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Senate Confirmation Hearing for Attorney General Nominee Eric Holder: Day One

January 15, 2009

LEAHY: Just so that everybody understands, we are in the historic Senate Caucus Room. Normally, we would have been in a different room, but there are a number of these hearings going on. And there are certainly more people than we normally see in the hearings.

Lately, there seem to be a number of demonstrations in hearings. I just want everybody to understand the ground rules. I want everybody to be able to watch this hearing. I want them to be able to watch it comfortably. If people stand up and block the view of those behind them, I would direct the officers to remove the people who are blocking the view.

Now, I'll take this position whether people are standing up in demonstration of a position for or against one I might hold or for or against one Senator Specter might hold or any other senator.

I'm sure that's not going to be necessary. I'm sure everybody's going to show appropriate amount of decorum. But that's what we -- that is what we expect and that is was we'll have.

So with that, I welcome everybody here. The election of Barack Obama and Joe Biden and the president- elect's selection of Eric Holder, Jr. to be attorney general for the United States provides an historic opportunity for the country to move past the partisanship of the past decades.

We can make a real difference if we come together to solve the nation's problems and protect against serious threats and meet the challenges of our times.

Let's honor the wishes of the American people who, in November, broke through debilitating divisions to join together in record numbers. Let us acknowledge that our inspirational new president- elect has move the forward promptly to assemble an extraordinarily well-qualified and diverse group of Cabinet officers and advisers. Let's us move away from any kind of partisanship to serve the common good.

It was seven score and 4 years ago that this nation answered the fundamental question President Lincoln posed in his Gettysburg Address. The world learned that liberty, equality, and democracy could serve as the foundation for this great and united nation. And we Americans have cause and occasion to reflect during the next several days about our great country.

The inauguration of our new president is Tuesday. Monday is a holiday the country has set aside to celebrate and rededicate ourselves to the cause of freedom and equality. Today is the anniversary of the birthday of the extraordinary man for whom that holiday is named.

And with this hearing, we take another step up the path for the time Dr. King foresaw when people are judged by the content of their character.

Eric Holder has the character to serve as the attorney general of the United States of America. He passes any fair confirmation standard. His record of public serve has earned him strong support from law enforcement organizations, civil rights groups, victims rights advocates, former members of the administration of President Reagan -- the president who first nominated him as a judge -- and from those of President Bush and many others.

This week, the Justice Department's inspector general released a report about the shameful political interference in the civil rights division of the Justice Department during the past few years. America's diversity, when drawn together, is a source of our nation's strength and resilience. Americans have to be able to trust their Justice Department.

That trust can never be squandered or taken for granted. We need leaders who are prepared to take up the oars of a Justice Department whose dedicated law enforcement professionals have been misused and demoralized.

Eric Holder is just such a leader. Before the November election, I co-authored an article with my friend, the ranking member, in which we wrote the attorney general's duty is to uphold the Constitution and the rule of law not to circumvent them. The president of the American people are best served by the attorney general who gives sound advice and takes responsible action rather than one who develops legalistic loopholes to serve the partisan ends of a particular administration.

We wrote that article addressed to both John McCain and Barack Obama. We wrote it before we knew who was going to be president. We wrote it so the next president might adhere to our advice. And I have every confidence that Eric Holder is the person we described.

LEAHY: The career professionals and those of us who have worked for years with the career professional at the Department of Justice, most of them we have no idea what their political background is. We just know how good they are.

But they reacted with delight when Eric Holder was designated by President-elect Obama because they, too, know him well. They know him from his 12 years as an anti-corruption prosecutor at the public integrity section, from his time as a U.S. attorney for the District of Columbia, from his tenure as a judge, and from his service as the deputy attorney John.

Now, I would hope that we'd have a prompt confirmation so we can restore morale and purpose throughout the Justice Department. It's important the Justice Department has its senior leadership in place without delay.

The attorney general is the top law enforcement officer in the country. He's a key member of the national security team. We've seen billions of dollars devoted to bailouts in the last few months. We need to ensure that those resources are not diverted by fraud or deceit. We need the Justice Department to be at its best.

And I have been encouraged by the initial reaction of many Republicans, including some serving on this committee, when Mr. Holder's name was reported as a likely nominee and when he was designated by the president-elect. I commended their bipartisanship (inaudible) do one of the best friends I've ever had in the Senate, Senator John Warner who introduced Mr. Holder to the committee.

The responsibilities of the attorney general of the United States are too important to have this appointment delayed by partisan bickering. We've known and worked with Mr. Holder for more than 20 years. We knew him when he was nominated by President Reagan, and we confirmed him. We knew him when he was nominated by President Clinton, and we confirmed him. Three times confirmed by the Senate to important positions.

His record of public service, his integrity, his experience, his commitment to the rule of law merit our respect. We need an attorney general, as Robert Jackson said 68 years ago, who serves the law and not factional purposes, who approaches this task with humility. That's the kind of man Eric Holder is, the kind of prosecutor Eric Holder always was, and the kind of attorney general he will be.

The next attorney general will understand our moral and legal obligation to protect the fundamental rights of all Americans, to respect the human rights of all people.

This is part of the change we need and the change the American people voted for. When he designated Mr. Holder, President-elect Obama said let me be clear, the attorney general serves the American people and I have every expectation that Eric will protect our people, uphold the public trust, and adhere to our Constitution.

The next president understands the role of the attorney general of the United States. And I have no doubt that Mr. Holder understands what's required of the attorney general. His experience, the lessons he has learned will serve him and the American people well.

Senator Specter?

SPECTER: Thank you, Mr. Chairman.

Next to the president of the United States, there is no federal officer more important than the attorney general. The attorney general is different from any other Cabinet officer because Cabinet officers ordinarily carry out the policies of the president. But the attorney general, has an independent duty to the people and to uphold the rule of law.

The Constitution calls for the United States Senate to advise and consent. And I agree with the chairman about the necessity to help President-elect Obama tackle the problems of enormous difficulties which this nation faces. There is provided, in the Constitution, separation of power and checks and balances so that it is the duty of the United States Senate to exercise its responsibilities and to make an appropriate inquiry.

Independence is a very important item. Harry Daugherty was attorney general during the Teapot Dome scandals. So I mention Attorney General Daugherty because, coming in, I took a look at the long list of hearings for seatings which have been held in this room. One of them was Teapot Dome. Another was the sinking of the Lusitania, the McClellan committee, Iran-Contra, many, many hearings.

There has been a question raised as to whether the issues when I have posed for Mr. Holder are political in nature. I have not hesitated to oppose prominent members of my own party asking pointed questions which is the constitutional responsibility of a senator and making an independent judgment and voting against them when I thought it was warranted. And one of those hearings was held right here in this room.

Almost every major newspaper in the country has comment about the importance of questioning Mr. Holder. And as I said on the floor, I have an open mind but I think there are important questions to be asked and upon the questions to be answered.

The editorials have commented about the need for the questioning of Mr. Holder based upon some of the factors in his background. There's no doubt he comes with an excellent resume, but there are questions nonetheless. So says the New York Times, the Washington Post, the Wall Street Journal, the Philadelphia Enquirer, the Rocky Mountain News, and many other newspapers across the country.

The basic issue of national security is, perhaps, the attorney general's most important responsibility to protect the American people. And I think we need to know how Mr. Holder is going to approach that job. What does he think about the Patriot Act? What does he think about the interrogation techniques?

There's a big difference between what is faced by those who are following the Army Field Manual compared to what the FBI does compared to what the CIA does. There are very different lines of questioning and I saw that in the 104th Congress when I chaired the Intelligence Committee.

SPECTER: I voted against water boarding. It's torture. And I took the lead to the Senate floor in fighting for habeas corpus. And I opposed President Bush's signing statements. So I have no hesitancy to stand up on those issues.

But there's a very important question of balance. And we want to find out how Mr. Holder is going to approach those issues.

We have major issues of violent crime in this country. Career criminals have to be treated one way. I want to know what he has in mind about realistic rehabilitation, to try to take first offenders -- and especially juveniles -- out of the recidivist crime cycle.

We have to know where he stands on anti-trust. We need to know what he will do on the prosecution of white collar crime.

There have been a spate of fines, which look heavy on their surface, $1 million. But contrasted with the billions involved in the fraud, it's insufficient. I want to know how tough he's going to be along that line, especially with what we've seen with corporate fraud leading to the tremendous financial problems this country has today.

At the same time, there has to be a balance of right to counsel. Mr. Holder authored in 1999, the memorandum which provides that the Department of Justice will go easy on a corporation, if they will cooperate where individual constitutional privileges are involved. That's a matter which has to be inquired into, where he stands under the anti-trust laws.

All of these matters, I think, are appropriate for inquiry. And I look forward to an opportunity to discuss them with the nominee.

One additional comment. And I want to read this, because I want to get it right. I ordinarily don't read, but I will on this.

Aside from the substance of Mr. Holder's qualifications, there is a serious issue on senators' minority rights and the inadequacy of our opportunity for preparation. On this I speak for the Republican Senatorial Caucus. Ordinarily, I speak only for myself. But today, I speak for the caucus.

In light of Mr. Holder's extensive record -- and we looked at some 86 boxes at one stage -- there has been insufficient time for the examination of those records. On the Roberts and Alito confirmations, the minority was consulted and accorded the time they requested on scheduling. That was not done here. The chairman declined to co-sign the letter requesting records from the Clinton Library. With only my signature representing 40-plus Republican senators, my request was treated as any other citizen's request under the Freedom of Information Act, and the records have not been obtained.

When the minority previously had a dozen witnesses under similar circumstances, we got three. When two witnesses, Ms. Mary Jo White and Mr. Roger Adams, refused to appear, our requests for subpoenas were denied.

Realizing the public's understandable disdain for Washington's political bickering, we have sought to temper these objections. And I retain the cordial relationship with the chairman, with whom I've worked very closely for many years, but feel constrained to recite them here briefly for the record.

I thank the chairman.

LEAHY: Well, I thank my good friend from Pennsylvania. I would note that, I think the last hearing for Attorney General Mukasey was -- I think we did it in four weeks. I do recall the deputy Republican leader being critical it took four weeks. And he said something about three weeks should have been enough. I believe we had a recess of some sort in between there.

We did it in four weeks. They said that wasn't really fast enough. This has been -- Mr. Holder was -- we were told by the Obama team in November, that he was going to be the nominee. We had November and December, and now we're into January.

I did postpone it by an extra week from the time. I did say at the time that made it -- it went several weeks beyond what the Republican leader had said it should take for an attorney general.

Now, this is not a lifetime position, either, as our Supreme Court justices. But be that as it may, I think adequate time has been given.

Certainly, questions -- I understand what the distinguished ranking member has said about his opposition to waterboarding. As we know, Attorney General Mukasey would not declare that as being torture. Every Republican voted for him, nonetheless. But that's why you ask the questions, and we wanted (ph) the questions.

One of the first people to introduce is a distinguished colleague, John Warner. He is the former senior senator from Virginia. He served here for 30 years.

I consider it my privilege to have served all those 30 years with him. We've traveled together around the world. We worked together. We have done so many significant pieces of bipartisan legislation together. He set the tone and tenor of what it should be.

I have referred to him over the years as my senator when I'm away from home and spending time in the home in Virginia. I consider him a senator's senator.

Senator Warner, please go ahead.

WARNER: Thank you, Mr. Chairman and distinguished ranking member, and to each of my colleagues.

I am deeply humbled by this opportunity to appear this morning and participate in what I regard, and I think you regard, as one of the most solemn responsibilities of the United States Senate, fulfilling our constitutional responsibility of advice and consent.

I've been privileged through these 30 years in the United States Senate to know each of you and to work with each of you, and to form my own opinion that each of you will fairly and objectively and conscientiously approach this solemn duty of advice and consent for this historic nomination of Eric Holder to be the chief law enforcement officer of our nation, the attorney general of the United States of America.

WARNER: I have known Mr. Holder for a number of years. We both started our careers basically as prosecutors, although separated by at least 20-some-odd years, two decades.

And we approached our duties in life based upon the foundations that we were taught and learned in the role as prosecutors, both here in the nation's capital.

So, I've joined this morning out of friendship. But also, I weighed very heavily coming before the Senate again, so soon after my retirement. But I felt that I wanted to be among those all across this nation who are working for a bipartisan approach, to support the president-elect in facing what is, I think each of us believe, is the most complicated and challenging set of issues that ever faced a president.

Behind me sits Eric Holder, and the president-elect has exercised his judgment that this is the individual whom he deems best qualified from the hundreds of thousands of lawyers serving in the United States, the best qualified to become the attorney general of the United States.

I'm also privileged to be joined this morning by a very good friend, Eleanor Holmes Norton. We have worked together on behalf of the Greater Capitol Region these many years. And I am privileged to say that we have had some accomplishments through these years.

Quickly, Mr. President, the public record has a complete dossier on this nominee. But given that people in every corner of the United States today are following this hearing, this very important hearing, I'd like, with the permission of the chair and ranking member, to briefly summarize how this distinguished American got from his home in the greater environment of New York City and a household which he probably classifies as middle class, to become the nominee for attorney general of the United States. It's truly remarkable.

Fortunately, the elders in his household, his parents and others, put great emphasis on education. Consequently, he excelled in public schools, and then went on, had the good fortune to get his undergraduate degree and his law degree from Columbia University.

And then, rather than go into a top law firm, and perhaps a lucrative opportunity, he -- as we say in the trial profession -- he plunged into the cauldron of the courtroom to start his career, arguing case after case before the juries and the judges.

Prosecution is a tough way to enter the profession, but both of us chose this course.

He was a federal prosecutor in the public integrity section of the U.S. Department of Justice. There he tried many cases and prosecuted successfully widely heralded public corruption cases against officials from both -- and I emphasize "both" -- political parties, as recognized by the chairman and the ranking member in their opening statements.

Thereafter, Eric was appointed a D.C. superior court judge by President Ronald Reagan, recognizing this man's impartiality and his bipartisan approach to the rule of law. We always must come back that the rule of law is the fundamental foundation of this great nation of ours.

He performed his duties on the bench with distinction, won the accolades of both the bench and the bar, and then was appointed the United States attorney for the District of Columbia, in 1993.

Having been a member of that office, as I said, two decades before, I wish to point out that the United States attorney for the District of Columbia has a very wide range of jurisdiction. And much of it relates to common law crime, unlike other U.S. attorneys.

He performed that subject and that responsibility from 1993 to '97. From '97 to 2001, he served as deputy attorney general of the United States, the critically important number two job at the Department of Justice. And there, he gained invaluable experience for his current nomination, and developed a bipartisan reputation in making difficult and tough decisions.

And on that point, I've had an opportunity in preparing for this hearing to visit with the nominee and many, many colleague who have known him and came up through the similar chairs of responsibility in the Department of Justice.

Mr. Chairman, Eric Holder would be the first to say that his career was marked by certain misjudgments. He freely acknowledges that. I doubt if there's one of us in this room, particularly those of us who have been prosecutors, who haven't looked back on our careers and recognized that we've made misjudgments.

But the key to this man is that he learned from those experiences, and learned in such a way that those misjudgments will not be repeated.

From 2001 to the present, he practiced law as a partner in the prestigious firm here in Washington, D.C., the firm Covington and Burling, where he experienced in our criminal justice system the other side, namely, that of counsel to those who have the misfortune to fall afoul of the law.

He also represented major companies, executives in a wide variety of complex litigation. That's experience that he will find invaluable, if confirmed by the Senate in this new position.

We both readily acknowledge, Eric Holder and I, that we achieved our goals in life largely by learning from career public servants with whom we had the privilege to serve -- the clerks, the judges, the justices at all levels of our courts, our fellow prosecutors, and the vast system of careerists that serve America to provide for the rule of the law and the respect we have for the Constitution.

WARNER: I humbly acknowledge my gratitude for having received that same benefit that he did because the Department of Justice is known, perhaps more so than any other department save the Department of Defense, for a cadre of careerists who put the rule of law and their oath to the Constitution foremost in discharging their responsibilities.

I mentioned that having had that same experience, I had the opportunity in later life when I was privileged to be here in the Senate working in association with my good colleague here to recognize the judge, a circuit federal circuit judge in the nation's capital, for whom I served as a law clerk, Judge E. Barrett Prettyman, and naming the courthouse for him, and later joining again with my colleague to my left to name the next addition to the federal courthouse for a man named William Bryant.

Now, William Bryant was a prosecutor, in a sense a career one, a defense counsel, and as a young man in the prosecutor's office, I learned more from William Bryant as to how to try a case and the vagaries of appearing before the jury and the trial judges than from any law professor in my career.

So that was the way I acknowledged the careerists. Our distinguished nominee in his opening statement will do likewise. But it is essential -- and this nominee will do that -- it is essential to protect those careers in the operations and functions they have in the Department of Justice from the always present political pressures that exist in every single corner of the nation's capital and the government. He will protect them so that they can perform their duties.

He will be the principal adviser to the president, and much has been said in the opening statements by both of my distinguished colleagues, chairman and ranking member, about the importance of the rule of law and independence.

And I went back and read the Congressional Record, Senator Specter, where you delivered quite an oration here on the sixth of January this year. And in it you said the following: "The attorney general is unlike any other cabinet officer whose duty is to carry out the president's policy. The attorney general has the corollary independent responsibility" -- I repeat "independent responsibility" -- "to the people to uphold the rule of law."

Then joining the distinguished chairman, you wrote the following, the two of you: "The attorney general's duty is to uphold the Constitution and the rule of law, not to circumvent them. The president and the American people are best served by an attorney general who gives sound advice and takes responsible action."

That is the nominee, in my judgment.

I was so privileged to join so many distinguished lawyers whom I've known and served with who have come forth, unsolicited, largely Republican in background, who have served as deputy attorney general, as prosecutors from all over the country, to lend our support to this important hearing. I would hope that, and ask if I might put in as a part of my...

LEAHY: Without objection, they'll be part of the record.


WARNER: ... some of those exceptional letters. But I point out, again, my pride to have joined with them, most of them having far more distinguished legal careers than I have.

But it's interesting, Mr. Chairman, as I read those letters, they had a common theme in describing this nominee. It was in several of the letters. It was very simple but very profound. And it's stated as follows, and I quote them: "Eric Holder is a good man." Now, that says a lot.

I further note that our forty-first president, George Herbert Walker Bush, in a public appearance on television when asked about the president, he said, I wish the new president well. And then his son, our current president, likewise, has wished this president well.

This president has made a choice. This president has chosen an individual that's going to come before you momentarily in advise and consent. It's the gravity of the times that gives rise to the unprecedented level of bipartisanship that accompanies all stages of formation of this new administration and this historic inauguration to be next week.

I thank you.

LEAHY: Thank you, Senator Warner.

You and I have sat on the inaugural stand for inaugurations for both Democrats and Republicans as president. And I think we have both wished whoever, whichever party they were from, wished them well.

Congresswoman Norton, I want to recognize you. You were recently elected by the people of the District of Columbia to your eleventh consecutive term in the House of Representatives. And, please, Congresswoman Norton, go ahead.

NORTON: Thank you very much, Mr. Chairman.

And unrelated to my own testimony, I've been asked by the chair of the Congressional Black Caucus to request that her letter for the caucus in support of Mr. Holden be admitted into the record. LEAHY: I thank you. It will be. Senator Feinstein had already sent that letter and asked that it be part of the record. I've read the letter. It definitely will be part of the record.

NORTON: Thank you, Mr. Chairman.

Mr. Chairman, it is a particular pleasure to appear before you this morning with my good friend whom I miss already. The fact that John Warner, who enjoys such a sterling reputation in this body, has stood for Eric Holder, I think, speaks volumes about Mr. Holder's experience and character.

Considering your time restraints, I'm going to read my thoughts this morning, Mr. Chairman and Ranking Member Specter.

NORTON: I'm pleased to introduce Eric Holder, a longtime resident of the District of Columbia. But my few words this morning have little in common with the predictable introductions of home state senators and others.

I did not know Eric Holder until he competed for the post of United States attorney for the District of Columbia. I came to know him in much the same way that you will know him after today's hearing.

Because the district has the same federal officials as the states but no senators, President Bill Clinton granted me the courtesy to recommend the U.S. attorney district court judges and the U.S. marshal.

In the district's two centuries as the nation's capital, residents have had to live with the decisions of these important federal officials while having no way to affect their appointments. I was determined to vindicate the president's courtesy by the transparency and the competitiveness of the process and the excellence of the candidates recommended.

I appointed a commission of distinguished lawyers and other private citizens, named as chair Pauline Schneider, a past president of the District of Columbia Bar, and charged the commission to search widely for candidates and to thoroughly investigate and interview them and send me three candidates for each post.

I then made my recommendations to the president for each post after doing my own due diligence and interviewing each of the three candidates.

Some may think that Washington has more lawyers than people with good sense. But lawyers in this town are among the most able in the United States. The commission soon heard from some of the best of the lot.

Eric Holder's distinguished biography is before you. Without reiterating the many features of the academic and legal background that recommend his appointment, what particularly stood out for us were the uniformly excellent reports concerning his work in the Justice Department's first Public Integrity Section; his nomination by President Ronald Reagan to the D.C. Superior Court, whose appointments as Article I judges are made by the president, and the high praise for his service there; the outstanding evaluations of his extensive and varied criminal and civil trial experience; and his unimpeachable character and collegiality, as reported by all who had worked with Eric Holder.

Perhaps the best indication of Eric's excellence, however, is that in a very competitive pool of the best and the brightest, he rose to the top like cream in rich milk.

Besides demonstrating his own excellence, however, Eric carried an unusual burden of which he was unaware. More than usual, the quality of the commission's recommendations for U.S. attorney and for judges was of pathbreaking importance. We knew that these appointments were without precedent in the city's history. Even small differences in quality mattered if the point was not only to get the best candidates but to demonstrate that this city could do so.

Eric Holder created a new gold standard for the position of United States attorney for the District of Columbia. The republican U.S. attorneys who followed him adopted his innovations localizing the district's part of his jurisdiction by, for example, placing assistant U.S. attorneys in communities for the very first time while strenuously carrying forward significant federal prosecutions.

Eric wore two very different high-profile hats at the same time with remarkable skill. He more than vindicated the challenge he was given and our confidence in him.

Eric Holder may be the first person to work his way up from career trial attorney in the Department of Justice to become the United States attorney general. Imagine the effect his appointment will have on the demoralized Department of Justice staff.

If experience at every level of the department and the record of excelling in everything you have ever done matters to this committee, Eric Holder is unusually well qualified to become our attorney general.

I am pleased and proud to recommend him to you without reservation.

LEAHY: Well, congresswoman, you and I have served together for over 20 years, and I worked closely with you on a number of things. And that is high praise indeed, and I appreciate it.

Senator Warner, I know you and the congresswoman have many other places to go. Thank you for taking the time here.

We'll rearrange the dais a little bit, and give Mr. Holder a chance.

Mr. Holder, will you please stand and raise your right hand.

Do you affirm or swear that the testimony you are about to give before this committee be the truth, the whole truth and nothing but the truth, so help you God?


LEAHY: Thank you.

Please be seated.

I'm never sure whether to address you as Mr. Holder or Judge Holder, Deputy Attorney General Holder. But Mr. Holder, please go ahead and give your opening statement.

First, before you do, though, would you introduce the members -- before we set the clock, introduce the members of your family? I've already met them, but so all the members of the committee can see them here.

HOLDER: Thank you, Mr. Chairman.

Seated behind me and right behind me is my wife, Dr. Sharon Malone. The beautiful woman to her left is my mother, Miriam Holder. The series of beautiful young women here is my daughter, Maya Holder, Brooke Holder. My little guy there, that's Eric Holder III, born on the same day as my father. He was going to have a different name, but we decided since he was born on my dad's birthday, his last birthday, that that had to be his name. So he's not named after me; he's named after my dad. That's my brother, William Holder, his wife, Deborah (ph) Holder, my niece, Amanda Holder.

LEAHY: Thank you all. And I know you have many, many friends. I see former FBI director Louis Freed in the front row and I see so many others. Please, Mr. Holder, go ahead.

HOLDER: Thank you, Mr. Chairman, Senator Specter, and members of the Judiciary Committee. I am deeply honored to appear before you today.

In five days, just a short distance from his historic room, the next president of the United States will take the oath of office. He will swear to preserve, protect, and defend the Constitution of the United States.

I have been asked by him to serve as attorney general, the Cabinet officer who is the guardian of that revered document. I feel the full weight of this responsibility. If confirmed by the Senate, I pledge to you and to my fellow citizens that I will faithfully execute my duties as attorney general of the United States of America. I will do so by adhering to the precepts and principles of the Constitution. And I will do so in a fair, just, and independent manner. This is the fourth time I have come before the Senate for confirmation to a position in law enforcement. I served almost 30 years as a prosecutor, judge, and senior official within the Department of Justice.

President-elect Obama and Vice President-elect Biden asked me to assume this responsibility because they know I will fight terrorism with every available tool at my disposal and reinvigorate the department's traditional missions of protecting public safety and safeguarding our precious civil rights.

I accept their trust in me and, with your support, I intend to lead an agency that is strong, independent, and worthy of the name the Department of Justice. Now, I could not have arrived at this moment without the sacrifice and example of so many others.

I begin, of course, by recognizing the support of my family who you've just met. My wife Sharon, a respected professional in her own right, has put up with a lot over the years because of my demanding work. And she has done so with the love and grace that characterizes all that she does.

Thank you, sweetheart.

My wife is a tremendously talented physician. But the best example of her skills and qualities as a person are on display not in her doctor's office but in our home in the form of our three children. They make our lives infinitely richer, and I thank them for their love and patience.

It wasn't until I was a parent myself that I truly appreciated all that my parents did for me. My father, only 12 years old when he came to this country from Barbados, worked hard throughout his life to teach my brother and me about the promise of America. He and my mother made sure that we never wasted the opportunities presented to us especially in education in the excellent New York City public school system.

My brother grew up to be a Port Authority police officer and a successful businessman. And I grew up to arrive at this humbling moment. I'm glad my mother is here to see had I day. I know my father would be proud.

In addition to my family, there are others who have inspired and guided me. Sitting here today, the very day that civil rights leader, Martin Luther King, would have celebrated his 80th birthday, I acknowledge the debt that I owe him and thousands of other Americans, black and white, who fought and died to break the back of segregation.

Dr. King devoted himself to breathing life into our Constitution. I feel privileged just to stand in his shadow and hope that, as attorney general, I can honor his legacy.

Now, one of those who served on the front lines of the struggle for equality was my late sister-in-law, Vivian Malone Jones, who integrated University of Alabama in 1963. In an atmosphere of hate almost unimaginable to us today, she and fellow student James Hood faced down Governor George Wallace and in the presence of then deputy attorney general, Nicholas Katzenbach, they enrolled in that great university.

The very next day, NAACP leader, Medgar Evers, was gunned down in his driveway in Mississippi. But Vivian never considered backing down. She went to class despite the ever-present danger late saying simply that she decided not to show any fear. She never did throughout her too-short life.

In a career in public service that began the civil rights division in the Department of Justice and ended as an advocate for environmental justice, she showed me the meaning of courage and perseverance.

Finally, I want to acknowledge the thousands of career employees at the Department of Justice. They have been my teachers, my colleagues, and my friends. When I first joined the department's public integrity section in 1976, they showed me what it meant to serve the people.

When I was the United States attorney in the District of Columbia, they worked beside me to fight drug crimes, drug trafficking, and public corruption. And when I was deputy attorney general of the United States, they were my troops in the daily battle for justice.

These career professionals are not only the backbone of the Department of Justice, they are its soul. If I am confirmed as attorney general, I will listen to them, respect them, and make them proud of the vital goals we will pursue together.

In fact, if I have the honor of becoming attorney general, I will pursue a very specific set of goals. First, I will work to strengthen the activities of the federal government and protect the American people from terrorism. Nothing I do is more important. I will use every available tactic to defeat our adversaries, and I will do so within the letter and the spirit of the Constitution.

Adherence to the rule of law strengthens security by depriving terrorist organizations of their prime recruiting tools. America must remain a beacon to the world. We will lead by strength. We will lead by wisdom. And we will lead by example.

Second, I will work to restore the credibility of a department badly shaken by allegations of improper political interference. Law enforcement decisions and personnel actions must be untainted by partisanship.

Under my stewardship, the Department of Justice will serve justice not the fleeting interests of any political party.

Attorney General Mike Mukasey and Deputy Attorney General Mark Filip have done much to stabilize the department and restore morale. For that, Judges Mukasey and Filip deserve the gratitude of the American people, and they have my personal gratitude and thanks. But there is more work to do.

Third, I will reinvigorate the traditional missions of the Justice Department. Without ever relaxing our guard in the fight against global terrorism, the department must also embrace the historic role in fighting crime that it has, in protecting civil rights, preserving the environment, and ensuring fairness in the marketplace.

To that end, the Justice Department must wage an aggressive effort against financial fraud and market manipulation. As taxpayers are asked to rescue large segments of our economy, they also have a right to demand accountability for wrongdoing that only the Department of Justice can provide.

At the same time, we must rededicate ourselves to the fight against violent crime which tears at the fabric of our neighborhoods.

The Justice Department must also defend the civil rights of every American. In the last eight years, vital federal laws designed to protect rights in the workplace, the housing market, and the voting booth have languished. Improper political hiring has undermined this important mission. That must change. And I intend to make this a priority as attorney general.

The Department of Justice must also protect American consumers. We need smart anti-trust enforcement to prevent and punish unlawful conduct that hurts markets, excludes competition, and harms consumer welfare. The Justice Department shall also reinvigorate its efforts to protect the public in areas such as food and drug safety and consumer product safety.

And we must work actively with the EPA and other agencies to protect our environment.

In all of this, I hope to establish a full partnership with this committee and with Congress as a whole. The checks and balances in our Constitution establish a healthy tension among the three branches as each ensures that the other do not overstep their boundaries. But too often in recent years, that natural tension has expressed itself in unhealthy hostility.

President-elect Obama and I respect Congress and we respect the federal judiciary. We will carry out our constitutional duties within the framework set forth by the founders and with the humility to recognize that congressional oversight and judicial review are necessary. They are beneficial attributes of our system and of our government.

In particular, I know how much wisdom resides in this committee from your collective decades of service in government. And I'll be sure to draw upon it.

The years I spent in government taught me a lot. As a public corruption prosecutor, I took on powerful interests to ensure that citizens receive the honest services of the people who serve them. As a judge, I used the awesome power I had to deprive criminals of their liberty, a power that weighs heavily on anyone who exercises it.

And as a high-ranking official in the Department of Justice, I faced a series of complex, time-sensitive, prosecutorial, and administrative decisions every time I stepped inside the building.

Now, my decisions were not always perfect. I made mistakes. I hope that enough of my decisions were correct to justify the gratifying support that I have received from colleagues in law enforcement in recent weeks. But with the benefit of hindsight, I can see my errors clearly and I can tell you how I learned from them.

I can also assure you that I will bring to the office the principle that has guided my career. That the Department of Justice, first and foremost, represents the people of the United States not any one president, not any political party, but the people of this great country.

I learned that principle in my first days at the department when I sent corrupt public officials from both parties to jail. It guided my work as U.S. attorney for the District of Columbia when I prosecuted one of the most powerful members of my own party at the very time he held in his hands a top legislative initiative of my own president.

And it guided my service as deputy attorney general when I recommended independent counsel investigations not just of members of the Cabinet but of the very president who appointed me and in whose administration I proudly served.

None of those calls was easy, but I made them because I believe they were the right decisions under the law. If confirmed as attorney general, I pledge to you that the same principle will guide my service and inform every decision that I make.

I have spent most of my career at the Department of Justice and I cherish it as an institution. Its history, its spirit, its people, and its sense of integrity are unmatched within the federal government. If I have the honor of serving as attorney general, I will uphold the trust that you have placed in me.

I will do so by ensuring the department is an instrument of our great Constitution but more than that, the servant of the American people.

Thank you very much.

LEAHY: Thank you, Mr. Holder. We'll have the first round of ten-minute questions.

Water boarding has been recognized to be torture since the time of Spanish Inquisition. The United States has prosecuted American soldiers for using this technique. Earlier in the last century, they prosecuted Japanese soldiers for using it on Americans in World War II. But the two most recent nominees to serve as attorney general of the United States hedged on the question of water boarding.

They would not say that if an American were water boarded by some other government or terrorist anywhere in the world, whether it would be torture and illegal. They maintained it would depend upon the circumstances.

Do you agree with me that water boarding is torture and illegal?

HOLDER: If you look at the history of the use of that technique used by the Khmer Rouge, used in the inquisition, used by the Japanese and prosecuted by us as war crimes. We prosecuted our own soldiers for using it in Vietnam.

I agree with you, Mr. Chairman, water boarding is torture.

LEAHY: Do you believe that other world leaders would have the authority to authorize the torture of United States citizens if they deemed it necessary for their national security?

HOLDER: No, they would not. It would violate the international obligations that, I think, all civilized nations have agreed to at the Geneva Conventions.

LEAHY: Do you believe that the president of the United States has authority to exercise a commander-in-chief override and immunize acts of torture? I ask that because we did not get a satisfactory answer from Former Attorney General Gonzales on that.

HOLDER: Mr. Chairman, no one is above the law. The president has a constitutional obligation to faithfully execute the laws of the United States. There are obligations that we have as a result of treaties that we have signed -- obligations, obviously, in the Constitution. Where Congress has passed a law, it is the obligation of the president, or the commander-in-chief, to follow those laws.

The president acts most forcefully and has his greatest power when he acts in a manner that's consistent with the congressional intent -- consistent with congressional intentions and directives.

If one looks at the various statutes that have been passed, it is my belief that the president does not have the power that you've indicated.

LEAHY: The reason I asked that, just yesterday, here in the "Washington Post," you see it says, "Detainee tortured," says U.S. official. Trial overseer cites abusive methods against 9/11 suspect.

Now, that's the convening authority for the military commissions, a top Bush administration official, in charge of deciding whether to bring Guantanamo Bay detainees to trial. Wouldn't refer an important case for trial, because, as she said, we tortured the detainee involved.

I'm glad to see we now have a nominee for attorney general who is unequivocal on this.

Now, one substantive criticism I've heard of your position on important issues stems from a brief you signed onto before the Supreme Court decided the case of District of Columbia v. Heller. The Supreme Court has now clarified the law in that area.

