before the
Committee. There is risk involved in any trial, whether it is a
military trial or whether it is a civilian trial. And I think
you have gone over that very well. You give us great confidence
of the confidence that you have in this trial of our
terrorists. So I think we need to also underscore the
advantages of trying the terrorists in the civilian courts,
Article III courts. It gives us an established process that has
been used before. It gives us the credibility of our system,
which is internationally understood and respected. And it gives
us the ability to showcase that we are using the American
values to hold the terrorists responsible. So I think there are
a lot of positive reasons to use Article III courts,
particularly considering the history of how we have not only
ignored international laws, we have ignored our own laws, as
the Supreme Court has held on previous occasions.
I want to follow up on Senator Kohl's point where we are
talking about the closing of Guantanamo Bay, which I strongly
support, and Senator Feingold's point of how you have made
informed decisions as to how to basically classify the
detainees at Guantanamo Bay, those who are going to be
relocated to other countries, those who are going to be tried
in military courts, those who are going to be tried in our
Article III courts; and then in response to Senator Feingold,
your ability to detain these individuals basically indefinitely
under certain circumstances.
When you previously testified before us, you indicated that
there was going to be a process, a more open process with
accountability. Can you just share with us how that is
progressing as to how we can showcase to the world that, in
fact, we are using fair procedures that everyone who is
detained has their opportunity to challenge the methods that we
are using?
Attorney General Holder. Well, that is something that we
are still in the process of trying to put together. Actually,
it is something that I have worked a great deal with or talked
about with Senator Graham--about the mechanism that we would
use in order to detain somebody under the laws of war. But it
certainly would involve a due process determination at the
outset, that this was a person who could be detained under the
laws of war with some periodic review to ensure that the
continued detention of that person was appropriate, that that
person continued to be a danger to the United States. It would
not simply be placing somebody in a gulag and never hearing
from or seeing that person again. There would be continuous
reviews, as I said, to make sure that that person's continued
detention was appropriate.
Senator Cardin. I would just encourage you to be as open as
you can on the procedures that are being used so that we can,
in fact, justify the issues. I do not think anyone disagrees
with the need to preserve public safety and the need to deal
with the urgencies of war. But we want to make sure that it is
not an arbitrary decision and is one that can withstand
international scrutiny, and the more transparency that you
bring to that process I think would be valuable for our
country.
Attorney General Holder. Senator Cardin, what I want to
assure you and all the members of this Committee and the
American people is that if we were to put such a regime in
place, we would seek the approval of Congress--hold hearings,
however that is to be done--to ensure that the mechanisms that
we put in place have the support, perhaps generated by the
executive branch, but have the support of the legislative
branch. That is where the executive is most powerful, when it
works in conjunction with the legislature.
Senator Cardin. Thank you. I want to mention another area
of concern on terrorist activities in the United States, and
that is cybersecurity. I held a hearing yesterday in the
Subcommittee on Terrorism and Homeland Security, and the
Department of Justice was represented very ably at that
hearing. We also had the Department of Homeland Security and
NSA.
I think the consensus there was that the line
responsibility rests with the Department of Justice, although
there are interagency working groups now. The vulnerability of
America is great here. The assessment was made that we might be
able to prevent 80 percent of the attacks, and I made the
comment we would never do a defense budget based upon an 80-
percent efficiency. We have to do better than that.
I just want to get your assessment as to how high a
priority you are placing on dealing with this issue. There have
been some recommendations made about establishing a
cybersecurity person who is principally responsible on the
interagency issues. There are the legal matters as to whether
our current laws are adequate to deal with this from the point
of view of both protecting our country against cyber attacks,
as well as protecting individual liberties of the people in
America.
It is a complicated area, but it is an area that is
changing every day and making us more at risk every day.
Attorney General Holder. You are absolutely right, Senator
Cardin, and I think that the hearing that you held yesterday
was an important one because I think it draws attention to
something that has not gotten the attention that it needs.
The cyber issues present problems for us when it comes to
espionage, when it comes to terrorism, when it comes to
economic harm that is done to our country. The potential in all
those areas is great, and unless we have an effective response,
an effective defensive capability in that regard, I worry about
what the future could look like. And so I think we have to
devote attention. We are doing that at the Justice Department.
We are working with our partners in the executive branch. But
we also need the help of Congress to, as you have done, examine
these issues, propose legislation where that is appropriate. We
have to be partners in dealing with this very real 21st century
issue.
Senator Cardin. Thank you. I look forward to working with
you on that.
I just really want to point out for the Committee, in your
report to us the section you have on civil rights, I do not
want this hearing to go by without just applauding you and
urging you to continue to make civil rights a priority. We know
the problems we had in the last administration, and we are very
pleased that we have moved forward with Tom Perez as the head
of the Civil Rights Division. And I noticed that you are taking
action on voting rights, as you did for military personnel and
absentee ballots. We think that is absolutely the right thing
to do, that you are moving forward with Native Americans. We
would urge you to continue an aggressive policy, as we get into
redistricting and the challenges that one has to protect
Americans' rights of voting as well as the other civil rights
issues that have been, I think, not given the priority that
they deserve in the previous administration and restoring that
confidence to the Civil Rights Division.
Attorney General Holder. Well, as I said at my confirmation
hearing, my primary focus I think has to be on the national
security responsibilities that I have, but the Justice
Department also has to do the traditional things that it has
always done under Republican as well as Democratic Attorneys
General. And a revitalized, reinvigorated Civil Rights Division
that I believe in some ways is the conscience of the Justice
Department remains a priority for me. The confirmation and now
the installation of Tom Perez as the head of that Division I
think will help a great deal. I think there is a sense, as I
walk around, that there is a greater sense of mission among the
lawyers, the career folks in the Civil Rights Division, and I
think we are starting to see that in the statistical things
that I see in terms of number of cases filed, where they have
investigations open. I think the Civil Rights Division is
coming back.
There is still more work to be done, but I think we are on
a good path.
Senator Cardin. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much, and I would also put
in the record a number of military and other national security
and terrorism experts, their support for the closing of
Guantanamo.
[The information referred to appears as a submission for
the record.]
Chairman Leahy. Senator Coburn, you are next. Thank you for
waiting.
Senator Coburn. Mr. Attorney General, welcome. We are about
through here. I appreciate your patience.
Just to clear up some small things, I sent you a letter on
March 30th about thousands of Oklahomans that are freedmen, and
I have not gotten a response from you. I would just appreciate
it if you would get us a response on that.
Attorney General Holder. OK.
Senator Coburn. That affects thousands of people in my
State, and I would very much appreciate it.
Attorney General Holder. Senator, I will get you that
response.
Senator Coburn. Thank you. Also, I am not going to spend a
whole lot of time on what has been the main subject, and you do
not have to answer these because I do not expect you to have
the answer right now, but I do want to put into the record and
ask that you answer it at a later time.
During your press conference you noted that Federal
prosecutors have successfully prosecuted--and you have alluded
to it today--a number of terrorists who are now serving lengthy
sentences in our prisons. And the three questions about that
that I would have that I do not expect you to answer now: How
many of those convicted terrorists were picked up during
firefights in Pakistan or Afghanistan or elsewhere? How many of
them were held without being Mirandized? And how many of them
were interrogated by the CIA to gather intelligence about
pending plots? If you could answer that, I would appreciate it
very much.
Attorney General Holder. All right. We will answer those
questions.
[The information referred to appears as a submission for
the record.]
Senator Coburn. And one other question I have, we have
recently--on October 30th, the Recovery and Accountability
Transparency Board issued a list of recipients of Federal funds
who submitted reports to the Government that were fraudulent on
information as pertaining to a judge. Does the Department have
a plan to prosecute that fraudulent behavior or that fraudulent
reporting, especially not just in this instance, but in all
instances related to the recovery?
Attorney General Holder. Yes. In fact, that was one of the
things that we mentioned yesterday in the announcement of that
task force, that economic crimes task force. One of the areas
that we are going to be focusing on is the misuse of Recovery
Act funds, fraud connected to the Recovery Act funds. We will
be working with our partners both at Treasury, SEC, other
Federal agencies, as well as our State and local counterparts.
That is one of the priority areas, I would say, of the four or
five priorities that we identified yesterday. That is one of
them.
Senator Coburn. It is going to be big because the Special
Inspector General says it is going to be over $50 billion. So
it is a lot of money to play with, but a lot of negative things
can happen.
At our last oversight hearing, you were kind enough to talk
with me about the hate crimes issue, and I had asked you about
the murder of some of our recruiters in Arkansas and whether or
not that would apply, and you said you would have to think
about that and get back to me. It has been 5 months. I wonder
if you have given any thought to that, especially in light of
what has happened now at Fort Hood.