And for those who may wonder, the Heller case, the Court recognized the personal right to bear arms guaranteed in the Second Amendment of the Constitution. It expressly held for the first time that the Bill of Rights includes this right among its guarantees of individual liberty and freedom.

As I told you, Mr. Holder, I am a gun owner, as a very large percentage of people in my state of Vermont are. My own home in Vermont, I enjoy target shooting. And before anybody asks, our nearest neighbor is over a half-a-mile away, and it's our son.

But do you accept and understand that the Second Amendment guarantees an individual right to bear arms? HOLDER: I understand that the Supreme Court has spoken. The amicus brief that I signed on to recited the history of the Justice Department's positions that had been taken prior to the Heller decision.

Also expressed the belief in that amicus brief, that was signed by a number of other Justice Department officials, that it was our view, looking at the Second Amendment and looking at the applicable case law, that the Second Amendment did not confer an individual right.

The reality is now that the Supreme Court has spoken. And that is now the law of the land.

I respect the Supreme Court's decision. And my actions as attorney general, should I be confirmed, will be guided by that Supreme Court decision.

LEAHY: Last year, for the first time in our history, this committee reported media shield legislation, a bipartisan 15-to-four vote in the Senate, in the committee.

We -- this legislation provided qualified privilege. It allows journalists to maintain confidentiality of their sources. And reasonable exceptions, of course, prevent terrorism and protect national security and personal safety.

If you are confirmed as attorney general, will you work with both Republicans and Democrats on this committee on a federal media shield law?

HOLDER: Yes, I will, Mr. Chairman. It is my belief that a carefully crafted law to shield the press in the way that you have described is appropriate.

Now, there are concerns that I'm sure will be expressed by people in the Justice Department, and I want to talk to the career folks in the department.

I'd also want to ensure that, with the passage of any law, that we would still have the capacity to protect the national security and to prosecute any leaks of intelligence information that might occur.

But with those caveats, and with the ability to interact with people in the department, I am in favor of the concept of such a law.

LEAHY: Now, you're very familiar with the Justice Department's Office of Legal Counsel. They're supposed to provide fair, impartial, independent legal advice for the executive branch.

Now, the press reports and our own hearings have shown that they have -- it's been used most recently to advance extreme theories of executive power. We've seen it in torture, warrantless wiretapping, and so on.

Will you, if you're confirmed as attorney general, commit to undertake a comprehensive review of all OLC opinions currently in effect, and to correct and withdraw any that have what appear to be incorrect or problematic analyses? Understand, these opinions really carry, de facto, the weight of law throughout the executive branch.

HOLDER: Yes. I will make that pledge.

It is important that these OLC opinions -- which are so important, as you described -- that they truly reflect what the law is, that they reflect our values. And I want to ensure that any OLC opinions that are in effect are consistent with those two purposes.

And I'll do so respecting the fact that OLC respects the notion of stare decisis, that we don't change OLC opinions simply because a new administration takes over.

The review that we would conduct would be a substantive one and will reflect the best opinions of probably the best lawyers in the department as to where the law should be, what their opinion should be. It will not be a political process. It will be one based solely on our interpretation of the law.

LEAHY: Thank you.

Now, some senators, following -- and including commentators like Karl Rove -- have spoken extensively about your role in the pardon of fugitive Mark Rich at the end of President Clinton's second term. And I was very critical of that pardon at the time, notwithstanding the president's constitutional right to pardon people. Probably been critical of a number of different presidents' use of that constitutional right.

You have also publicly said you wish you'd handled the issue differently. Details of this matter have been exhaustively hashed out in several congressional hearings. The Congress has spent millions of dollars looking into this.

You appeared voluntarily and repeatedly to testify on the matter -- something we haven't seen from officials of the current administration.

So, I want to give you a chance to address the suggestion by some that, based on your actions, you are not independent, you would not be able to say "no" to a president that might nominate you. And I have a two-part question to you.

How do you respond to those that say the Mark Rich pardon shows you do not have the character to be an independent attorney general? And what did you learn from that experience?

HOLDER: As I indicated in my opening statement, I made mistakes. And my conduct, my actions in the Rich matter was a place where I made mistakes.

I have never said anything other than that. I appeared before two congressional committees and said nothing but that.

I've accepted the responsibility of making those mistakes. I've never tried to hide. I've never tried to blame anybody else.

What I've always said was that, given my -- given the opportunity to do it differently, I certainly would have.

I should have made sure that everybody, all the prosecutors in that case, were informed of what was going on. I made assumptions that turned out not to be true. I should have not spoken to the White House and expressed an opinion without knowing all of the facts with regard to that matter.

That was and remains the most intense, most searing experience I've ever had as a lawyer. There were questions raised about me that I was not used to hearing.

I've learned from that experience. I think that, as perverse as this might sound, I will be a better attorney general, should I be confirmed, having had the Mark Rich experience.

I've learned that I have to ensure that there is full consultation with all the prosecutors who are involved in those kinds of matters. I can't assume that that, in fact, will happen. I have to make sure that it happens.

I think we have to work to improve the pardon process within the Department of Justice. It appears that at the end of every administration, there seems to be a deterioration in the process. And so, I think we have to work on the Justice Department side to make sure that the rules and regulations are followed.

It was something that I think is not typical of the way in which I've conducted myself as a careful, thoughtful lawyer. As I said, it is something where I made mistakes, and I learned from those mistakes.

LEAHY: And, of course, the pardon was issued by President Clinton, not by you.

But what I want to do -- and I have talked this over with Senator Specter -- obviously, Senator Specter is next. I will then recognize senators by seniority back and forth in the usual way, if they are here. If a senator misses their turn, then they would be put in the next time they appear.

Senator Specter?

SPECTER: Thank you, Mr. Chairman.

Mr. Holder, pursuing the issue of the Rich pardon, you are a high-level professional, outstanding record. No doubt about your professional judgment. And the comment that it's a mistake is one way of approaching it.

But when you take a look at the hard facts, it's a little hard for me to see how you came to the conclusion you did, even conceding the fact that none of us is perfect.

In the Rich matter, he was charged with trading with the enemy. He reached a deal with the Khomeini regime during the Iranian hostage crisis to purchase Iranian oil in exchange for arms, automatic rifles and handheld rockets. He was involved in trading with the Soviet and Iranian oil to the apartheid government, reprehensible apartheid government, in exchange for Namibian uranium, which was sold back to the Soviet Union, reportedly involved with Castro's efforts to escalate its nuclear war program in 1991, and with respect to a uranium deposit in western Cuba.

He had contributed very large sums to the Democratic Party -- $867,000 -- to the Clinton Library $450,000, $63,000-plus to others.

And in this context, the House committee found that you recommended Jack Quinn, had told Jack Quinn, who was former White House counsel, he would not have to provide a copy of the petition, that he could go directly to the White House, which circumvented the normal pardon procedures.

And you had the pardon attorneys opposed to it. Margaret Love said "no."

The House committee came to these conclusions. The preponderance of the evidence indicates that Eric Holder was deliberately assisting Quinn with the Rich petition, and deliberately cut the rest of the Justice Department out of the process to help Quinn obtain the pardon for Mark Rich. This conclusion is supported by an e-mail sent by Quinn to Kitty Behan, and others, three days before Quinn's meeting with Holder on November 21st.

And this is the confirmation e-mail. Subject, Eric, quote, spoke to him last evening. He says, go straight to the White House. Also says timing is good. And SHD -- should get in soon. Will elaborate when we speak.

Now, I've had some experience with fugitives. And when you deal with a fugitive, it seems to me you focus on an extradition warrant.

Given the background of this man, it's hard to brush it off, it seems to me, as a mistake. The guy had a reprehensible record. The guy was a fugitive.

The indicators are, our House finding, that you were very heavily involved, and yet you testified you were only casually involved -- the question of candor on that comment. And then you had a president who obviously wanted to grant a pardon.

HOLDER: Mr. Chairman, no one is above the law. The president has a constitutional obligation to faithfully execute the laws of the United States. There are obligations that we have as a result of treaties that we have signed -- obligations, obviously, in the Constitution. Where Congress has passed a law, it is the obligation of the president, or the commander-in-chief, to follow those laws.

The president acts most forcefully and has his greatest power when he acts in a manner that's consistent with the congressional intent -- consistent with congressional intentions and directives.

If one looks at the various statutes that have been passed, it is my belief that the president does not have the power that you've indicated.

LEAHY: The reason I asked that, just yesterday, here in the "Washington Post," you see it says, "Detainee tortured," says U.S. official. Trial overseer cites abusive methods against 9/11 suspect.

Now, that's the convening authority for the military commissions, a top Bush administration official, in charge of deciding whether to bring Guantanamo Bay detainees to trial. Wouldn't refer an important case for trial, because, as she said, we tortured the detainee involved.

I'm glad to see we now have a nominee for attorney general who is unequivocal on this.

Now, one substantive criticism I've heard of your position on important issues stems from a brief you signed onto before the Supreme Court decided the case of District of Columbia v. Heller. The Supreme Court has now clarified the law in that area.

And for those who may wonder, the Heller case, the Court recognized the personal right to bear arms guaranteed in the Second Amendment of the Constitution. It expressly held for the first time that the Bill of Rights includes this right among its guarantees of individual liberty and freedom.

As I told you, Mr. Holder, I am a gun owner, as a very large percentage of people in my state of Vermont are. My own home in Vermont, I enjoy target shooting. And before anybody asks, our nearest neighbor is over a half-a-mile away, and it's our son.

But do you accept and understand that the Second Amendment guarantees an individual right to bear arms? HOLDER: I understand that the Supreme Court has spoken. The amicus brief that I signed on to recited the history of the Justice Department's positions that had been taken prior to the Heller decision.

Also expressed the belief in that amicus brief, that was signed by a number of other Justice Department officials, that it was our view, looking at the Second Amendment and looking at the applicable case law, that the Second Amendment did not confer an individual right.

The reality is now that the Supreme Court has spoken. And that is now the law of the land.

I respect the Supreme Court's decision. And my actions as attorney general, should I be confirmed, will be guided by that Supreme Court decision.

LEAHY: Last year, for the first time in our history, this committee reported media shield legislation, a bipartisan 15-to-four vote in the Senate, in the committee.

We -- this legislation provided qualified privilege. It allows journalists to maintain confidentiality of their sources. And reasonable exceptions, of course, prevent terrorism and protect national security and personal safety.

If you are confirmed as attorney general, will you work with both Republicans and Democrats on this committee on a federal media shield law?

HOLDER: Yes, I will, Mr. Chairman. It is my belief that a carefully crafted law to shield the press in the way that you have described is appropriate.

Now, there are concerns that I'm sure will be expressed by people in the Justice Department, and I want to talk to the career folks in the department.

I'd also want to ensure that, with the passage of any law, that we would still have the capacity to protect the national security and to prosecute any leaks of intelligence information that might occur.

But with those caveats, and with the ability to interact with people in the department, I am in favor of the concept of such a law.

LEAHY: Now, you're very familiar with the Justice Department's Office of Legal Counsel. They're supposed to provide fair, impartial, independent legal advice for the executive branch.

Now, the press reports and our own hearings have shown that they have -- it's been used most recently to advance extreme theories of executive power. We've seen it in torture, warrantless wiretapping, and so on.

Will you, if you're confirmed as attorney general, commit to undertake a comprehensive review of all OLC opinions currently in effect, and to correct and withdraw any that have what appear to be incorrect or problematic analyses? Understand, these opinions really carry, de facto, the weight of law throughout the executive branch.

HOLDER: Yes. I will make that pledge.

It is important that these OLC opinions -- which are so important, as you described -- that they truly reflect what the law is, that they reflect our values. And I want to ensure that any OLC opinions that are in effect are consistent with those two purposes.

And I'll do so respecting the fact that OLC respects the notion of stare decisis, that we don't change OLC opinions simply because a new administration takes over.

The review that we would conduct would be a substantive one and will reflect the best opinions of probably the best lawyers in the department as to where the law should be, what their opinion should be. It will not be a political process. It will be one based solely on our interpretation of the law.

LEAHY: Thank you.

Now, some senators, following -- and including commentators like Karl Rove -- have spoken extensively about your role in the pardon of fugitive Mark Rich at the end of President Clinton's second term. And I was very critical of that pardon at the time, notwithstanding the president's constitutional right to pardon people. Probably been critical of a number of different presidents' use of that constitutional right.

You have also publicly said you wish you'd handled the issue differently. Details of this matter have been exhaustively hashed out in several congressional hearings. The Congress has spent millions of dollars looking into this.

You appeared voluntarily and repeatedly to testify on the matter -- something we haven't seen from officials of the current administration.

So, I want to give you a chance to address the suggestion by some that, based on your actions, you are not independent, you would not be able to say "no" to a president that might nominate you. And I have a two-part question to you.

How do you respond to those that say the Mark Rich pardon shows you do not have the character to be an independent attorney general? And what did you learn from that experience?

HOLDER: As I indicated in my opening statement, I made mistakes. And my conduct, my actions in the Rich matter was a place where I made mistakes.

I have never said anything other than that. I appeared before two congressional committees and said nothing but that.

I've accepted the responsibility of making those mistakes. I've never tried to hide. I've never tried to blame anybody else.

What I've always said was that, given my -- given the opportunity to do it differently, I certainly would have.

I should have made sure that everybody, all the prosecutors in that case, were informed of what was going on. I made assumptions that turned out not to be true. I should have not spoken to the White House and expressed an opinion without knowing all of the facts with regard to that matter.

That was and remains the most intense, most searing experience I've ever had as a lawyer. There were questions raised about me that I was not used to hearing.

I've learned from that experience. I think that, as perverse as this might sound, I will be a better attorney general, should I be confirmed, having had the Mark Rich experience.

I've learned that I have to ensure that there is full consultation with all the prosecutors who are involved in those kinds of matters. I can't assume that that, in fact, will happen. I have to make sure that it happens.

I think we have to work to improve the pardon process within the Department of Justice. It appears that at the end of every administration, there seems to be a deterioration in the process. And so, I think we have to work on the Justice Department side to make sure that the rules and regulations are followed.

It was something that I think is not typical of the way in which I've conducted myself as a careful, thoughtful lawyer. As I said, it is something where I made mistakes, and I learned from those mistakes.

LEAHY: And, of course, the pardon was issued by President Clinton, not by you.

But what I want to do -- and I have talked this over with Senator Specter -- obviously, Senator Specter is next. I will then recognize senators by seniority back and forth in the usual way, if they are here. If a senator misses their turn, then they would be put in the next time they appear.

Senator Specter?

SPECTER: Thank you, Mr. Chairman.

Mr. Holder, pursuing the issue of the Rich pardon, you are a high-level professional, outstanding record. No doubt about your professional judgment. And the comment that it's a mistake is one way of approaching it.

But when you take a look at the hard facts, it's a little hard for me to see how you came to the conclusion you did, even conceding the fact that none of us is perfect.

In the Rich matter, he was charged with trading with the enemy. He reached a deal with the Khomeini regime during the Iranian hostage crisis to purchase Iranian oil in exchange for arms, automatic rifles and handheld rockets. He was involved in trading with the Soviet and Iranian oil to the apartheid government, reprehensible apartheid government, in exchange for Namibian uranium, which was sold back to the Soviet Union, reportedly involved with Castro's efforts to escalate its nuclear war program in 1991, and with respect to a uranium deposit in western Cuba.

He had contributed very large sums to the Democratic Party -- $867,000 -- to the Clinton Library $450,000, $63,000-plus to others.

And in this context, the House committee found that you recommended Jack Quinn, had told Jack Quinn, who was former White House counsel, he would not have to provide a copy of the petition, that he could go directly to the White House, which circumvented the normal pardon procedures.

And you had the pardon attorneys opposed to it. Margaret Love said "no."

The House committee came to these conclusions. The preponderance of the evidence indicates that Eric Holder was deliberately assisting Quinn with the Rich petition, and deliberately cut the rest of the Justice Department out of the process to help Quinn obtain the pardon for Mark Rich. This conclusion is supported by an e-mail sent by Quinn to Kitty Behan, and others, three days before Quinn's meeting with Holder on November 21st.

And this is the confirmation e-mail. Subject, Eric, quote, spoke to him last evening. He says, go straight to the White House. Also says timing is good. And SHD -- should get in soon. Will elaborate when we speak.

Now, I've had some experience with fugitives. And when you deal with a fugitive, it seems to me you focus on an extradition warrant.

Given the background of this man, it's hard to brush it off, it seems to me, as a mistake. The guy had a reprehensible record. The guy was a fugitive.

The indicators are, our House finding, that you were very heavily involved, and yet you testified you were only casually involved -- the question of candor on that comment. And then you had a president who obviously wanted to grant a pardon.

SPECTER: Now, if this were some underling or somebody who wasn't too bright, or wasn't too experienced, you'd slough it off as a mistake. But given your experience and your background and your competency, and the surrounding circumstance of President Clinton looking for a cover, how do you -- how do you explain it beyond simply "It's a mistake"?

HOLDER: Well, I don't mean to minimize what I did by calling it a mistake, or mistakes, in the fact that I take what I did seriously, and I've expressed regret for what I did consistently.

I would not take as gospel everything that is contained in that House report. And we can certainly talk about the various things that they have said. I dispute...

SPECTER: Well, what do you disagree with?

HOLDER: Well, for instance, this notion that I recommended Mr. Quinn to the gentleman that I was sitting next to at a dinner. I mean, I think first...


SPECTER: Well, what did happen?

HOLDER: Well, first there's the matter of fundamental fairness. I voluntarily appeared before that committee and was never asked that question. And yet that appeared in the report.

If you look at even the material that's contained in that report, you will see that after I supposedly made this recommendation to a person who I did not know -- and according to the report I said, "You go hire a lawyer; that person comes to me; and we'll work it out." Now, I as deputy attorney general, according to this report, would have said to a perfect stranger, "You come to me with a lawyer, and we'll work it out." I don't know what...

SPECTER: What happened as to Quinn? OK, if you weren't asked about. Did you recommend Quinn? What are the facts, aside from what the House says?

HOLDER: I did not recommend Mr. Quinn.

And, again, if you look at the report you will see that the people who were trying to determine who a lawyer would be for Mr. Rich spent six months, interviewed a whole host of people after this dinner that I attended, before they decided on the representation. They interviewed a number of people in addition to Mr. Quinn before they made that decision.

SPECTER: Well, you refer to a dinner. There has been a report that at that dinner you pointed to Quinn as a person to represent Rich. Is that not true?

HOLDER: That is not correct.

SPECTER: What is correct?

HOLDER: I had a conversation with a gentleman, and he asked about what happens if somebody has a problem with the Justice Department. And I think, as best as I can remember, all I did was explain to him how the process worked, that there were levels of review -- levels of appellate review, for lack of a better term -- review within the department. If somebody has an issue with somebody in the field, there are measures that you can take with the person in the field and that the Justice Department in Washington, D.C., has ultimate responsibility for the conduct of the Justice Department, including those parts of the department that are the field.

SPECTER: Are you saying that Quinn's name never came up?

HOLDER: No, it did not.

And if you look at the minority component of the report, there is some question as to whether or not the gentleman, whose name I now remember, Mr. Kecks (ph), even said what the majority says that he did say.

SPECTER: Is it true that you told Quinn after he was in the case that he did not have to provide you with a copy of the petition?

HOLDER: No, I think if you're referring to Mr. Quinn's e-mail that says I told him to go straight to the White House, that did not occur.

SPECTER: Well, there's a separate point, a separate point that Quinn testified to that you said in response to his offer to provide a copy of the Rich pardon petition that you said you didn't have to. It goes to the issue as to whether anybody else in the department would've known about it.

HOLDER: Yes, I'm sorry. Now I understand what you're -- yes. At a meeting that we had, I believe in November, Mr. Quinn indicated that that's what I told him after we'd had a meeting on something else.

I don't remember that conversation, but I've never disputed that I might have said that to Mr. Quinn because I worked under the assumption that was true that pardon applications that were filed in the White House were routinely sent to the Justice Department. The White House sent matters for pardons -- referrals for pardons -- to the Justice Department because they are supposed to originate with the pardon attorney at the Justice Department. SPECTER: How do you explain this e-mail -- and I acknowledge it's not your e-mail, but it's a contemporaneous e-mail which Quinn sent saying, corroborating at least as far as he's concerned your statement "Go directly to the White House; circumvent the Department of Justice." How do you explain that?

HOLDER: It's difficult for me to explain that. I never told Mr. Quinn to go straight to the White House. That would've been, in some ways, illogical given the fact that things that went to the White House would come to the Justice Department in any case.

I don't know what Mr. Quinn -- where he got that from. I don't know, you know, a conversation I had with him he misinterpreted something that I said. But I never told him go straight to the White House with that pardon application.

SPECTER: Were you aware, Mr. Holder, of the atrocious record that Rich had in dealing with Khomeini and the Iranians at an (inaudible) nation and arms in exchange for oil in Oracas (ph)? Were you aware of this kind of a record this man had?

HOLDER: No, I was not.

And that was one of the mistakes that I made. I did not really acquaint myself with his record. I knew that the matter involved -- it was a tax fraud case; it was a substantial tax fraud case. I knew that he was a fugitive. I did not know a lot of the underlying facts that you have described. And as I said, that was a mistake.

SPECTER: One last question on this round...

LEAHY: I'll give you extra time for that, but that will -- I am going to try to keep close to the time on this. Then, go ahead.

SPECTER: One last question: When the pardon attorney, Margaret Love, said "Don't do it," did you ask her why she said that, which would've been an avenue to find out what an atrocious record this man had?

HOLDER: Well, senator, with all due respect, Margaret Love was not the pardon attorney at the time that this matter was being considered. And the pardon attorney who was present at the time, Mr. Adams, never expressed an opinion about this, again, because he didn't have the material in front of him.

SPECTER: I'll come back to this.

LEAHY: Senator Kohl?

KOHL: Thank you, Mr. Chairman.

Mr. Holder, you've been selected by the president-elect for a very important position, and for that you must be very grateful to him personally. But as we know, once you are confirmed you will not be his lawyer but the American people's lawyer. Your role among cabinet members is unique. Your first duty will be to the Constitution, to the rule of law and not to the president. In the minds of many people, Attorney General Gonzales stepped over that line and was perceived too much as the president's lawyer and not the people's.

One of your top priorities will be to restore the integrity of the Justice Department. Because of the U.S. attorney's firings and other scandals, the American people came to believe that the department's activities from law enforcement to hiring were driven too much by politics.

How can you assure us that you are the right person to restore the independence of the Justice Department, especially in light of the questions raised by your critics that you were not sufficiently independent of the White House in the Clinton administration?

HOLDER: Senator, everything that I owe as a professional I owe to the Department of Justice. It is an institution that I love. I came into the department as a bright young lawyer, a fresh young lawyer out of Columbia University, into the honors program. I had the pleasure of working with the best lawyers, I think, in the world. I learned how to be a lawyer at the Justice Department.

I understand that the attorney general is different from every other cabinet officer. Though I am a part of the president's team, I am not a part of the president's team in the way that any other cabinet officer is. I have a special and unique responsibility.

There has to be a distance between me and the president. The president-elect said when he nominated me that he recognized that, that the attorney general was different from other cabinet officers.

I think if you look at my record, if you look at my career and the decisions that I have made, I have shown that I have the ability and, frankly, the guts to be independent of people who have put me in positions.

President-elect Obama -- President Obama -- is not, I expect, going to ask me to do anything that would compromise what I should be doing as attorney general. But I want to assure you and the American people that I will be an independent attorney general. I will be the people's lawyer.

KOHL: In light of what you just said, are you prepared if some issue comes up that is a matter of basic constitutional principles that you differ with the president on that you will resign your job?

HOLDER: I do not think that that is a situation that I'll face. We have a president-elect who is a brilliant constitutional lawyer, a person with a great moral compass, a person who I think will take criticism and advice. And I would think that if we had a constitutional problem as significant as the one that you are describing in your hypothetical that we would somehow work it through.

If, however, there were an issue that I thought were that significant that would compromise my ability to serve as attorney general in the way that I have described, that as the people's lawyer, I would not hesitate to resign.

KOHL: Mr. Holder, for decades this country has been looked up to around the world for its unwavering commitment to human rights and the rule of law. There is a growing consensus that the detention center at Guantanamo Bay has tarnished that image.

While the past two attorneys general, the current secretaries of defense and state, and the president himself have publicly said that they would like to close Guantanamo, no steps as yet have been taken.

Many of us were encouraged by press reports which suggest that a change will occur in this next administration. Shortly after taking office, the president-elect will reportedly issue an order to close the prison, but it does remain unclear how this will be done and how long it will take.

Can you give us some indication about how you feel, or what your priorities will be, how long you believe it will take, and what we will do with those detainees?

HOLDER: Yes, senator, Guantanamo will be closed.

The president-elect during the campaign made that promise. Steps are being taken as we speak to look at the manner in which that can occur.

I will tell you this will not be an easy task. The physical closing of the facility is something that can be done relatively quickly. The question is, what will we do with the people who are there now -- roughly, I guess, 250 or so people?

To responsibly close the facility, I think that we have to understand who these people are, make an independent judgment of who they are based on an examination of the records that exist down there, so that we can treat them in an appropriate way.

I think substantial numbers of those people can be sent to other countries safely. Other people can be tried in a jurisdiction and put in jail. And there are possibly going to be other people who we're not going to be able to try, for a variety of reasons, but who nevertheless are dangerous to this country. And we're going to have to try to figure out what we do with them.

But I think that review that we'll have to go through to figure out who these people are and in what categories they fit will take an extended period of time. And I think that is the thing that will prevent us from closing Guantanamo as quickly as I think we would like.

But I want to assure the American people that Guantanamo will be closed.

KOHL: Mr. Holder, while the president and the vice president have called them "enhanced interrogation techniques" or "special measures," as the facts have leaked out we now know that the White House authorized the abuse of prisoners in our custody. The administration admitted to using waterboarding, and press reports have suggested that sleep deprivation, extreme temperatures and other abusive techniques have also been authorized.

This administration, of course, has taken a different view with respect to their legality. They have maintained that they were advised by the Justice Department that all of the approved techniques were legal. They have had the backing of three attorneys general. According to press reports, former Deputy Attorney General James Comey reportedly said that the administration would be, quote, "ashamed" when the world eventually learned of these legal opinions.

Will you put an end to the use of abusive interrogation techniques? What is your description of what they are? What can we hope to expect from you?

HOLDER: Our Justice Department will adhere to the values that have made this nation great. It is the intention of the president- elect, it is my intention, to make sure that we have interrogation techniques that are consistent with who we are as Americans so that we don't do things that will serve as a recruiting tool for people who are our enemies.

The decisions that were made by the prior administration were difficult ones. It is an easy thing in some ways to look and in hindsight be critical of the decisions that they made.

And yet, having said that, the president-elect and I are, I think, both worried, disturbed, by what we have seen, what we've heard. The pledge that he has made and that I will make is that we will make sure that the interrogation techniques that are sanctioned by the Justice Department are consistent with our treaty obligations, the Geneva Treaty obligations that we have, and will be effective at the same time.

One of the concerns that I have as I've talked to the generals and admirals who are responsible for interrogation techniques is what they have said is that some of these enhanced techniques do not necessarily produce good intelligence. And we'll want to make sure that whatever it is that we do produces intelligence that will be useful to us and help us in our fight against those who would do us harm.

KOHL: Thank you.

One last question, and this relates to your ability to exercise your responsibilities independently of what the president may or may not like. He is reported, as you know, to have considerable skills as a basketball player.


KOHL: And you have indicated to me, when we met in my office, that you also are a person of considerable skill.

In the event -- in the event, Mr. Holder, he invites you to the gym for a little one-on-one, will you promise us and the American people that you will do everything in your power to defeat him as badly as you can?


My vote depends on your answer.


HOLDER: Senator Kohl, he's 10 years younger than me.


He plays a lot more frequently than I do. Having said that, I've got a New York City game.


I come from the city that produced Connie Hawkins, Kareem Abdul Jabar, Nate "Tiny" Archibald. I learned how to play ball in P.S. 127 in Queens. If you give me a little time and a little space to get back in shape, I think I could hang with him.


I don't think I'm ever going to be in a position to beat him nor do I think that would be a wise thing to do.


KOHL: Well said, sir.

HOLDER: Thank you.

LEAHY: I want you to know, Mr. Holder, I've been here 34 years for these hearings. That is the first time that question has ever been asked.

(LAUGHTER) What we're going to do -- I was going to break for five minutes at this point. Senator Kyl has, as we all do, different things he's supposed to be at. So to accommodate him, what we'll do is we'll do his round and then we're going break for about five minutes and then come back.

Senator Kyl?

KYL: Thank you, Mr. Chairman. If that's all right with you, Mr. Holder -- and by the way, I think Herb may just be look for some new talent for the bucks. Be careful there.


It's good to visit again. And I appreciated our decision in which we discussed a wide range of issues. And as I mentioned at that meeting, one of the first things I did like to do is to just have you state for the record your views and commitments you made regarding the whole series of issues that we discussed.

The first one relates to DNA. As we discussed last December, the Justice Department published regulations that require federal agencies to collect DNA samples from individuals who are arrested under federal authority and from illegal immigrants who are being deported.

The regulations require these agencies to collect DNA samples at the same time that they take fingerprints and mug shots. The Justice Department is charged with implementing and administering the new regulations. It's the department's job to ensure that the DNA samples are collected and analyzed.

Mr. Holder, if you're confirmed as attorney general, will you see to it that the new DNA regulations are enforced and that DNA samples are collected and analyzed as required under the new rules? And will you seek sufficient resources to implement the regulations?

HOLDER: Yes, I will, Senator. The collection of that evidence is, I think, critical for crime solving. You use of DNA evidence is often seen as a way in which people who are charged with crimes are absolved. And that certainly is a beneficial effect. But I think, too often, people forget that the collection of this evidence is a very important crime-fighting tool.

And so I will support those regulations. I think, as you indicated, it's entirely possible that one of the things that we're going to need are additional resources to make sure that we have the capacity, the ability to do that job in the way that Congress intended.

KYL: And I'll do my best to help to make sure Congress supports the resource requirements.

Next, capital habeas. As you know, in 2005, Congress passed an amendment that will implement the opt-in system for a faster review of state capital cases in federal courts. The amendment requires of U.S. attorney general to review whether states are providing counsel to capital defendants. With the review of the attorney general's decision and the D.C. Circuit Court, the state of Arizona will probably be interested in submitting such a petition for review.

If you are confirmed as attorney general, will you review the state of Arizona's application in a timely manner and make a timely determination of whether Arizona is providing counsel to capital defendants and post-conviction review?

HOLDER: I will take my obligations seriously under those regulations and look at the evidence that the states provide with me that they have complied with the regulations. And to the extent the states do, I will give the relief that is dictated by those regulations.

I want to make sure that, in fact, the resources in capital cases that the regulations call for are provided to defendants. But for states that actually do meet those requirements, I will check the necessary boxes.

KYL: And what you stated, I think, is absolutely true. We're just interested that it doesn't drag on beyond the time that normal review process would require.

Next, we talked some about FISA. One of the amendments to FISA deals with the so-called lone wolf terrorists. These are individuals who have believed to be involved in international terrorism but who we, at least, don't have any evidence that they are actually taking orders from a particular organization.

And the provision was enacted specifically because of the FBI's previous inability to obtain a warrant to monitor Zacarias Moussaoui, the co-conspirator in the 9/11 plot who was arrested before the attacks but who could not be searched pursuant to FISA because despite his likely involvement in preparations for terrorism, agents could not link him to Al Qaida or any other group.

The lone wolf provision needs to be reauthorized by the end of this year. Will you support reauthorization of FISA's Lone Wolf Surveillance Authority?

HOLDER: I expect that I will. There are three provisions that are up for reauthorization. What I'd like to do is examine how those provisions have worked, talk to people, investigators and lawyers, and get a sense of what it is they think has worked well with regard to those provisions, what perhaps needs to be changed.

At least a couple of those provisions were contained in a proposal that President Clinton made back in the late '90s and I went before a couple of congressional committees seeking their institution. One of them was lone wolf and the other had to do with roving surveillance.

So I would expect that, with regard to those, I would probably be supportive of them.

KYL: And, in fact, let me just discuss this because we discussed all three. And these are the other two.

One is the reauthorization of the Patriot Act's multi-point wiretap authority and the other is reauthorization of Section 215 of the Patriot Act.

When we discussed this, I neglected to note -- although you're probably aware -- that unlike the typical administrative subpoena, this requires a judicial approval before it's granted. First, with respect to the multi-point wiretap authority, would you support reauthorization of that?

HOLDER: Again, I would like to have some interaction with the people who are responsible for the use of that tool. It's a very useful tool. And make sure they're satisfied with the way in which it is presently constructed. But I would expect that I would be able to support that.

KYL: And with regard to Section 215 orders as well?

HOLDER: That's one that I think has certainly generated more controversy, I believe, than the other two. And I think that the examination, the questions that I need to ask people in the field and who have been using that, I'd want to know as much as I possibly can.

But as I said, the tools that we have been given by Congress in FISA are important ones. And so I would look at all three of these and make the determination as to whether or not I will be able to support them. But I would expect that I would.

KYL: We also discussed -- let's see here -- the operation streamline -- I'll tell you what. Before I ask that, we discussed the warrantless surveillance. Since that's somewhat related to this, you indicated that comments that you had made in a speech on June 13, 2008 were directed to the status of the law pre-FISA modifications from the legislative branch when Congress later -- I believe it was the next month -- modified the FISA law, there was an explicit type of search that was provided allowing warrantless monitoring of suspected communications of international terrorists predicated on the principle that the 4th Amendment gives greater leeway to intelligence investigations of foreign threats.

Do you agree with that general principle? But more importantly, in the context of our conversation, do you believe the new law is constitutional? And if confirmed, will you support its enforcement?

HOLDER: Yes, I believe that the law is constitutional. One of the things that I think is, in some ways, regrettable is that the program -- that I've not been read into and I don't know all the dimensions of it -- but as I understand it that program is a very useful tool. It's a very essential tool for us in fighting terrorism.

I think that what was unfortunate is that we could have had that tool congressionally sanctioned at a much earlier stage. I think that, as we saw in the Steel Seizure concurrence of Justice Jackson, the president has his greatest power when he acts consistent with congressional directives. And I think that, in this instance, that's instructive.

Had the administration come to Congress and asked for that enhanced authority many years before, I have no doubt that Congress would have granted him that tool. Having done that though and having had Congress say that this is an appropriate thing to do, I think, as I said, that is a very useful tool and one that we will make great use of.

KYL: We discussed, in the context of illegal immigration, an operation called Operation Streamline by the Border Patrol. And there's a Department of Justice aspect to this.

Essentially, that's been utilized in two Border Patrol sectors. A third one is now underway. I specifically discussed the Yuma border sector, for example. This is a situation where repeat illegal border crossers are put in jail for 30 days, sometimes it can be more if they've committed the crime over and over and over.

And that resulted in extraordinary disincentive for them to try to cross illegally. In the Yuma border sector, for example, there's been a 93 percent reduction in border apprehensions after just two years and much of that, at least, Border Patrol attributes to this policy of jailing the people for 30 days.

However, as with so many of these other things, it requires resources. And in that regard, a lot of the resources fall on the Department of Justice side. I hope I've gotten to you already, but I promised I would get you a letter from Judge John Roll who is the chief judge for the Arizona district, in which he outlines some of the requirements for additional judges, magistrates, U.S. marshals, prosecutors, defense attorneys, as well as the hearing space and detention facilities.

And if you'd like to address all of those things individually, fine. But just as a general proposition, if you are confirmed, will you support the appointment of the additional personnel and the resources for the items that I mentioned to try to continue to expand Operation Streamline for as long as we may need that along our southern border in order to help deter illegal immigration?

HOLDER: Senator, that was -- I did not -- I was not aware of that operation until you brought it to my attention during our meeting. I think it's actually a pretty interesting concept and, I think, one that ought to be explored and I'd want to work with you all to see if it's something that can be expanded.

I think one component of it -- at least, as I understand it. You can correct me if I'm wrong -- for an initial -- the first time a person comes across, I don't think they're jailed. I think the person is warned and then is put in jail the second time?

KYL: It's after the first crossing. In other words, it's for repeat offenders.

HOLDER: Repeat offenders, yes. And I think that is something that is worth looking at.

One of the things that has always worried me is that a disproportionate share of what is a national problem is borne by the states along our southern border. Resources that need to be directed to what is, in essence, a national problem are too often not sent to the place where it is really needed. The states of Arizona and the other states along that border.

So my commitment would be to try to work with you, as I think we have in the past, to try to determine what resources are necessary and what programs would be good to try to affect a reduction in the number of illegal immigrants who come across those borders.

KYL: I appreciate that. I just introduced your good friend and colleague, Governor Janet Napolitano, from Arizona in the Department of Homeland Security hearing. I think she and I have discussed this as well. So I look forward to the opportunity of working with both of you on trying to provide some additional deterrents to illegal border crossing.

LEAHY: Thank you.

I might note, my friend from Arizona has raised some good points. Some of them we will probably have hearings on, especially, in renewal of legislation. I will work with Senator Kyl and senators on both sides of the aisle with that but especially these immigrations matters, senators who are from border states -- I see Senator Cornyn here and Senator Kyl and Senator Feinstein is here.

A few minutes ago -- I rely heavily on their own personal experience. Before we break, the committee has received letters of support for Mr. Holder's nomination from numerous major national law enforcement and criminal justice organizations.

Among those -- I am going to put these, without objection, put these letters into the record including the letters from the -- and these are letters in support, Mr. Holder, of your confirmation. Letters from the National Association of Police organizations, the Fraternal Order of Police, the Federal Law Enforcement Officers Association, the National Association of Assistant U.S. Attorneys, the National Sheriffs Association, the American Probation and Parole Association, the International Association of Chiefs of Police, the International Union of Police Associations, the Major Cities Chiefs Association, the National Association of Blacks in Criminal Justice, the National Association of Drug Court Professionals, the National Association of Attorneys General, the National Black Prosecutors Association, the National Crime Prevention Council, the National Criminal Justice Association, the National District Attorneys Association -- I noticed that, especially, as I was once vice president of the National District Attorneys Association -- the National Law Enforcement Officers Memorial Fund, the National Narcotic Officers Associations Coalition, the National Organization of Black Law Enforcement Executives, the National Organization of Police Officers, the National Troopers Coalition, the Police Executive Research Forum -- I think one gets the drift in these kind of -- they will be in the records.

LEAHY: And with that, we will stand in a short recess.


LEAHY: I'm always hesitant to ask photographers to back off, but I'm going to have to ask everybody to give me a little break here.

We are -- (inaudible) to understand what is going on here. We don't have Senator Kennedy with us this morning. He's -- the Cabinet nominations for the committee he chairs. I should note that he's not only a former chairman but he served on the Judiciary Committee longer than any senator in the nation's history. It's his 46th year of service on this committee.

Now, we're also missing Senator Biden who made his valedictory address to the Senate this morning. We told Senator Biden, another former chairman of this committee, that we didn't mind him taking a drop-down position to become vice president. But we do miss him.

And the next person we're going to hear from is Senator Feinstein, the senior senator from California. She's also the new chair of the Senate Select Committee on Intelligence. She's a very good friend of all of ours.

And, Senator Feinstein, the floor is yours.

FEINSTEIN: Thank you very much, Mr. Chairman.

And, welcome, Mr. Holder.

HOLDER: Good morning.

FEINSTEIN: I hope shortly we'll be calling you Attorney General Holder.

I would like to begin with something internal to the department. I want to ask you a quick question on Guantanamo.

LEAHY: If the senator could hold just a moment so we can get rid of that feedback. And we'll start the clock again.

FEINSTEIN: And about the use of contractors in carrying out interrogation techniques. But let me begin with this. The inspector general of the Department of Justice has, over the past year, put out four different reports which really revealed substantial politicization of the Department of Justice. The latest one just came out on January 13th. It was an investigation about allegations of politicized hiring and other improper personnel actions in the civil rights division.

It points out that a Bradley Schlossman, a political appointee in the civil rights division, had been screening applicants for career positions based on their political briefs and had been removing disloyal lawyers from sections in the department to make way for, quote, real Americans.

The report also found that Schlossman made false statement in sworn testimony to this committee; namely, in direct response to questions the chairman put to him, the question that I put to him, and a question that Senator Schumer put to him.

My question is: Have you read this report? And if so, what actions can you take to follow up on it?

HOLDER: I have not had a chance to read the report, Senator. And yet I have read the news accounts of it. What's contained in the report is very disturbing. The notion that the Justice Department would ever take into account a person's political affiliation or political briefs in making hiring decisions is antithetical to everything that the department stands for and everything that I'm familiar with.

I served very proudly in the Justice Department under Republican attorneys general, Democratic attorneys general. And there was never a thought given to what your party affiliation was, what your political briefs were in hiring, in promotion decisions.

What we have seen in that report, I think, is aberrant but is also, I think so, one of the major tasks the next attorney general is going to have to do is he has to reverse that.

FEINSTEIN: Well, this document -- clear lying to this committee. And I believe that that's a violation of law. And I would hope that the Justice Department would take action. However you do it, I don't think we can do nothing to someone representing the government who comes before us and lies.

HOLDER: Yes. I understand that prosecutors in the U.S. attorney's office in D.C. -- again, just based on the press reports -- actually reviewed the report and have made a prosecutive determination. If I am fortunate enough to be confirmed as attorney general, I will indicate to you that I will review that determination.

I don't know all the facts of the case. But given the findings in the inspector general's report that are consistent with what you have said, I want to know why the determination was made not to pursue charges, criminal charges.

FEINSTEIN: Thank you very much.

I listened carefully to your answers to Senator Kohl's (NYSE:KSS) question about Guantanamo. I also read the speech that you made in the middle of 2008 where you very clearly stated that it should be closed. And here you said it will be closed.

Let me ask these questions about that. Do you believe military commissions are sufficient to prosecute detainees who have been declared enemy combatants and pose a danger to the national security of the United States?

HOLDER: I don't think that the military commissions that we now have in place have all of the due process requirements that I would like to see contained in them. We have to come up with a system that will deal with those three categories of people that I described -- that I believe are contained at Guantanamo. Those who I think we can safely repatriate to other countries, those who we can try, and then deal with those who, perhaps, are too dangerous but nevertheless cannot be tried.

In trying to deal with those detainees who we will try, I think we have to examine what tools will be available to us, what forums will be available to us -- Article three courts, military courts, the possibilities exists, I suppose, that we could use military commissions. But they would have to be, I think, substantially revamped to provide the due process rights that I think are consistent with who we are as Americans.

FEINSTEIN: Well, let me just discuss this with you. Assuming Guantanamo is closed and one of the big criticisms of Guantanamo has been that it's a hypocritical situation. One set of law applies to people at Guantanamo and another set of laws in the United States.

So assuming that the 80 or so -- well, however many detainees need to be relocated, can be relocated, we've checked with military and federal, supermax prisons and believe there is space for them. And they come to the United States. You would assume they would fall under regular federal law.

Do you agree with that?

HOLDER: I think we want to leave our options open. I don't know exactly what system we would put in place or what system we would utilize in order to try those people. This is something that, even as we speak, that we are trying to work through as an administration in anticipation of President-elect Obama becoming President Obama.

But the one thing I can assure you and the American people and, frankly, the world is that whatever system we use, it will be consistent with our values. It will be a system that has due process guarantees. It will be seen as fair.

FEINSTEIN: Some of us -- Senator Whitehouse, myself, other senators have just introduced a bill that is in the Intelligence Committee which would close Guantanamo within 12 months which would essentially provide for a single standard for interrogation across the United States government, namely the Army Field Manual, and prohibit of use of contractors doing interrogation.

Let me ask you about the Army Field Manual. As you know, it has been revised by the military. It is a comprehensive, thoughtful manual. It has more than a dozen different techniques. It is supported across the United States military and about 30 retired generals as being an adequate standard for the United States to use.

Do you believe that the Army Field Manual should comprise the standard for interrogation across the United States government?

HOLDER: Well, I have been impressed in my interactions with those generals and admirals as they've discussed what they are allowed to do under the terms of the Army Field Manuel, and how they don't think that the inability to do these enhanced interrogation techniques has in any way had a negative impact on, they think, their ability to get good intelligence.

So, my view is that, I think, starting with what we have in the Army Field Manuel, I think that's a good place for us to start. I personally think that the techniques that are outlined there are consistent with what we are supposed to do under Common Article 3 and the other parts of the Geneva Convention.

And I'm not convinced at all that, if we restrict ourselves to the Army Field Manuel, that we will in any way be less effective in the interrogation that we do of people who have sworn to do us harm.

This is something that the president-elect is considering now, and giving all components an opportunity to express their views -- not only the military, but those on the intelligence side. If there's a contrary view, we want to give them an opportunity to make their case.

But it is my view, based on what I've had an opportunity to review and what I've been exposed to, that I think the Army Field Manuel is adequate.

FEINSTEIN: Currently, all interrogation is done by contractors. CIA interrogation is done by contractors.

And I wrote a letter to General Mukasey in the early part of last year, challenging this, because all inherently governmental activities under the law should be carried out by government employees. He wrote back saying that these contractors were not covered under that section of the law.

I have a real issue with this.

Have you had an opportunity to look at that? And can you comment?

HOLDER: I'm not up to speed on that. But let me say this. The concern that you expressed, I think is a very legitimate one.

I think, across the board, and especially when it comes to law enforcement functions interpreted pretty broadly, you want to have employees of our government who are conducting and doing law enforcement activities. This is not something that you want to farm out, that you want to give to people who are not sworn.

It doesn't mean that these people can't be trained and everything. But I think that, when it comes to core law enforcement responsibilities -- and interrogation, I would think, would be one of those -- I would like to, to the extent that is possible, restrict that.

FEINSTEIN: There is...

LEAHY: Thank you.

FEINSTEIN: There is -- oh, my time is up. So short.

Thank you, Mr. Holder.

Thank you, Mr. Chairman.

LEAHY: Thank you, Senator Feinstein.

And I want to recognize next the senior senator from Utah, Senator Hatch, who is a longtime friend -- we have served here for decades -- and also former chairman of the committee. He has been a consistent supporter of the work of the Department of Justice.

And Senator Hatch, it's yours.

HATCH: Well, thank you, Mr. Chairman.

Congratulations, Mr. Holder, on this appointment. Welcome back to the Judiciary Committee.

This is the fourth time that you have come to the Senate for confirmation, so far without a single negative vote. We just have to see if that continues, that trend.

Candidly, there are some real issues and concerns, as you know. We've chatted about them. And you're chatting about them here. And I say that as someone who has said that I'm inclined to support your nomination.

Now, in a speech last year, you stated, "I never thought I would see that a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens. This disrespect for the law is not only wrong, it is destructive in our struggle against terrorism."

Now, do you believe that the president has -- whoever is president of the United States -- has inherent authority under Article 2 of the Constitution to engage in warrantless foreign intelligence surveillance? Or, in your opinion, does FISA trump Article 2?

HOLDER: Senator, no one is above the law. The president has the constitutional obligation to make sure that the laws are faithfully executed.

In rare instances where Congress passes a law that is obviously unconstitutional -- if, for instance, Congress were to pass a law that the secretary of defense should be the commander-in-chief, or that women would not have the right to vote -- I think that the president in that instance would have the ability to act contrary to a congressional dictate.

But the president has his power at its maximum, at its zenith, when he acts consistent with congressional direction. Now, when it comes to the FISA statute, there's an exclusivity provision in the FISA Act, that essentially says, as Congress has expressed, this is the exclusive way in which that kind of surveillance should occur.

My speech was taking the administration to task for not following the dictates of FISA.

As I indicated, I think, in response to a previous question, I think that, had the administration worked with Congress, as we are pledging to do, that that tool -- a very valuable tool, a very valuable tool -- could have been in the arsenal of the administration without any question about its legality.

HATCH: How do you -- how do you reconcile your analysis of the Terrorist Surveillance Program with the longstanding precedents of Truong and Keith before an intelligence surveillance court reviews a decision in the In re Sealed Case, and the recent Second Circuit decision in the Wadi al-Haj case?

HOLDER: Senator, I can't hear you too well.

HATCH: Well, in the recent Second Circuit decision in the Wadi al-Haj case, I think it is.

HOLDER: I'm sorry, sir. I didn't hear the whole question.

HATCH: Well, I asked you, how do you -- I'm sorry. Maybe I can pull this thing forward.

How do you recognize your analysis of the TSP, Terrorist Surveillance Program, with these longstanding precedents, from Truong, Keith, In re Sealed and the Wadi al-Haj case?

HOLDER: Well, senator, it's my belief that the statute lays out the means by which the president has the power, the executive branch has the power to do that type of surveillance.

It is, as I said, a very valuable tool. It is one that sets out very explicitly the means by which this can be done.

It seems to me that, it's incumbent upon anybody in the executive branch who is engaged in that kind of surveillance to be mindful of the dictates of FISA, and then to perform in that way.

HATCH: Well, let me just ask this question. As the former deputy attorney general during the Clinton administration, were you part of the decision-making process of DOJ that authorized the warrantless search of the residents of spy Aldrich Ames, a U.S. citizen, in 1993? Do you believe that search at that time was illegal?

HOLDER: Senator, I don't know all of the circumstances under which that occurred. I was not at Main Justice in '93. I was the U.S. attorney in D.C., so I didn't participate in '93, if that's when it occurred. I didn't participate in that decision. And I'm not familiar with all that might have happened.

I don't know whether there were exigent circumstances. I don't know exactly what happened in connection with that.

HATCH: OK. But back to our prior point, is the president's inherent authority under the Constitution -- can that be limited by a statute?

HOLDER: The president's inherent authority. Well...

HATCH: Right.

HOLDER: ... it's...

HATCH: I mean, you're relying on the statute as though that's binding on Article 2 of the Constitution.

HOLDER: Well, the president obviously has powers under the Constitution that cannot be infringed by the legislative branch. That's what I was saying earlier.

There are powers that the president has, and that have been delegated to him that he has. And in the absence -- Congress does not have the ability to say, with regard to those powers, you cannot exercise them.

There's always the tension in trying to decide where that balance is struck. And I think we see the best result when we see Congress interacting with the president, the executive branch interacting with the legislative branch, and coming up with solutions...

HATCH: That still doesn't negate the fact that the president may have inherent powers under Article 2 that eve a statute cannot vary.

HOLDER: Well, sure. The...

HATCH: Do you agree with that statement?

HOLDER: Yes, there are certain things that the president has the constitutional right, authority to do, that the legislative branch cannot impinge upon.


Now, the FISA Amendments Act of 2008 included important civil liability protections for those providers who assisted the government with the Terrorist Surveillance Program in the aftermath of the September 11th terrorist attacks. Now, according to this act, in order for the liability protections to apply, the attorney general must first file a certification with the court. Now, last fall, Attorney General Mukasey filed the appropriate certifications with the court. You're aware of that. OK.

Now, do you believe that those private partners who assisted the government should be given civil liability protection?

HOLDER: Well, that is now contained in a statute. The duty of the Justice Department is to defend statutes that have been passed by Congress, unless there is some very compelling reason not to.

President-elect Obama was against the -- immunity was granted to those ISPs, Internet service providers -- but nevertheless voted for the statute that contained that immunity. It would seem to me that unless there are compelling reasons, even given the opposition, unless there are compelling reasons, I would not -- I don't think that we would reverse course.

HATCH: OK. So, if confirmed as attorney general, you will honor the certifications by Attorney General Mukasey.

HOLDER: Yes, I believe that we would. Obviously, we have to look at if there are changed circumstances, if there is some basis to change that determination. But in the absence of that, I don't think we would.

HATCH: Well, thank you.

There have been numerous calls for prosecution of various individuals, ranging from the vice president to attorneys at the Office of Legal Counsel, for their support or approval of the Terrorist Surveillance Program and the CIA's interrogation and detention program.

Now, if confirmed as the attorney general, do you intend to undertake, order or support a criminal investigation of those individuals, including those individuals at the Office of Legal Counsel, who were involved in drafting legal opinions on these matters? Or are you willing to acknowledge that there can be differences of opinion, but they acted in accordance with their best good faith efforts under the circumstances at the time?

HOLDER: Well, senator, no one is above the law. And...

HATCH: I'll agree with that.

HOLDER: We will follow the evidence, the facts, the law, and let that take us where it should.

But I think President-elect Obama has said it well. We don't want to criminalize policy differences that might exist between the outgoing administration and the administration that is about to take over. We certainly don't want to do that.

HATCH: But would you consider these policy differences, or policy decisions?

HOLDER: Well, one of the things I think I'm going to have to do is to become more familiar with what happened that led to the implementation of these policies. I've not been read into a variety of things that I will be exposed to, should I become attorney general. And that would, I think, better inform any decision that I would make in that regard.


Let me just switch the subject -- I've got just another 40 seconds -- and explore your position -- well, let me just start with this.

I want to ask you about the constitutional right to keep and bear arms. As you know, that's a matter of great concern. I've always been baffled by those who claim they see rights that are not in the Constitution at all, but cannot seem to see the rights that actually are expressly written there.

You have in the past, both as deputy attorney general and private citizen, stated your belief that the Second Amendment confers only a collective right to keep and bear arms, rather than an individual right.

Last year you signed a friend of the court brief that took this position before the Supreme Court in the District of Columbia v. Heller case.

Now, the Supreme Court rejected that position and held that the Second Amendment right to keep and bear arms is an individual right.

In your -- in this hearing, who is right, you or the Supreme Court?

HOLDER: In the ballgame that we...

HATCH: That sounds like an unfair question...

HOLDER: No, no. No, it's fair. In the ballgame...

HATCH: ... (inaudible) but I just want (inaudible) point.

HOLDER: ... that we call our judicial system, the Supreme Court gets to be the umpire. They call the balls and strikes.

They made the determination that the Second Amendment conferred an individual right. I will obviously respect that. And any actions I take as attorney general will take that into account.

HATCH: The question I have then, were they correct, the Supreme Court?

HOLDER: Well, you know, I will say that I think, based on Justice Department precedent, there was a good argument to be made in the amicus brief that we submitted. But I think it's one that I think lawyers can disagree on. And five justices of the Supreme Court have indicated what the Second Amendment is. And so, yes, they're right.

HATCH: Thanks, Mr. Chairman. I appreciate...

LEAHY: Thank you very much, Senator Hatch.

And before I recognize Senator Feingold, I've been trying to put these letters into the record. I mentioned the letters of support from the 130 law enforcement and criminal justice organizations, civil rights organizations, victims' advocates, legal practitioners and others.

I'll now put into the record letters from several former officials, including a letter from the attorney general, the Republican attorney general under George H.W. Bush, William Barr, in support of you. And the assistant attorney general for the office of legal counsel under President Reagan and then the solicitor general under President George W. Bush, Ted Olsen; a former U.S. attorney, a Republican congressman, undersecretary for homeland security in the Bush administration, Asa Hutchinson; a Republican former congressman, Bob Barr; two former deputy attorneys general under President George W. Bush, Jim Coleman and Larry Thompson; a letter from former federal judge and FBI director, Louis Freeh, who was here earlier today; and then a number of other high-ranking Republican (inaudible) executive branch officials.

Without objection, those letters will be made part of the record.

Senator Feingold is the chair of our Constitution Subcommittee. And Senator Feingold, I yield to you.

FEINGOLD: Thank you. Thank you so much Mr. Chairman.

Mr. Holder, welcome and congratulations on your nomination. I certainly appreciated your meeting with me on short notice a few weeks ago. And I look forward to many more fruitful discussions of the important issues facing the department should you be confirmed.

And I would like to start with a topic that we discussed then and that you were just talking to Senator Hatch about. As you know, I've been very concerned about the extreme and wrong-headed legal theories that the outgoing administration came up with to justify assertions of executive power beyond what the Constitution allows.

These theories were developed by lawyers operating for Department of Justice in cooperation with lawyers from the White House counsel's office and the office of the vice president. They were used to justify actions by the executive branch, particularly in the areas of torture and warrantless surveillance that I believe were illegal and inexcusable.

I voted against the confirmations of Alberto Gonzales and Michael Mukasey because their answers on this key question, respect for the rule of law, were so troubling. So one of the things I'm looking for from you is a clear indication that the new administration and your Department of Justice will make an unmistakable break from the past when it comes to these issues.

And I already heard you make the statement that those gentlemen didn't make which is the president is not above the law.

So I will ask you the same question I asked Mr. Gonzales. First, what is your view of the president's constitutional authority to authorize violation of the criminal law, duly enact the statutes that may have been on the books for many years when acting as commander-in- chief?

HOLDER: The president, as I've said, is not above the law, has a constitutional obligation to follow the law and execute the laws that this Congress passes. If you look at the Steel Seizure concurrence of Justice Jackson that, I think, sets out in really wonderful form the power that the president has and where the president's power is strongest and where it is weakest.

It is weakest in Category 3 where Congress has indicated something contrary to what the president wants to do. That is where Justice Jackson says the president's power is at its lowest level. And I think -- I'm not a constitutional scholar -- but I think that there has never been a president who's been upheld when he's tried to act in Category 3. I think, but I'm not sure.

FEINGOLD: I believe that's right. And I want to follow that. Using the construct of Justice Jackson, more specifically, does the president, in your opinion, have the authority, acting as commander- in-chief, to authorize warrantless searches of Americans homes and wiretaps of their conversations in violation of the criminal and foreign intelligence statutes of this country?

HOLDER: I think you're then getting into Category 3 behavior by the president. Justice Jackson did not say that the president did not have any ability to act in Category 3. Although, as I said, I'm not sure there's ever been an instance where (inaudible) courts have said that the president did act appropriately in that category.

It seems to maybe it's difficult it imagine a set of circumstances given the hypothetical that you have used and given the statutes that you have referenced that the president would be acting in an appropriate way given the Jackson construct, when I think is a good one.

FEINGOLD: So you see FISA law as under Category 3, right?

HOLDER: Yes. I think the FISA law is a good statute and it has an exclusivity provision that seems to me to be pretty clear.

FEINGOLD: You discussed with Senator Hatch whether or not there was some kind of independent, inherent power of the president. Is there anything in the FISA statute that makes you believe that the president has the ability under some other inherent power to disregard the FISA statute?

HOLDER: No, I do not see that in the FISA statute.

FEINGOLD: Well, thank you. I think that's a very important break in favor of the rule of law that we've been waiting for in this country for many years. And I appreciate that answer.

As I'm sure you know, Congress will consider legislation this year to reauthorize the expiring provision of the USA Patriot Act. You were talking with Senator Kyl about that. Unfortunately, the last time Congress considered reauthorizing the Patriot Act, the administration used scare tactics and over-the-top rhetoric to discount the legitimate concerns raised by both Democrats and Republicans in Congress.

And I have to say the administration seemed for interested in scoring political points than trying to sit down and find some common ground in some of these provisions where we all want to stop those who intend to harm us but not affect the rights of completely innocent Americans.

I hope to work with you in a productive way on legitimate concerns that I and others in the Senate have about the extent of government surveillance powers. In fact, I believe you joined a bipartisan letter in the summer of 2005 proposing a number of changes to the Patriot Act.

I appreciate what you said in response to Senator Kyl about needing to hear from professionals who use these authorities. It's important to hear from experts and advocates concerned about these authorities and how they affect the privacy and civil liberties of innocent Americans.

So in light of that, will you commit to working with us on these issues to keeping the lines of communication open at all at another times and to try to resolve any differences as partners who have the same ultimate goal -- the protect the American people and the constitutional rights of our citizens?

HOLDER: Absolutely, Senator. I will be here as often as I can either in formal settings or informal ones to talk about the needs that I identified that we have in law enforcement in fighting terrorism.

I think we're going to need law enforcement tools. We need to always look at them to make sure that they are consistent with the obligations that we have, the new challenges that we face. But we always have to be mindful of the fact that there is a civil liberties component to this. And we have to make sure that we understand, as I've said in many speeches, that there's not a tension between respecting our great tradition of civil liberties and having very effective law enforcement and anti-terror tools. There's a false choice, I think, that is often presented. So I would look forward to working with you and the other members of the committee in trying to make sure that we have good, effective laws that are consistent with our values.

FEINGOLD: Thank you for that answer.

As you know, there was much about last year's FISA amendment act with which I strongly disagreed and it included, of course, the granting of immunity to telecommunication companies that allegedly cooperated with the president's warrantless wiretapping program and the inclusion of new surveillance powers without adequate protection for the rights and privacies of innocent Americans.

But one positive provision was a requirement that the Department of Justice inspector general, in cooperation with other relevant inspectors general undertake a comprehensive review of the warrantless wiretap program.

And I'm told the IG's report is due to be completed by July of this year. This report could offer the most complete assessment to date of how the program came about and operated for over five years. Will you pledge the full cooperation of the Department of Justice for this effort? And will you pledge to support making as much of the report public as possible so that the American people can finally learn of the full story of this illegal program?

HOLDER: Absolutely. I think the report that will be done by the inspectors general and led by a fine inspector general at the Department of Justice will be an important tool, an important assessment tool for us to find out how these statutes have been working, how these provisions have been working.

I know that Glenn Fine and the people working with him will not be shy in expressing any concerns that they have. But they'll also not be shy to tell us how these tools have been effective. I think that that is going to be a good starting point for a conversation that I think we need to have about where we stand with regard to the state of the law and give us a good sense of are we in a good place, are there things that we need to change.

So I look forward to that report. And I will do all that I can to ensure that as much of that is made public as is possible.

FEINGOLD: Thanks. Your testimony recognized the importance of restoring the credibility of the Department of Justice after the terrible issues involving the stewardship of Mr. Gonzales. And you correctly note that despite the steps taken in the right direction by Attorney General Mukasey, there's more work to be done.

Certainly, the release this week of the OPR IG report on politicized hiring and other personnel actions at the civil rights division only underscores that point.

As with so many of the mistakes and abuses of the last administration, I don't think it's just enough to end the misconduct. The lingering effects of that misconduct must also be addressed. So whether it's politicized hiring in the civil rights division or immigration judges or allegations of politically motivated prosecutions as in the Siegelman (ph) case, and there may still be many more.

What will you do to make sure that justice is truly served and that those who engage in wrongdoing don't, in effect, have the last laugh? And in addition, will you cooperate in any further oversight of these matters by the Congress especially with respect to documents that have, until now, been withheld?

HOLDER: Well, one of the things I'm going to be to do, I think so, as attorney general in short order is to make -- basically do a damage assessment and understand in a way that I do not now how has the institution been harmed by the activities that were uncovered by these inspector general reports.

What has been the lasting impact? There's certainly been damage to the department's reputation. I'd want to know if, as a result of those actions, has there been any structural damage to the department.

I will work to see -- make that assessment. I will be more than glad to come back to this committee and share with you what I have found and, perhaps, with some suggestions that I might work out with you all, how we might prevent those kinds of things from happening in the future.

I look forward to working with you in that regard.

FEINGOLD: What about the documents?

HOLDER: To the extent that there are documents that will help this committee in that assessment and to the extent that there is not a reason why we should be holding on to them, I will make them available, all with the presumption that, you know, transparency is the best thing and making available documents makes the most sense.

There are institutional concerns that we have that I think should be respected. But I also respect the oversight obligations that this come has. And to the extent that I can make documents available in this context or in others, I will do that.

FEINGOLD: Thank you, Mr. Holder.

Thank you, Mr. Chairman.

LEAHY: Thank you. Thank you very much, Senator.

Senator Sessions is here. Of course, Senator Sessions is also a former U.S. attorney. He knows (inaudible) and we've relied on him for that experience.

Senator Sessions, it's over to you.

SESSIONS: Thank you, Mr. Chairman. And congratulations, Mr. Holder on the nomination. You certainly bring excellent background and experience to the job as a federal prosecutor for a number of years and as a federal judge.

I think you come to the office with far more experience than Attorney General Gonzales had. I thought he was a good man, but when you lack experience, sometimes, you can make errors unintentionally. I think Former Attorney General Janet Reno was a state prosecutor, but was really inexperienced in a lot of the big issues that come before an attorney general.

So you do have the background. You have a great family. It's good to see your wife, a fine physician and an Alabamian and the sister of one of the leading -- one of the leading persons in changing the racial situation in the south as she led the fight to alter the segregated higher education policies that were so often conducted in the south. And those were unacceptable, and she did a very important, historic role -- played a big historic role in that and is so recognized today.

So I know you're committed to justice and fairness and equal rights. I just want to ask a few things that we've -- you've had a lot of questions so far about national security. You made your opening statement. You said I will use every available tactic to defeat our adversaries. That's basically what President Bush said. I'm charged with defending this republic; I'm going to use whatever power I can.

And then you go on to say and I will do so within the letter and the spirit of the Constitution. Well, first of all, fundamentally, isn't it the controlling authority -- the constitutional requirements first? Would you agree with what the Constitution actually requires is the fundamental requirement of public service?

HOLDER: I'm sorry? The Constitution requires?

SESSIONS: What the Constitution requires is what you're committed to do. Is that not correct?

HOLDER: That is correct.

SESSIONS: Now, the only thing that worries me about the spirit of the Constitution is that the spirit tends to be in the eye of the beholder. And what you might think is spirit of the Constitution, somebody else might not.

And I guess I'm worrying about these intelligence offices and military offices and people in the Department of Defense who attempted to protect and defend this country in a time of great concern after the 9/11 attacks and if you formed a prosecution policy, you would want it to be based on plain law of the Constitution and not what somebody might think is within the spirit of the Constitution, would you not?

HOLDER: Well, Senator, as you know, having been a prosecutor and a great U.S. attorney yourself, there are a whole variety of things that have to go into making a prosecutive determination: What was that person's intent? Did that person act under the thought that he or she had authorization from a higher authority? These are all the kinds of things that would have to be weighed in trying to make a determination whether somebody had acted appropriately, inappropriately, lawfully, or unlawfully. Those are the kinds of things, I think, that have to be weighed.

SESSIONS: I certainly agree with that. I do just note that you in your June 2008 speech to the American Constitution Society you note, you say that actions after 9/11 were excessive and unlawful. Is that your prosecutorial decision, or is that your impression based on what you may have felt at the time?

HOLDER: I think that's a fair way of putting it. I think it's an impression. Again, I've not, at that point -- and I'm not now -- read into all of the programs that I was taking the administration to task there about. I was focusing on the surveillance program.

There may be components to that that I don't understand, am not familiar with. I've had a chance to look at everything's that been written -- not everything, but a lot -- that has been written about it, have looked at the, I guess, the white paper that the administration put out justifying its view of how it could use the FISA statute.

SESSIONS: I thank you for just saying that. It makes me feel somewhat better.

I've been in probably 30 hearings in Armed Services and in Judiciary on these matters. They're very complex. The law changed as time went by. Supreme Court cases came and clarified uncertainties, sometimes overruling what had been previously approved to be legal.

And so I think that is important. It makes me feel a little better about your next statement in that speech where you said we owe the American people a reckoning. You're not threatening and not guaranteeing you're going to prosecute people until you fairly evaluate all of the facts and the evidence and the law they thought they were dealing with at the time?

HOLDER: No, senator.

And, actually, when I used that term, that's gotten a lot more attention than I think it deserves. I really was only talking about sharing information with the American people to the extent that we could about what was done in their name. I wasn't really thinking about prosecutions at all in that regard. I was thinking about information sharing.

SESSIONS: Well, you know, Jack Goldsmith, the man who wrote the book The Terror Presidency, he was a brilliant lawyer in the Department of Justice. He felt that some of the things that the Bush administration did were in error. And he's been critical and cited as a critic of the administration.

But he made these comments: One consequence of the OLC's authority -- that's the Office of Legal Counsel, and that's an office within the Department of Justice, as you know, that is given authority to express opinions -- he said one consequence of their authority to interpret the law is the power to bestow on government officials what is effectively an advance pardon for actions taken at the edges of vague criminal laws.

In other words, if something is vague, and the attorney general, Office of Legal Counsel, says it's OK, then isn't an official in the intelligence agencies and the military or the Federal Investigative Service entitled to rely on that until it's reversed?