Attorney General Holder. Well, I think that we now have,
you know, a hate crimes bill that, in fact, does say that such
actions are potentially hate crimes.
Again, there is, I believe, a mandatory minimum sentence
that Senator Sessions introduced with regard to the hate crimes
bill that deals with the set of facts that you are talking
about.
Senator Coburn. OK. Thank you.
One other issue--and you really do not have to go into it
now, but I wanted to raise it with you because it--and it has
to do with the Voting Rights Act, and it has to do with
Kingston, North Carolina. I do not know if you are familiar
with that or not. But, in fact, in North Carolina, only 9 out
of 551 localities hold their election on a partisan basis, and
in Kingston, seven of the nine minority--which actually in
Kingston is the majority--voted to eliminate that, and then the
Civil Rights Division went back and, because they fall under
the Voting Rights Act, having to have that approved, reversed
that. And I would just like to hear the comments about that and
why that was seen, because 73 percent of which the vast
majority of those are African Americans, voted by over 2:1 to
remove party labels, and yet what we did in Washington was tell
them, ``You cannot decide that because you fall under the
Voting Rights Act.''
And so there are a lot of complicated questions with that,
and I understand that, but I would appreciate you giving me a
written response justifying how we would reverse what the
majority of African-Americans in that town thought to be
prudent for them when they are doing local elections.
Attorney General Holder. All right, Senator. I will get you
a written response on that. I do not know enough about the case
at this point, I think, to respond to you today, but we will
get--I am familiar with it, but not as well as I think I need
to be to respond intelligently.
Senator Coburn. I understand, and I do not expect you to
have to----
Attorney General Holder. But I will get you a written
response to that.
Senator Coburn. Thank you.
[The information referred to appears as a submission for
the record.]
Senator Coburn. Thank you.
Now, here is the area that I really want to get into
because I am really concerned. As a practicing physician, I
have dealt with lots of drug abuse in this country and know the
significant power of marijuana use to lead to other drug use.
On October 12th, Deputy Attorney General David Ogden issued a
memorandum to U.S. Attorneys in all the States that have laws
authorizing the use of medical marijuana directing prosecutors
not to focus Federal resources on individuals whose actions are
in clear and unambiguous compliance with State law. Never mind
the fact that it violates U.S. Federal law. It is a dramatic
break with previous administration policies, both the Clinton
and the Bush administration policies, which demanded the
prosecution of marijuana distributors, even those acting in
accordance with State law. It is prohibited for any use under
Federal law, meaning that no matter what the States' laws are,
it is still a Federal crime to use it or to distribute it.
The Obama Justice Department is saying that it simply will
not enforce those Federal laws as long as you are legal in your
State, and I think that is kind of the summation of where you
all are. And I know that you have limited resources, so I
understand there can be a--did you personally approve of the
issuance of this new policy?
Attorney General Holder. I did.
Senator Coburn. Do you agree that this is a dramatic break
from past administration policies?
Attorney General Holder. It is certainly a break. I will
let other people decide whether it is dramatic. It----
Senator Coburn. It is a break. I will cancel the word
``dramatic.''
Attorney General Holder. It is certainly a break, but it
seems to me it is a logical break given, as you indicated, the
limited resources that we have, the use of marijuana in the way
that these State laws prescribe, which is for medical purposes.
But what that directive from the Deputy Attorney General, I
guess on October 19th, indicated was that we are not blind, and
to the extent that people are trying to use these State
marijuana laws to do things that are not consistent with State
law, that are not being used for medicinal purposes, that are
not being used to help cancer patients, for instance, the
Federal role is still there, and we will be vigorous in our
prosecutions. And on, I guess, page 2 of that memo, there are a
number of factors that are set out that are, we think, indicia
of a non-compliance with State law.
The Mexican cartels make most of their money from the
importation of marijuana from Mexico into the United States,
and so this continues to be a priority for this administration.
Senator Coburn. The fact is that 90 percent of the people
that have a medical marijuana prescription in California do not
have a real illness. What they have is a desire to smoke
marijuana, and yet we are allowing State law to usurp Federal
law.
I would quote former Clinton White House Director of Public
Affairs, White House Office of National Drug Policy, Bob
Weiner, was recently quoted warning the administration, Be
careful about the new lax enforcement policy for medical
marijuana because you may get way more than you bargained for.
Prescription marijuana use has exploded for healthy people. And
there is no question about that that it has. I want to make
sure that you are concerned with that as well, and this will be
my last question.
You know, pay attention to this because 2 years ago I
released a report on the Justice Department that outlined the
$1 billion of waste a year that most Americans would concur
with in terms of low priorities. And if, in fact, there is 10
percent truth to that report, which I believe it is very
accurate, those monies could certainly be used to enforce the
drug laws. The No. 1 risks for our kids is not obesity. It is
illicit marijuana.
Chairman Leahy. I tried to give and have given extra time
to the Senator, but----
Attorney General Holder. All I would say is, Senator
Coburn, is that one of the purposes of the guidance that was
issued by the Deputy Attorney General, as I indicated to you in
my response to your question that I approved, was to make clear
to people in the field that this remains a priority enforcement
for us. And to the extent that we have people who are misusing
these State laws or using these State laws for traditional
marijuana importation or growing purposes, the Federal
Government, the DEA, the Justice Department, will be vociferous
in our enforcement efforts.
Chairman Leahy. Thank you.
Senator Whitehouse.
Senator Coburn. Mr. Chairman, may I----
Chairman Leahy. The what?
Senator Coburn. To have questions submitted for the record.
Chairman Leahy. Oh, of course, and we will keep the record
open until the end of the week.
Senator Whitehouse.
Senator Whitehouse. I believe Senator Klobuchar was here
before me, Mr. Chairman. I am happy to yield to her.
Chairman Leahy. Sorry. I did have a list, and I neglected
to look at it.
Senator Klobuchar.
Senator Klobuchar. Thank you very much, and thank you,
Senator Whitehouse. I would have said it was fine, but I have
some people waiting out there from Minnesota.
Thank you very much for being here today, Attorney General
Holder. You mentioned the tragedy at Fort Hood in your opening
statement, and that terrible crime weighs heavily on all our
minds. I was one of several Senators on this Committee that
went to Fort Hood to that memorial service. We had a young man,
Kham Xiong, who was killed there. He was waiting in line for a
physical, ready to deploy. His family had come over from--they
fought in the wars in Laos, were then relocated to Thailand,
ten kids, in St. Paul, Minnesota. He has three himself. And the
saddest thing I remember from that memorial service is that
family huddled next to his picture propped next to the combat
boots.
So we are very interested in a thorough investigation
here--I know the Justice Department has a hand in this--and
that no stone is left unturned, that we get the results not
only for a strong prosecution but also so that we can make sure
that this does not happen again.
Attorney General Holder. Well, I think President Obama has
given us unequivocal direction that we are to find out what
happened there, how do we prevent what happened there from
occurring again, and it is our intent to, again, share the
findings of that inquiry with the Committee and with the
American people.
Senator Klobuchar. Today I want to focus on some of the
bread-and-butter law enforcement issues, but I want to quickly
summarize. So much of the questions have been understandably
about your decision about the trial. This resonates for me
because it was in Minnesota where some diligent citizens caught
Moussaoui, so we watched that with great interest, the trial in
Virginia.
First of all, of course, my focus is on security, and I
think you have talked about how you consulted with the mayor
and with the police chief, and Senator Schumer went over that
at length. But, obviously, most of us are interested in getting
these guys.
Senator Leahy mentioned that the conviction rate I think is
90 percent--is that right?--of people tried in----
Attorney General Holder. It is about 94 percent.
Senator Klobuchar. 94 percent, and you feel that you have a
strong case. Could you just briefly talk about your decision to
do this in New York and why you picked that particular
jurisdiction in terms of the expertise of the U.S. Attorneys
that will be handling that case?
Attorney General Holder. We are going to have a joint team
that involves lawyers from the Eastern District of Virginia as
well as lawyers from the Southern District of New York. New
York is a place that has tried these kinds of cases before. You
have a hardened detention facility. You have a hardened
courthouse. You have a means by which a person can go from the
jail to the courthouse without seeing the light of day.
I had a Marshals Service report done looking at all of the
potential venues if we were going to do this in an Article III
court, and the recommendation from the Marshals Service was
that this be done in New York City. That is the place that was
the most secure, and did not have to have any construction work
done in order to try to harden those facilities. And so for
that reason and for other reasons, that was why I made the
determination that New York was the appropriate place to try
these cases.