HOLDER: Well, one of the things that you'd have to take into account in making a prosecutive decision, or just making a determination as to whether somebody had acted appropriately, would be to see under what authority they were acting. An OLC opinion that gave a person the ability to do something and was reasonably relied on, was appropriate -- and the opinion was appropriately and in good faith drafted -- would be something that would obviously have to be taken into account in deciding whether somebody acted appropriately or not. That would be a huge factor.

SESSIONS: I think that's true. And sometimes those opinions could've been in error. As attorney general of Alabama, I used to have to issue those opinions. And it did protect the offices of the state until some lawful court reversed it.

And I just think we need to remember that as these officers are out there trying to serve their country. Attorney General Mukasey says you rely -- he said if you don't follow that principle, it would tell people you rely on a Justice Department opinion as part of a program, then you will be subject to criminal investigation when and as and if the tenure of the person who wrote the position changed or the political winds changed. In other words, a person's got -- the average guy out there serving his country has got to be comfortable that he can rely on the opinions of the Department of Justice.

You know, I'm glad you say that.

With regard to the FALN clemency situation, we had a hearing on it in the Senate, and it was pretty contentious. The United States Senate passed a resolution that was 95-2 -- I think that most every member of this committee supported it -- that deplored that pardon and included "whereas the release of terrorists is an affront to the rule of law, the victims and their families, and every American who believes that violent acts must be punished to the fullest extent of the law," then it deplored those activities. We discussed that at some length, and my time is winding down now. Maybe we'll be able to talk about it a little later.


SESSIONS: But fundamentally let me say this: I thought it was an inexplicable pardon. I believe that it reversed the recommendation of Margaret Love, a very fine pardon attorney who I believe you removed, and imposed and allowed this to go forward in a way that I think is unjustifiable -- I just think is unjustifiable. And you indicated you learned from that process.

Let me ask you fundamentally now...


LEAHY: A vote is started.


LEAHY: And the time is up. Do you want to make a short...

SESSIONS: I've got...

LEAHY: Because we're going to have to...

SESSIONS: Oh, I'm over. I thought I had 20 seconds.

LEAHY: We are going to have a second...

SESSIONS: I'm over 20 seconds...

LEAHY: We are going to have a second round of...

SESSIONS: I'll just ask this simple question: You've indicated you made a mistake. Do you believe that the decision and the ultimate act of President Clinton to pardon these individuals was wrong?

HOLDER: I think it's a difficult decision that the president had. I think that there were a lot of people who were in support of that clemency request: Nobel Peace Prize laureates, Coretta Scott King, President Carter, Desmond Tutu, Cardinal O'Connor in New York. When one looks at the nature of the offenses that put those people in jail, these were criminals. These were terrorists. These were bad people. But the president's determination was that they had not committed any acts themselves that resulted in death or bodily injury.

And on that basis, and given the amount of time that they had served in jail -- roughly 16-19 years, most I think 19 years -- and given the length of the sentences that they had received, it was his determination that the clemency requests were appropriate, taking all that into consideration.

SESSIONS: But do you personally now -- I know the president has justified it...

LEAHY: Senator...

SESSIONS: Do you personally have an opinion after all of this whether it was right or wrong?

HOLDER: I think that given all that I have described that what the president did was reasonable.

LEAHY: Senator Schumer, you're also, like all of us, are juggling three different committees. I'm going to recognize you. I'd ask -- the vote started, several of us would be leaving, myself included -- at the end of your round of questioning, would you -- we will then stand in recess until 2:15 at the end of Senator Schumer's questions.

And, Senator Sessions, I guarantee you will have another round.

SESSIONS: Thank you.

SCHUMER: Thank you, Mr. Chairman.

Thank you, Mr. Nominee. And I appreciate -- I'll try to stick with my 10 minutes and get over to the vote.

And I want to thank you for your years of service. I worked with you when you were deputy attorney general. I was impressed then as I am now with your integrity, your experience, your excellence.

Much of the discussion leading up to your hearing has focused on the question of your independence: Will you be the people's lawyer or the president's lawyer? And I think this is absolutely and correctly at the heart of the matter, because every other day, it seems, another scathing report from the inspector general hits us on the head like a hammer reminding us that the likes of Alberto Gonzales and Bradley Schlossman sullied and demoralized a great legal institution -- probably the finest civil service institution in the country -- that they really dragged through the mud.

So we're in dire need of a less political and more independent Justice Department beginning at the very top. And I spent a lot of time in the last Congress, as you know, making this point. Four years ago, moreover, the question of independence was my central consideration when Alberto Gonzales sat in the witness chair: that he was too close to the president, didn't understand the nature of the job of attorney general.

As I said when I voted against him at the time, "It's hard to be straight shooter when you're a blind loyalist." And I think that in my entire Senate career, the vote against Alberto Gonzales may have been one of the most vindicated by subsequent history.

So some of my friends across the aisle are questioning your independence and making ludicrous comparisons to Mr. Gonzales. And they're cherry picking a few episodes from your long and distinguished career and ignoring, conveniently, other more substantial actions you've taken that manifest a true independent streak in the best traditions of the Justice Department.

My colleagues have mentioned them already. I'm not a fan of either the Marc Rich pardon or the FALN. I disagree with your ultimate analysis on FALN -- and on Marc Rich, I guess, although you certainly said that was a mistake. I was a critic then, and I'm a critic now.

The essential point, though, is that many who have criticized your role in those pardons -- Democrat and Republican alike -- recognize your entire career and vigorously support your nomination: Jim Comey, Louis Freeh, the Fraternal Order of Police.

So if we're going to make an informed assessment about your independence, I think we have to look at the entire record. And as I look at your background and record, it's clear that you are less connected and less beholden to the new president than most attorneys general in the last 50 years.

Let's review for a moment. I have a few quick questions for you.

Have you ever been President-elect Obama's personal lawyer, like William French Smith had been for years for Ronald Reagan?

HOLDER: No, I have not.

SCHUMER: Have you ever been a staffer to Barack Obama, like Ed Meese had been for President Reagan?

HOLDER: No, I have not, senator.

SCHUMER: Have you ever served as official counsel to Barack Obama, like Alberto Gonzales had been for George Bush?

HOLDER: No, I have not, senator.

SCHUMER: And, by the way, has Barack Obama ever dispatched you to the hospital room of a sick government official...


... to get him to authorize an illegal wiretap program?

HOLDER: (Inaudible)

SCHUMER: Yeah, I didn't think so.

HOLDER: No, he has not.


SCHUMER: All right.

And I take it you're not a close relation to the new president, like Bobby Kennedy was to Jack Kennedy?

HOLDER: No, we're not related by blood, though people do say we look alike.


SCHUMER: I don't think so.


Although you're both very handsome.

HOLDER: I've heard he's handsome. I was going to try to, you know, draft on that.


Let me ask you this: Have you ever been a professional politician, like, say, John Ashcroft or Dick Thornburg?

HOLDER: No, I've never run for office.


Before last year, at age 57 after 30 years as a lawyer, did you owe any paid job or government appointment to Barack Obama?

HOLDER: No, I have not. I do not.

SCHUMER: When did you first meet the president-elect?

HOLDER: After he was elected but before he was sworn in as a senator.


What did the president-elect tell you about what kind of attorney general he wanted you to be?

HOLDER: He said, Eric, you've got to understand you've got to be different. You know, we have a pretty good relationship. That's probably going to change as a result of your taking this position. I don't want you to do anything that you don't feel comfortable doing. You've got to be my counselor. You've got to tell if I'm going to get myself in any kind of trouble. I understand that the Justice Department is different. I understand that you're going to be different.

He said he hoped that it wouldn't affect our relationship, but he says he understands that I have a different obligation than other people in the Cabinet.

SCHUMER: OK. Well, that's refreshing, because I doubt that President Bush ever had that kind of conversation with Alberto Gonzales. And it's a refreshing change.

So when we talk about independence, we need to keep in mind the notion of independence is often a two-way street.

I welcome your nomination, not just because you will be a different kind of attorney general but because Barack Obama will be a different kind of president.

So I really want to thank you. I believe that your nomination, should you be approved, will end the rancid politization at the department, because it will mean an end to waterboarding and other shameful forms of torture and because it will mean a full return to the rule of law and our reputation around the world.

SCHUMER: I believe you, unlike some of your predecessors, will be the chief law enforcement officer of the land above all. So I want to look forward, not backward. We should be focus is on how you will lead the department and how you'll change it. And so in that vein, I have some questions for you.

Now, Senator Leahy touched on this, but I want to elaborate because I had questioned quite pointedly and carefully Mr. Schlossman. I thought then that he wasn't telling the truth. And, of course, the IG's report said he made false states to Senator Leahy, Senator Feinstein, and several to me.

So last week -- and I am not satisfied that the referral to the U.S. attorney was just, you know, they said they're not going to prosecute without any explanation whatsoever. I wrote General Mukasey asking them that the matter of Schlossman be additionally referred to Nora Dannahey. She's the acting U.S. attorney for Connecticut. She's been made special prosecutor already to look too possibility of -- possibly criminal activity in the department's hiring and firing.

Do you see any problem with making such a referral should you be selected as -- or approved as attorney general?

HOLDER: Well, I'd say that I have great respect for the lawyers who work in the U.S. attorney's office in D.C. at the office that I had the great privilege of leading. There are good lawyers there. And the fact that it is -- if it's accurately reported that they had a chance to fully look at that matter and they declined prosecution, that would be significant for me.

On the other hand, I'm very disturbed by what I read or have read about that is contained in the report where the inspector general essentially makes a finding that false testimony was given before this committee.

And as I indicated to Senator Feinstein, I would like to -- myself -- review the determination that was made by the U.S. attorney's office.

SCHUMER: At the very minimum, without disclosing any confidential grand jury or other information, could we at least get a report on why the U.S. attorney in D.C. refused to prosecute? Was it that, you know, was it that he disputed the lying to Congress terminology of the IG? Was it that he didn't think he could prove the case? Perjury cases and false statement cases are difficult?

Would you at least be willing to commit to us to do that?

HOLDER: I will to the extent that I can share that information. I mean, grand jury secrecy frequently prevents a prosecutor from sharing all of the reasons why he or she has made a particular determination.

But to the extent that we can, I will do that.

SCHUMER: Good. Because I'm not asking for specific details of who said what before the grand jury but just why the ultimate conclusion was made. And if you disagree with it, I presume you would refer to -- you'd look somewhere, and Ms. Dannahey's office is the right place to go.

Just one more on the Civil Rights Division. Again, a crown jewel of this Justice Department, the report from the IG revealed in many ways it was more like a campaign headquarters than a hall of justice. The report luridly detailed the remarkable extent to which the Civil Rights Division -- what a great tradition in that body -- through Democrat and Republican presidents alike, under George Bush the first, they took the voting rights act to a greater extent than anybody else.

And then from 2003 to 2006, one single appointee, political appointee, Schlossman, hired 63 lawyers, 20 percent of the lawyers working at OCR, on the basis of their conservative political leanings. It's a blatant violation. It would be a blatant violation if some did -- if a Democrat did the same thing on the liberal side.

And one supervisor saying to another that he took his coffee Mary Francis Berry style -- black and bitter type of overtly racist statement all the more shocking when it's a supervisor at the Civil Rights Division who says this.

What are you going to do to make sure that this doesn't happen again? What are you going to do to sort of clean up and straighten out the Civil Rights Division with its great tradition?

HOLDER: Let me be very clear. The attempt to politicize the department will not be tolerated should I become attorney general of the United States. It will be my intention to return that division and the Department of Justice as a whole to its great traditions and the great traditions that it had under Democratic and Republican attorneys general and presidents.

What we have seen revealed in these inspector general reports is almost unbelievable to me. It is clearly abhorrent. And it's inconsistent with the way in which I would run the Department of Justice.

SCHUMER: We expect a thorough cleaning up of the Civil Rights Division. Setting it back on its civil service course, if you will.

HOLDER: It is my intention to devote a huge amount of time looking at the Civil Rights Division and restoring that division, making sure that there's a sense of mission, there's a focus on the things that have made that one of -- as I think you appropriately call it -- one of the jewels in the Justice Department.

I see somebody sitting behind you, Billy Omens (ph), who served in the civil right division very proudly. He the kind of person who we need in the division. He's the kind of person who should be supervising people. He's the kind of person who should be teaching the young lawyers in the Civil Rights Division. That is what is my intention; to bring the Civil Rights Division back to the kind that existed when Billy Omens (ph) was there.

SCHUMER: Thank you, Mr. Holder. And I am quite certain from your record, the basis of your testimony today you'll be confirmed and will be a really fine attorney general.

SCHUMER: We are adjourned till 2:15.


LEAHY: It is amazing what a busy day this is in the Senate. Senators have been in and out. There have been numerous confirmation hearings going on.

There have been farewell speeches on the Senate floor, one by a man I have sat with on this committee for over 30 years, Senator Joe Biden of Delaware, who is leaving to become vice president. The other, a senator, my neighbor from the State of New York, Senator Hillary Clinton. And so, a number of senators have left to be there for their farewell.

I have apologized to each one of them. We've been -- that, obviously, I've been here, as have other people chairing such hearings.

They are now in the process of swearing in a new senator from Illinois, who is no longer Senator-designee Burris, but now Senator Burris.

So, I'm going to go next, speaking of elected or appointed, the newly re-elected, the newly re-elected and senior senator from South Carolina, Senator Graham. I mention the senior senator, because one of his predecessors, whom I also served, Senator Hollings, served as junior senator from South Carolina for how many years, Lindsey? About 30?

GRAHAM: Thirty-six.

LEAHY: Thirty-six years. The most senior junior senator ever. That's because Strom Thurmond, who came here with the 1st Congress -- the Continental Congress...


... was the senior senator.

But Lindsey Graham is the senior senator from South Carolina. He's recently been in Afghanistan, Pakistan, Iraq with Senator Biden. We're glad to have you back.

Go ahead.

GRAHAM: Thank you. I enjoyed my trip with the vice president- elect, and I did a lot of listening. It was fun.


LEAHY: That apparently is not -- that apparently is not the totally inside joke as you might have thought it was.


GRAHAM: Thank you, Mr. Chairman. And I can assure you, I'm genetically term-limited. So, I do have a tough act to follow in Thurmond and Hollings.

But the one thing I would like to say to our nominee, I cannot think of a more personal decision one can make than hiring a lawyer. And you'll be the nation's lawyer, the attorney general.

But my perspective on these matters is that the president of the United States deserves the ability, within reason, to pick a lawyer in the attorney general that he or she has great confidence in. And the fact that this president has chosen you speaks well for you. And given your resume, even though we have probably a lot of political differences, I could understand why he has great confidence in you.

Having said that, as we move forward, one of the big issues facing this nation, and the legal community within our nation, is what to do with detainees that are captured in what is called the war on terror?

It's complicated. It's emotional. But I think it's very important that we get it right.

And, Mr. Holder, is it fair to say that we're at war, in your opinion?

HOLDER: I don't think there's any question but that we are at war. And I think, to be honest, I think our nation didn't realize that we were at war when, in fact, we were.

When I look back at the '90s and the Tanzanian -- the embassy bombings, the bombing of the Cole, I think we as a nation should have realized that, at that point, we were at war. We should not have waited until September the 11th of 2001, to make that determination.

GRAHAM: I'm almost ready to vote for you right now.


I'll stop.

I agree with you. We're at war. And the enemy that we're at war with, would you agree, is an unconventional enemy?

HOLDER: No question about that. There is not going to be a surrender signing on the battleship Missouri. This war is not going to end in that way.

GRAHAM: And the people who are fighting, they don't wear uniforms.

HOLDER: They do not, which...

GRAHAM: They operate outside the law of armed conflict.

HOLDER: They do.

GRAHAM: Maybe some of the most vicious people our nation has ever fought in our history.

HOLDER: I would agree with that.

GRAHAM: If you were trying to explain to a civics class in the ninth grade the battlefield, where is the battlefield in this war? What makes up the battlefield?

HOLDER: That's a very interesting question, senator.

The battlefield -- there are physical battlefields, certainly, in Afghanistan. But there are battlefields, potentially, you know, in our nation. There are cyber battlefields that we're going to have to -- where we're going to have to engage.

But there's also -- and this sounds a little trite, but I think it's real -- there's a battlefield, if you want to call it that, with regard to the hearts and minds of the people in the Islamic world.

We have to do things in a way, conduct ourselves in a way that we win that battle, as well, so that people there who might otherwise be well intentioned, do not end up on the wrong side and against us.

GRAHAM: The way I put it, there's a higher ground in every war. And there's physical higher ground, and in this case, there's the moral high ground, which I think is essential to win this war, is for America to maintain the moral higher ground. Do you agree with that?

HOLDER: Yes, I do.

GRAHAM: Now, when you talk about the physical battlefield, if our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaida worldwide, would you consider that person part of the battlefield, even though we're in the Philippines, if they were involved in an Al Qaida activity?

HOLDER: Yes, I would.


Now, as we decide what form to try people and how to interrogate them, and how to detain them, the only thing I ask of this new administration is that we not criminalize the war. I'm not asking for the ability to be inhumane.

Matter of fact, I am crying out for our country to realize that, if we capture somebody in this war on terror, and no matter how vicious the enemy may be, it becomes about us, not them. Once they're in our capture, it's not about who they are or what they believe. It's about our values.

So, as we close Guantanamo Bay, I would just urge you to sit down with military lawyers, people in both parties and great legal minds, and let's think through this process of how we can be at war with this enemy and protect ourselves, and maintain the moral high ground that will be essential.

And the hard case for me -- and, I think, for the country at large -- is that person that is captured in this war on terror, because of the sensitive nature of the information, may not be subject to the normal criminal process, whether it be a military trial or an Article 3 trial. But we know, based on competent evidence, that they will go back to the fight.

Have you thought much about what to do with that group?

HOLDER: Struggled with that, and continue to struggle with that. These are extremely difficult questions, the ones that you have posed.

And it's one of the reasons why in my opening remarks I said it, and I meant it sincerely, that all of the knowledge and all of the good ideas does not reside in the executive branch.

You're a person who has spent a lot of time thinking about these issues. We had a very interesting conversation when I came to visit you, and had, I thought, some very, very interesting perspectives and some good thoughts. This committee has been engaged in thinking about the very questions that you raise.

We are going to have to come up with American solutions. These are truly not Republican and Democratic issues. I mean, we as a nation -- and this committee in particular -- I think has to come up with a way in which we resolve those issues.

And the one that you have raised is one that has given me a great deal -- I've given a great deal of thought to. How do we deal in an appropriate way with somebody who we know is a danger to this country, and yet be true to our values, and, in that battle for the hearts and minds that I discussed, make it appear that we're treating this person sworn to harm us, treat that person in a fair way, in a way that frankly they would not treat us?

GRAHAM: Absolutely.

HOLDER: And how we resolve that issue, that particular issue, I think will say more about us as a nation than almost anything.

GRAHAM: Well, let me put on the record sort of a goal I think we all share, that if we hold someone in prison, in a military prison, it will not be because somebody in the executive branch said so. It has to be as a result of a process that would allow independent checks and balances.

I really believe that the federal courts have a tremendous responsibility and role in answering the questions before -- that we're talking about now. So, my goal would be, is that, if we hold somebody off the battlefield that we think is part of the enemy force, not subject to normal criminal trials, that it will be done with a process that people have confidence in, that the person will be held only after an independent judiciary agrees that the evidence is competent, and that the executive branch collaborates with the Congress and other respected institutions in making that decision.

I think that's sort of been lacking. If we can find that common ground, I think the country will be better off.

And when it comes to the trial of people suspected of committing a war crime, I hope you will look long and hard at our military justice system. I've been part of it for 25 years. And I think you've seen at Guantanamo Bay, some of the sentences show that the jurors, the panel members are very reflective. And they evaluate the evidence, and they take their duty very responsibly.

I'd end on this note. Our allies are struggling with this problem. Every other nation deals with this through the criminal, the domestic criminal lens.

And as I understand it, there is no concept in domestic criminal law that would allow you to hold someone indefinitely without trial.

Do you agree with that?

HOLDER: I think that's right.

GRAHAM: And let me tell anyone who's listening, there should not be. No one should be held in a domestic criminal environment indefinitely without the right to a trial.

But I do believe that every person who commits to going to war against America, or any other peaceful nation, should be held off the battlefield as long as they're dangerous.

Do you agree with that?


GRAHAM: There is a difference between a warrior and a criminal. And if you want to know that difference, go read the transcript of Khalid Sheikh Mohammed as he testifies before the combat status review tribunal. There is no doubt in my mind that he is at war with us and that if he ever was released he would go back to the fight. So there's a difference between a common criminal and a committed warrior.

The military justice system is humane, is transparent, I think is the right forum. And I look forward to working with you as we answer these hard questions.

So, God bless. Thank you for your willingness to serve your country in this capacity.

HOLDER: Thank you, senator.

LEAHY: I might say, just for a moment, Mr. Holder, Senator Graham has discussed these issues with me. Sometimes we've been on long trips, sometimes just privately. I've relied on his own experience in the Judge Advocate General's Corps.

We've also had a number of military, as Senator Graham knows, come before us and testify, sometimes risking their own careers to say what they feel should be done. We sat there with two- and three-star generals testifying that way. And they and Senator Graham and others have been most instructive to the members of this committee who have not been in the military of how the uniformed court of military justice works.

And I would suggest, should you be confirmed as I fully expect you to be, that you may want to spend -- and we'll obviously have hearings on this subject -- but you may want to spend some time in informal discussions with people like Senator Graham, myself and others, both Republicans and Democrats on this committee, maybe in an informal setting, who will at least let you know what our views are and have the kind of candid, off-the-record discussion that one should, because this is a major issue facing our country.

HOLDER: Yes. I think that's actually a very good idea. And I referenced, if you want to talk about the substance, the conversation that I had with Senator Graham. I spent probably half an hour, 45 minutes, with him. And I left there thinking that this is a gentleman who has thought about these issues an awful lot. I think what you say about our military system of justice is correct, not only in the sentences that have been handed down but also the evidentiary rulings the judges have made there, things that I think a lot of people did not necessarily expect to see in that system.

And I think that what you're saying, Mr. Chairman, makes an awful lot of sense. There is a -- as I said, you all have grappled with these issues a lot longer than I have, quite frankly. And it would be foolish not to tap into the wisdom that resides in this committee.

LEAHY: And if there is no objection, I want to put into the record a letter of support from 10 retired generals and admirals -- this is 10 retired generals and admirals that support you, Mr. Holder. They're experts in military issues including military detention, interrogation.

They have reflected the conscience of the nation in this area. And they say in their letters, to summarize them, that they feel you will keep America safe while protecting our basic constitutional rights. And I think that should be considered.

Now, when I first came on this committee, I served with Senator Mathias of Maryland, a man who showed great conscience. And I served for years with Senator Sarbanes of Maryland, a person I know and know well, also traveled with. And his successor is now here, Senator Cardin, who carries on the tradition of thoughtful senators from Maryland.

And Senator Cardin, thank you for being here. The floor is yours.

CARDIN: Well, thank you, Mr. Chairman. I had great mentors in Senator Mathias and Senator Sarbanes.

Mr. Holder, thank you. Thank you for being willing to serve your country. And I want to thank your family, because we know the sacrifices that they have to make in the long hours that you are going to need to put in as the attorney general of the United States.

I want to talk a little bit about the Civil Rights Division. The Civil Rights Division has such an important function in our country. They're responsible for the enforcement of the federal statutes against discrimination, the Civil Rights Acts, the Voting Rights Act, the Equal Credit Opportunity Act, the Americans with Disabilities Act, National Voter Registration Act, and Uniformed and Overseas Citizens Absentee Voting Act, and the list goes on and on. It's a critically important division in the Department of Justice and for the people of this country.

The record over the last eight years has been alarming. There have been so few important cases brought by the Civil Rights Division over the eight years in, you know, in just about every category. They have resisted being proactive in protecting the civil liberties and civil rights of the people of this country. When you look at the allocation of resources that's been given to the Civil Rights Division, it's been reduced. We've already had several senators comment about Bradley Schlossman's activities and his partisan politics in the personnel decisions made in the Civil Rights Division -- illegal activities, I might add.

I want to give you an opportunity to tell me your own personal commitment to the Civil Rights Division if you are confirmed to be attorney general and how you will direct that division head as far as the historic role of the Civil Rights Division and what you expect to see during the Obama administration.

HOLDER: Senator, I agree with you. The Civil Rights Division is unique. It is in some ways the conscience of the Justice Department. And I think in some ways you can measure the success of an attorney general's tenure by how the Civil Rights Division has done.

The Civil Rights Division has not necessarily gotten the attention, the resources, the support that it has needed and requires over the last few years.

Should I become attorney general, that would be my intention: to give it the resources that I have and the attention that the division needs and to revitalize a place that has really tons and tons of great lawyers and paralegals and support staff, people who are dedicated to the mission of that division -- people who work hard and stay there, you know, extraordinarily long periods of time through the course of their careers when they could go and do other things and get paid far greater amounts of money. They're committed to the mission of the division. And that, I think, has got to be one of the things I really focus on should I become attorney general.

One of the things we're going to have to do as an initial matter is to get a great assistant attorney general, a person who is steeped in civil rights law, a person who is respected, and a person who will understand that the job he or she is going to be given is going to be a tough one, and will be committed to revitalizing that great division.

I think we can do it. I think we'll also need the help of the members of this committee in terms of resources, oversight -- there's a whole variety of ways in which I think you could help us. But that will be a priority for me.

CARDIN: I appreciate that.

I want to just mention one example. In voting rights cases, the record over the Bush administration: They've brought zero cases on behalf of African Americans for voting rights between the years of 2001 and 2006. Yet they were there to defend the Georgia draconian voter ID law that's been called the modern-day poll tax.

In my campaign for the United States Senate in the 2006 elections, there were deceptive practices that took place in Maryland and in other states around the nation that were aimed directly at reducing minority participation in the elections. We asked the Justice Department to take a look at those practices. Senator Schumer sent the letter in asking for action. Senator Obama, then Senator Obama, filed legislation to strengthen deceptive practices laws to give the Justice Department additional tools, if they need those additional tools, to make it clear that we won't tolerate those who are using campaign tactics to suppress minority participation.

I would like you to review the laws that you have, the tools that you have today, and come back to us and let us know whether you have adequate tools available to you so that the federal government can be actively involved to make sure that those types of practices that took place in my state and many other states around the nation -- such things as sending out letters in minority communities telling them the election day was the wrong day to try to keep them from voting -- that you have the tools to make sure that the full weight of the attorney general, the Department of Justice, can be used to prevent those types of activities.

HOLDER: Senator, I appreciate that offer. And should I be confirmed I will take you up on it.

The needs are great in that division. I hope the expectations are high, and I hope that we will meet those expectations.

This is a president-elect who is committed to the very things that you are talking about. This is an attorney general, or a person who could be the attorney general, who shares the concerns that you have.

CARDIN: Well, again, I thank you for that.

I'll mention one other area that I think shows a disparity, a racial disparity in our country. We've had a lot of discussion about the crack cocaine issue. And when you take a look at the statistics, African Americans now serve virtually as much time in prison for drug offenses as whites do for violent crimes.

Thirty-seven percent of the people arrested for drug violations, 59 percent of the convictions, and 74 percent of those sentenced to drug offenses are African American, even though they represent only 15 percent of the population.

My point is this: We know we have disparities in our laws. We know we have disparities in the way prosecution is centered, and it's very clear that's true in regards to crack cocaine. We need a strategy to make sure that we rid ourselves of those types of practices in this country.

I don't want to be soft on those who are violating our criminal statutes. I want to make sure that we are tough. Drugs are a huge menace to our society, and I want to do everything I can to make sure we have effective laws. But let's make sure it is fairly applied in this country.

And I would like to have your commitment that you will work with us and come up with a strategy where we can have, I think, a fairer system of justice and a tough system as well.

HOLDER: Well, I think that's right.

We have to be tough. We have to be smart. And we have to be fair. Our criminal justice system has to be fair. It has to be viewed as being as fair.

When I was a judge here in Washington, D.C., I saw in the people who served on juries here a knowledge, a recognition, that -- at least in their minds -- parts of the criminal justice system were not fair. And you saw it in some of the verdicts that I saw in cases that I presided over.

And when I would speak to jurors afterwards and say, well, you know, "Why did you vote this way in a case where it seemed to me the government had all the evidence that proved all the elements of the crime?" And they'd talk about inadequacies in the criminal justice system, disparate penalties, and say that, you know, "Really, I'm not going to be a part of that."

And so I think those are the kinds of attitudes that we have to recognize that are out there and come up with a system, as you say, that is tough, smart and fair.

CARDIN: I have time for one more question. So let me return to the issue of torture for one moment. And your answers were very strong, and I strongly support what you have said in regards to torture.

But I want to call your attention to one other area in which could be a concern, and that is the use of rendition where the United States has custody of individuals and turned them over to other countries where we know that they will in fact use torture as a means of interrogation.

The United States has entered into the Convention Against Torture. That convention provides that we should not expel, extradite or otherwise effect the involuntarily removal of any person to a country where there are substantial grounds for believing the person would be in danger of being subjected to torture.

Could you just tell me pretty clearly that in your points about torture being illegal in this country that it would be wrong for the United States to turn over custody of an individual that we have to a country where we have reason to believe that they will use torture against an individual that we've transmitted custody?

HOLDER: Let me try to state this as simply as I can: It simply should not be the policy or the practice of the United States of America to turn over a prisoner, a captured person, to a nation where we suspect or have reason to believe that that person will be tortured.

I've engaged in, as United States attorney, renditions, ordered renditions, but this was to bring people from a foreign country to this country for trial. If we are sending somebody to a place where -- England, Canada, I don't know, some place where we have some basis to believe people will be adequately treated and fairly tried -- we're in a fundamentally different situation than sending somebody to a country where we think they will be mistreated and will not be tried in a fair system. And that should not be the policy or practice of our great nation.

CARDIN: Again, I thank you for those clear answers. They're the ones that at least I wanted to hear. And I just want to concur (NASDAQ:CNQR) with Senator Graham and his comments in regards to the way that we treat the people that we detain. And I look forward to your confirmation as the next U.S. attorney general.

HOLDER: Thank you, Senator.

LEAHY: Thank you very much.

We also, we have a former attorney general, former Supreme Court justice, newly reelected senator from Texas, has been my partner on Freedom of Information Act legislation. And because no good deed goes unpunished, his caucus has now elected him to be head of the Republican Senatorial Campaign Committee.

I'm glad you could have time, however, to be here. And I recognize Senator Cornyn from Texas.

CORNYN: Thank you, Mr. Chairman.

Mr. Holder, good afternoon.

HOLDER: Good afternoon.

CORNYN: I mentioned to Mr. Holder -- good afternoon.

HOLDER: Good afternoon.

CORNYN: Good to see you. I mentioned in our conversations, Mr. Chairman, Mr. Holder and I, about our commitment to open government issues and Freedom of Information Act reform. And I believe he agreed that open government, more transparency produces greater confidence in their government, and more accountability among public servants.

And I don't want to speak for you, Mr. Holder, but I think you agreed that you would work with us to open up the government, to make it more transparent and more accountable.

Did I represent that correctly?

HOLDER: I would hire you as my lawyer. You did, yes, exactly right. That's consistent with our conversation.

CORNYN: Well, let me -- since Senator Cardin did a good job asking about things like rendition, I just -- it's at the top of my list to think about.

If we close Guantanamo Bay -- and a military tribunal or some other tribunal determines that an individual is not guilty of a particular war crime with which they're charged, and they are ordered released -- if we close Guantanamo Bay and put these detainees at Fort Leavenworth, or somebody else, and their home country won't take them back, what do you propose we do with them?

HOLDER: That is a difficult question. It's one that, I guess, Senator Graham was talking about.

At the end of the day, if we have a basis to determine that a person is dangerous, and we have evidence that would demonstrate that that person is dangerous, I don't think that, given the Supreme Court decision in Hamdi, and the responsibility that I have as attorney of the United States, should I be confirmed, for the safety of this nation, that that is a person who we can release.


CORNYN: You're aware that, according to the Department of Defense, about 61 detainees who have been released from Guantanamo Bay have rejoined the fight against the United States and our allies. And that would be the kind of danger that you would want to protect our country from. Is that correct?

HOLDER: We want to try to minimize that possibility, while at the same time making sure that we are fair in making a determination that somebody is dangerous, and then having periodic reviews to make sure that that person remains dangerous.

I think if you do that, we are within our rights and within the law to detain that person.

CORNYN: Let me re-address and, because of the nature of these -- I've been in and out, and forgive me if this is territory you've covered before. It probably is.

But as you know, on August 11, 1999, President Clinton extended offers of clemency to 16 terrorists who were committed to gaining Puerto Rico's independence by waging war on the United States. They had not shown remorse for their crime, and they had not even applied for clemency.

Yet the clemency that was granted by President Clinton has been condemned overwhelmingly by both parties in both houses of Congress. And I'm advised -- and please, I'm asking this as a question -- I was advised that this morning, that you called this clemency reasonable.

Could you explain why you think it's reasonable?

HOLDER: Yes. I thought -- what I said was, I thought that the president's determination was a reasonable one, given the fact that there was -- that these people had served really extended periods of time in jail. Given the fact that -- the nature of the offenses of which they were convicted, they did not directly harm anyone. They were not responsible directly for any murders.

But I think another factor is that we deal with a world now that is different than the one that existed then. That decision was made in a pre-9/11 context.

I don't know what President Clinton would do now. I tend to think that I would probably view that case in a different way in a post-9/11 world.

CORNYN: How about in a post-New York Trade Center bombing of 1993, attacks against our embassies in Africa, the bombing of the USS Cole? Would those have been sufficient to raise your concern about granting clemency to acknowledged terrorists, who did not even apply for clemency and who showed no remorse for their crimes?

HOLDER: I was saying to Senator -- I think it was Senator Graham -- that I think we as a nation didn't come to understand that we were at war soon enough, that we waited, perhaps, until the attacks in New York and Pennsylvania and Washington on September the 11th.

And, you know, hindsight is always 20-20. But I think that, looking at the incidents that you have referenced, those -- again, I can't speak for the president -- but those, I think, might have had an impact on my views.

CORNYN: Did you recommend clemency for the FALN terrorists to President Clinton?


CORNYN: Was that a mistake?

HOLDER: No, I don't think it was a mistake.