Senator Klobuchar. Focusing now on some of these domestic
issues, Senator Kaufman has a bill on health care fraud
enforcement. I am a cosponsor, a number of us are. I have my
own bill with Senator Snowe that complements that bill. And I
know in May--and this is a question from me and Senator
Kaufman, who is presiding over the Senate. I know that in May
you and Secretary Sebelius created a Health Care Fraud
Prevention and Enforcement Action Team to work on coordinating
the Federal Government's response to this issue. Could you say
more about what that group has been working on since it was
formed? Because we just had a report, $47 billion lost in
Medicare fraud. The health reform that we are working on now
must contain provisions that make it easier to go after this
kind of fraud, because it is an outrageous amount of money.
Attorney General Holder. Yes, the creation of the HEAT task
forces, as we call them, are, I think, critical tools in trying
to deal with an immense problem. We have seen the misuse of
Medicaid, Federal health care funds for procedures that never
occur, for devices that are never bought. We have actually seen
people who were once engaged in drug dealing and in organized
crime activities moving into this area because they determined
that it is safer, it is easier, and we are determined to put an
end to that. We will have to work with our partners at HHS.
Secretary Sebelius and I have been giving particular attention
to this.
We made the announcement I think in--I believe in April or
May. We have already announced significant numbers of arrests
that have occurred in a variety of cities. We are in four
cities now. We are going to be expanding those task forces into
other cities as well. This is a national problem.
Senator Klobuchar. Right, and I am hoping we can give you
more tools in this bill. One of the things I found most
interesting was that areas where you seem to have hot spots of
this crime tend also to be areas that have high-cost health
care, disorganized health care systems, which is something we
should be looking at as well.
A second thing I wanted to raise is the important
reauthorization that we are going to be handling in the
Violence Against Women Act. Senator Leahy mentioned the rape
kit issue and the backlog. There are also other issues as well
with the rural services--we had a hearing on this recently--as
well as child protection issues. Could you talk about what your
priorities will be as we work to reauthorize this important
piece of legislation?
Attorney General Holder. If we want to get a handle on the
crime problem that we have had success in knocking down to
historically low numbers, we have to deal with the problem of
violence against women, and we have to deal with the problem of
children who are exposed to violence and who often see that in
a domestic violence context. We have to deal with these issues.
This Senate, this Congress, our Government, 15 years or so
ago made a commitment in the Violence Against Women Act. It
seems to me that we need to celebrate the successes that we
have had, the consciousness that we have raised in our Nation,
but we need to do more.
There are still issues, you know, the whole question of
rape kits. I mean, we have to deal with that. We have people on
the streets who, because we have not analyzed those kits, are
free to commit these acts yet again.
The whole question of children who are exposed to violence
and who are the victims of violence I think is part and parcel
of this same issue. And if we are ever to get a handle on this
crime problem, we have to deal with those who are most
vulnerable. We are doing much better than we have, but not as
well as I think we can do.
Senator Klobuchar. Thank you very much.
Chairman Leahy. Thank you very much.
Next will be Senator Franken, then Senator Whitehouse, and
Senator Specter.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman. I will just pick
up on the rape kit matter that both the Chairman and Senator
Klobuchar brought up.
I think it is important for people to realize that this is
pro-law enforcement rape kit management. It puts criminals
behind bars. It protects people who are innocent, and it brings
victims closure and justice.
In Hennepin County, Minnesota, one prosecutor has recently
filed charges in eight separate rape cases as a result of cold
hits produced by cleaning up their backlog, and they have done
this in New York, and it has also increased the number of
convictions that they have gotten. I think they have gone from
40 percent to 70 percent of the convictions just because they
cleaned up the backlog.
I am just wondering--and maybe this is an answer you cannot
give me right now, but what has gone wrong with this? Because
we had, you know, this act, the Debbie Smith Rape Kit Reduction
Law Act in 2004 with $500 million to address the problem, and
we still have this problem. So it is just that we do not seem
to have a regular system in place to specifically track rape
kit backlogs around the country.
Can you tell me what you are doing about it? And if you do
not have an answer right now, get back to me or us?
Attorney General Holder. What I would like to do is give
you a more fulsome response maybe in a written form, but to
tell you that what you are talking about is exactly right--what
you said in the early part of your comment. This is an ultimate
law enforcement tool, and the ability to process these kits and
then compare the results from those analyses to the data bases
that exist will, as you have indicated, solve cases and put
people behind bars who are responsible for really heinous and
very serious crimes.
Exactly why the prior legislation which was designed to
avoid the very situation we find ourselves in----
Senator Franken. Which, by the way, the Chairman was a
great leader on.
Attorney General Holder. I do not know why it has not
worked. But we in the Department are trying to come up with
ways in which we can work with our State and local partners to
effectuate that act and would look forward to working with you
on this Committee and in Congress, again, to identify why it
has not worked as well as we thought in the past and how we can
prevent that from happening in the future. But this is
something that, for me, matters a great, great deal. I know you
have devoted a lot of attention to this, but these are crimes
that we can solve. And inability to do that is extremely
frustrating.
Senator Franken. I am going to get to just a macro issue
here on the United States and crime and the number of people we
have incarcerated. We have 5 percent of the world's population
and 25 percent of the world's prisoners. And so many of these
people are in because of drug addiction or mental health
problems, and very many of these people have no history of
anything violent or any even high-level drug activity. We are
essentially sending kids who are in possession of drugs and
sending them to crime school. We put them in prison, and then
they learn from other criminals how to do crime. And two-thirds
of them come back when they are released within 3 years.
More than a third of the counties in Minnesota have drug
courts that stop this cycle. These are special courts for
nonviolent drug offenders that steer them toward rehabilitation
and treatment. In Minnesota, offenders who use our drug courts
are ten times more likely to continue their treatment than
other offenders.
Can you tell us about drug courts, what they are, and what
your Department is doing to support them?
Attorney General Holder. Well, we certainly have supported
them in connection with the budgets that the President has
proposed to increase the use of drug courts. I am familiar with
the one that we have here in Washington, D.C., that started I
guess a little after I left the D.C. Superior Court and has
proved to be, I think, very successful in dealing with people
who are selling drugs because they are addicted to drugs. These
are the low-level dealers, not the people who live in
penthouses and drive big cars and all that. And so I think that
drug courts are an effective way at getting at the problem, and
their expansion is something that this administration supports.
In terms of those macro issues that you were talking about,
we have a sentencing group that is looking at a whole variety
of issues now that I put together to look at that whole
question of recidivism. Are we doing the right things? I think
we should ask ourselves--we should always be asking ourselves:
is the criminal justice system that we have in place truly
effective?
My thought is that we should have a data-driven analysis to
see exactly who is in jail. Are they in jail for appropriate
amounts of time? Is the amount of time that they spend in jail
a deterrent? Does that have an impact on the recidivism rate?
And so this group will be reporting back to me I hope within
the next couple of months, and it is on that basis that we will
be formulating policy and working with the Committee with, I
hope, some interesting and innovative ideas.
Senator Franken. And in doing that, might I suggest an
increase in drug rehabilitation within prison? Because there
are people in prison who are--a lot of people in prison who
have addiction problems who should be in prison, but are going
to get out, and it would be nice if while they were in there
they got treatment.
I just wanted to mention one thing on health care fraud,
which is I would like to see those people go to prison. I know
I may be contradicting myself by saying we have too many people
in prison. It seems like health care fraud folks might belong
there more than people who are simply addicted to drugs.
If I could quickly just touch on trafficking in women, it
is a subject I just want to touch on. I am running out of time,
but trafficking of Native American women is a big problem that
I think is being ignored. And in international trafficking,
there are women who are trafficked into this country for
prostitution who, because some of these cases are sent to ICE,
these women have a disincentive to report these crimes. And I
think that is something that needs to be looked at.
Attorney General Holder. That is an issue, I think, that is
worthy of examination. We are paying particular attention to
the plight of women on reservations. I was in Minnesota I think
about 3 or 4 weeks or so ago for a listening conference, and if
you look at the levels of violence that young girls and women
are subjected to on the reservation, sometimes ten times as
high as the national averages with regard to particular crimes,
that is simply unacceptable in our country, and it is something
that the President followed up on by having a listening
conference at the White House.
The international trafficking of women and youngsters is
something that we need to look at as well, and to the extent
that ICE--or their interaction with ICE somehow prevents us
from being very effective in our enforcement efforts, I will
work with Secretary Napolitano and with members of the
Committee to see if we can come up with ways in which we can be
really effective in dealing with the problem that we have to
get a handle on.
Senator Franken. Thank you, General.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Whitehouse.
Senator Whitehouse. Thank you, Mr. Chairman. And welcome,
Attorney General Holder.
Now that we are toward the end of the hearing, I would just
like to take a moment and react to two things that I think have
come out during the course of the hearing today. One is, I
think, perhaps inadvertently, a disparaging tone about Federal
prosecutors and our United States law enforcement mechanism. I
hope it is inadvertent, but I want to take a moment to say
that, having had some experience in that world, I am extremely
proud of our Federal law enforcement officers, of our career
prosecutors. I have had prosecutors have to go to court in body
armor. I have had prosecutors have to go home to their families
and explain why a security system needs to be put in their home
because of threats. They take this on day in and day out, and
as you know, they do not get paid a great deal. And they are, I
think, among the best lawyers in our country, and I just want
to make that point because I did not like the tone that I was
detecting.
The second point that I want to make is one in favor of
prosecutorial independence, and to the extent that you have
been criticized that your decision is unpopular, I think people
looking at this should bear in mind that the implication of
that is that prosecutors should seek to make decisions that
meet with popular opinion. And from my perspective, popular
opinion is a very dangerous bellwether as a standard to hold
prosecutors to, and I would not want that to emerge from this
hearing as an unchallenged point.
I think it gets worse when you move from popular opinion to
legislative opinion. There are very significant separation-of-
powers reasons why I as a prosecutor did not want to hear from
the legislature, why the Founding Fathers set up a system in
which the legislature was kept for good and prudent reasons out
of these prosecutorial decisions. We are entitled to our
opinions. Everybody has one. Fine. We can come here and
ventilate. But nobody watching this should not react to the
proposition that a prosecutor should either listen to the
threats or criticisms--I mean, obviously with courtesy you
should, and you did. But I want to assert the proposition here
that a prosecutor should not make their decision or allow their
decision in any way to be influenced by legislative opinion.
And if there is any way to make it worse, it would be to allow
it to be influenced by talk show opinion, and there has been a
whiff of that here today.
This country is going to last a long time, long after
Khalid Sheikh Mohammed is safely either in prison for life or
executed, or whatever the outcome is, and we want to stand by
the principles that have gotten us through 220 years and that
will get us through to the future. And one of them is that
people like us--and I say this as a sitting Senator--have no
business attempting to influence the prosecutorial decisions of
our law enforcement officials.
In evaluating this, I do want to make an additional point
and get your reaction to it. In Article III courts, we have
probably had tens of thousands of criminal prosecutions. Almost
every possible permutation of law and fact and procedure has at
one point or another reared its head in Article III courts and
been disposed of and left a trail of precedent for future
prosecutors to follow.
Military commissions, no matter how well we may have
drafted them in our recent repair of the original flawed
military commissions, have now, as I understand it, only
achieved three convictions, and one came by plea. So in terms
of the military commission, however properly statutorily
established, being able to contribute the same kind of
reliability and resilience that Federal courts have obtained
through those tens of thousands of cases and through the
exploration of all those different permutations, it strikes me
that even a perfect military commission still bears some risk
of unreliability in that you are either in new territory, in
which case there are questions about where you go on appeal, or
you are modeling yourself on an Article III existing legal
structure, in which case you might as well stick with it; but
that they are to a very significant extent, even if properly
constituted, still untested.
I wonder if you share that view.
Attorney General Holder. Well, first, I would like to thank
you for the statement that you made in support of the career
people who work at the Justice Department and other parts of
the executive branch and at the State and local level as well.
I mean, you were a great U.S. Attorney and a great Attorney
General in Rhode Island. I am proud to say that you were my
colleague. But your comments are really appreciated.
To the extent that people have any question about the
determination of the people who work in the Justice Department
and who will be responsible for these cases, about their
abilities, they should put those fears to rest. These people
are among the best of the best. They could be in other places
making a lot more money, but they serve their country, and they
do it quite well. And I am proud to say that I am their
colleague. So I really thank you for that.
In terms of the question of Article III versus the military
commissions, I think there is no question that there is a
greater experiential base on Article III courts, and I think
your observation is correct. We have seen virtually every
permutation. I am not naive. I know that Khalid Sheikh Mohammed
in an Article III court will do as he tried to do in the
military commission--spew his ideology, his hate, you know,
whatever.
Article III judges have dealt with these issues before. The
unique issues that I think in some ways sound unique are not
going to be found to be unique. In the Article III courts over
the past 200 years, we have dealt with, as you said, just about
every permutation. There is going to be precedent for almost
every decision that a judge is going to have to make, from
obstreperous defendants to questions of admissibility of
evidence.
I do not want to denigrate, however, the fact that these
reformed military commissions, though not having that
experiential base, are, I think, much better than they were. I
think the action that Congress took in reforming them is
significant. And I think they are a legitimate place in which
we can try some of these defendants. But there is no question
that in terms of the experience, the Article III courts have an
advantage.
Senator Whitehouse. Mr. Chairman, it was certainly not my
intention to denigrate what has been accomplished with the
military commissions. It was simply--and I agree with the
Attorney General that there is this experiential base
differential. If I could ask unanimous consent that three
questions for the record be propounded by me.
One has to do with where we are on the Drug Enforcement
Administration's new rules that will allow them to move off
paper records so that we can move to e-prescribing, so that we
can buildup our electronic health record network, as the
President wishes, timing on that determination.
The Second is we have people in our present bankruptcy
courts who are being, I think, harshly treated under the new
law. We have a U.S. Trustee vacancy. When will we have a U.S.
Trustee recommendation from the Department of Justice?
And, finally, as you probably have come to expect from me,
when is OPR going to put out its report on the Office of Legal
Counsel? And I think my time has expired, so I will have to
take those for the record.
Attorney General Holder. Well, maybe I could say with
regard to the first two, we will certainly send you something
in writing, but I think given the fact that you have asked this
question before--and I think this is a matter of great public
interest, the whole question of the OPR report--if I could be
allowed to respond to that.
Chairman Leahy. Sure.
Attorney General Holder. The report is completed. It is
being reviewed now. It is in its last stages. There is a career
prosecutor who has to review the report. We expect that that
process should be done by the end of the month, and at that
point the report should be issued. It took longer than we
anticipated and certainly longer than I anticipated when I
testified I think 5 months or so ago because of the amount of
time that we gave to the lawyers who represented the people who
are the subject of the report an opportunity to respond, and
then we had to react to those--people in OPR had to react to
those responses.
The report, as I said, is complete and is now simply being
reviewed by that last career person in the Justice Department,
and my hope is that by the end of the month it should be
complete.
Senator Whitehouse. I thank you, Chairman, and I extend my
gratitude to my colleagues for that little extra time.
Chairman Leahy. Thank you. I appreciate that. I also wanted
to associate myself with what you said about the role of a
prosecutor. Those of us who--and there are several on this
panel who have had the privilege of serving in law enforcement
as prosecutors, and I concur with what Senator Whitehouse said.
Senator Specter.
Senator Specter. Thank you, Mr. Chairman.
Attorney General Holder, thank you for your service, coming
back to head up the Department of Justice. Tomorrow this
Committee will take up the issue of a reporter's shield, which
has been very carefully crafted to try to provide some balance
so that we do not have reporters jailed, as so many have been,
or threatened. Judith Miller, 85 days in jail, no justification
yet explained.
Just one question, which I will cite tomorrow if your
answer is right, and that is, are you confident that the
compromises crafted will protect the national security
interests of the United States?
Attorney General Holder. Yes, I think that the bill as it
presently exists, as opposed to the form that it was in before,
now gives us the tools to protect the national security, to go
after leaks if we desire. What----
Senator Specter. I do not want to interrupt you, Attorney
General Holder, but I have only got 7 minutes, and I heard your
``yes'' answer.
Attorney General Holder. OK. Yes.
Senator Specter. A report publicized within the past
several days is that out of the $440 billion a year for
Medicare, $47 billion is a result of waste--or fraud, rather,
criminal fraud. We are working hard to craft a health care
reform bill, and the President is committed not to sign one
which adds to the deficit, and I am committed not to vote for
one which adds to the deficit.
Medicare and Medicaid fraud are enormously consequential.
So many cases result in fines, and that really results in being
added to the cost of doing business. Jail sentences, as we
know, are a deterrent. Others look at them and do not want to
be sent to jail.