CORNYN: Well, let me rephrase that, in fairness to you. You said, after 9/11, you would have viewed it differently. Post-9/11, if you had it to do over again, would you do the same thing? Or would you have declined to recommend it to the president?

HOLDER: It's an interesting question. I think that I would have viewed it differently. I think that the recommendation that I might have made would have been different in this way.

I think I would have said either this is something we shouldn't do, or, to the extent that you want -- or to the extent that there's a desire to do something, and you're asking what my opinion is -- that the sentences should not be commuted to the extent that they were.

I think that's where I probably would have ended up. I don't think I would have -- I would not have ended up, I think, in the same place that I was when that happened.

CORNYN: You would agree with me that, I assume that after 9/11, the legal, correct and appropriate way to address this novel attack against the United States, and the fact that we -- I think you agreed with Senator Graham earlier that they should not be treated -- terrorism should not be considered just a mere crime. But that these are -- this whole -- the war against terror raised a number of novel legal issues that, really, we had not had to struggle with since World War II. And even then, it was far different than it was today -- or is today.

I want to just ask you a hypothetical. Earlier you condemned the use of waterboarding. But you're familiar with the ticking time bomb scenario. And I just want to pose a hypothetical for you.

Let's say, as attorney general, you find out that there are terrorists who have access to chemical, biological or nuclear weapons, and that you have a detainee who is in possession of information that, if disclosed, would prevent those weapons from being detonated in the United States and thousands, maybe tens of thousands of innocent people being killed.

You would still refuse to condone aggressive interrogation techniques like waterboarding to get that information, which would, under my hypothetical, save perhaps tens of thousands of lives?

HOLDER: Well, I think there are a couple of ways in which I'd look at that. One, I would not assume that, because I would say waterboarding should not be done, that that's the only tool, the only mechanism that we would have in our arsenal to try to get that information from that person as quickly as we could.

I also think I'm not at all certain that waterboarding somebody, torturing somebody, whatever technique you want to use, is necessarily going to produce the results that we want.

What I've heard from the experts is that people will say almost anything to avoid torture. They will give you whatever information they think you want to hear. And so, I'm not at all certain that, given the time sensitivity that I assume you have in your hypothetical, that waterboarding that person would necessarily give us the result that we want.

And I think we also have to understand that we have other things in our arsenal that we could use, other techniques that we could use that would, I think, perhaps produce the result that we want.

CORNYN: Well, of course, torture is illegal under international treaties and under our domestic laws. And I've heard -- when I've heard people talk about torture in expansive ways, where things like sleep deprivation, other techniques that maybe you would employ as an alternative are considered torture to them, as well.

But under my hypothetical, if that were the only thing standing between you and the death of tens of thousands of Americans, you would decline to use that interrogation technique in order to save those lives. Is that correct?

HOLDER: Well, again, I think your hypothetical assumes a premise that I'm not willing to...

CORNYN: I know you don't like my hypothetical.

HOLDER: No. Hypothetical is fine. But the premise that underlies it, I'm not willing to accept, and that is that waterboarding is the only way in which I could get that information from those people.

CORNYN: Assume it was.


HOLDER: See, I -- given the knowledge that I have about other techniques, and what I've heard from retired admirals and generals and FBI agents, there are other ways, in a timely fashion, that you can get information out of people that is accurate and will produce useable intelligence.

And so, it's hard for me to accept or to answer your hypothetical without accepting your premise. I don't think I can do that.

CORNYN: One last question, quickly. You're aware that some of the techniques that are used -- aggressive questioning techniques are used as part of training by American military officers and enlisted men as part of their own survival training, are you not sir?

HOLDER: Well, it's my understanding -- and I might be wrong here -- that we acquaint our people with those techniques so they can have some familiarity, some understanding of what it is they might face, if they are captured by people who are far less -- well, put it out there -- far less civilized, far less humane, far less conversant with the rules of law and war, so that they understand that.

That is not necessarily because that's done, it's something that we are condoning. It's just to make them, to the extent we can, more resistant to the techniques that might be applied to them.

CORNYN: Thank you very much.

Thank you, Mr. Chairman.

LEAHY: Thank you, Senator Cornyn.

We -- let's see. Earlier today, the assistant Democratic leader from Illinois was the senior and junior senator from that state. He is back again as just senior member. We noted here, Senator Durbin in the hall earlier, that your new colleague has been sworn in.

And I would also note that he's the chair of our Human Rights Subcommittee. That's a subcommittee that was created when Senator Durbin -- because of Senator Durbin's longtime interest in this subject. And he's chaired it to great bipartisan praise.

Senator Durbin?

DURBIN: Well, thank you, Mr. Chairman. That was very kind of you. And I apologize for stepping out, but for the purpose noted. It was to add another Democratic vote, which, as the whip of the Democrat Caucus, I thought was a high priority for me and for our future president.

HOLDER: I won't argue with that, senator.

DURBIN: You'd better not.

Mr. Holder, I'm honored that you're here today. And I was present for your opening statement. I reflected on it, because I paid special attention to this issue of torture.

At times, it has been a source of torture politically, and for me, for some of the things I've said and questions I've raised. But I felt from the outset that it really struck at the fundamentals of who we are as Americans.

Arthur Schlesinger, Jr., the late historian, said that, and I quote, no position taken has done more damage to the American reputation in the world ever than on the torture policy of this outgoing administration.

It led me to vote against Attorney General Alberto Gonzales, as well as his successor, Attorney General Michael Mukasey. I felt that they were equivocal, and in the case of Gonzales had been involved in the formulation of that policy. I listened to your opening statement. And in three words -- in three words -- the world changed as far as I'm concerned, because you stated without hesitation, "Waterboarding is torture."

I can't tell you how many times Senator Whitehouse and I asked that of the current attorney general. And we could never, ever get a straight, declarative sentence.

I think it's important -- important for our country, important for our position in the world. And I understand Senator Cornyn's questions. I think they are questions that everyone who watches Jack Bauer on "24" would ask. And most Americans do. I have. It's a different scenario.

And when we're going to draw values and principles and laws, we have to really be cognizant of the fact that you can always construct a scenario that'll challenge the foundation of any legal principle. And I think it is far better for us to stand by standards that have guided our nation for generations, and return to them now with this new administration.

The Judge Advocates General are the top military justice lawyers in America. And I've asked them about the techniques other than waterboarding -- painful stress positions, threatening detainees with dogs, forced nudity, mock execution. And they told me that each of those techniques is illegal and violates Common Article 3 of the Geneva Conventions.

When I asked Attorney Generals Gonzales and Mukasey the same question, they refused to respond.

I think it's only fair that I ask you that question. Let me ask you that question directly.

Do you agree with the Judge Advocates Generals? Would it be illegal for enemy forces to subject an American detainee to painful stress positions, threatening detainees with dogs, forced nudity or mock execution?

HOLDER: I am not as conversant with those techniques as I am with waterboarding as something I really kind of focused my attention on. And so, I would not go so far as to say that those constitute torture. I don't know enough about them.

On the other hand, Common Article 3 requires that people -- prisoners be treated in a humane fashion. And so, I would agree that the techniques that you have described, I would agree that the folks in the Judge Advocate General Corps are in fact correct, that those techniques violate Common Article 3.

DURBIN: So, in your mind, that cross that threshold and become inhumane.

HOLDER: I believe that's right.

DURBIN: I was interested in the questions asked earlier about rendition. I won't return to that issue.

I'm sorry that our colleague -- we're all sorry that our colleague, Senator Kennedy, cannot be with us today. And when the new organizational chart comes out, for the first time in 46 years, he won't be on the Senate Judiciary Committee, and we're going to miss him.

One of the issues that he cared about dearly, and I shared his concern, was the issue of immigration. And I'd like to ask you a question or two about that.

We've had decisions made, policies implemented by the this administration about the legal rights of those who are charged with being in this country illegally.

The so-called streamlining regulations of this administration drastically reduced the time that immigration judges devote to each case, increasing the number of decisions issued with no written opinion, and resulting in a huge backlog of cases in the federal appeals courts.

Now, Richard Posner is a judge I know in Chicago. You probably know Judge Richard Posner as well as I do. He is probably as conservative as they come. But he and I get together for lunch once a year, and we talk about the issues before us.

And he was unequivocal in what he said about what's happened as a result of these new policies. He issued an opinion in which he concluded, "The adjudication of immigration case at the administrative level has fallen below the minimum standards of legal justice." That's a quote from Judge Posner.

What are your views on these questions, about the streamlining regulations, the administrative reviews, the delays and the backlogs? Do you believe that they have compromised the basic standards of justice in America?

HOLDER: Well, I believe that in any proceeding in which the United States is a participant, we have to be fair, and we have to be perceived as being fair, whether it is a criminal proceeding where death is a possibility as an option for a convicted defendant, or we're making a determination about what the immigration status is of somebody.

We have to make sure that people are given, if not a technical, legal due process -- all the technical, legal due process that somebody might get in a trial -- we have to make sure that using that word, that phrase expansively, that everybody gets due process -- we are true to ourselves, true to our nation, true to who we are as a people, if we do that. We cannot hold ourselves out as better than other nations -- and I think we are -- unless we do those kinds of things and commit ourselves to doing it.

It's not easy. It necessarily means an expenditure of resources. This is a difficult time for us, trying to figure out where limited resources are going to go. And yet, that in some ways is the ultimate test.

It's an easy thing to adhere to your values in times that are non-stressful, where the money is flowing. This is really the test, when we are at war in a couple places around the world, when we have budgetary concerns.

This is the test for America. Are you really who you say you are? I believe we are. And I believe, with the appropriate leadership, we can handle and deal with the issues that you're talking about.

DURBIN: I trust that you will consider reviewing the policies and regulations that led to this current situation involving the review of immigration cases.

HOLDER: I'll certainly do that. But more than that, what I'd like to do is work with the members of this committee, to come up with ways in which we are true to ourselves, true to our values, and come up with the necessary resources, so that we are able to do that.

DURBIN: I know Mr. Schumer asked you earlier about this Mr. Schlozman, Bradley Schlozman, in terms of people he hired in the Civil Rights Division of the Department of Justice. And I know he asked you about the question of whether he was subject to prosecution.

I'd like to ask you I guess a more practical question. According to the inspector general's report, Mr. Schlozman hired 63 career attorneys into the Civil Rights Division, who had demonstrably conservative or Republican Party Convention credentials. He hired only two career attorneys who were identifiable as Democrats. He clearly was applying some sort of ideological litmus test, in clear violation of the Civil Service Reform Act.

So, those 63 career attorneys in the Civil Rights Division comprise almost 20 percent of the entire workforce in that division. So, they technically have civil service protection. They were appointed to these positions, apparently in contravention of the Civil Service Reform Act.

What's the recourse here? Are you forced to accept those 63?

HOLDER: I'm not sure what the recourse is, but I don't think we should paint with too wide a brush who these people are, these 63 lawyers at the Justice Department in the Civil Rights Division.

I don't know who they are. They could be very well-intentioned people, dedicated to the mission of the Civil Rights Division. It doesn't mean, because they are conservative, because they are Republican, that they should not have the jobs that they now hold.

I think the focus really ought to be on the mechanism that was used to get them into the department.

DURBIN: I agree with that.

HOLDER: And what he did is deplorable. What he apparently did in front of this committee, according to the inspector general, by not telling the truth is also deplorable.

And as I indicated -- I think it was to Senator Feinstein -- should I be confirmed as attorney general, I'm going to review the decision, the determination made by the U.S. Attorney's Office here in D.C. -- again, that I have great respect for -- but I'm going to review that determination, to make sure that their decision to decline prosecution was an appropriate one.

DURBIN: Thank you very much, Mr. Holder.

Mr. Chairman, I yield.

LEAHY: Excuse me. Thank you. Thank you very much.

I'd recognize our friend from Oklahoma, Senator Coburn. And good to have you here. Good to have -- you have waited here very, very patiently. And I...

COBURN: Happy to do it, Mr. Chairman.

LEAHY: Glad to have you here. Please, the floor is yours.

COBURN: Thank you.

Well, welcome again. I'm sure we're going to be here a while.

A couple of things. I handed you a list of supposed wastes and problems within the Justice Department. It totals nearly $10 billion.

And the reason I gave that to you is, one of the things that we worked on this past year, but was not funded, but the Justice Department did have was a cold case initiative on unsolved civil rights crimes.

And I'm just going to ask you for a commitment today. Whether we fund that or not, will you commit to make sure that the intent of the Emmett Till unsolved civil rights crimes are fulfilled?

You have plenty of money there to do it, even if we don't fund it. And I'm looking for a commitment that that will become a priority under your management of the Justice Department, whether we do a good job of funding it or not. I think there's plenty of money for you to move around, both in terms of grants to states. And I'd like a response on that.

HOLDER: The fact that that initiative exists, that this committee, that this Congress thought it important enough to devote its attention to it, is an indication of this committee, our government at its best. I actually believe that.

Those are crimes committed a long time ago that, without the perseverance and the conscience that I think this committee demonstrated, could have been forgotten. They are stains on our nation's history. There are still raw feelings about what happened.

And so, yes, you do have my commitment. And I'll figure out ways to try to move money around.

COBURN: The commitment's in the name of the board, the Emmett Till Board, and one gentleman in particular, Alvin Sykes. And we owe a great deal of gratitude to him.

I tried to make that a more efficient bill. I wasn't able to do it. And we all sent out press releases, but it still isn't funded, and it still isn't happening. And what needs to happen is it needs to happen, whether we fund it or not. There's plenty of move in there.

I want to go back to FALN for a minute, being from Oklahoma, and the tremendous tragedy that we had there. And I've heard your statements in terms of reasonableness.

Why did not the weight of the prosecutors and the victims' families bear more on your decision in terms of thinking that that was a reasonable pardon? Tell me how you came to this idea that it's -- you know, it's possibly reasonable.

HOLDER: I mean, I did factor that into my determination. You had two United States attorneys who weighed in against it. Law enforcement was against it. There are obviously the feelings that victims had. And we took those into -- I took those into -- let's talk about me -- I took those into account, and balanced that against the people who were advocating for it, an impressive group of people.

Also looked at the nature of the crimes, the duration of the sentences that they had served. And it seemed to me that on balance, on balance -- it was a difficult decision -- but on balance, in a pre- 9/11 world, that the sentences that they had -- substantial sentences, up to 19 years, 16, 19 years -- that that was appropriate, that the clemency petitions were appropriate.

That was what -- those are the factors I considered.

COBURN: So, when we had our conversation together in the office, which I enjoyed very much, you admitted to a couple of mistakes of judgment. But you would tell this committee now, you don't think that was one of them.

HOLDER: No, I think we can certainly have a difference of opinion about that. But I don't think that what I did there was a mistake in the same way that I would describe what I did in the pardon, the Rich pardon matter, as a mistake.

COBURN: I just have to kind of think back. And the fact that, if Terry Nichols were to get clemency right now, what would the people of Oklahoma think? You know.

Here's the co-conspirator in the Oklahoma City bombing. And under the same circumstances, you know -- which, granted, there is some differences in the case, but there's not a whole lot of difference. One is aiding and abetting versus commission of an act. So, that is still worrisome to me.

I want to spend some time -- I talked with you about the Heller decision in my office. I believe the Second Amendment right -- I believe the Supreme Court got it right. And I know your position on it, and I know you have publicly stated that that's the law of the land now, in terms of our individual right to hold and own a gun.

Post-Heller, can you kind of give me what your position is now? You've been -- you know, there's a lot of publicity out there in terms of written statements and previous comments about what you believe the Second Amendment.

Tell me where you sit today, and more specifically, with that thought as attorney general of the United States, what you would do with that.

HOLDER: Well, I think that post-Heller, the options that we have in terms of regulating the possession of firearms has been narrowed. I don't think that it has been eliminated. And I think that reasonable restrictions are still possible.

But any time that we think about interfering with what the Supreme Court has said is a personal right. That has to be factored in now with the Heller decision and the Supreme Court's view of the Second Amendment.

I don't think that that means that we should turn away from the efforts that we have made to make this nation more safe, to be responsible about guns and who has them, how they are used. I mean, our effort, for instance, to go after felons in possession of weapons, I mean, should be as strong now as it was pre-Heller.

But I think that there is certainly -- we're in a different world. I think we operated for a good many years with the assumption that the Second Amendment referred to a collective right. We now know that that is not the case.

And so, we are still, I think, going to have to grapple with that and understand what that means. But I think it is a huge factor. It's a major difference.

COBURN: Let me ask you specifically. Much of your statements in the past had to do with guns as far as sporting events.

Do you believe there's any assurance given by Heller that, outside of sporting use, there's a right to own and hold a gun?

HOLDER: Outside of...

COBURN: Utilization for sport -- for hunting, for skeet shooting, for target practice. Do you believe that there's a right to own a gun for other than hunting or sportsman's purposes?

HOLDER: I think, post-Heller, absolutely. I mean, that's one of the things that we're dealing with in Washington, D.C., now.

COBURN: What kind of common sense gun regulations would you like to see enacted?

HOLDER: Well, I agree with President-elect Obama. You know, closing the gun show loophole, banning the sale of cop-killer bullets, things of that nature, those are, I think, the things that we need to focus on. Those are things I think have a law enforcement component to them. Those are things that I think are still viable in a post- Heller world.

COBURN: Do you find any irony in the fact that you can serve your country in the military at 18, but in some places we would want to limit your ability to own a weapon until you're 21?

HOLDER: Well, I don't -- well, I guess there is a bit of dissonance there. These decisions are made on, I guess, a state-by- state basis.

Yes, I guess there is some dissonance there.

COBURN: As attorney general, will you make the commitment to defend the Heller's holding that the Second Amendment protects an individual's right to bear arms?

HOLDER: Sure. That is the law as the Supreme Court has given it to me.

COBURN: Would you do so, if the Supreme Court granted cert in a case affecting or revisiting Heller?

HOLDER: I'm sorry. Would I...

COBURN: Would you also defend Heller, if the Supreme Court were to grant cert in a case affecting or revisiting Heller?

HOLDER: Oh, I see what you mean.

Well, I mean, you have to examine the facts of the particular case and understand how those facts fit under the Heller determination. But Heller...

COBURN: Well, let's assume it does.

HOLDER: OK. Well, I mean, we follow -- I'm a lawyer who follows the doctrine of stare decisis. The Supreme Court has spoken. And in viewing these new facts, one would have to take into account in a very substantial way, because it is the ultimate -- the ultimate arbiter has said what the Second Amendment means. I have to take that into account in deciding what position the Justice Department will take.

I mean, Heller is a significant, significant opinion.

COBURN: I'm sorry. I didn't hear the last part of that.

HOLDER: Heller was a very significant opinion.

COBURN: Yes, it is. It's one I'm very happy about as a Second Amendment advocate, and as somebody from Oklahoma.

If the Court were to change, and yet Heller still holds, and it was challenged again, as the chief law enforcement officer of the country, you would be obligated to defend the stare decisis of Heller. Is that true?

HOLDER: Sure. That would have to be something that would take -- that I'd have to take into consideration in determining what the Justice Department's position was on a new case, a new set of facts. That would be a factor.

Stare decisis would tell the solicitor general, me, that you have to take into consideration the fact of the Heller decision. Correct.

COBURN: I'm out of time. Thank you very much. We'll come back to this.

HOLDER: Thank you.

LEAHY: I do want to compliment the senator from Oklahoma for his rendition of "Rocket Man."

COBURN: Thank you.

LEAHY: You will probably not move Elton John from the charts, but you carried the tune better than the chairman could.

COBURN: Well, actually, I'm a Beach Boy generation. So, it was a little hard for me to move to the other genre.

LEAHY: We'll do "Margaritaville" next time.


Senator Whitehouse?

WHITEHOUSE: Thank you, Mr. Chairman.

Mr. Holder, welcome to the committee. I'm pretty much at the tail end of a long and thorough at least first round of questioning.

And I'd like to cycle back first to the beginning, just because of my respect and affection for the man, to remark on how pleased I was that Senator Warner, who served here for so long and with such distinction, for his first, I guess you could call it, official return to the body that he served, really is an embodiment of both independence and dignity -- two characteristics you share with him -- chose to do so to support your candidacy, and to call all of us to the better angels of our nature.

I was touched and impressed. And I know he's not here any longer, but I would like to say that for the record anyway.

On a more personal note, I want to say how impressed I am with your kids. This has been a long episode for them. It is a lot -- it is a lot less exciting for them than it is for you... (LAUGHTER)

... to be here. And it's a sign of what a wonderful upbringing they've had at the hands of their mom and grandmother, that they've represented your family so well here today.

HOLDER: We will take into account the fact that they might otherwise be at school right now.

WHITEHOUSE: That's right.


LEAHY: And I should note that, at some point after the next break -- well, obviously, you do whatever you want to do. But -- and I should say -- and I'll certainly give you extra time for this.

I mentioned to your mother that it's part of the Constitution few of us understand, that grandparents are required to spoil grandchildren.


And then the parents can deal with it afterwards.

HOLDER: She's a very constitutional -- she's a good constitutional lawyer. She follows the Constitution quite well.

WHITEHOUSE: We in the Senate have the good fortune and privilege to be present at occasionally extraordinary moments. One, for instance, was Senator Kennedy, who I'm thinking of today -- he's not with us, but other people have mentioned him -- his return to the Senate for the critical Medicare vote, where he made such a difference after his diagnosis.

The year before, it was probably Senator Schumer's hearing in this committee, that brought Deputy Attorney General Comey before us, to tell an appalling and astonishing tale of the mission to Attorney General Ashcroft's bedside.

Deputy Attorney General Comey and FBI Director Mueller with their lights on, racing to the hospital, pounding up the stairs to try to get there, the FBI director calling ahead to the agents by the stricken attorney general's bedside to tell them, whatever you do, don't leave this man alone in the room with the White House counsel and chief of staff to the president. Don't let them throw Comey out of the room.

And then, after that, we've learned about the eyeball-to-eyeball confrontation between the Department of Justice and the White House.

Jim Comey's testimony was remarkable. I know he is a supporter of yours, that he supports your nomination, and that he's written to us on your behalf.

What struck me was the personal nature of some of his discussion, of how lonely and exposed it felt to be that far out under that much pressure, standing on that principle. And I know you have been there as well.

As a United States attorney, you were there when you indicted and convicted the Democratic chairman of the House Ways and Means Committee -- probably one of the handful of most powerful men in this town. You were there again as deputy attorney general when you cleared a special prosecutor to go after a member of the Cabinet of the president who appointed you. And you were certainly there when you cleared the expansion of the investigation of the president himself who had appointed you.

If you don't mind me asking you a personal question, can you tell us a little bit about what you were feeling at those moments? And in those moments, if it was lonely, as I suspect it was, what were your touchstones that gave you the courage and confidence to go forward and continue with those difficult decisions?

HOLDER: Well, I appreciate the question, Senator Whitehouse. And I'm sure you have felt those moments, as well, having been the United States attorney, and having had to make those lonely decisions.

I think you go back to the beginning and why you took -- or why we took those jobs. You wanted to do the right thing. We swore to an oath to uphold the law.

And if you're going to be a good prosecutor, you have to treat the facts that come before you, irrespective of the political party of the person who might be involved and the connection they might have to you, personal or otherwise, the impact that it's going to have on the administration that you serve.

That is why the attorney general is different. It has to be, in some ways, distant from the Cabinet and even from the president that the attorney general serves.

Personally, those were not necessarily difficult decisions, because it's what I expected of myself, and what people who mean something to me would expect of me -- not difficult in that sense. But they were, nevertheless, ones that, after made, I think you reflect on.

And you have feelings about the impact of those decisions on the lives of people who you admire, people who you have worked with. It doesn't give you any great sense of joy to have done them. And yet, it is what you are called on to do.

It is what I will do, if I am fortunate enough to become the next attorney general of the United States, to make those kinds of decisions in the way that I have in the past -- lonely ones, as you've described them, but the right decision. I think I've shown a capacity to do it in the past, and a determination to do it in the future.

WHITEHOUSE: Thank you.

Let me rattle off a few quick questions. The Bush administration knocked down the firewall between the Department of Justice and the White House, limited conversations on cases to a very, very small number of officials.

I have many disagreements with Attorney General Mukasey, but to his credit, he did rebuild that firewall. Would you pledge to us to maintain it?

HOLDER: I will. I've been presumptuous enough that we have actually started working on that in anticipation for whoever might be attorney general -- I'm not going to be so presumptuous there -- so that the communication between the White House and the Justice Department reflects that which Judge Mukasey has put in -- or Attorney General Mukasey has put in place -- and is consistent with what existed during the Clinton administration.

WHITEHOUSE: The tainting -- some would even say corruption -- of the Department of Justice during the course of this administration has been both pervasive and systematic. It is my view that, frankly, if we went down this committee and everybody listed something that bothered them that had happened, and you had that whole list assembled, there'd still be more.

In that regard, what process do you think is appropriate coming on, to use a sailing metaphor, is the new captain of the ship, to do a damage assessment, see what needs to be fixed? And that way you can move on to the business, but you will know, as the commander of the department, that there is a process in place to make sure that whatever has been left undone that ought to have been done, or whatever had been done that ought not to have been done, is set right.

HOLDER: Well, I think you set it out. An assessment has to be done. And that assessment has already begun in the transition effort that is ongoing. Attorney General Mukasey, Deputy Attorney General Philip (ph), have been most generous in sharing information with us, have been honest with us, very frank with us in pointing out places that they think need special attention.

I have to say about those two gentlemen, that the only thing that they were not given was the luxury of time. I think that, given more time, they would have done more.

But we're going to have time. Hopefully, I will be one of the people who will have that time. And it is incumbent upon those who will run the Justice Department to do that damage assessment. What is -- given what has happened, where does the damage still exist, and then come up with mechanisms to try to repair that.

A lot of it will be inspirational. There are a lot of people who are still down in the department. So, there has to be that kind of connection. I think it's going to have to be a personal connection.

I think, should I be confirmed, I'm going to have to spend a lot of time walking the halls, getting on airplanes and talking to people in the field at the various U.S. attorneys offices, and making them feel a sense of mission, that the Justice Department is back in the way that it traditionally has been -- and as I said previously, under Republican and Democratic attorneys general and presidents.

WHITEHOUSE: Our distinguished chairman was courteous enough to say I could have a little more time. And so, let me trespass on his indulgence with one final question.

There's been some discussion about the prosecution of false statements to Congress in addition to the recent OIG report about false statements by Department of Justice officials to Congress. I have referred a matter involving the EPA administrator to the Department of Justice regarding false statements to the Environment and Public Works Committee. I think that, frankly, it's been something of a recurring problem.

And in addition to asking you to review the District of Columbia U.S. Attorney's Office determination, I would ask you if you would consider working with us on what might be appropriate prosecution guidelines for such offenses, and what might be appropriate notice or training to people who come before us about the obligation that they take on when they testify.

Because I think people tend to forget that they're here under oath. And I think I've heard stuff that's everything from simply slipshod to outright cold-blooded lies.

HOLDER: Well, I think there's certainly an obligation on the part of those of us in the executive branch to make sure that those who testify on behalf of the agencies that we lead or could lead, that they're armed with all the tools that they need, so that they can acquit themselves in a way that we would expect them to.

I think the point that you make about training -- testifying is not necessarily something that comes to people naturally. I've done this more than a few times, and I've got to tell you that this process has still frightened me.

And to put younger people, who have not done it before, before, you know, senators, congressmen like yourselves without training them, without making them understand the significance of what it is they are doing, without making them understand what's on the line, reflects poorly on people who run those agencies.

HOLDER: So, I will take that suggestion as a good one, and try to work with the people in the department so that what we had seen in the recent past is not replicated in the Justice Department that we will have.

WHITEHOUSE: I thank you.

And I thank the distinguished chairman.

LEAHY: I thank you.

My friend, the senator from Kansas, Senator Brownback is here. I'll yield to him.

And then after his questions, we will take a break to give everybody a chance to stretch as the members of Obama family that are out in the hall hardly have gotten any news.

Senator Brownback?

BROWNBACK: Thank you very much, Mr. Chairman.

The nominee...

LEAHY: That's the Holder family, I'm sorry.

BROWNBACK: So, congratulations on the nomination.

I do have a number of questions to ask you but I want to congratulate you and your family for an extraordinary American journey. And it has been that.

I want to start off on Guantanamo Bay. And one of the places that people are talking about moving the Guantanamo Bay detainees is Fort Leavenworth, Kansas which is in my state.

The Fort Leavenworth does not want these detainees. If I could put it any clearer to you, I would. But they don't want these detainees.

And the reason they don't want these detainees is that it really gets in the way of their primary mission which is education.

This is the Command and General Staff College at the military which is at Fort Leavenworth. It's a small base. It also has a disciplinary brig but it's an eight square-mile base. It has no perimeter fence. It's bordered on the Missouri River. It has a train that regularly goes through about every 15 minutes. It has major sources of terrorist target points that they could go at.

But that's only one piece of it. The primary mission of Fort Leavenworth is to train a next generation of Army and military leaders.

And as the Command and General Staff College -- Secretary Powell went through this facility. I just checked today. I'm looking at these numbers. We currently have 111 students from 91 different countries at Fort Leavenworth today.

And we have heard from students from Egypt, Jordan, Saudi Arabia and Pakistan that they will leave the school if the detainees come to Fort Leavenworth.

And the point is that a number of Islamic countries don't think these detainees should be held anywhere. And then if you hold them at the same place that they're training their next generation of Army and military leaders, they're saying, we're out of here, we're gone.

And so, the people there in the base are saying, you're really messing with the primary mission. And on top of that, the relationships are built there often between army officers -- our army officers and the ones from Pakistan, Saudi Arabia and Kuwait -- are key relationships in the ongoing war on terrorism.

And if you hurt that by moving detainees to a place at Leavenworth that's not fit anyway to move this, this is a big hit. And I would just plead you really to look at the specifics.

I heard your clear statement earlier that you're closing Guantanamo but this physical plan doesn't fit and the mission is significantly harmed if these detainees are moved to Fort Leavenworth.

And I would hope you would conduct an open and a very clear process before any are moved anywhere, particularly looking at a place like Fort Leavenworth.

HOLDER: Senator, I will pledge to do that.

There is a review now that is underway to try to figure out what might happen with whatever the number of people are who might have to be moved once that assessment of what the population of Guantanamo looks like.

You've raised very, very important points. The inability to have people from Islamic countries leave and then cut short that interaction that they might have with our military is really something that over the long term could harm the interest of our nation.

So, that factor would be one that I will take back to the discussions that we're having. I think that -- it's definitely something that I heard before but I think that's a very important point. BROWNBACK: That's a big issue for them and I have spoken to Secretary Gates and the chairman of joint chiefs about this as well.

Last Congress, Senator Kennedy and I successfully worked to pass a prenatally and postnatally diagnosed conditions act and there's no reason I expect you to know about that bill but what it was targeted at was to provide an adoption list for children borne with Down Syndrome.

Right now, if you do the in utero test for Down Syndrome, 80 percent of the children are aborted. And both Senator Kennedy and I thought that was a really tragedy.

What we need to do is to try to figure a system to try to encourage that they would be warned. And this is a very tough situation, if you can't handle it, there are people that want to do this, rather than killing the child.

And we also put in that there would be current information put forward about life expectancy of Down Syndrome children, conditions for early treatment. And we're both very proud that we could get this.

The Kennedy family has been great on working with people with disabilities and I was delighted to partner with him on it.

The thing I find extraordinary is that the Americans with Disabilities Act, part of which, the Justice Department will be enforcing applies and protects people with disabilities yet we tend to not apply it. But at a certain point of life and the children tend to be killed before it gets applied to them.

I would hope you would review with them, the Department of Justice, when you would apply the ADA, the Americans with Disabilities Act.

I know there are other agencies that have jurisdiction and maybe primary jurisdiction over this but that you would look at when do we apply the ADA.

I don't know if you're familiar with that or if you could make a point of view on it.

HOLDER: I think a core of what you're talking about are very personal, difficult decisions that people would have take...

BROWNBACK: I'd say a very legal question on your part.

HOLDER: ... but I think the legal determination is based on what the Supreme Court has said in essence are personal decisions tied to the right to privacy. I think the legislation that you described, that you worked on with Senator Kennedy, is admirable.

The possibility of adopting Down's children, that's obviously a wonderful thing. The application of the statute that you mentioned in, I guess, a prenatal sense, I just don't know what the impact of that would be on...

BROWNBACK: Can you see the disconnect here?

If that child gets here, it's protected as the ADA applies. If it doesn't, 60 to 80 percent are killed.

I would hope you would look at that and say that this should be applied at an earlier point because clearly the intent is to protect this child, not to kill it.

Finally, and I want to get into this and I hope we can get into more in the second round. I looked at your background and as much of which I find very impressive and admirable, the Marc Rich case really bothers me.

And I looked at this and a guy that renounces his U.S. citizenship and works with Iran in weaponry that maybe is being used against our allies in the Middle East and is a fugitive, and then you allowed this to move on forward.

I just -- that one just seems to me to be really extraordinary. And when I go through the factual setting of it, you're a thorough lawyer. You wouldn't be where you are today if you weren't a thorough lawyer.

This case just screams out. It's something that it seems like you had pushed back aggressively against. And then it has the political connections to it as well.

One of the things I've been very troubled about lately is the number of political corruption cases we've had going on in the United States. And you've had several recently.

And then this one has a connection where his former wife is giving money to the president's library, where this is going to at the late last minute. I just think it undermines confidence in the overall system.

And I haven't heard yet, really, a satisfactory explanation to me from you about how you let that one go through given the nature of this case.

I asked Mr. Chairman for the record that the letter dated January 12th of this year from the -- this is detailing what the House Committee have put forward sent by Congressman Dan Burton, be entered into the record that goes to some of the specific dates and the hearing -- the lengthy hearing at the House that the House did on this.

I just -- I look at all those things. That one seems to be really out of stream given the thoroughness that you've operated with in the past and it seems to have a lot of political connections to it. And it really troubles me.

HOLDER: Well, as I indicated in my opening statement, I think, in response to questions put to me by senators Specter and Hatch, I've made mistakes in that matter.

One thing I want to make clear, though, with regards to this notion of political connections, I was not aware at that time about the contributions or the ties that existed between Mr. Richard's wife and other people in the Democratic Party, things of that nature, with regard to questions about the facts and some of the ones that you had mentioned.