Would you submit to the Committee an action plan as to what
you can do to see to it that there are jail sentences as a
matter of a very active governmental policy? I know you agree
with the thrust, but we do not have time to discuss it within
the 7 minutes that each of us has. But if you would submit in
writing how you will aggressively attack this issue with jail
sentences.
Attorney General Holder. Sure. I will work the folks in the
Criminal Division, and we will have a response. But I agree
with your overall thrust in that regard.
Senator Specter. The Bureau of Prisons does a good job, I
think, with very limited funding, and among the many challenges
you have and the many jobs you have, I would like you to
undertake a personal review of the adequacy of their funding on
rehabilitation. There have been some real studies which show
that a two-pronged attack to violent crime would be successful
in America, perhaps reducing violent crime by as much as 50
percent, with life sentences for career criminals, as, for
example, under the armed career criminal bill. And we passed
the Second Chance Act, the Biden-Specter bill. The President
signed it last year. And it seems to me that we need more
funding on detoxification, job training, literacy training,
reentry. No surprise when a functional illiterate leaves prison
without a trade or skill, they go back to a life of crime. And
I would like you to take a look at that.
I would also like you to take a look at the issue on
attacks on prison guards, a rash of them because of the very
substantial overcrowding. And I wrote to the Director of the
Federal Bureau of Prisons, Mr. Lappin, who I think is doing an
excellent job, with some suggestions about giving the guards
some protective measures. Some suggestions have been made about
pepper spray. Some suggestions have been made about the
breakaway batons, stab-proof vests.
I would appreciate it if you would take a look at those
items and others which could provide safeguards for prison
guards.
Attorney General Holder. I will do so. I have actually had
a meeting with the head of the union who represents these
guards, and he is actually, I thought, a very considerate
person and has raised some issues and potential solutions to
the problems you have identified.
Senator Specter. I want to ask you in the remaining 2
minutes that I have about the distinction between trying some
of the terrorists in Article III court as opposed to the
military commissions, and, preliminarily, let me agree with
what Senator Whitehouse has had to say about the standards you
apply. I am confident you will apply them as you see them
professionally.
As I take a look at the protocol which has been issued by
the Department of Justice, I have a hard time in seeing the
discretionary judgments. If you talk about the strength of the
interest, it looks to me like they are very, very similar. I do
not think the location of where the offense occurred in Yemen
as opposed to New York City is very important since
extraterritorial jurisdiction applies all over the world as a
result of amendments we made in 1984. The point on protecting
intelligence sources and methods looks to me to be in line.
With respect to the evidentiary problems there could be, the
decision to make these trials in Article III courts is quite a
testimonial to our criminal justice system to try these
horrendous criminals with the rights of a criminal court,
constitutional rights, is a great credit to the United States.
And military commissions have been crafted after a lot of
starts and stops.
But what standards do you apply to try the terrorists one
place instead of the other?
Attorney General Holder. Well, we do it on a case-by-case
basis using the protocol that I think you have in front of you.
There are evidentiary questions. I think the location of the
crime can be a factor, and I think you are right, given the
extraterritoriality----
Senator Specter. Are you saying you have less evidence than
necessary in a commission as opposed to an Article III court?
Attorney General Holder. No. I focus more on the
admissibility of the evidence and where the possibility exists,
if there are problems in one forum or the other with regard to
the admissibility of evidence.
Senator Specter. Can you give me an example?
Attorney General Holder. Well----
Senator Specter. Just one.
Attorney General Holder. I have one that I--the kind of
interrogation perhaps that a person was subjected to might lead
you to want to use one forum as opposed to another. There might
be questions of techniques that were used, and one forum might
be more hospitable than another to the admission of such
evidence.
No one should read into that anything more than what I have
said. This administration has indicated that we will not use
evidence that was derived as a result of torture. But even
saying that, there is at least a possibility that some
techniques were used that might be better received in one forum
than another.
Chairman Leahy. Thank you. I would note that this is
Attorney General Holder's fourth appearance before this
Committee this year, and I appreciate that. Every Senator on
the Committee has asked questions, both Democrat and
Republican, and I understand the Republicans have a couple more
questions on 5-minute rounds. I am asking Senator Klobuchar if
she would chair for me.
And I just want to note that one of the good things about
this, Attorney General Holder, I think the American public,
having been told by some commentators and others, that the 9/11
suspects will gain access to classified material and they will
be able to block the admission of evidence obtained by torture,
I think those claims have been refuted very directly today, and
I appreciate that. In fact, some of those same protections were
adopted into the revised military commissions that Congress
passed last summer. The concern I have is that military
commissions before have been repeatedly overturned by the
Supreme Court. They have comparatively little precedent. I like
the fact that our Federal courts have 200 years of precedent
and a track record of successfully convicting terrorists and
murderers. Prosecutors know how the systems work. The courts
have established systems. And we have a lot of confidence that
following that, convictions can be upheld.
So I am pleased that you have the preference to use the
Federal courts whenever you can, and as Chairman of this
Committee, I want to acknowledge the 9/11 families that are
here present today. I want to recognize their losses. They and
their families have been constantly in my prayers and my
thoughts, along with the victims and the survivors of the Fort
Hood shooting.
Senator Kyl, we are going to go out of order. I realize you
have other matters, and I thank Senator Sessions for agreeing
to that. Please go ahead, sir, for 5 minutes.
Senator Kyl. Thank you, Mr. Chairman, and thank you,
Senator Sessions.
Mr. Attorney General, I had some other questions on the
subject we have mostly dealt with this morning, and I will ask
those for the record. But I want to turn to the media shield
discussion which you and I talked about on November 4th. You
had indicated your willingness to address that at more length
in a hearing, and I am hopeful that the Chairman will call a
hearing at which you could express your views in more detail
than you did in the views letter that was sent to us recently.
Did you consult with Secretary Gates in determining to
support the current version of the legislation, the media
shield legislation?
Attorney General Holder. Secretary Gates?
Senator Kyl. Yes, the Secretary of Defense. The reason I
ask is that you said in your confirmation hearing that you
would do so.
Attorney General Holder. I believe we have had
conversations, but I do not--I am trying to remember the extent
to which I have had this conversation. I do not think we have
had a major conversation about this, but I think I have
discussed it with him.
Senator Kyl. Well, the reason I ask is, I will just quote a
small portion of the letter that he wrote to us concerning the
bill. He said, ``The bill would undermine our ability to
protect national security information and intelligence sources
and methods and could seriously impede investigations of
unauthorized disclosures.''
In view of that strong opinion--and, incidentally, he was
joined in that by several other members, people in position of
authority in our intelligence and national security community--
it seems to me that it would be important for us to hear from
them and certainly, Mr. Attorney General, for you to weigh
their views before expressing absolute support for a bill which
you say should not be amended in any additional way.
Attorney General Holder. Well, I think, first off, the
letter that you quote from Secretary Gates deals with a prior
version of the bill.
Senator Kyl. It does indeed. There were a couple of major
changes made--actually several changes, a couple of which in my
view would, arguably, make the situation worse. But what I am
going to propose is that we talk to all of the people who have
expressed a view about the previous legislation since many of
its provisions remain in the bill that you have supported.
Did you consult with the FBI Director?
Attorney General Holder. Yes, I have talked to Bob about
that.
Senator Kyl. Did you tell him that this was going to be the
result, or did you elicit his--did he express any concerns?
Attorney General Holder. We certainly have discussed it. I
know that he has taken a different position, at least with
regard to a prior bill. I think that he understood the position
that I took, and I think he accepted where I was coming from
with regard to this present form of the media shield
legislation.
Senator Kyl. I appreciate he had expressed as recently as
September that his views were the same as previously expressed
in opposition to the bill, which is why I asked.
United States Attorney Patrick Fitzgerald, who has been
commented on, has recommended that the law include another
provision, and I want to just specifically ask you about this.
It is in effect an offer of proof under which the information
that is being sought by the Government would be provided to the
court in camera, and only if the Government prevailed,
utilizing all of the provisions of the law, would the
information be then turned over. If the Government did not
prevail, then obviously it would not.
You have previously, again, in the confirmation hearing,
said that that seemed like a reasonable requirement. Would you
be open to having a provision like that added to the
legislation? I know in your views letter you said you do not
want to see any other amendments, but there are a few
amendments, it seems to me, make sense, and that clearly is one
that both you and I and Mr. Fitzgerald think is reasonable.
Attorney General Holder. Well, the bill as it presently
exists is a compromise, and I can----
Senator Kyl. Excuse me. It is a compromise between the
journalists and you all and Democratic Members of the Senate.
Nobody has talked to me, and I have been noting my concerns
about this bill for a long time.