That was the mistakes I made. I did not acquaint myself in a way that I should have about all that existed in the files about Mr. Rich.

I think had I done that, I would have come up with a different determination; but that is one of the things that I have said consistently during Mr. Burton -- Congressman Burton's hearings and interviews that I've done before this committee today that that was one of the mistakes that I made.

I think, as I've also said, that my record should be viewed in its entirety. And as you make your determinations as to whether you think I'm fit to serve as attorney general, this matter in which I made mistakes, I think, should be contrasted with a whole host of other decisions that I've had to make where I think I got it right which is not to minimize -- I don't mean to do that. I'm not minimizing the mistakes that I made there but I do think that -- I would hope that this will be placed with all the contents.

LEAHY: The senator from Kansas has asked consent for a letter to be introduced into record. I apologize if I didn't hear that. Of course, it would be introduced into record.

Senator Hatch, you wanted to say something before we recess?

HATCH: I'll be very short, Mr. Chairman.

Mr. Holder, you've acquitted yourself well.

First of all, I support you and believe that you should be supported. And let me just make this one comment and I won't make it as a point of question. I just want to see what you think.

First, as you may have heard today, an advice of court of review, at least its earlier decision, that the Protect America Act of 2007 which allows warrantless foreign intelligence surveillance is constitutional.

Now, I know that everyone will have to study the decision but I wanted to note particularly the court, quote and quote, "We hope that a foreign intelligence exception in the Fourth Amendment's warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign power reasonably believed to be located outside the United States," unquote.

Now, this is very significant decision.

And Mr. Chairman -- and your answers to me earlier to be consistent with this decision. You're willing to be bound by the Constitution and I know you would be and I appreciate you saying that.

And Mr. Chairman, I ask consent that an article from today's New York Times written by Eric Lichtblau about this decision, the "Intelligence Court Rules Wiretapping Legal" be put into record at this point.

(UNKNOWN): Objection, it will be, unless...

HATCH: Mr. Chairman, if I could just, one other thing.

This is difficult for you to go through but there are some points. And I just want you to know that I've been carefully monitoring this and you're part of the family, not just part of the family but I look forward to you being confirmed and serving in this really important position and I hope that you'll do it in a non- partisan way which I think you will.

And I hope that the mistakes of the past will influence you even further towards being a great attorney-general and that's what I'm expecting of you.

And thank you Mr. Chairman.

LEAHY: All right. Thank you.

HATCH: And I'm sorry if I...

LEAHY: No, I thank you, Senator Hatch for your comment. We've worked together on these matters for many years.

One of the things that stood out while you were on the following discussion by Senator Graham is Mr. Holder's willingness to sit not just in formal meetings but to have some informal gatherings with some of these issues with both Republicans and Democrats.

I've always felt that law enforcement should not be a matter -- you don't get the law enforcement to say a crime is a Republican crime or a Democratic crime. If you've got a crime and a victim, you don't ask what their political parties are. You ask how you go about helping the victims catching the criminal and both the Republican and Democrats, I've been told, after the comment you've sent to me, they intend to take you up on that.

We'll stand in recess until the call of the chair.


LEAHY: Thank you all.

And, again, one of the things I heard universally is how Mr. Holder's great your children had been and glad to see you personally giving them a break.

We have a longstanding and valued member of this committee, the senior senator from Iowa and he is justifiably proud to be first author the False Claims Act and -- the modern version of it. And I know you've worked in that same area, Mr. Holder. You have not had your first round, is that correct?

HOLDER: That's right.

LEAHY: It seems like it was so long ago; but go ahead. I'll yield to the senior senator from Iowa so he can have his first round.

GRASSLEY: Mr. Holder, first of all, obviously, I haven't given your department the attention I should today and been here all the time because I'm a ranking member on the Senate Finance Committee and we had four hours of discussion before we passed out a bill dealing with the Children's Health Insurance Bill.

So, that's where I've been.

I'm a ranking senior Republican there and I had to be there. So, I'm sorry, I missed in. I hope I'm not repetitive, but if I am, please forgive me.

The LA Times recently reported that you urged pardon attorney Roger Adams to change his recommendations against clemency for Puerto Rican terrorists to a recommendation in favor of clemency for at least some of them. Then, after Roger Adams resisted, you directed him to draft a neutral options memo.

I'd like to show you an FBI surveillance video secretly recorded in a Chicago apartment and ask you some questions. This chilling video shows Edwin Cortes and Alejandria (sic) Torres. These were two of the terrorists who received clemency from President Clinton after you directed that the Justice Department change its recommendations.

The video shows Cortes and Torres in the process of building a bomb. Were the two terrorists in this video in the group that you asked the pardon attorney to draft a positive recommendation for?

HOLDER: Senator, I can't answer that question. I don't have the records in front of me. I don't know the names of the people who were among that group of 15, I guess.

I don't know the answer to that.

GRASSLEY: OK. Well, as I said, their names were Edwin Cortes and Alejandria (sic) Torres. At the time you directed the pardon attorney to draft a neutral options memo, had you ever seen this video before?

HOLDER: No. I've not seen this video before.

GRASSLEY: Are you weren't aware that the video existed?

HOLDER: I think I've seen it in some news accounts in the recent past, like, over the last week or so, something like that.

GRASSLEY: Were you aware that after this video was taken, a search to the apartment led to the seizure of 24 pounds of dynamite, 24 blasting caps, weapons, disguises, false identification, and thousands of rounds of ammunition?

HOLDER: I can't say that I'm aware of that specific fact. I did know that the people who were a part of that group, for lack of a better term, had access to, had been captured with explosives. I don't know the amounts or whether it was in connection with this particular thing.

GRASSLEY: Were you aware that FALN terrorists threatened to kill the judge at their sentencing hearing?

HOLDER: That one I'm not. I'm not aware of that.

GRASSLEY: Well, these are facts that I believe. So, let me ask you this. If you don't think that before the president decides to overturn the sentences of people like those in this video that were doing the things I said they were doing, that the Justice Department ought to make sure that he is aware of the important facts like these.

HOLDER: I'm sorry. The question was...

GRASSLEY: The question is don't you think that before the president, a president, in this case, President Clinton, decides to overturn the sentences of people like those in the video that we just showed doing what I said that they were doing, that the Justice Department ought to make sure that the president is aware of the important facts like these that I just stated.

HOLDER: Yes. If the pardon process, the clemency process is working well, the president should have before him all of the relevant facts so that he can make an appropriate determination using the power that he has, fully informed.

GRASSLEY: Yes. So then, let me get on this case to what I believe you said and how you characterized it in light of all that we've discussed here. Did you believe that it is fair to characterize Cortes and Torres, quote, unquote, "non-violent," and, therefore, deserving a clemency?

HOLDER: I'm not sure I ever described them as non-violent. What I said before was that -- I'm not -- I don't know if these two are the individuals are part of that 15 of that group. What I said is that with regard to the group of 15, none of them had themselves been directly linked to a murder or directly linked to a crime that involved an injury to somebody.

Crimes of violence can be defined in a whole variety of ways that don't necessarily involve injury to a person. Some drug offences are considered crimes of violence even though a person has not been hurt. But the distinction I made was the way in which I phrased it at the beginning of the day, I guess, and throughout the day.

GRASSLEY: Well, earlier today, you said in response to a question from Senator Sessions that the people who received clemency didn't actually hurt anyone and that you thought that the granting them clemency was reasonable, but isn't it true that the only person that the people in the video didn't hurt anyone is -- or why they didn't hurt anyone -- is because the FBI caught them before they got a chance to do their damage.

HOLDER: Yes, that might be so, but that is, nevertheless -- you know, it's a difference between let's hypothetically say murder and attempted murder. If some -- there's an intervening act that stops the person from committing the crime that they wanted to do, the person's intent is certainly nefarious and worthy of punishment but the ultimate crimes are fundamentally different ones.

GRASSLEY: On another pardon, I know that Senator Specter is going through the Rich pardon, but I have some details that I'd like to ask as well. In addition to being an unrepentative (sic) fugitive who had renounced his U.S. citizenship to avoid justice, Marc Rich was also a billionaire tax cheat.

Speaking as a ranking member of the Finance Committee where we talk an awful lot about tax gap and making sure that the tax laws are effective, it bothers me that giving Rich a get-out-of-the-jail free card happens and that's especially offensive to me.

You have admitted to poor judgment in your handling of this case. However, it is hard for many people to accept a general statement of regret because Rich was so obviously undeserving and because all that money that his ex-wife gave to political leaders just before the pardon made it look like a corrupt operation. I'd like to hear what you have to say to those people who think I made a mistake and I'm sorry just isn't enough. What specific facts or legal considerations led you to be neutral, leaning favorable to the Rich pardon? Was it a decision you made on fact, the law or political consideration?

HOLDER: The mistakes that I made in the Rich matter as I think I said earlier all involved the fact that -- a variety of things -- among them, I should have been more informed about Marc Rich and his case. I was not.

I should have kept the people who were involved in the prosecution in the Southern District of New York -- good lawyers -- and people at Main Justice who were involved in the pardon process, I should have kept them involved. I assumed that they were. I found out later that they were not.

With regard to the political stuff and the money going back and forth between, I guess, Rich's wife or supporters, whatever, that I did not know about. That did not enter into the decision or the actions that I took.

With regard to the question of what my recommendation was, when I said neutral, as I've testified, I guess, eight, nine years ago at this point, neutral was an inartful (sic) way of saying I don't know enough about this case. I should have used a different word, I suppose.

When they talk about leaning towards favorable, what people frequently do not put to the end of that phrase is what I said was neutral leaning towards favorable if there was a foreign policy benefit that might be gained. And that was on the basis of the prime minister of Israel weighing in and supporting the pardon.

I didn't say that I'm saying we should do this pardon. I said, "Look, if there is a foreign policy benefit that somebody else will have to make the determination, if there is that, then that might be something that would make me think that this is something we ought to consider."

GRASSLEY: If the attorney for Rich had been someone that you had no relationship with rather than former White House Counsel Jack Quinn, would you have been as sympathetic to his case as you were?

HOLDER: I wasn't sympathetic to the case. All I did with regard to Mr. Quinn as I've done for any number of lawyers initially was to try to set up a meeting that he wanted to have with the people in the Southern District of New York to review his case.

The lawyers in the Southern District of New York refused to do that and that was the end of it. I didn't pressure anybody. I didn't question their judgment.

I might have done it differently, but it was their case. They made the decision not to do it. When it came to the pardon component of this, I had, I think, two conversations with Mr. Quinn, one in November, another one on that last night in January. I wasn't particularly sympathetic.

I didn't do anything to try to make this pardon happen. I certainly didn't perform as well, I think, as I should have. And had I performed as well as I was capable of doing, I might have done something more.

I think I would have done more to try to prevent it, but I didn't do anything affirmatively to try to make the pardon happen.

GRASSLEY: Well, I think maybe you just stated a partial answer to this next question. So, let me -- but let me ask it anyway. What do you think was your biggest mistake in the handling of the Rich pardon? And please be very specific about what you think you should have done differently.

HOLDER: Yes. I should have made sure that I was better informed, that I knew more about the facts about the underlying case about the history of Mr. Rich. I should not have spoken to the White House and made the statements that I made without having had all of that knowledge.

I should have ensured that the involved lawyers were actually a part of the process instead of assuming that they were. I think those are the mistakes that I made in connection with the Rich matter.


LEAHY: OK. Thank you.

The Freedom of Information Act or FOIA was something that Senator Cornyn and I have worked establishes a statutory presumption of disclosure of information that's in the possession of the federal government actually places the burden on the government to justify if they're going to be withhold anything from the American public.

When requesters think they had been wrongly denied, of course, they can sue and the Justice Department defends against those lawsuits.

Now, each new attorney general in position establishes what the ground rules are going to be on the FOIA. Attorney General Reno urged departments to disclose or on the side of disclosing unless there was a foreseeable harm.

The current policy we're using now is issued by then Attorney General John Ashcroft who reversed the presumption of disclosure to non-disclosure by telling federal departments and agencies the Justice Department would defend their action and not disclose it. They can make any kind of legal argument.

Will you review the FOIA policies and practices and will you -- if you do review them, will you do it at least with a consideration to reopening the kind of openness, or to reestablish the kind of openness that FOIA was intended?

HOLDER: I will pledge to do that. I don't know exactly how the administration is going to be structured and what traps I would have to run through in order to actually promulgate the policy but that which Attorney General Reno, her policy, I think, is the way -- the place where we ought to be and that would be what I would be working towards.

And my thought would be -- my guess would be that the administration would support that.

LEAHY: Much of the legislation I've worked on in a bi-partisan way, I might tell you, has been to improve the criminal justice system, improve and increase DNA testing, for example. The Justice for All Act passed in 2004 includes the Innocence Protection Act.

I had worked with former Republican Congressman Ray LaHood, Democratic Congressman Bill Delahunt, the House's both former prosecutors that keyed the Kirk Bloodsworth Post-Conviction DNA Testing Grant Program, the idea being we didn't want an innocent person in prison or on death row. But at the same time, as former prosecutors, we didn't want to see an innocent person go to jail knowing that that meant the guilty person is still out loose and could commit the same crime over again.

The Justice Department has been slow and affected, sometimes, obstructions as to implementing this program. They put a barrier that resisted funding key programs.

The fact of the matter is it's something that works well for both prosecution and the defense. Will you work with me and others in the Congress in both parties to see if the key DNA testing programs are effectively funded and implemented?

HOLDER: I look forward to that, Senator. The Justice Department -- we in the Justice Department have not only a responsibility for trying to solve crimes and convict the people who committed them. The Justice Department, unlike maybe the responsibility that, I think, the defense attorneys have -- they have these more unique functions. We have a more unique function.

We have -- and especially those of us who potentially are in charge of the department -- have a responsibility to the system. And to the extent we can have tools that are made available to acquit people, exonerate people as well as find them guilty, those things should be supported.

That's what I was talking about, I think, earlier with Senator Kyl. I agree with what he said and what you are saying that there is a need for technology.

LEAHY: We also have the Debbie Smith DNA Backlog Reduction Program for a reduced backlog of untested rape kits and all. These are all things that we should work at that will make law enforcement go better and, also, not only will keep innocent people from going to jail but will make it more effective and will get the actual person who committed the crime so they're not out there where they might commit the crime again.

Just like the enforcement of the Violence Against Women Act, will you make enforcement of this a priority including enforcement in Indian Country?

HOLDER: Yes, I will. It has been something that has been of importance to me since I was the United States attorney here in Washington, D.C. I started the domestic violence unit in the U.S. Attorney's office in D.C., having witnessed the crimes and the assaults that -- and the unique problems that these cases present while I was a judge here in Washington, D.C.

I took the concerns that I saw, that were generated by what I saw as a judge into the U.S. Attorney's office and started a domestic violence unit. And so, I would be more than happy to work with you on...

LEAHY: And, lastly, many of us from both parties work very, very hard to re-authorize the Voting Rights Act. We do it for everybody -- black, whites, Hispanic, whatever, they might be, poor, rich -- to make sure that the right to vote in this country is given to everybody.

Now, it's -- there is a direct appeal to the Supreme Court on that, I understand, probably Senator Specter was with President Bush when he signed the reauthorization. Will you, if you're the attorney general, will you defend the constitutionality of the Voting Rights Act Reauthorization before the United States Supreme Court?

HOLDER: Yes. The Justice Department has as a matter of policy the obligation to defend federal statutes. I can't think of a statute that my department of justice, should I be confirmed, would be more proud to stand behind.

LEAHY: Thank you.

Senator Specter?

SPECTER: Thank you, Mr. Chairman. With only a five-minute round, I'll try to be brief on the questions and I'll appreciate your being brief on the responses.

You testified Mr. Holder that you're not intimately involved, only a passing familiarity with the Marc Rich case, yet the record shows that you met or talked with Quinn on October 22nd 1999, November 8th 1991, January 18th 2000, February 28th 2000, November 17th 2000, November 21st 2000. Do you stand by at testimony that you were not intimately involved, only had a passing familiarity with this matter?

HOLDER: Yes. The conversations that I had with him dealt with, I think, certainly at the beginning part of it, the question of whether or not he was going to get a meeting with the U.S. Attorney's office in the Southern District of New York.

When it came to the actual part, and I think I had two contacts with him -- one in November, one in January, I never had a detailed conversation with Mr. Quinn about the facts of the case. And I have said that that is a mistake that I had.

I, you know, I shouldn't even have had that conversation with him or independently I should have acquired sufficiently knowledge so that I could have acted in a better way.

SPECTER: Well, that doesn't sound like a passing familiarity to me, but we'll let that stand.

We came to the point as to whether you made any inquiry. According to the testimony of Roger Adams, the pardon attorney, he called you at 1 a.m. on January 20 because he was concerned that a pardon might be given to Marc Rich.

You testified this morning when I asked you about all these sordid details about Marc Rich, about trading with the Iranians during a hostage crisis, oil for arms, handheld rockets, dealing with the Soviet Union and Namibia, on apartheid government in South Africa in exchange for Namibian uranium. That was certainly an opportunity when Roger Adams, the pardon attorney called you. He opposed the commutation of Rich, the pardon of Rich, to find out what the facts were.

When he called you at 1 a.m., wasn't that a pretty clear cut signal that he was very concerned to call you at home in the middle of the night, an occasion for you to say, well, what's up here, Mr. Adams? What are you so concerned about? And then you would have found out about all of these.

HOLDER: Well, that's -- I suppose that could have happened. Now, the call, as I remember, the call with Roger at that time was to inform me, he might have actually called at 11 o'clock.

I'm not sure. I think he might have -- but the call from Roger, I think, was to tell me that the Rich pardon had gone with it -- Pincus Green's were on the list.

The way I viewed those calls at that point, I thought we were dealing with a fait accompli, that the President of the United States on the last day in office at 11 o'clock at night, or whenever it was I got that call, had made up his mind and that the decision was a final one.

I didn't expect that I would have the capacity to turn President Clinton's mind around that late in the administration. I mean, this was the last night of his administration.

SPECTER: But you were on the record as saying neutral, leaning favorable, that the president there has a waiver of privilege on this pardon matters according to a letter from David Kendall to Congressman Dan Burton.

Did President Clinton talk to you about the Rich pardon?

HOLDER: I never spoke to President Clinton about the Rich pardon.

SPECTER: You've been questioned extensively about FALN and, in the context of your testimony, that you have tried to follow and respect the career professionals on the FALN matter according to the Los Angeles Times, January 9th, 2009. Mr. Holder instructed the Pardon Attorney's office to, quote, "Effectively replace the department's original report recommending against any commutation with one that favored clemency for at least half the prisoners."

Mr. Adams told the Los Angeles Times that he responded to Mr. Holder, quote, "Of his strong opposition to any clemency in several internal memos and a draft report recommending denial and at least one face-to-face meeting but, each time, Holder wasn't satisfied."

Well, Mr. Holder, if you wanted to make a recommendation of clemency, why didn't you have the directness to do so on your own without seeking the cover of the pardon attorney who had told you he was against it? Why submit a second request for a report after there has been opposition registered? HOLDER: All I asked Roger Adams to do was his job. The responsibility was -- what I asked him to do was to draft the memo that went from me. The memo did not go from Roger Adams or from anybody else.

The name that is on the memo is mine. It is a routine thing for the deputy attorney general to ask people who work for him to prepare memoranda...

SPECTER: But he had told you he was opposed to it, and you go back to him and say, "Change it. I want you to recommend clemency for at least half of these people." Why do you place the burden on him to give you cover if you want to make a recommendation of clemency?

LEAHY: Senator, this time is up. But go ahead and answer the question.

HOLDER: Well, I'm not asking for cover. I'm asking him as I said to do his job. And I would not get covered given the fact that the memorandum went from me.

My name is on that memorandum so that anybody can look at that and say, "Well, now, who made this crazy decision?" You look at it. It says from the Deputy Attorney General to the president."

Eric Holder's name is on it. Roger Adam's name is not.


LEAHY: Senator Kohl wanted to -- Senator Kohl wanted to ask his five minutes and then go to vote. As soon as he's finished there, if you want to ask one more question, go ahead.

Senator Kohl?

KOHL: I thank you so much, Mr. Chairman. If confirmed, you'll be responsible for a budget of nearly $26 billion. As you know, your allocation of that budget will provide us with some insight into your priorities.

Over the past years, we saw a concerted effort by this administration to sharply reduce federal funding for local law enforcement, something many of us were deeply troubled by. Funding for improved and effective programs by cops earned in juvenile justice has been decimated.

Last year, the president's budget requested a 60 percent reduction for state and local law enforcement programs, which was below its already inadequate levels of prior years. And as a result, vital services to our communities have been cut, police departments have had to downsize, local prosecutors have been laid off, thus, drug test forces have been eliminated, and prevention and intervention programs have had to scale back their services or even close their doors.

Given your support for these programs in the past, can we expect to see a real change here? Will restoring these programs to their funding levels of prior years before the Bush administration be a top priority of yours?

HOLDER: Yes, Senator Kohl. This is one of my top priorities. One of the three things I mentioned on the day of my announcement was a need to increase support of our state and local partners not only because of what they traditionally do in helping us fight violent crime, but because also when it comes to the national security component, it is now such a big part of what the justice department does.

They are, in essence, I guess what we've come to call force multipliers. They can help us on the national security side by looking at that car that has somebody in it that doesn't look quite right. They have tools that they can use to analyze data information.

They can help us not only in the traditional way in which we thought of them. They could also help us on the national security side, so I think this has to be a priority for us.

KOHL: Thank you. Mr. Holder, I was very disappointed with the sharp cutback of antitrust enforcement at the Justice Department during the 8 years of the Bush administration. When we conducted antitrust oversight hearing in 2007, we found sharp declines in the numbers of antitrust investigations initiated by the department. Many mergers among direct competitors and highly concentrated industries pass review without any modifications, including the XM Sirius, Whirlpool or Mayt -- Whirlpool and Maytag, and AT&T-BellSouth (NYSE:SBT) (NYSE:T) mergers, to name just a few.

The serious decline in antitrust enforcement has been very disturbing. Vigorous and aggressive enforcement of our nation's antitrust laws is essential to ensuring that consumers pay the lowest prices and gain the highest quality of goods and services.

What's your view with respect to the importance of strong antitrust enforcement?

HOLDER: It's a critical part of what the Justice Department does. It's especially true now where consumers in this nation are beset upon by so many different things -- the economic downturn or economic condition more generally. I think we have to make sure that we do all that we can to ensure that the American people, the consumers of this nation, have a system that is designed to be free, to be competitive.

And, so, the antitrust enforcement will be something that we will devote a lot of attention to. We'll get an assistant attorney general who understands the mission of that division, the historic mission of that division, and I expect it will be more active.

KOHL: One last question on resale price maintenance, Mr. Holder. For nearly a century, it was the basic rule of antitrust law that a manufacturer could not set a minimum price for a retailer to sell its product. This rule had this economy to flourish and greatly enhanced the competition for dozens of consumer products, everything from electronics to clothes.

However, in 2007, a five-four decision of the Supreme Court in the Leegin case overturned this rule and held that vertical price fixing was no longer banned in every case. I believe that this decision is very dangerous to consumers' ability to purchase products at discount prices and harmful to retail competition.

Do you agree with me on this principle that manufacture setting retail prices should be banned? Can we expect you to support that and provide a letter for us with respect to your position on this issue?

HOLDER: This is something that we talked about in our meeting, Senator. And I have to say that that decision disturbs me. I'm not at all certain that, again, harkening back to our desire to protect the American consumer to make the market as open, as free as we can, that that decision by the Supreme Court is necessarily a good one, and, so, I would want to work with you to try to figure out ways in which we can bring the competitiveness back that I think perhaps the Supreme Court in that decision has removed from the system.

I'm very concerned, very disturbed, by that decision and the implications of what flows from it. So, I look forward to working with you on that.

KOHL: I thank you very much.

LEAHY: Thank you.

Senator, you want to finish your question or...

SPECTER (?): I have -- but now I have two yes or no questions, no explanations.

Did you talk to President Clinton about the FALN pardon?

HOLDER: No, I did not.

SPECTER (?): Would you make available to make the paper you referred to with respect to the request to Roger Adams on the Rich issue? We haven't been able to get a hold of a copy of that paper.


HOLDER: I'm not sure I understand that.

SPECTER (?): It's the FALN paper.

HOLDER: OK. I'm sorry.

GRASSLEY: Would you make available to me a copy of the FALN paper you've referred to?

HOLDER: That is a document that belongs to the Justice Department. It is not, from my understanding, mine to give.

SPECTER (?): Well, you referred to it in your testimony. HOLDER: Yes, I have seen the document, but it is not my document. It belongs to the Justice Department.

SPECTER (?): Do you have the document?

HOLDER: I have the document, but I'd have to give it back to the Justice Department. I signed an agreement that I will let no one see the document including the people who have worked with me. The only person who's allowed to see that document is me and I'm supposed to give it back to them when I...

SPECTER (?): Well, I'll ask the Justice Department for it. Would you ask them to?

LEAHY: We -- I think we've gone through five of your two questions.

SPECTER (?): We have...


SPECTER (?): I have some more.

LEAHY: OK. We'll stand on recess until the call of the chair.


LEAHY: Thank you.

We gave a little extra time to Senator Specter and I'm going to go back to Senator Feinstein. I'm going to try to keep the order the way it's supposed to be. I'll have five minutes for Senator Grassley.

GRASSLEY: Right now?


GRASSLEY: OK, thank you.

I'll continue where I left off...

FEINSTEIN: (OFF MIKE) Mr. Chairman, is this supposed to be here? I don't know whether I'm in a dead zone but I just can't hear.

GRASSLEY: Can you...

LEAHY: Having been in hearings with the Senator from California, I know she's not getting deaf, so it must be a dead zone.


LEAHY: All the -- is it on?

GRASSLEY: Mine is on, yes.

LEAHY: Try to... GRASSLEY: Can I go ahead?


GRASSLEY: OK. On the night before the pardons were issued, January the 19th, Quinn's notes reflect a telephone call with you and what you said you had, quote, unquote, "No personal problem with the pardon," but that you expected a, quote, unquote, "howl" from the Southern District once prosecutors, they found out about it.

Mr. Chairman, I would like to place some telephone notes in the record at this point...

CHAIRMAN: No objection.

GRASSLEY: And then, I have a chart that has these calls on them that you can look at.

You testified before the House that you do not remember saying you had no problem with the pardon, but you remember the comment about the howl from the Southern District?

HOLDER: At this point Senator, I mean, we're talking about something that happened, what, 2001?

So, that's 8 year ago. I don't remember that. But I find that comment interesting because if I said that, that in some ways indicates that I'm working under the assumption that the Southern District knows about this.

I don't -- although I see quotes around, only part of it and then something that says when they find out which appears not to be from, I guess, from this piece of paper that I was just handed. So, I don't remember.

GRASSLEY: OK. Well, as a prosecutor, would you agree that notes like these are taken at a time or just after a conversation where a much more reliable evidence and some of this memory on the conversation months or years later?

HOLDER: As a general matter, I'd say that that's true. I wouldn't say that that's true of the particular piece of paper that I have in front of me.

I would want to know exactly what were the circumstances under which this was generated, what were the conditions. I mean there's a lot of questions I would want to know about this piece of paper. I would agree with you generally.

GRASSLEY: Well, would you have in your possession any notes that would support a different account of the conversation?

HOLDER: No, I didn't take any notes of any of the conversations that I had. I'm not in a habit of taking notes of conversations I have.

GRASSLEY: Do you have any explanation why Mr. Quinn would have written these notes if they weren't true?



HOLDER: I take -- on the other hand, I don't know why he would have taken these notes but I -- one thing that sticks in my mind is this one that he took the note that said, supposedly, I could go straight to the White House. I know I did not say that.

And that appears in a piece of paper or note that he took which gives me some pause with regard then to other things that he perhaps wrote. I'm not saying he's making things up. Maybe, he misinterpreted things. But that one, I know I did not say. This, I simply don't remember.

GRASSLEY: Well, could I assume that based upon the notes that you did say something to Quinn on the night before the pardon about the prosecutors on the Southern District howling that seems to suggest that you knew that they were unaware that the pardon was being considered and that they would complain loudly if they knew.

After all, if they knew the prosecutors would have been already out there yelling about it yet you testified before the House that you didn't ask to see the pardon petitions when Quinn first mentioned it because, quote, unquote, "My belief was that any pardon petition filed with the White House ultimately would be sent to the Justice Department."

It's hard to believe that you assumed the Justice Department had been reviewing the petition since November 2000, yes, November 2000; but by January 2001, the prosecutors were not yet howling about it.

Isn't it true that you knew on the night before the pardon that the prosecutors did not have a chance to weigh in and does in fact contradict to your testimony that you believe the White House would forward the petition to the Justice Department?

HOLDER: No, actually, I think, as I said earlier, again, I've not seen this, you know, for some time and I think that the fact that you say, "Holder says," there's only part of that that's in quote, howl from the Southern District.

Again, I don't remember saying that. But if, in fact, I said that, I think that actually points the other way.

It shows that there's an expectation -- assumption on my part that the people in the Southern District in fact know about this.

Now, the part is when they find out, it does not have quotes around it so I don't know where that comes from.

GRASSLEY: OK. My time is just about up.

Mr. Holder, during the house pardon hearing, you said repeatedly that you believed all along the president was extremely unlikely to grant the pardon. According to your testimony, that's why you failed to make sure the president heard both sides of the story.

Essentially, you didn't think Justice Department input was necessary to stop it because Rich was a fugitive and that would disqualify him. However, less than a year earlier, you had successfully supported the petition for another fugitive Preston King.

Mr. King's case is very different from Marc Rich but they were fugitives and President Clinton had just pardoned King.

In light of the recent history, why would you say that you thought merely being a fugitive would disqualify Rich?

HOLDER: Well, because the King case was really fundamentally different. That involved a person, an African-American who had been discriminated against. I don't remember -- I think it was a selective service case or something. I don't remember exactly what the facts were. But that had the indicia of something, of a wrong that needed to be righted.

Mr. King being a fugitive was not in the same category, a fugitive as Mr. Rich. They were just fundamentally different types of cases.

I don't remember all the facts but I do remember it was something about a racial injustice that had happened to Mr. King.

I think it has something to do with a graft (ph) case but I'm not sure about that.

LEAHY: Thank you.

Senator Feinstein.

FEINSTEIN: Thank you very much.

Mr. Holder, when I -- my time was used up in the morning, we were talking about the use of independent contractors that the CIA utilizes to carry out interrogation techniques and I mentioned that I wrote a letter to Mr. Mukasey in February of last year asking as to why this does not satisfy the inherently governmental strictures that must be used.

The FBI uses its own people, its own agents for interrogation. The military uses their own agents for interrogation or soldiers for interrogation. But the CIA uses only contractors.

And it seems to me that the interrogation of detainees in a war fought by the United States is an inherently governmental function and I'd like to ask that you commit to re-review those decisions that I have the letters here which we will forward to you.

HOLDER: I would be glad to, Senator Feinstein.

FEINSTEIN: Thank you very much.

Let me ask this question. It seems that one of the issues surrounding the closure of Guantanamo is what to do with the 80 or so detainees that likely will not be tried but have been adjudged to be unlawful combatants and a threat to US security.

Do you believe that there are international treaties and specifically the law of armed conflict that would allow the detention of an enemy combatant for the duration of the conflict?

HOLDER: I think -- I can't refer it to something specific but I think that's a generally accepted rule of war that during the course of a conflict, a person who is captured by the other side can be detained for the duration of the conflict but there are safeguards for that person.

There are ways in which that person has to be treated but I believe that is the general state of the law.

FEINSTEIN: Well, if you assume, as I do, that as a law of armed conflict would cover this, then, and, that this is an unusual asymmetric war that's going to go on, that there should be some form of regular federal review of the case and do you have any thoughts on that and how -- should that be an annual review, which I would think would make sense to have a judge look at the case outside, thereby, provide some element of due process?

HOLDER: Yes, that's one of the things I'd like to work with this committee on and one of the things I discussed with Senator Graham. I think that there has to be fairness at two spots: one, in making a determination if the person is an enemy combatant, is dangerous; and then two, a review of that decision on some periodic basis.

I think a year is probably pretty reasonable because if we get to the point where we conclude that the person is not dangerous, then I think we need to go to the other phase which is to try to repatriate the person, take the person to some other country.

Given the fact that this is a war, it may go on for an extended period time. I think that kind of review has to be a part of what we do.

FEINSTEIN: One more quick question. And I thank you for that.

The FBI is in the jurisdiction of this committee as well as the intelligence committee for its work on counterterrorism and intelligence-related activities.

The Senate Intelligence Committee received last week the answers to questions from one of its open hearings that was held in January of 2007. Now, that's two years to get a response, and we've had to fight to get the response.

The FBI regularly tells both this committee and the Intelligence Committee that it can't respond quickly because all information provided to Congress has to be vented through the DOJ, and that causes delays.

Similarly, the DOJ prevents the FBI from answering questions from Congress on its domestic intelligence and counterterrorism questions.

Now, we're not looking to get into the details of an investigation. We are looking to carry out our oversight responsibility. And, therefore, I would like to ask you if you would review this oversight because I think it's been a way to stymied oversight rather than a prompt, quick review which allows the committees to do their work.

HOLDER: I'll commit to doing that. A two-year response is, obviously, unacceptable.

I'll work with Director Mueller and the folks in the Justice Department to see if there's a way in which we can decrease that amount of time.

I mean, two years is simply unacceptable, even -- I don't know exactly what's going. In the Justice Department, we can certainly do better, way better than that.

FEINSTEIN: Thank you very much.

Thank you, Mr. Leahy.

LEAHY: Thank you, Senator Feinstein. Thank you for coming back. I know that you have the additional burden as the outgoing chair of the Rules Committee to coordinate the inauguration -- is that correct -- on the 20th. So I know that you've been doing double, triple duty today, as well as taken over Intelligence. So, thank you very much.

And to those who had double and triple duty -- Senator Kyl, of course, is the Assistant Republican Leader for the Senate, and has also been in other committees today.

So, Senator Kyl, I appreciate you coming back. I yield to you.

KYL: Thank you, Mr. Chairman. There seem to be an inordinate number of members of this committee and the finance committee that discussed and talked about the potential for fraud and money- laundering and organized crime. Again, I won't go through all of that.