Attorney General Holder. Well, I think this is right, but I
think Senator Graham on the Republican side is a cosponsor. I
believe that that is true.
Senator Kyl. That is right. None of us who are opposed to
it were consulted when the so-called compromise was put
together. I just wanted to make it clear in case you had any
doubt about that.
Attorney General Holder. Well, that is fair. That is fair.
And so the views letter was to express the concern I think that
we had that in its present form this is something that is
satisfactory to us in law enforcement.
Senator Kyl. Could I just interrupt you? I have only got 19
seconds left. Just to make the point that I would hope you
would be open to the suggestion that I just made and a couple
of others, if I could bring those to your attention.
And, last, your letter did not comment on the new, in
effect, absolute privilege in one sense, and I am curious about
why you--and would, again, elicit your views on that in the
future if not today--on the privilege extending to protect
those who actually violate Federal law by leaking the
information itself. In other words, that act of leaking would
be subject to the privilege, would be privileged. And I just
wonder--the letter did not express itself on that, and that
seemed to me to be new and odd, and I really wanted to get your
views on that.
Attorney General Holder. I did not see an absolute
privilege to leak. I mean, it seems to me that there are
provisions within the bill that deal with leaks and how they
can be dealt with, and there are certain steps that the
Government has to go through in order to prosecute or get
information from a reporter in connection with a leak
investigation. But I do not think that the steps that the
Government has to go through are necessarily going to frustrate
our efforts to identify and ultimately prosecute leakers.
Senator Kyl. Good. Then what I want to do, since I am over
the time, is to show you Section 3 and have you show me why
that does not provide, in effect, an absolute privilege here
not to disclose information where the crime itself is the leak.
I hope we will have a further opportunity to talk about that
and some other concerns that I have about the bill. Thank you.
Attorney General Holder. That is fine.
One thing, if I could just add, in response to--Senator Kyl
I guess was asking the question on behalf of Senator Grassley
before. I did not mean to be flip when I said that I would
consider the request about turning over the names of people who
had previous representations that might conflict with their
duties as Department of Justice attorneys. When I said I would
consider it, I only meant to say that I do not know if there
are ethical concerns with regard to attorney-client privilege
and things of that nature and I needed to consider those before
I would actually be able to respond to the question. So I was
not trying not to be responsive or not taking seriously a
question that was posed, I guess initially by Senator Grassley
and then by you, Senator Kyl. I just wanted to talk to the
experts back at the Department about whether there is an
ethical concern in responding to the question.
Senator Kyl. Thank you. I suspect that you and Senator
Grassley will have more conversations about that.
Senator Klobuchar. [presiding.] Thank you, Senator.
Senator Cornyn.
Senator Cornyn. Thank you very much, Madam Chairman. I do
not know if we are going to get through this or not, but let us
try.
I want to follow up on a question that Senator Specter
asked about admissibility of evidence in deciding in which
forum you would try these defendants. Is it your position that
it is going to be easier to get evidence of their guilt in an
Article III court than it would be in a military commission?
Attorney General Holder. I am not sure I view it that way,
what evidence would be used in the Article III courts in
connection with the cases that I have already made the
determination should go there as opposed to the way in which
the military prosecutors wanted to conduct the case.
Senator Cornyn. Well, surely you would not decide in your
discretion to try a case in a tribunal where it would be harder
to get actual conviction, would you?
Attorney General Holder. No. I mean, what I take into
account are all of the factors that are part of the protocol.
Senator Cornyn. You mentioned the Marshals report on the
potential venues where this case could be tried, and as you
noted, a judge could, contrary to your wishes, contrary to my
wishes, transfer to another venue other than New York City.
Based on the Marshals report, in what other venues are you
prepared to try this case?
Attorney General Holder. Well, I asked the Marshals not to
look at the entirety of the United States but really just to
look at two districts and the courthouses in two districts and
to make a determination as to where in those two districts the
case could be best tried, and----
Senator Cornyn. And where was the other one?
Attorney General Holder. I looked at the Eastern District
of Virginia as well as the Southern District of New York.
Senator Cornyn. And those are the only two?
Attorney General Holder. Those are the two I asked the
Marshals Service to look at.
Senator Cornyn. When the detainees come to the United
States, will they have some immigration status?
Attorney General Holder. I am not an immigration expert. I
do not know what their status might be. I am confident,
however, that given the fact that they would be here under the
supervision of and as a result of their being charged in a
Federal court, that we would be able to detain them, that we
would be able to hold them, as we would do anybody who is
charged with such serious crimes.
Senator Cornyn. Are you aware of any bar to their ability
to claim asylum or argue that they should not be removed from
the U.S. because of the Convention Against Torture?
Attorney General Holder. Again, I am not an immigration
expert. One can be paroled into the United States solely for
this purpose, but there is no right to be here after. I cannot
imagine a situation in which these people would be paroled into
the United States for that purpose.
Senator Cornyn. So is it your position they will not be
conferred rights that they did not previously have by virtue of
their coming to the United States?
Attorney General Holder. That is my belief, but, again, I
am not an immigration expert. I am confident--my expertise
deals more on the Department of Justice side, and I am
confident that on that side we can detain them safely and
prevent them from ever walking the streets of the United
States.
Senator Cornyn. I understand we cannot all be an expert in
everything in the law. It is complicated. But will you
acknowledge that it is possible--or let me ask you if you will
look into whether if a detainee claims an immigration status by
virtue of their presence on U.S. soil, it will allow them to
immediately trigger tandem administrative and Federal judicial
immigration proceedings? Will you look into that?
Attorney General Holder. OK. I can look into that, because
I would not be able to answer that question today.
Senator Cornyn. And if the detainee is acquitted or there
is a mistrial, let us say one juror decides to hang up this
jury, on what basis do you believe that you can permanently
detain Khalid Sheikh Mohammed or any other of the 9/11
detainees? Is that on the basis of a Supreme Court decision? On
the basis of a statute that Congress has passed? What is the
foundation of that belief?
Attorney General Holder. Well, the initial determination
that a judge would make for the detention of Khalid Sheikh
Mohammed would be one that would last beyond a mistrial. If,
for instance, there were a trial and a determination made--a
hung jury, we would--I suppose the defense could move to have
his detention status changed. It is hard for me to imagine that
a judge, having heard the evidence and making that initial
determination, as I am confident a judge would, to hold him,
seeing that he is a danger and a flight risk, would then change
that status of Khalid Sheikh Mohammed between the time of a
hung jury and the next trial.
Senator Cornyn. I believe the Supreme Court has held that
you cannot indefinitely detain somebody under the Zadvydas
case, but let me just ask a final question. Are you concerned
that a judge may say you have made an election to try these
terrorists as a criminal and you are bound by that election and
you cannot go back and revert to the laws of war in order to
claim that you can indefinitely detain that individual? Are you
worried about that?
Attorney General Holder. No, I am not. I think that under
the Congressional provisions that we have and the laws of war,
you cannot perhaps indefinitely detain somebody, but you
certainly can detain somebody for lawful reasons.
Again, I do not think that we are going to be facing that
possibility. We are talking about very extreme hypotheticals, I
believe, based on my understanding of the evidence and the law
and the ability of our prosecutors to present a very strong
case.
Senator Cornyn. I hope you are right.
Senator Klobuchar. Thank you very much, Senator Cornyn, and
we hope your voice improves. I know Attorney General Holder
will join me in saying you are sitting dangerously close to
Senator Graham, and we would never want to muzzle Senator
Graham, so I hope it is not contagious.
Senator Graham. I wish more people felt that way.
[Laughter.]
Senator Klobuchar. Senator Graham.
Senator Graham. This is an important point here that, you
know, the idea of preventive detention, I do not think Senator
Feingold is high on that idea. But I am, not because I like
keeping people in jail for the hell of it; I just think when
you are at war and the people you have in your capture the
commander-in-chief has determined through a rational process
are part of the enemy force or may go back to the fight, that
America is not a better place for letting them go. Do you agree
with that general concept?
Attorney General Holder. I agree with that general concept.
It is something that the President talked about in his Archives
speech, about the possibility of detaining somebody, again,
pursuant to the laws of war and dialing in due process.
Senator Graham. Well, and I would like to help--do you
believe that Congress needs to weigh in here, or do you have
the authority as the executive branch to make that decision
without any Congressional involvement?
Attorney General Holder. I personally think that we should
involve Congress in that process, that we should interact with,
I guess in the first instance, this Committee in crafting a law
on detention process or program.
Senator Graham. I totally agree with you, and, you know,
obviously we parted ways on some of this, but these are not
easy decisions, so I do not--you know, I think the Bush
administration made their fair share of mistakes and also did
some good things, too, and preventive detention is a concept
only known in military law.
Is there any theory under domestic criminal law where the
Government can hold someone without trial indefinitely?
Attorney General Holder. Indefinitely?
Senator Graham. Yes. There are speedy trial rights, which--
--
Attorney General Holder. There are speedy trial rights. I
do not think that holding somebody--you can certainly
preventively detain somebody with the expectation that there is
going to be a trial without an adjudication of guilt.
Senator Graham. Right. And under military law, you can hold
somebody without any expectation of trial if they are, in fact,
part of the enemy force. That is the big difference, right?
Attorney General Holder. Right. I mean, there is certainly
precedent throughout history of holding combatants for the
duration of the war.
Senator Graham. Right. And, Mr. Attorney General, my
problem with what we are doing here is that--let us play this
forward. In Afghanistan, Pakistan, you name the venue, in the
future we capture a suspected al Qaeda member. Under your
rationale, the decision as to whether they go into Federal
criminal court or military commissions would not be known at
the point of capture. Is that correct? You would make that
decision later?
Attorney General Holder. Yes, I think that is correct.
Senator Graham. Now, from the protocols that we would
institute from the military side, what would you recommend that
our military commanders, intelligence officials do at the point
of capture? Because under domestic criminal law, if that is
where they wind up, once they are in the hands of the
Government suspected of a crime, that is when custodial
interrogation Miranda rights attach. Under military law, there
is no such concept. Under military commissions, there is no
requirement for Miranda warnings or Article 31 rights. You
expect the person to be interrogated for military intelligence
purposes, not worrying about the criminal aspects.
What do we tell our soldiers and our commanders when they
capture somebody about how to interrogate and when to
interrogate?
Attorney General Holder. Well, first I would say that, you
know, this notion of when a person is in custody is something
that there are lots of cases that people have to deal with and
that the automatic capture of a person is not necessarily going
to be viewed as in custody by our courts, though I think that
is something we certainly----
Senator Graham. If you were a defense attorney, would you
not raise that? I mean, I would. I have no desire----
Attorney General Holder. Sure.
Senator Graham. But, you know, I would defend anybody
because I think defending the worst among us makes us all
better. So let me tell you what I would do, Mr. Attorney
General. If you took my client who was suspected to be a member
of al Qaeda and they were captured on the battlefield into
Federal court, I would argue that at that moment in time any
questioning of my client without Miranda warnings would be a
violation of criminal domestic law. What would your answer be?
Attorney General Holder. Well, it would depend again on the
circumstances. You know, again, ``in custody'' is defined in a
variety of ways, and that is something that we have to be
sensitive to.
Senator Graham. In custody, custodial interrogation, you
lose the freedom to leave?
Attorney General Holder. That is certainly a factor. But I
think what we have to understand is that these determinations
are being made now and have been made during the prior
administration with thousands of people who have been
captured----
Senator Graham. If I may, because our time is--no one in
the past up until now has ever worried about this, because no
one ever envisioned that the detainee caught on a foreign
battlefield would wind up in domestic criminal court with the
same constitutional rights of American citizens. They have
never worried about that before. Now I think we have to
seriously worry about that, and what I am afraid of is the war
on terror has become a police action, and I think that
undermines our National security.
But at the end of the day, I look forward to working with
you about what we can do with preventive detention and see if
we can find a way forward as a Nation. Thank you.
Senator Klobuchar. OK. Thank you.
Senator Sessions.
Senator Sessions. Thank you, Madam Chairman, and I know you
are knowledgeable about all these issues, but I would just say,
Mr. Attorney General, that if a police officer stops someone on
the street and his gun is in his holster and asks questions,
that can be considered custody. If the individual has any sense
they are not free to go, then that is considered custody. I
cannot imagine somebody captured on the battlefield not being
considered in custody.
I went through this with Mr. Mueller, the Director of the
FBI, and eventually he flatly conceded that if you are going to
try an individual in Federal civilian court and they are
captured, you should give them Miranda warnings or the
statements they make would probably be suppressed. I mean, that
is the rule in civilian Federal courts. And it is not
constitutional, the Supreme Court still says it must be given,
but it is not really required by the Constitution. So the
military commissions, that is one of the differences, I think,
that we have in those matters.
And Senator Graham is raising a point that you cannot
avoid, and that point is, if the presumption is, according to
the U.S. Department of Justice, your Department, that
individuals who are terrorists would be tried in Federal court
and not in military commissions, then it is almost an absolute
requirement that people apprehended need to be given Miranda
warnings and told they can have a lawyer and they do not have
to talk.
When our military is in a life-and-death struggle to win a
victory over the enemy and one of the key things the 9/11
Commission drove home to us is that intelligence is the way to
do that in this kind of battle we are in. So I think that that
is not a matter that can be lightly dismissed. I also----
Attorney General Holder. Senator, I would not lightly
dismiss it, but what I am saying is that we have a great deal
of flexibility. I do not think that the military commissions
are an illegitimate forum in which to bring these cases, and on
a case-by-case basis what we would do would be to look at the
admissibility of evidence, the quantum of evidence that could
be introduced, and make that determination. That is one of the
factors. Although there is a presumption of Article III, it is
not an irrebuttable presumption, and the proof is in the
pudding. Five of the people I talked about last week are going
to go to military commissions as opposed to Article III courts.
Senator Sessions. Well, if the presumption is these cases
will be tried in civilian courts, then I do not know why the
soldier he talks to on the battlefield is not instructed to
give Miranda warnings.
I would also just note that there has been a hostility by
the President toward military commissions. For example, soon
after taking office, he suspended military commissions
immediately and later issued an order suspending all military
commission trials, and we have not had one since.
Attorney General Holder. But I do not think that
necessarily indicates a hostility toward military commissions
as opposed to a desire to perfect them, and I think that we are
now in a position where we have a much improved military
commission system that I think can stand on its own, that is
legitimate, and in which we can place, as I have----
Senator Sessions. The Supreme Court did raise questions
about the military commissions, and Congress passed some laws,
I think, that improved that. But the Congress did some things
that make it clear to me that normally for these kinds of
cases, you are better trying them in the commissions. For
example, reliable hearsay is available, so you do not have to
bring people off the battlefield, perhaps, and it is easier to
have in camera hearings. We have them all the time in Federal
court trials. But you have to have a real high reason to do
that in a normal civilian trial to go in camera. They are on
the record, of course. In the military commissions, you can go
on the record, but in camera and take more evidence and protect
our intelligence sources and methods better. I do not think
there is any doubt about that.
Anyway, I just would disagree there and would point out
that General Mukasey has expressed concerns about New York
City. He tried the blind sheikh case as a Federal judge, your
predecessor, and he is afraid that New York City would ``become
the focus for mischief in the form of murder by adherents to
Khalid Sheikh Mohammed.'' That was his view of it. I do not
think that is an irresponsible analysis. And do you remember
the case involving Mr. Salim, who was a co-founder of al Qaeda,
held in Federal court for the bombing of the Kenya and Tanzania
murders? And he attempted to escape using tabasco sauce and
pepper and put it in the eye of one of the guards and stabbed
him in the brain with a makeshift knife and blinded him, and he
is unable to fully speak today. I mean, these are dangerous
people, and I would just ask you that.
Two more things, and I will wrap up. Senator Coburn's
concern about medical marijuana, having been involved in that
for many years, attempting to do what we could to drive down
the use of illegal drugs in America, working with the
Partnership for Youth and a Drug-Free Mobile and that kind of
thing, I have seen a little bit of the history of it. We need
to send that clear message, and we are sending a bad message
with the medical marijuana laws. States are making a mistake
when they do this, and the Federal Government really needs to
speak out against it and show some leadership there.
And, second, I really want to affirm that I will be
supportive of your efforts to enhance medical fraud
prosecutions and recoveries. Every President I think has tried
to do something about it, but it is going to take a sustained
effort, not just a press conference, over a period of years.
And I think, Mr. Attorney General, with your experience both as
a prosecutor and as a judge, you could probably help make this
become more effective than it has been in the past.
Attorney General Holder. Well, I think there are a number
of U.S. Attorneys on this panel who, I think if we put our
heads together, we can come up with an effective way in which
we can deal with this problem of health care fraud. We need to
ask ourselves some tough questions and be honest about the
failures that we have had in the past in trying to do this. I
think you are absolutely right that this is something that has
to be sustained over time, which includes funding, maybe
dedicated resources. But I think we will make money back on the
provision of additional prosecutors, investigators, and people
at HHS, auditors, to do these kinds of things. They will more
than pay for themselves, and I think we should be cognizant of
that.