But the question that I'd ask and wanted just to get confirmed for the record is that you indicated that under your leadership the Department of Justice would continue to aggressively enforce the law against the forms of Internet gambling that DOJ considers illegal.

HOLDER: That's correct, Senator.

KYL: And then we discussed the regulations that were issued recently, actually, jointly by the Federal Reserve Board and the Treasury Department in consultation with the attorney-general.

The regulations primarily try to go at the problem by thwarting the payments for unlawful Internet gambling -- in other words, to shut off the cash flow.

And I mentioned the fact that they were already beginning to spend millions of dollars in an effort to try to undo these regulations somehow and hope that you would -- and you indicated you would -- oppose efforts to modify or to stop those regulations, and, of course, continue to be vigilant in enforcing those regulations to shut off the flow of cash from this illegal activity. Is that your intention?

HOLDER: Yes, that is my position. That's what I will do.

KYL: Yes, thank you, and I appreciate that very much. And we could talk a lot more about the pernicious nature of Internet gambling, but in view of the time here, let me move on.

One thing we did not talk about, but I understand -- in fact, I know you were asked by Senator Leahy. I forgot who it was -- someone earlier about the liability protection for the telecommunications companies under the FISA Law.

My understanding is that you answered the question saying that you would honor the certificate issued by Attorney General Mukasey that allowed the companies to claim the liability protections unless there were compelling circumstances. Is that approximately correct?

HOLDER: That's, I think, correct, yes.

KYL: OK. Now, the certification by General Mukasey was based on an investigation of the previous conduct of the telephone communication --telecommunication companies prior to the revisions in the law in order to determine whether they were entitled to receive retroactive immunity. In other words, the lawsuits had been filed based upon their earlier conduct.

The new law provides explicitly a protection for conduct prospectively.

So, the question, obviously, that arises then is what conceivable compelling circumstances could you conceive of that would relate to this previous investigation that caused General Mukasey to issue the certification?

HOLDER: Senator, I'm not sure that I can come up with what those compelling circumstances might be. I guess, maybe I was being a little too lawyerly in trying to get myself some wiggle room.

I can't imagine what set of circumstances there would be that would have us go back and undo those certifications. I can't imagine. I don't know.

KYL: And you are aware that the Department of Justice, of course, has taken a position in the litigation involving AT&T (NYSE:SBT) (NYSE:T) in support of the liability protections that have been invoked by AT&T?

HOLDER: Yes. KYL: And it would be quite unusual where constitutional issues are involved for the department just because of a change administration to take a different position.

HOLDER: Yes, it would certainly not happen as a result of a change in the administration. That would not be a compelling circumstance. And I -- if you...

KYL: I didn't mean to suggest that either.

HOLDER: No, no, no. I'm just saying that if you, you know, put me to the task there like, Mr. Holder, tell me what the compelling circumstance might be, I don't think I could answer that question.

KYL: I hope you'll consider this question not out of bounce. We also discussed the speech you made and you talked about activities before the Congress acted. I had one question to ask in that regard, but we hadn't discussed this.

You were deputy attorney general during the Clinton administration when the Department of Justice authorized the warrantless search of Aldred Ames, the spy, who is a US citizen, of course. This was in 1993.

Were you involved in that authorization by any means or by your recollection?

HOLDER: I don't remember.

KYL: Do you have any reason to believe that it was unconstitutional?


KYL: Even though it was warrantless?

HOLDER: No. I was talking to a member of my staff assigned and as I understand it, as I understand what he relayed to me, if there is a national security exception not covered by FISA that would have made that search appropriate, legal, I think.

KYL: Yes, FISA was not involved.

HOLDER: Right. I think that is what was relayed to me.

KYL: OK. Well, my time is up for this round. So, I'll...

LEAHY: I thank you very much, Senator.

Senator Feingold?

FEINGOLD: Thank you.

Again, Mr. Holder, among the last minute administrative actions taken by the outgoing attorney general was to approve major changes to the attorney general guidelines governing domestic FBI investigations, changes that went into effect on December 1st.

As you may recall, I had a number of other senators on this committee who repeatedly raised concerns about these new guidelines with the way that Congress was supposedly consulted with the decision to push these through during the lame duck period, and also with the substance of the changes.

Will you take a close look at these new guidelines early in your tenure and consider whether changes need to be made, and will you engage in real consultation with Congress as you do so?

HOLDER: The guidelines -- I will do that, Senator -- the guidelines are necessary because the FBI's changing its mission, going from a pure investigative agency to one that deals with national security matters.

I understand the concerns that you have expressed. I think the thing to do would be to see how these guidelines work in operation, but then to take -- ask some serious questions in whether or not the concern that you and others have raised have been borne out by the way in which these things have been used in practice.

So, yes, I would commit to doing it.

FEINGOLD: Thank you. I think these concerns are really quite serious so I appreciate that.

And this is related to -- the FBI has developed a policy document that is hundreds of pages long to implement these new guidelines.

I asked FBI Director Mueller back in September whether those policies would be made public to the greatest extent possible. He said, "Yes." And I understand from a letter we recently received from the FBI general counsel that a process is underway to consider what portion of those policies can be made public.

As attorney general, will you support efforts to make as much of those FBI policies public as possible?

HOLDER: Yes, I think that helps the FBI, it helps our overall law enforcement efforts to be as transparent as we can, understanding there are certain things that we can not share; but to the extent that we can, we are helped by doing that.

FEINGOLD: Thank you.

In his first state of the union address, President Bush said of racial profiling, it's wrong and we'll end it in America. And not long after that, Representative John Conyers and I introduced the End Racial Profiling Act.

Senator Barrack Obama was a co-sponsor of the bill in the last two congresses. Will you support the enactment of this or similar legislation to end racial profiling in America?

HOLDER: I'm not familiar with the bill. I apologize for that but I think that we have to do something to end that practice. It's not good law enforcement.

You make assumptions on the basis of the way a person appears and you either put somebody in the ambit of suspicion or you miss somebody because you're looking at that other person. There are a whole variety of reasons why we shouldn't be doing that.

And so, I am against, in every way, racial profiling.

FEINGOLD: Well, my question was whether you support legislation because there had been some things done by the Justice Department administration in this regard.

My question is as to the need for legislation. Do you agree that there's a need for legislation?

HOLDER: I like to work with you and see what the legislation says and see if there are deficiencies and what the department has done and get a sense -- this not an issue I focused on very recently -- and get a sense of whether or not legislation as opposed to something else might be the better way to do it.

I'm not saying that I'm opposed to legislation. I think we don't have a factual basis at this point.

FEINGOLD: Fair enough, I do think there's a strong need for legislation, the law of the land, making it very clear from a legislative -- legal point of view that this is not tolerable.

On the death penalty, as you know, in 2000, when you were the deputy attorney general, the Justice Department publicly issued a nearly 400-page report with every conceivable piece of data about federal death-eligible cases down to the district level covering the times since the federal death penalty was reinstated in 1988.

This comprehensive report was extremely helpful in understanding how the federal death penalty has been implemented. And in the past two years, I've repeatedly asked Justice Department officials whether they would prepare a similar report covering the time period since 2000.

And while the department provides some statistical information in connection with an oversight hearing held in June 2007, it never agreed to prepare a detailed report similar to the one Attorney General Reno issued.

Will you commit to making this information publicly availably if you're confirmed just as you and Attorney General Reno did in 2000?

HOLDER: Yes, that report was done by lawyers in my office and I thought it was a very useful examination of the system and raised some very disturbing questions about not only the racial identity of people who were in the death system -- in the federal death system but also the geographic distribution of those people.

So, this is an issue that I think need to be revisited. It's been about, as you say, eight years or so and it might be, I think, an appropriate time to do another study and then share the results as we did in that first study.

FEINGOLD: Thank you for that.

And finally, I was encouraged by your testimony that DOJ should, quote, "reinvigorate its efforts to protect the public in areas such as food and drug safety and consumer product safety." As you know, private lawsuits play a significant role in protecting the public, but the outgoing administration has pursued a far-reaching policy of trying to pre-empt state court law to a federal regulatory action.

What is you view of this trend towards so-called regulatory pre- emption and do you think the position of the federal government in such case needs to be changed to restore common law legal rights of injured citizens?

HOLDER: Well, I'm not an expert in that field of the law but I think what we need to do is approach from a pro-consumer perspective. I think we need to always be doing that, protecting the American people; but I think that's especially true now given the economic hardships that so many of our fellow citizens are facing.

FEINGOLD: Thank you, Mr. Holder.

Thank you, Mr. Chairman.

LEAHY: Thank you very much.

Senator Cardin?

CARDIN: Thank you, Mr. Chairman.

Mr. Holder, when you are confirmed to be the attorney general of the United States, one of your principal responsibilities is to make sure the access to our legal system is available to all of our citizens.

Last year, this committee held a hearing on access to civil legal services. We looked at the legal service corporation. The last study was done in 2005 that showed that of those people who are eligible for legal services and applied for legal services, about 50 percent are turned away.

Over a million cases a year were denied because of lack of resources to have access to our system. That denies justice to the people who could not get those services. When we look at this circumstance, we find that we can do a lot better.

And I guess my question to you is this. Congress should have been appropriating more money. We're at about 50 percent of what we said was the minimum level of appropriations so Congress hasn't provided the money. We haven't re-authorized the Legal Service Corporation for a long time.

My question to you is I hope this will become a priority. I understand the difficulty of getting legislation passed in Congress in this area, it's not going to be easy and the jurisdiction rests primarily with the Help Committee. This committee has the responsibility of access to the legal system.

But I would hope that we could find a way to bridge this gap, working together with the Department of Justice and take advantage of an opportunity. I know we're in tough economic times and circumstances are even more difficult for people who are seeking help through our legal system.

HOLDER: Yes, I think one of the responsibilities that the attorney general has, in addition to a few other people, is a systemic responsibility, not only to do the things that concern the Department of Justice directly, but also to take care of a system, a system of justice on the criminal side as well as the civil side.

I was one the co-chairs of President's Clinton's effort of Lawyers For One America where we try to stress the need for representation in civil matters. The statistics are appalling and consistent with what you say with the number of people, usually poor, and disproportionately women who are not represented in civil proceedings and they're not getting justice as a result of that.

CARDIN: I want to bring up a matter that you initiated when you were the U.S. attorney for the District of Columbia, and that is Community Prosecution Project, where you worked with the community to get a better of what you're doing, and also a better understanding of the community needs.

The goal was to reduce crime, to increase neighborhood safety, and get better cooperation between the community and the prosecutors so that you could be more effective.

My question is whether we could use that as a model and try to develop smarter ways that we can involve communities so that we can keep our communities safer.

HOLDER: I think you need a model and I think that it is something that we should experiment with in other parts of the country. We have seen the success of community policing and it was our thought that community prosecution would also work out.

I think that we saw positive results from what we tried in Washington D.C., and, we tried it in other places, in demonstration projects. Funding for it didn't continue into the new administration.

I think it is something that is worthwhile and worthy of looking at and potentially expanding.

CARDIN: We're working on some legislation with some other members of the committee to try to allow some discretion in setting up these types of programs in other parts of the country. And we urge us to work together and see whether we can get some legislation passed in that area.

Let me ask just one more question dealing with the Juvenile Justice Delinquency and Prevention Act. I want to talk about one of the four core requirements, which the deinstitutionalization of status offenders. Status offenders are those who went through into minor issues.

And in the 1980s, we enacted the Valid Court Order Exception, which was supposed to be an exceptional circumstance where you could put a juvenile in a facility in order to protect that juvenile. It was never meant to undermine the purpose of the act to deinstitutionalize status offenders.

The number of the use of these orders has increased dramatically over time. I would urge as we look at the re-authorization of this act, to make sure that the core requirements that were intended are now carried out. And we have a realistic schedule so that we can phase out the need for this exception.

HOLDER: I agree with you, Senator. We don't want to have a situation where we have juvenile status offenders who are made a part of the juvenile system. It does not do them well.

It doesn't -- we have limited space in the juvenile system. In any case, we shouldn't be using that space for status offenders. There has to be an alternative way in which we deal with them. And again, it's a question of who we are as a nation.

We can be -- we have to be, you know, smart, upfront if we deal with these kids who have these status offense problems in a constructive way. It's much less likely that we'll going to have to deal with them if there are juveniles later on in the system or as adults in the criminal justice system. But it all requires focusing attention on those kids when they're not really in serious trouble.

CARDIN: Thank you.

COBURN: Thank you.

First of all, I'd like to -- a unanimous consent to put into the record evidence of self-defense from gun ownership, various articles.

LEAHY: No objection.

COBURN: Since we only have five minutes, I want to go back to guns just for a minute. Do you have any plans to issue regulations or seek a change in the concealed carry laws of the states or have a federal regulation that might impact those?

HOLDER: That has not been something that I have discussed with anybody in the administration. It's nothing that I've contemplated.

COBURN: It's nothing you're contemplating.

And I understand President-elect Obama does have an opinion on "assault weapons," quote, "assault weapons." Can you tell me what your plans are and how you view that and whether or not you think that may or not be reinstituted?


I think you had asked me earlier about the regulations that I thought might still exist, post-Heller. And I had mentioned, I think, closing the gun show loophole, the banning of cop-killer bullets and I also think that making the assault weapons ban permanent would be something that would be permitted under Heller, and I also think would be good for my law enforcement perspective.

COBURN: OK. Thank you.

I want to move to just another area that hadn't been covered. I also want to say, I'm still troubled about the FALN decisions with that as I kind of do some moral equivalency with the Oklahoma City Bombing and the people who were in the conspiracy but yet didn't actually commit the acts that took the lives.

I just have to tell you, I'm still troubled with your viewpoint on that and the fact that you don't believe it was mistaken judgment.

I want to ask you about the Governor Blagojevich. We have -- and the answer of the questions to the committee, you failed to mention a -- what evidently was a very short-lived and early relationship in doing some legal work for them in December 17th, 2008, in a letter to Senator Specter, you said you'd never did substantive work on Illinois' gaming matter and that the engagement never materialized.

Mr. Chairman, I have a copy of the letter, which I'd like included in the record, if I might. However, in response to a foyer request, the Illinois Gaming Board, it appears that from an April 2nd, 2004 letter that you had at least done enough research to submit a detailed first request for documents from the gaming board and then you had at least one telephone conversation with the chairman of the Illinois Gaming Board.

And I would like this document placed in the record as well, which I will submit. And tell me how that is not substantive work.

HOLDER: Yes. I was going to say, the letter was drafted by an associate while I work with three capable young men and really only is of preliminary nature. We're asking for very preliminary documents.

We did not receive any documents in response to that letter.

The call that we had was, again, of a preliminary nature. That was something that we were trying to get things set up in terms of acquiring documents, filling out what our jurisdiction was going to be, figuring out who we were going to report to, dealing with a conflict that existed between the State and my law firm.

Well, none of those things were ultimately resolved. We never got any of the material that we sought. We were never paid for any of the work that we did.

And that's why we have described it in a way that we did.

COBURN: It's a reasonable explanation. Did you all ever send a bill for the hours worked by your associate?

HOLDER: No, we did not.

COBURN: I want to go to one of the things that has troubled me tremendously and that is that we have rules on our veterans who come back who -- and I'm actually asking for a commitment, because we have a rule that says a veteran who is incapable at this time of not handling his affairs is adjudicated mentally defective and cannot own a gun.

And there's no trial that goes through for that. There's no true protection of his rights. And this is not through statute. This is through regulation.

And the current law prohibits individuals who are adjudicated as mentally defective from possessing a firearm and I don't have any problem with that.

But by regulation, adjudicated as a mentally defective is defined as a person who is either a danger to himself or others, which I don't have any problem with, or who lacks the mental capacity to contract or manage his own affairs.

We have a lot of veterans coming back with closed head injuries who get better, but they ended up losing their rights to go hunting with their kids or their grandfather when they come back.

Do you believe that this definition that is used in regulation is appropriate?

HOLDER: I'm not familiar with this area of the law -- of that definition. What you've described though is a bit troubling because I think you're right. People can get well and to the extent that they do, and have an ability, I suppose to demonstrate that they are well, rights then, I think, be perhaps ought to flowed back to them.

What I'd like to do is press work with you on this...

COBURN: I'd be happy to send you a letter stating this out much more thoroughly and ask for your opinion in response to that if we could get that.

HOLDER: But I think you raised an issue that could be a legitimate one.

LEAHY: Senator Coburn?

COBURN: I will yield back.

LEAHY: Did you have another question?

COBURN: Well, I have some, but...

LEAHY: OK. We're about to go under our -- well, once Senator Whitehouse is over, we're going to go do our third and final round. If you want -- if you have one more question, I'm trying to get flexibility here.

COBURN: Actually, I'm doing fine, Mr. Chairman.


COBURN: Thank you for your graciousness.

LEAHY: Thank you.

Senator Whitehouse?

WHITEHOUSE: Thanks, Mr. Chairman.

Mr. Holder, I just want to touch on one thing briefly, because there's been so much discussion in this room about whether President Clinton's decision in the FALN matter was reasonable.

At the time in the pre-9/11 environment that prevailed then, there was substantial support for this, was there not?

HOLDER: Yes, there was. The...

WHITEHOUSE: I'm looking at a list here, which is -- it's described as a partial list of the supporters, and it's 15 pages long.

And if I could just mention some of the names that are on it: Former President Jimmy Carter -- there are 11 members of the United States Congress; there are five members of the New York City Council, which is interesting when you consider that the most grievous offense that the FALN committed was two bombings in 1975 and 1977 in New York; numerous members of the New York Legislature; the former mayor of the City of New York, David Dinkins; a formal resolution, actually, on behalf of the city council of New York.

From the religious community, the United Church of Christ supported this -- and it looks like one, two, three general sign ads so they repeatedly did this. The general conference of the United Methodist Church supported it. The Baptist Peace Fellowship of Northern America supported it.

Back to New York City again, the presiding bishop of the Episcopal Church of New York City supported it. The general secretary of the American Baptist Churches of America supported it. The ecumenical officer and president of the Council of Bishops of the African-Methodist Episcopal Church supported it.

The Puerto Rican Bishops Conference supported it. The president of the World Council of Churches supported it. The general secretary of the World Council of Churches supported it. The deputy general secretary of the Young Women's Christian Association supported it.

I count five Nobel Peace Prize Award recipients who supported it; and one Nobel Prize for Medicine recipient who supported it; two organizations that had received the Nobel Peace Prize, Amnesty International and Physicians Against Nuclear Weapons; and two family members of deceased Nobel Peace Prize Winners, including, particularly relevant to all of us, Coretta Scott King of the United States.

The president of the National Lawyers Guild -- in fact the National Lawyers Guild, by resolution, supported it. And on and on we go.

So, I just wanted to put those names in the record.

We can all agree or disagree about this, but I think in context, it's important to recognize some of the leading legal, civil rights, Christian and governmental organizations who were in support at the time.

The other thing I wanted to touch on is we had a -- the chairman had a wonderful hearing recently with some of the police chiefs, and there's been a real conflict, I think, between homeland security and hometown security.

Homeland security has had buckets of money. And people have been able to buy, you know, scuba equipment and underwater vehicles and train up for every possible thing you can think off.

All of which is, you know, a good thing but a lot of it has come at the expense of hometown security -- cuts in police coverage, a reductions of community policing.

I ran a community prosecutors office when I was the Attorney General I'd love to hear you -- and the police officials who were present said that it had become very unbalanced, that in terms of the public safety effect in their own community, the people whose safety they were responsible for, they felt that they had a lot of resources for a very small risk with respect to homeland security and very small resources for a current, present, under the Bush administration, increasing violent crime risk in their communities, and it was extremely disproportionate.

From a sort of policy point of view, how would you propose to address that question? Do you see it as an unbalanced situation right now?

HOLDER: Well, that's something that I want to work with the committee on and see whether or not if that imbalance exists. I don't want to get on the bad side of my -- our former colleague, Janet Napolitano...

WHITEHOUSE: That's right. We can't get you in trouble with Janet Napolitano now.

HOLDER: ... who's the U.S. attorney with the two of us, and, you know, I don't want that to happen. But we really do need to put our money where there is the greatest harm, potential harm. And obviously, defending our nation and keeping our citizen safe is our primary objective.

But that has a couple of components to it. We not only have to worry about criminals and terrorists from foreign shores. We also have to worry about criminals who are here and among us.

And we cannot lose the progress we made during the '90s when we worked with you, when you were attorney general in Rhode Island, to see those crime rates really come down. We can't afford to see those crime rates creep back up. We have to do what we can to make sure that we maintain a lid on the crime that restarted in the '90s, but at the same time protect us from terrorists.

I think we can do both; but it really is a question with the limited amount of money that we have making sure that we're spending it in the appropriate places.

And I would like to work with this committee and with Janet -- Secretary Napolitano, in figuring that out. She and I are going to have a meeting, actually, I think, next week, an informal meeting to talk about those kinds of issues.

I don't know she'll be as generous as she seemed to indicate in the conversation that we were having when we started talking about actual money, but we'll see.

But maybe, as a former colleague, you might help me, Senator Whitehouse.

WHITEHOUSE: Thank you Mr. Holder.

Thank you, Mr. Chairman.

LEAHY: I see that these former U.S. attorneys are getting together.

Well, for those with the schedules, we're going to begin our third and final round.

I reserve my time for the moment and I will begin with Senator Specter. After we finish this round, this third and final round, we will complete our time with senator -- with Judge Holder and then we will set a time.

I was going to consult with Senator Specter. Before we do, we'll set a time for the panel tomorrow, which will be the completion of the hearing.

Judge Holder will not have to come back, obviously, for that. And depending what time we finish tonight, Senator Specter and I will consult and set a time for the morning.

Senator Specter?

SPECTER: Mr. Chairman, I understand you are interested in concluding the night, and I'm agreeable to that, but not if it's going to cut it short on questions.

You and I have discussed this for a few moments a minute ago. In the attorney general hearings on Alberto Gonzales, retired chair, Senator Kennedy had a total of 57 minutes. He had two ten-minute rounds. He went into the third round, just 22 minutes, and went to the fourth round, which was 15 minutes.

And so far, there have been 15 minutes -- 10 and 5 -- and you're talking about another 5, but you may extend a little.

That is insufficient for the questions I have also for conformation.

LEAHY: If Senator Kennedy comes back, we'll give him extra time, but the...

SPECTER: I don't think it's funny, Mr. Chairman.

LEAHY: Well, I...

SPECTER: I don't think it's funny.

LEAHY: I know. I was at the Ashcroft -- I have it here -- I was at the Ashcroft hearing, the Gonzales hearing and the Mukasey hearing.

In the Mukasey hearing, we only have -- the last hearing we had, we only -- we had two full rounds. The only third round was just you and I.

In the Gonzales hearing, there were three rounds, which we're having now. In the Ashcroft hearing, there were two rounds. Only you and I had a third round.

Now, we're not going to have a different system because it's a Democratic administration than we had with the Republican administration. You're recognized for your third round.

SPECTER: Well, Senator Leahy, the Gonzales hearing was a republican administration. It's exactly the same thing. And the Republican was chairman of the committee.

And there were requests for more questions and I exceeded. I took on those requests.

And I have other serious important questions to ask, and so do others. I would like to find out from the senators who are here.

Senator Kyl, how many more questions do you have? How much more time do you need?

KYL: Thank you, Senator Specter. I yield.

I would just suggest to the chair. I have several more questions. I'm trying to go through them right now to get it down to the very minimum.

We can finish tonight. I have no intention of dragging this out, but I would ask for the same consideration that Democrats were given during the Gonzales hearing, nothing more than that.

I think if we stopped talking about this and just get on with the questions, we can finish. But we will need a little bit of additional time.

LEAHY: How much more time do you need, Senator Grassley?

GRASSLEY: I don't know how to say how much time. I don't think it's -- surely not as much time as I've used. But I do have the issues of congressional oversights, False Claims Act, and whistleblowers that I'd like to discuss with the attorney general.

LEAHY: Senator Sessions?

SESSIONS: Well, I thought we're probably going to a third round, and so I had -- I expected to have two more opportunities.

I didn't expect to finish tonight. Some things I want to work on overnight, but the ranking member -- I know he's been on top of this since the beginning.

LEAHY: Yes. Just how much time you need it?

SESSIONS: Fifteen minutes.

LEAHY: If everybody could, I ask there would be some parameter we could be more precise about.

SESSIONS: Fifteen minutes.

LEAHY: OK. Senator Coburn, how much more time do you to finish?

SPECTER: Well, Mr. Chairman, my suggestion is that you allocate it as a minimum, fifteen minutes more for each senator.

LEAHY: One senator from Pennsylvania begins his question. Let's see where we're going. A number of questions have been asked two or three times already. We could sit here all night long and ask the same question over and over and over again, which doesn't seem to accomplish anything for anybody.

I would suggest the senator from Pennsylvania begin his questions. Let's see how we go.

SPECTER: Mr. Holder, turning to the issue of the quest for independent councils to investigate Vice President Gore on allegations that he had raised hard money from the White House and violations of federal law during the tenure of Attorney General Reno, when you were Deputy Attorney General, there was a strong recommendation by FBI Director Louis Freeh -- Charles LaBella designated by Attorney General Reno to make an independent evaluation as to whether or not there ought to be independent council, and the third attorney, Robert Conrad, who came in for the same purpose.

All three of those made strong recommendations for the appointment of independent counsel. There were four witnesses who testified that Vice President Gore was at a meeting where there were discussions about raising hard- money. Lynn Pineda, who was one of the four witnesses said, quote, "The purpose of the meeting was to make sure that he, Gore, knew what the hell was going on," close quote.

Attorney General Reno discounted the testimony of one witness, David Strauss, who was chief of staff of Vice President Gore, who had a notation of 65 percent soft, 35 percent hard.

I couldn't remember what was said, but Attorney General Reno did not acknowledge that as competent evidence, which it was, under the hearsay exception of prior recollection recorded which is different from prior recollection refreshed. He didn't qualify for prior recollection refreshed, but he did for prior recollection recorded.

There were 13 memoranda from Harold Ickes to the vice president from August of 1995 to July of 1996 containing divisions as to hard money and soft money, also the federal contributions which the equivalent of hard money contributions.

Vice President Gore testified that, quote, "The subject matter of the memorandums would have already been discussed in his and the president's presence."

The Vice President further acknowledged that he had, quote, "had been candidate for 16 years and had a good understanding of a hard- money," close quote.

Now, the applicable law states that where there is a preliminary investigation which determines there are reasonable grounds to believe that further investigation is warranted.

It seems to me as it seemed to FBI Director Freeh and Charles LaBella and Robert Conrad that an independent counsel should have been appointed. And independent counsel was not appointed.

I chaired the subcommittee hearings that rendered this issue in great detail. And it seemed obvious that Vice President Gore was being favored and that if it hadn't been the Vice President, a superior, that independent counsel would have been appointed.

Should independent counsel have been appointed in that matter?

HOLDER: No, I don't believe so, Senator Specter. Louis Freeh, Chuck LaBella are very good lawyers, and people who I respect and people who coincidentally are supporting my nomination to be attorney general.

There were -- they had their view of that matter. We had career lawyers at the Public Integrity Section who had a time for review.

Attorney General Reno and I looked at those conflicting recommendations or conflicting views of the case made the determination that we thought that what was expressed by the Public Integrity Section was stronger, was more reflective of both the facts and the existing law, which is not, in anyway, to take away from the Louis Freeh and Chuck LaBella.

These are people who are friends of mine, who are great lawyers. And I certainly respect the opinions that they shared with us.

In fact, they gave me pause. The fact that we had those kinds of recommendations coming from people that I respected, it made me think twice about where we were going.

But ultimately, our determination was that the Public Integrity Section lawyers made the better call.

LEAHY: Well, the time of the senator from Pennsylvania is expired. Certainly, feel free to continue. I just want to make sure I understood one thing.

Mr. LaBella and Judge Freeh are both supporting you as attorney general, is that correct?

HOLDER: That's correct. Mr. Freeh, I think, is going to be testifying tomorrow, and both have submitted letters.

LEAHY: Please, go ahead, Senator.

SPECTER: Mr. Chairman, I would appreciate it if my line of questioning was not interrupted.

HOLDER: I'm sorry, Senator. I didn't...

SPECTER: You didn't interrupt it. I'm not talking to you. I'm talking to him.

LEAHY: I think the only reason I interrupted is because your time had run out and I was trying to give you a little extra time.

SPECTER: Well, you could have accomplished that without breaking up collateral matters to interrupt the train of the inquiry.

There's no doubt that the chairman would have had other time to make any comments he wanted. He runs the place.

Were I to understand you to say that you think that was a proper decision, Mr. Holder, not to appoint independent counsel, that if you're confirmed and a similar situation arises, that you would not appoint a special prosecutor?

We don't have independent counsel statute, but we have the equivalent of a special prosecutor. You're saying that if you're confirmed, you'll stand by that kind of a judgment?

HOLDER: I'm saying that I will stand by the judgment that I made then and also assure you and the American people that I'll look at the law, the facts, and make the appropriate determination. And if an independent counsel, a special prosecutor is warranted, I will do that.

And for some perspective, one of the things that people talk about is perhaps we were trying to favor Al Gore. But we certainly didn't favor Al Gore when we decided to make that rescue of Elian Gonzalez in Florida, a critical state as it turned out.

Vice-President Gore criticized the decision to make that -- to do that operation. Maybe that caused him the state. I don't know.

But Attorney General Reno and I certainly did not show him any favoritism then and we certainly didn't show him any favoritism with regard to the matter that we are talking about here. Our determination was based really on the facts and the law.

SPECTER: Well, you have your judgment which you've expressed and you stand by it and I have my judgment. And I don't think it's a closed question.

I don't think at all -- the basis of that evidence, if it hadn't been the Vice President, if it hadn't been a superior, somebody to favor, if it had been John Doe, an independent council would have been appointed.

I think it's so clear that it raises a question on my mind as to your fitness for the job, for the record.

HOLDER: With all due respect, Senator, you're a good lawyer. I'd like to think of myself as a good lawyer. Good lawyers frequently disagree about these kinds of things.

I don't question your integrity. I respect your opinion in the way that I would hope that you would respect mine. It was not done for any reason other than what I would consider a neutral assessment of the material that we had... SPECTER: You are an excellent lawyer, Mr. Holder. If you weren't such a good lawyer, I wouldn't be so surprised if you were a poor lawyer, an inexperienced lawyer, not a real professional like you say who doesn't know any better.

But my evaluation is that a man in your position knew better. That's the whole point, but you've expressed yourself and I've expressed myself.

HOLDER: Senator, we're getting close to a line here. I will certainly understand a difference of opinion, but you're getting close to questioning my integrity and that is not appropriate.

That's not fair. That's not fair, and I will not accept that.

SPECTER: What's not fair?

HOLDER: To suggest that the decision that I made in the case along with Attorney General Reno supported by career lawyers from the Public Integrity Section was anything other than a call on the facts and the law. There was never any attempt on the part of any of those people, those career people -- the Attorney General or this Deputy Attorney General to do something that was inappropriate or that favored Vice-President Al Gore.

That was not the case.

SPECTER: Well, you're telling me what you think about it.

HOLDER: That's fine.

SPECTER: And I'm telling you what I think about it.

HOLDER: That's fine.

SPECTER: And when I look at Marc Rich and the circumstances surrounding that, if you have a part of that guy who's a fugitive with a terrible record and you have Roger Adams calling you at 1 a.m., it looks to me like there's favoritism to cover for President Clinton.

And we talked about FALN, that's inexplicable to me. We went over all the facts as to how you have the professionals opposing clemency, to give you a report, opposed the clemency, then you want them to change their report in order for you to have cover. So I have to make a determination on my vote looking at the totality of your record which, overall, we appreciate.

Mr. Chairman may the records show that it's 5 minutes and 27 seconds, so, I now have the...

LEAHY: Actually, it's 10 minutes and 31 seconds because it's five minutes plus your five minutes.

SPECTER: May the record show that it's 25 and a half minutes so that on the Kennedy standard, I only have 21 and a half minutes left.

Thank you, Mr. Chairman.

LEAHY: Senator Feinstein and Senator Grassley, you're on your third and final round and I appreciate the -- Senator Specter wants to make sure you are all given extra time. That's what I'm doing as I did for Senator Specter, and I appreciate you taking only 10 minutes instead of...

SPECTER: Mr. Chairman, I'm not finished yet.

LEAHY: Well, then, finish your questions within a reasonable amount of time. You're now on the third round of five minutes each. You've gone 10 minutes into it. You want more time in your third round because it will not be more than three rounds.

SPECTER: Mr. Holder, when you came to see me for the so-called courtesy call, I showed you a letter which I had written to you. Attorney General-designate Gonzales and I have written a similar letter to you and handed it to you, but you had a chance to see it at that time and I gave you a notice about it. And this is the parameter and the scope of the congressional oversight.

And the essence of the letter is an inclusion by congressional research report about the scope of appropriate congressional oversight. And it says in part that DOJ consistently obliged to submit the congressional oversight regardless of whether litigation is pending so the Congress is not delayed unduly in investigating misfeasance, malfeasance or maladministration, DOJ or elsewhere.

In the majority of events since this review, the testimony of subordinate DOJ employees such as line attorneys and FBI field agents and was taken informally or formally and include the detailed testimony about specific instances of the department's failure to prosecute alleged meritorious cases.

In all instances, investigating committees were provided with documents respecting open or closed cases that included prosecutorial memoranda, FBI investigative reports, summaries of FBI interviews, memoranda and correspondents prepared during the pendency of cases, confidential instructions outlining the procedures or guidelines to be followed for undercover operations and the surveillance and arrest of suspects and documents presented to grand jury is not protected from disclosure by Rule 6E.

Do you accept that as an appropriate legal standard for congressional oversight?

HOLDER: Well, I'd say this, Senator. Congressional oversight of Justice Department activities is obviously very important, but I will respect the Congress' rule. In general, I work to keep the committee fully informed of the department's policies and programs.

Now, there are limits I think to what we can say about ongoing law enforcement matters, including Grand Jury testimony that might jeopardize an investigation. That would be a concern I would have and also a concern about the impact of revealing that kind of information and the chilling effect it might have on line lawyers. But we'll work to cooperate with you to make sure that you have access to the materials that you need so that the oversight that you conduct would be meaningful.