With regard to the concerns that you raise, just kind of in
summary, I do believe that we can protect sources and methods
within the Article III courts, and I would note, as I said in
my opening statement, that the provisions designed to protect
sources and methods in the military commissions are based on
the CIPA Act that we use in Article III courts. I have great
respect for Judge Mukasey. He was, I think, a great Attorney
General. He is obviously a great judge. He helped the healing
process that has begun at the Justice Department. The only
thing that he did not have at the Department, I think, was the
gift of time. We owe him a great deal for starting to right the
ship, and I am trying to continue the work that he began.
But I disagree with him about New York. New York is--and
this is not a secret--New York is a target for al Qaeda and for
those who would do this Nation harm. I am not at all certain
that the bringing of these trials necessarily means that New
York is at greater risk. And with regard to what happened in
the jail, that is an unfortunate, tragic incident that I think
we probably have learned from, and I am confident that the
marshals, the Bureau of Prisons officials who will be
responsible for the detention of these individuals will handle
them in a way that will be consistent with our values, but also
allow them to protect themselves.
I do not take lightly, though, the issues and the concerns
that were raised by Judge Mukasey. He is a person I have great
respect for--great respect for--and one of the things that I
actually read in trying to make this determination was an
article that he wrote, I believe it was for the Wall Street
Journal--I am not sure--but I remember reading that article and
kind of underlining things that he said and asking the people
who were part of our group to respond to the things that Judge
Mukasey had raised. That is the degree of respect that I have
for him, both as a lawyer, a judge, and as a great Attorney
General.
Senator Sessions. Thank you.
Senator Klobuchar. Thank you very much, Attorney General
Holder. I just wanted to follow up on a few of my colleagues'
questions.
You were asked about evidence and if there were Miranda
rights read or not. Could you just go through again this notion
that you raised at the beginning that that is one of the
considerations that you have when you look at whether you are
going to use the military commissions or whether you are going
to use Article III courts?
Attorney General Holder. Yes. One of the things that we
look at, one of the things that we consider is the
admissibility issue, where can we get admitted the evidence
that is going to be necessary to be most successful. And that
is something that really is important in the determination that
I made with regard to the use of the Article III courts
concerning Khalid Sheikh Mohammed and his four colleagues.
I would also say that the people in the field have been
making this determinations about giving Miranda warnings or not
for some time now. They have had thousands of people who have
come into our custody; only a small number of them have been
given Miranda warnings. And I have faith in the ability of the
people in the field to make those kinds of determinations, and
to the extent that there is a problem with regard to admitting
a piece of evidence--and I think that is the other thing we
have to remember. The trials that we will bring will not only
be based on admissions, confessions, there will be other ways
in which we will prove the guilt of the people that we charge.
So I have discretion, and I want to have the maximum use of
the tools that I have been given by Congress and by the
President in making these determinations, and on a case-by-case
basis using the protocol that we have, that is what I will do.
Senator Klobuchar. And you said at the beginning of your
testimony today, you talked about how you were being as
forthcoming as you could be, describing your decisionmaking
process. But you also said that there was some evidence you
could not share with us today, which I think is always
difficult for prosecutors--I know this from my own work--where
you are, you know, explaining things to people and you want so
much to tell them about the real factor that led you to a
decision, but you cannot until the trial is going on or until
the trial is over. Could you expand on that a little, not
telling us what the evidence is, but explaining that there is
some evidence that you cannot discuss right now in this forum?
Attorney General Holder. Yes, there is really, from my
perspective, very compelling evidence that I am not at liberty
to discuss now that probably will not be revealed until we are
actually in either a trial setting or perhaps a pretrial
setting. Once these cases have been indicted, a judge has been
assigned, motions perhaps have been filed to the extent--you
know, at some point an Assistant United States Attorney will
reveal that which I cannot talk about now, but the evidence
that I am not talking about, as I said, I think is compelling,
is not tainted, and I think will be proved to be decisive in
this case.
Senator Klobuchar. Thank you. And then I wanted to move
just last to some of these general issues. As we look at what
you are facing, whether people on this Committee agree or
disagree with some of your decisions, I think we are unified in
wanting to give you the tools that you need to do your work.
And there clearly have been issues in the past--you just raised
this--with morale in the Justice Department. I think everyone
knows that. And you mentioned and praised Attorney General
Mukasey for some of the work that he did in trying to right
that ship. I certainly know he worked hard with our Minnesota
U.S. Attorney General's office and with me and others in trying
to fix some of the issues there. And I think that we are well
on their way, as you know, with Frank McGill and now our newest
appointee, Todd Jones, to do that.
But could you discuss more generally at the Justice
Department what you have been doing to work on this morale
issue and improvements you think have been made?
Attorney General Holder. Well, first, one of the things is
to make people again believe in the mission of the Department
and to reassure people that some of the unfortunate things that
happened in the past and that are identified in the Inspector
General reports, that that is not the way in which this Justice
Department is going to be run--we are not going to be inventing
things. It is not going to be a new way of doing things at the
Department. It is really going to be a return to the old ways.
I served as a line attorney in the Justice Department under
Republican as well as Democratic Attorneys General and had
great respect for all of them and the way in which they dealt
with me as a career person, and that is what I have tried to
reassure people at the Department, that we are going back to
that way of doing things, that they are only expected to do
their jobs. There are no political consequences; there are no
political litmus tests with regard to case decisions, with
regard to who gets to be a lawyer at the Justice Department.
This is the way things have always been done at the Department.
It is the great tradition of a very, very special place that I
have had the good fortune to be associated with most of my
professional life.
I think one of the things that would help with regard to
morale--this is kind of an advertisement, I guess--would be for
confirmation of those remaining Assistant Attorneys General
who--I think we have three left now. To get them confirmed I
think would help. To get U.S. Attorneys confirmed I think would
help----
Senator Klobuchar. Right, and I understand. I just checked
this to get the numbers. We have three pending on the floor,
and I am sure you would like to get those done, say, before
Thanksgiving? That would be nice?
Attorney General Holder. Tomorrow would be good.
Senator Klobuchar. OK. And then I think there are six
pending before this Committee, and I am sure you would like to
get those through this Committee, because when I look at your
workload that you are facing here, not only with these newest
trials, but with this major investigation going on at Fort
Hood, with the Medicare fraud that we all want you to focus on,
as every person in this country should want you to do, with the
new and revived focus on white-collar crime, which I think is
long overdue, from the Madoff case, which I think that has been
completed here, but there are offshoots from that, and there
are other white-collar cases all across the country, to not
have, you know, some of these nominations clogged up a bit here
just cannot be what you want. And so I know I want to move
forward on those as soon as possible as well as any personnel
that you need in the Justice Department.
Attorney General Holder. I appreciate that.
Senator Klobuchar. All right. Thank you very much. You have
one more thing, Senator Sessions.
Senator Sessions. One thing. I offered for the record a
letter earlier, and I failed to note that--from the 9/11
victims that, according to their letter, when word of the
letter got out, some 3,000 firefighters across the country
joined us and added their names; less than 24 hours after the
Attorney General's announcement last Friday, 100,000 people
signed our letter before our computers crashed. And this is the
box of signatures and confirmations. I just feel like I should
make that statement for the record because I do think the
victims felt strongly about it, and they are asking that the
Attorney General reconsider.
Attorney General Holder. Well, there certainly have been
those who have opposed the decision that I made. There have
been many people who have supported it as well. I expected that
when I made the decision. These are tough decisions that an
Attorney General is called upon to make, and all I can do is
look at the evidence, look at the facts, and look at the law
and try to make the best decision that I can. And I hope people
would understand that.
Senator Klobuchar. Thank you very much, Attorney General
Holder. I want to thank you for so thoroughly and respectfully
answering all the questions from the members of this Committee.
I want to thank those who have been very respectful in the
gallery here as well. I know that not all of you agree with
every decision here, but I want to thank you for your respect.
And for those of you who are family members, firefighters,
thank you so much for your service. And as Senator Schumer
said, we cannot even imagine what you have been going through,
so I want to thank you for that.
And I think we would all agree in this room that we want
you, Attorney General Holder, to go back and whatever
disagreements there may be, but to make sure you put the best
people on this case, that they do their work, that we get the
toughest penalties here, and we wish you well. So thank you
very much, Attorney General.
Attorney General Holder. Thank you.
Senator Klobuchar. The record will stay open for 1 week for
this hearing, and the hearing is now adjourned. Thank you.
[Whereupon, at 1:37 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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