SPECTER: Oh, I take that to be a no answer.

HOLDER: Well, I'm not -- this seems a bit broad to me.

SPECTER: Well, Mr. Holder, may I suggest and ask that you take a look at it. Study it more fully and give me a response in writing as to whether you would accept that as the appropriate range of congressional oversight or, if you disagree with any part of it, tell me which part you disagree with.

HOLDER: I'll be glad to do that, Senator.

SPECTER: Mr. Holder, there had been suggestions for a revival of the so-called Fairness Doctrine, and my question to you is do you think that as a matter of public policy, the so-called Fairness Doctrine ought to be reinstated?

HOLDER: Senator, that's a toughie. I've not given an awful lot of thought to. If I could perhaps submit an answer to you in writing, I would have an opportunity to think about that. I wouldn't want to commit myself to something and not give you the benefit of what is my best thinking on that.

SPECTER: Well, this is a subject which I did not take up when we had our so-called courtesy call and so that'd be fine. I will propound some questions to you in writing on that because I want you to answer also the constitutional question if you would.

HOLDER: Sure, that's fine. You've been very generous in sharing with me both at the meeting and in the address you did on the floor. It was laying out for me, I think, in a very generous fashion the things that I could expect at the hearing and I called to tell you that I appreciated them.

SPECTER: Senator Leahy asked you about reporters' shield. You said you'd be willing to consider it. We had a reporter held in jail for 85 days on the allegation that a source was not disclosed at all times. The special prosecutor in the case knew where the leak came from.

I would appreciate it if you would be a little more definitive with your response. I don't want to protract the discussion now.

HOLDER: Well, that's fine.

SPECTER: Because I want to give my colleagues plenty of time.

HOLDER: Well, maybe, let me just say this, Senator. Maybe I wasn't as clear as I could have been. I actually favor such a measure. All I was saying was that I'd want to work on what it actually look like.

There's a piece of legislation, I understand, there are going to be concerns, I can tell you I'm sure within the department. I want to work with you on that. But my position is that I think something can be crafted to deal with the issues that you have raised and the concerns I know I'm going to hear at the Justice Department. But I am in favor of the shield though...

SPECTER: Well, the critical question is a national security issue, right? If you would take a look at that and give me, us, your judgment, I'd appreciate it.


SPECTER: The issue of what was the topic that we started with you and my sense is that there are two fundamental principles involved here. One is the right to counsel, Sixth Amendment, right to counsel, and an integral, indispensable part of that is freedom of communications to a lawyer.

The second principle is the state or the commonwealth, which I used to represent. It has the obligation of the burden of proof. And it seems to me that the prosecutor never did try to prove his case out of the mouth of the defendant.

And I don't know if you anticipated where your memorandum would lead, but it has led to some pretty tough situations with the Southern District case, denying counsel fees and finding the district federal judge a violation of the Sixth Amendment rights have upheld by the section.

I'd like you to respond to that in writing, too...


SPECTER: ... as opposed to an extensive dialogue here.

HOLDER: I'd be glad to. But I will note that I think the progress that we made in this area in walking it back from what I think people in the fields have done was largely as a result of the work that you and Chairman Leahy did in expressing concerns about positions the Justice Department was taking.

But, frankly, I think we're inconsistent with that initial memo of my mine, so, I'd be glad to respond to the questions that you'll propound to me.

SPECTER: Thank you, Mr. Holder, for being a patient witness.

HOLDER: Thank you.

SPECTER: A witness with a lot of stamina. It's an important attribute for this job. OK. Thank you, Mr. Holder.

HOLDER: Thank you, sir.

LEAHY: Are you finished with your questions? This is your last round. So, are you done?



SPECTER: I understood the parameters.

LEAHY: OK. I just want to make sure you felt you had enough time.

SPECTER: This is the last tango. We'll ask some more questions in writing, but that's...

LEAHY: Senator Grassley?


SPECTER: Oh, Mr. Chairman, I want to put into the record unanimous consent...

LEAHY: Of course.

SPECTER: ... as a pro-forma matter the whole series of documents and also the editorials without taking the time to enumerate.

LEAHY: Of course. Of course. Also, we have an enormous number of letters in favor of the nominee. We have some opposed to the nominee. They'd all be put it in the record, too.

Yes, go ahead.


LEAHY: Senator Grassley?

GRASSLEY: Mr. Holder, when we met several weeks ago -- and I thank you for coming and visiting with me for a long period of time -- I talked to you at length about my congressional oversight efforts and how I take this constitutional responsibility very seriously.

Oversight help makes government more transparent. The taxpayers have a right to know whether taxpayer's money are being appropriately spent. We've got a waste fraud and abuse rampant in any administration.

In my opinion, oversight is a particularly important issue for any nominee in your position because of the critical work that your department does and its subordinate law enforcement agencies particularly the FBI.

So, I hope you appreciate the role that Congress has in conducting oversight, over the activities of the executive branch including your department. Over the years, I've made congressional oversight a top priority regardless of which political parties is in the White House. I've requested documents, information and access to DOJ personnel for interviews.

And I've learned that oversight works best when the agency fully cooperates to Congress. Unfortunately, agencies are all too often untimely in responding to Congress and in the worst cases, totally unresponsive. This is unacceptable and I hope you agree.

Mr. Holder, I expect that you'll be responsive to my oversight work and that my questions and document request will be taken seriously and answered in a timely and complete way. I hope that I have your assurance that if you're confirmed, you'll assist me with oversight activities, be responsive to my request -- tell me -- make Justice Department as accountable in this coming administration as I've attempted to make it accountable in previous administrations, both Republican and Democrat but the idea is to make it more accountable to the American people.

That's an expectation on my part.

You can respond if you want to but would you pledge to be responsive to all congressional requests for information and provide this information to Congress in a timely manner?

And before you answer that, I'd like to point out a particular problem that I've had over a period of years, would you work and specifically in your position as attorney general being over everything in the department including the FBI -- would you ensure that responses are not held up due to lengthy, what they call, clearance processes as subordinate agencies such as the FBI?

HOLDER: Yes, Senator, I will -- in response to this, I guess, the general assertion is to try to do all that we can, and, to make sure that we respond fully.

And in a timely fashion to the very legitimate questions, that, I know, that you have propounded to the department and to the extent that there is a problem with our internal processes, I'll look at those and try to make sure that we make them work better.

What I would hope that we would have is a relationship where, if you're not getting something -- and what you consider a timely fashion, that you will feel free to give me a call, to pick up the phone and say, you know, with regard to subject matter A, I sent this whenever I've not received a response so that you're not upset by our lack of response.

Please give me an opportunity to check on the internal workings of the department to make sure that we're doing it as quickly as we can. And if we're not, if I can't give it to you, at least I can give you an explanation.

GRASSLEY: Then, in that regard, you will remember I gave you a notebook of things that were unanswered and I would hope you'd help us clear those up so that you taking over a department and a new administration have a clear slate. And there is no, you know, six months from now, there is no question, what your responsible for. Or what the previous administration was responsible for.

On the issue of whistleblowers, as you've might know or at least I think I've told you, I've been an advocate for whistleblower because I value candid, unflavored information they provide to Congress about the executive branch activities. And quite frankly, most of the time they come to Congress, it's a last resort. They probably don't even know about a whistleblower protection.

But they -- something is bad. They tend to be very patriotic people, for the most part. They want government to do just what's right.

Anyway, many whistleblowers who often come forward, they face tremendous retaliations in agencies.

And that retaliation maybe straightforward as being terminated; could be cloaked as a reassignment or a shifting in duties. Either way, retaliation is exactly why we pass a Whistleblower Protection Act and countless other laws.

These laws are a vital tool to ensure that whistleblowers are protected, but oftentimes that doesn't mean that the wrongdoers are disciplined by their agency.

This is especially true in law enforcement agencies like the FBI, I've found out.

So, you know, I just ask you to take a look at that. Take it seriously. They deserve the same protection in consideration whether an FBI or any place else. A whistleblower who raises concern to many, who'll bring concerns to Congress and cooperate with congressional oversight efforts should be protected, not retaliated against.

So, can you give me a commitment that you all do, that you shall not retaliate against Justice Department whistleblowers? And instead work with them to address concerns that they raised?

Will you commit to ensuring that every whistleblower is treated fairly and that those who retaliate against whistleblowers are held accountable and particularly on that last point?

There's so many times, there is injustices has been done. The people that did it to them have never been held accountable, you know.

HOLDER: Yes, I can make those pledges both to ensure that people are given the opportunity to blow the whistle and they will not be retaliated against, and then, to hold accountable, anybody who would attempt to do that. I've worked with people who, whistleblowers, both in government and more recently in private practice.

You know, I've seen their utility, their worth and frankly the amount of money that they return to the federal government. And they serve a very, very useful purpose.

GRASSLEY: Can you give me, since you've been in government in the past, just as an example. How have you dealt with whistleblowers and in particularly if they didn't agree with maybe a policy or something or a position on a particular matter with you, if you've have ever...


GRASSLEY: ... or maybe you haven't dealt with whistleblowers.

HOLDER: No, I have dealt with whistleblowers. I don't think that I've ever dealt with a whistleblower that has had a problem with a particular policy.

I've not had that kind of interaction with somebody who was complaining about something. The relationships, the interactions that I've had with whistleblowers have generally been pretty positive even as I was saying in the work that I've done in private practice, dealing with the lawyers who are representing the whistleblowers.

I mean, I try to represent my clients as zealously as I could, but I could understand what they were doing. And I could see the worth to the federal government by the actions that they had taken.

GRASSLEY: I had a couple other questions here, but I just hope that you would take some sort of positive approach, a statement, or something like that early on in your taking over the department, to make sure that that there's a friendly atmosphere. I mean, I wish a president of the United States previous than this one coming up would have done that because I think that the highest level of government, it would send a signal, you know, that if something is wrong, we want to find out about it.

After all, the public's business ought to be made public and if takes a whistleblower to get it done, do it. I'm not going to ask questions about the False Claims Act, but I think I expressed it to you in my office as author of that legislation, has brought in $20 billion, that maybe wouldn't have been found without people in government knowing about it and bringing cases themselves. Some of them with the help of the Justice Department and it had some problems.

I've got some legislation -- I'm going to show you that would correct some things that have, in a sense, we get it from our original intent, that I think I've got broad bipartisan support to get passed. And I'd surely appreciate very much your considerations for those, and anything specific I have on falls claims, I'll submit along with a lot of other things for a response in writing.

But just so, you know, I think, the False Claims Act, originally in defense and now on health care has been a very, very important tool for us to root out fraudulent use of taxpayer's money and gaining the system for personal benefit, you know. And so, I hope you'll use it. Help people that use it. Move cases forward, you know, things of that nature.

HOLDER: Yes, I will do that, Senator. You have worked together before on False Claims Act matters and I'll continue to have that level of cooperation with you. You raised good points.


I believe I'm done, totally done, Mr. Chairman.

LEAHY: Thank you, and I appreciate you giving that time as I said I've tried to arrange.

And I know that, Senator Kyl, you have some more questions?

KYL: Thank you, Mr. Chairman...

LEAHY: I appreciate your effort to keep them within eight.

KYL: I really would have looked down here. Senator Specter raised the question of a compelling testimony for reporters. The Department of Justice guidelines relating to subpoenas for reporters have been around about 28 years, to my knowledge, and they were used when you were at the Department of Justice, were they not?

HOLDER: Yes, they were.

KYL: Among the people who have written about this, U.S. Attorney Patrick Fitzgerald has written, I quote, "That the Justice Department operates under rigorous regulations restricting the issuance of subpoenas to journalists."

Do you know of any serious problems with the Department of Justice guidelines?

HOLDER: With regard to the subpoenaing of the reporters?

KYL: Yes.


Nothing that comes to mind. I don't have...

KYL: Just so you know, I'm not trying to cut you. This is a very controversial matter and some of us believed that the Department of Justice guidelines have served us very well. I'm not aware of any serious problems with them either. But there are proponents of the legislation who would obviously go beyond them.

We received several letters last year form members of the administration expressing concerns. I'm going to boil this down but Attorney General Mukasey and Director of National Intelligence McConnell wrote a couple of those letters. Their abuse letter express, I'm quoting, "Their serious concerns, especially with regard to the bills effect on our ability to protect the national security and investigate and prosecute the perpetrators of serious crimes." That was April of 22nd of last year.

Now, I'm just going to read one other, slightly longer paragraph.

They said, "We opposed this bill, because it will undermine our ability to protect intelligence sources and methods and could seriously impede national security investigations. Indeed, this bill only encourages and facilitates further degradation of the tools used to protect the nation. We have been joined by the secretary of defense, the secretary of energy, the secretary of homeland security, the secretary of treasury and every senior intelligence community leader in expressing the belief, based on decades of experience that by undermining the investigation and deterrence of unauthorized leaks of national security information to the media. This legislation will gravely damage our ability to protect the nation's security."

I'm not going to go into all of the issues. As I said, I'll boil it down a little bit, but let me ask you about just some that they've raised.

One problem they raised, I don't know whether this is inadvertent or not but the bill applies only prospectively. It does not apply to investigations once the harm has occurred so you could get into investigations pre 9/11 but after, on 9/12, you wouldn't be able to require testimony for acts that have already occurred.

Would you agree that a media shield bill should allow the government to investigate serious on both prospectively and with regard to harm that's already occurred?

HOLDER: Senator Kyl, you've raised a series of concerns that I think have to be taken seriously. What I was trying to say earlier was that, I think that a bill can be constructed, that would handle or deal with the concerns you have raised and perhaps others that you're going to raise. And still deal with, what I think are, the salutary parts of the legislation.

There is a value on -- the concerns you raised are legitimate ones. On the other side, the notion of having a free press and protecting reporters and their sources, I think is something that also has to be put in the mix. I'm not saying that what you're saying is it is not substantial. It must be dealt with the concern about prosecuting people who leak national security matters, the concern about intelligence, all of those things have to be dealt with from my prospective before I would say, sign off on a particular bill.

What I was thinking is that I think the concept is a good one. And I think there is a way which we could find ourselves to a good bill.

KYL: And I appreciate the Department of Justice guidelines recognized a concept. The question is, whether you go beyond that. I'm just trying to get your view on a few specific matters.

One, whether there's should be any difference between a prospective or investigation something -- trying to get information or investigate a terrorist act, for example, that hasn't occurred yet versus investigating one that's already occurred from which, of course, you might get very, get information.

As a general proposition, can you think of reason why there should be a distinction between the two? HOLDER: It's one of the problems in the draft of the bill that I believe exists. And General Mukasey and Director McConnell identified as well.

KYL: OK, I do want to look at that and understand it a little better.


KYL: You've discussed already the need to try to protect, as much as possible, classified information. One of the concerns is the requirement that a media shield bill should deal with classified information in camera. That is to say, if it is going to be involved, at least protect it because it is classified.

Can you think of any reason why that general principle shouldn't be applied to legislation like this?

HOLDER: OK. I want to look at the provisions of the bill, understand the concern which sounds like a very legitimate one, the one you've now raised and try to understand why that patch was not included in the bill or I should understand how the bill treats the concern you've just raised.

KYL: I guess it's safe to say that some of that -- we've been working on specific of this bill for sometime, you haven't, and it is been difficult for you to express a specific -- a view about some of this specific issues that have arisen. That's the reason for your general reluctance to be too specific, correct?

HOLDER: Yes, that's correct.

KYL: Let me try just with respect for couple of other general principles. One of the things that General Mukasey and Director McConnell say in their letter is that the bill leaves out -- I'm quoting now, "Leaves out key non-fissile tools that are essential for protection of national security. The wiretapping provisions of Title III, 10 registered trap and trace authority and national security letters, all of these tools are important," they say.

I mean just as a general proposition, can you think of any reason why they wouldn't be allowed to be used?

HOLDER: Again, speaking very generally...

KYL: Excuse me. Why a media shield law would preclude our law enforcement from using those tools?

HOLDER: Again, not having had the experience with the bill or in this area that you have, I'm not sure if I want to commit myself, but again that sounds like an issue that is very worthy of consideration...

KYL: Rather than trying to pursue more specific, sir, let me ask you a couple of general questions. Would you work to address the concerns raised in this letter and the other letters that have been written as well as the views -- letters expressing the concerns of the Department of Justice?

HOLDER: Yes, absolutely. I mean I don't want you to leave here thinking that you have got some press crazy here as potentially Attorney General...

KYL: I don't believe that at all. I just -- these are really important and...

HOLDER: They are.

KYL: ... rear people at the department have really been expressing a lot of views to us. Would you tell us that you will talk, not just to the political appointees but to the career people in the department who really work with these issues for a long time?

HOLDER: Absolutely. But beyond that, Senator, I want to talk to you and to people who worked on this bill and who might have a contrary view of it. As I said before, I guess in my opening statement, you know, knowledge doesn't reside only in executive branch, the experience that you've had with this, the obvious knowledge that you have of these issues are the kinds of things that I need to be educated about, it may change my mind, frankly.

KYL: One thing, just in that regard, that'd be very useful. I mean I presume eventually of this legislation is introduced and go somewhere. We'll have a hearing on it.

And I would request and would hope that you'll be willing to testify. Hopefully, your views will have been crystal -- I mean, we shouldn't act on this until you had an opportunity to study it to get your views crystallized and that you would be willing to testify in hearing relating to this subject on such...

HOLDER: I'd be glad to.

KYL: I mentioned Secretary Gates' letter. I won't -- it's a separate letter, actually. Actually, he has written two separate letters and without -- I won't go in any of those details. He simply talks about past investigations of unauthorized disclosures that have greatly damaged our national security.

It talks about circumstances in which the bill would permit this kind of activity to occur. He says, "The restrictions -- the limitations to bill remain far too restrictive." And he also criticizes the fact that the definition wouldn't extend the protection to at least publicize to individuals who are not even journalists, as that concept is normally understood to quote him in here.

Secretary Gates will continue to serve in the Obama Administration and I would hope that you would seek his views and address his concerns as well, would you not?

HOLDER: I'm sure he'll be asking me about this at our next cabinet meeting. Should I be confirmed, they'll be wanting to know, why am I in a fundamentally different place than he is, so. But, I will have that conversation with him. KYL: I'm sorry. I guess I didn't understand the preamble to what you...

HOLDER: No, I was saying that on the basis of what you've said about the concerns raised by Secretary Gates and should I be confirmed, I might expect to hear from him at the cabinet meeting about, you know, why I was in.

KYL: OK. Finally, and I don't know. I gathered Director Mueller will be around for awhile, but he too has wait in along with 11 other senior members of intelligence community.

And again, I won't quote from his letter, he expresses strong opposition but I would just ask you to agree to be sure and speak with him about the concerns he has and to try to address the concerns that he specifically talked about national security and foreign intelligence. Would you be willing to do that?

HOLDER: Yes. I mean, as I said I'd...

KYL: As we say in deposition, so you need to give an audible answer to the question.

HOLDER: Thank you.

KYL: The last question I have on this subject and will be the last question I have for you. I mentioned U.S. Attorney Patrick Fitzgerald before. He has written on this and one of the things he noted, and he's exactly right, in my view -- he said "A threshold question lawmakers should ask is whether reporters will obey the law if it's inactive." In other words, if you're trying to do a favor there then that should set out the guidelines by which people conduct themselves.

They, meaning lawmakers, should ask because the reporters committee for freedom of the press calls for a share law while urging journalists to defy the law when a court upholds a subpoena for source information.

So, here's the solution to it and I'm going to ask if you -- I think this would work.

His view is that any shield bill should require that a person seeking its protection first provide the subpoenaed information under seal to the court to be released only if the court orders the information disclosed. That way, the individual gets both the protection of the law but also would -- his part of the bargain is if the court should rule that the law still doesn't apply and he has to disperse the information to the public would, therefore, have the benefit of or not the public but that the law would therefore have the benefit of that information if that's the way the court ruled.

Do you think it's sensible to have such a requirement in such a bill?

HOLDER: Well, again I'm not as steep in this as I will be and should be, but it does strike me as somewhat reasonable. But I'd say that with me understanding it, perhaps I would have a chance to just become more familiar with the law, the responsive of that report that you've mentioned and see how that might have an impact on my thinking.

KYL: There's no reason that you should be a steep in this as some of us who've been working hard for a long time. But certainly it is a very serious matter as all of these individuals have indicated. It will require some attentions on your part and I commend summing your confirmed to you that you begin studying up on this so that should that be consider here that we would have the benefit of your views on that and look forward to conversations with you about how to pose the subject.

Thank you.

KYL: Thank you, Senator.

LEAHY: That's it?

I'm not suggesting that you ask more. I appreciate.

KYL: I narrowed it down to the best of my ability. It is much more. If I have anything else, I'll ask the question in writing or just it will...

LEAHY: I appreciate you tying it down like that.

And Senator Sessions, I think you said you have one or two more?

SESSIONS: I'll say, hopefully. I'll see if I can do better. I can't speak as fast as Senator Kyl though, you know. We, southerners, are a little slow.

In an April 2004 speech to the American Constitution Society, a liberal group, you were at -- where you asked the audience what it could do to bring about a liberal renaissance, which is a legitimate political effort to promote your beliefs.

And you singled out the media and criticized them for impeding liberal views and said, and quote, "In a short term, this will not be an easy task with the main stream media somewhat coward by conservative critiques and the conservative media disseminating the news in anything but a fair and balanced manner."

And you know what I mean there. The means to reach the greatest number of people is not easily accessible. So, we do have this discussion of the fairness doctrine.

Do you think the government has the ability to interject itself in the free market of ideas and direct somehow that there'll be a balance between one view and another view on the airways?

HOLDER: Well, the views I was expressing there were views that I had, as a private citizen, would not reflect what I would do if I were to confirm as attorney general. What I said in response to the question have been raised earlier about the fairness doctrine was that I just needed to know more about it before I could intelligently response to the question, but I did not mean to implicate the fairness doctrine in that speech.

SESSIONS: That's important, I think. I just think that's a trail that is deemed to failure for some government bureaucrat trying to state what somebody can say on the public airways.

Also before the Constitution Society, you spoke about the Boumediene decision that for the first time granted habeas corpus rights to detainees, prisoners of war or illegal combatants, they were being held at Guantanamo Bay.

Justice Scalia will note in the sense that, quote, "It would almost certainly this decision will almost certainly calls more Americans to be killed," close quote. You said this, quote, "The very reason Supreme Court decision by only a five to four vote concerning habeas corpus in Guantanamo is an important first step, but we must go much further," close quote.

I thought that this decision was really a radical departure from the precedent. Never in the history of England, where we inherited habeas corpus rights, or in the United States at prisoners of war ever been given habeas rights; but Supreme Court held that.

What do you mean we must go much further? Do you have ideas that you would like to impose, apparently not required by the constitution but that would further constrict ability to hold those who are at war with United States?

HOLDER: No, I guess what I said, "Go further," there, that was I think 2004 where I'm not sure -- I think 2004.

SESSIONS: 2008. That was a June 2008 speech I have asked.


SESSIONS: It would be '04 because the decision was after '04.

HOLDER: Oh, after Boumediene. OK.

Well, I'm not sure what I had in mind there other than the concern generally that was expressed throughout the course of that speech about our government making sure that however bad the people where we had in Guantanamo, in the same way, I guess, that Senator Graham had mentioned earlier that these people were treated in a way that was consistent with our values, and so I might have been referring to that. I'm not just sure.

SESSIONS: Well, I guess in my view as I'm thinking on prisoners of war particularly those who don't comply with the rules of warfare and validate to Geneva Conventions would be given the same rights as an American citizen accused of a crime and it never been done until this decision and we've tried to -- it was based on statutes, I think, rather than the Constitution and we're trying to wrestle with that and maybe make that situation better. Let me ask this. I asked you earlier about your commitment to your statement where you said that you plan to quote, "Work to strengthen the activities of the federal government that protect the American people from terrorism," close quote. You pledged, quote "To use every available attack to defeat our adversaries."

In his book, which is a very important book, I think Jack Goldsmith, The Terror Presidency, who, as I said, is in -- been in Department of Justice -- he left the President Bush's Department of Justice. He opposed some of the things that they did, but not all.

He described the situation about where the Department of Justice refused to authorize a CIA covert operation to kill Osama Bin Laden in 1998 when you were in the Department of Justice as a deputy attorney general. He wrote this quote. "The White House and justice department lawyers opposed an unrestricted lethal operation against to Bin Laden and would authorize his killing only if it were necessary for self-defense and the course of legitimately attempting to arrest him," close quote and that's page 95.

He also noted at this time the CIA quote, "Had Bin Laden in its sights." And he discusses how this works.

And what he said was after previous hearings and complaints about covert activities that the CIA and their agents had become a condition to raid their authorizations very carefully and that George Tenet, then CIA director and other managers were insisting that this kind of operations be approved with unambiguous language.

And according to his book, the Office of Legal Counsel that is the Department of Justice's office of legal counsel, agree that the legal pro-evasion against assassinations had not applied to a military target like Bin Laden who posed an imminent threat to United States and who had openly declared war in the United States, I would add.

So far so good, Mr. Goldsmith, right? But then the ambiguities appeared. Quote, "White House and justice department lawyers opposed an unrestricted lethal operation against Bin Laden." And that's when he said, "We only authorized a killing in the course of a legitimate arrest."

And part of this whole thing was how agents had become intimidated and fearful of being prosecuted or having their careers ruined for conducting what they think is accurate policy.

That's the danger that we deal with. So, I guess my question to you is, to what extent were you involved in those decisions, and is this accurate, and did the White House and other Department of Justice lawyers basically put additional controls on OLC's opinion?

HOLDER: Senator, I guess, I'm a little disturbed. I read that book and I was a little disturbed to read that portion of the book.

Well, I'm not at all certain it was appropriate. I don't know. I'm sure you got that cleared. I mean, I don't know. But I'm not very comfortable talking about that operation in this form, in this setting.

I was certainly aware of it. I didn't have the lead on the Justice Department's role in that. Maybe less transition, I would say that there is clearly a need for people in the field to have clear direction, and we have to be aggressive. We have to understand the nature of the foe that we face.

No one should take from any of the statements that I've made today a notion that we're going to retreat from being aggressive and seeking out and getting people before they would get us. I don't mean to say that at all.

What I have said is that I think we can do that in a way that is consistent with or concerned about several liberties. There is not a tension between those two. We can be very aggressive using all the appropriate tools that we have that we would get, that we now have, or additional tools that we might seek from Congress and at the same time, be true to our values.

I'm not saying that -- so that's what the point that I was trying to make in my earlier testimony.

SESSIONS: Well, I'm sure that's true, but these are concrete situations and, I guess, it appears from the book that OLC felt there was a legitimate basis. I would just note on his Web site, Bin Laden had declared war on the United States.

This is not a normal thug on the streets of Manhattan or something. This is a person who declared war on the United States. And they concluded, this will -- the United States is legitimate in defending itself, but the final decision that came down said that you could only utilize lethal force in the course of an arrest. Did you support that decision or the OLC opinion?

LEAHY: I'm not trying to stop your answer. Obviously, answer it the way you'd feel pretty part of that.

Beginning into an area that many of us have been briefed on a very classified nature, and I don't want to put Mr. Holder in a difficult position of having to answer something that may go into a classified area.

He, obviously, is used to handle any classified material, and I'll let him make his own judgment. I'm not trying to put words in your mouth at all, but I would just caution senators to be careful in what areas they go into. In having said that, I yield the floor back to Senator Sessions and Mr. Holder.

HOLDER: Senator, as I said earlier, I'm a little reluctant. I would be glad to answer your question in what I would -- in a more appropriate form. Maybe, I'm being overly cautious here. I don't know. But we are talking about something, I mean, it is out there. That was a covert operation that required the highest level of clearances.

Frankly, maybe I am free to talk about that now. I don't know. I just -- and I'm just not feeling very comfortable responding to that question yet. But I would be more than glad to find what ability I do have to talk about that, and would be more than glad to share with you with whatever I can.

SESSIONS: Just one thing, I would like that either in a closed fashion or public if you can do so. Now, I think we need to know that.

The problem is that we have created a climate for intelligence agents, the military officers, the law officers who are out serving the country in some very difficult things in which they get ambiguous leadership and then not able to act. And apparently, Bin Laden was in the sights of the United States Government.

We were prepared to act, waiting only for legal clearance, and we get back one of these cover-your-rear-end ambiguous things, and the CIA guys, or whoever was involved in this, says they're not acting on it. And I think that is a danger and a weakness that it could leave us more vulnerable than we need to be in the future.

With regard to the closed testimony matters, this committee has savaged anybody that it even tried to investigate leaks. The New York Times can print anything, and members of our -- as long as it would embarrass George Bush, and we want to get after, get after anybody that would suggest it was a breach of security.

So I'll think it on, but I'll leave this question as it is. I do not want to ask you to say something you should not.

LEAHY: And Senate Sessions, I appreciate that. I also don't want to get into a debate. We are also going into the whole debate about what happened when we took out troops out of Afghanistan to go into Iraq when they had Bin Laden cornered.

I mean, these are all debates of mistakes, some mistakes, and maybe not, in the past. I'm more concerned about what would -- what kind of an attorney general, whatever cold it'd be. And the concern's about what he's talking about, what are his plans if he is attorney general, how will he run the department, what is his philosophy, what would he do, because that 's ultimately what 100 senators have to vote on.

SESSIONS: Well, that's what I'm trying to get at. You've interrupted me and used some of my time. That's what I was getting at. The OLC, what would you do in the future? OLC, according to this, I had felt that it was justified. I think it was justified. Somewhere in the White House, it said that Justice Department lawyers, that you admitted you were -- a preview of these discussions, sent an ambiguous message and it makes me worry about the future. That's what I'm asking you about.

HOLDER: And all I would say, Senator, is that I agree with you that there has to be -- to the extent possible, unambiguous direction given to our people in the field.

And it means that lawyers have to -- who are involved in that process, have to understand that the words that they use, the direction that they give has to be as precise as possible so that there is not that degree of ambiguity in those directions and -- that would might have somehow end up having an inhibiting influence on the people in the field.

They've got to understand what it is they can do, what is this they can't do, and that has to come upon the people who are making those decisions -- the folks, the people at OLC or in other parts of the Justice Department. So I understand. I hear the concern that you express, and I understand that.

SESSIONS: They, Washington Post said -- ask that Senate Judiciary committee should press you on the rationale for supporting the pardons of that occurred in -- I've asked you a little bit about that previously and we sort of run out of time.

You did indicate you thought the president's decision on the FALN was reasonable.

I was United States attorney for 12 years, assistant to the United States Attorney for two and a half, Attorney General for two. In my opinion, it's not reasonable. It's not close. I mean, that's all I can tell you. And I don't believe it was a close question and it worries me that you say that was a reasonable decision.

In one article, a letter by a Deborah Devaney, one of the assistant United States attorneys who prosecuted that case and published in the Wall Street Journal in 1999, writes, quote, "As one of the FALN prosecutors, I know too much. I know the chilling evidence that convicted the petitioners, the violence and vehemence with which they conspired to wage war on all of us," close quote.

She goes on to say, quote, "In the first prosecution, some of the petitioners were captured in the back of a van with weapons use to commit arm robberies." And then she goes on to say, "Yet the President," -- perhaps you didn't know your role at that time, "Yet the president has seen fit to reward these conspirators simply because they were unsuccessful in their murderous attempts."

Well, it goes on. It was opposed by the prosecutors in the case. The pardon attorney, Margaret Love, had rejected it previously. Roger Adams gave you the opinion you wanted in the first paragraph, but didn't spend four pages explaining why this was a very problematic decision. Anyone can read that as his personal objection to it, and I think he conveyed that to you.

The FBI director, Mr. Freeh, opposed it and he had labeled FALN one of the three greatest domestic terrorist threats to the United States in 1998. And Mr. Adams did tell you, did he not, the pardon attorney of Mr. Freeh's view on that?

HOLDER: Yes. I was aware of the FBI's view on that matter.

SESSIONS: They had killed six people. One of the persons offered the -- on commutation of Senate had planned an elaborate escape attempt using a helicopter and got an extra 15 years for that, which is certainly not excessive for this kind of offender.

There were over 130 groups and dozens of people injured, six people killed, and then there was no contrition. The defendants were so unrepentant that two of them -- two of the 16 who were given clemency refused to accept it because they had to promise not to continue to be violent. So, to me, this is really a pretty all gust statement that this was reasonable.

I would also note that the -- fifteen, it says on my...

LEAHY: It's five minutes plus 15 on there. For a five-minute run, you're down to 20 minutes, so I was wondering...


SESSION: You asked how much...

LEAHY: I'm trying to be fair.

SESSIONS: I know. You asked me how much time, I said 15. I'll wrap up.

LEAHY: It's a five plus the 15. It shows on here. He has five minutes to begin with. Now, it's 15 minutes beyond that part. It's been 20 minutes.

SESSIONS: I believe you're right, Mr. Chairman, as usual. I believe you are right. I apologize. I was looking at the time, but incorrectly.

In the sentencing commission, there are evaluations of what the sentencing would have been for these people had they've been sentenced under the more recent sentencing guidelines. And without parole, there were 30-year plus sentences, and that's without parole; whereas, these people were sentenced, summed up in one or two at 90.

Tell me again. Was this your personal view that this would be appropriate? And is that what you conveyed to the president?

HOLDER: I looked at the situation, took into account the fact that these people were not directly involved in incidents that led to death or injuries. I took into account the body of people, I guess, Senator Whitehouse, among -- he mentioned at least a few of them, people who were weighing it in favor of the clemency.

The conditions that were put on it, that is they had to renounce violence and some travel restrictions, weighed what the view was in law enforcement, from the U.S. attorneys, from the investigative agencies, and obviously took into consideration what the pardon attorneys were saying, both of them.

And it seems to me that the clemency, it also took into account significantly the length of the sentences that these people had already served, and the sentences that had been imposed by the trial judge, initially a trial judge initially -- it seemed to me that the clemency grant given, taking all that into consideration, was appropriate. And that was what I conveyed to the president.

SESSIONS: Well, thank you, Mr. Chairman.

I do think -- particularly find the rich pardon that you've acquits in and leans toward to be problematic in light of the tremendous controversy this one caused by a year or so before.

And I had to go before hearings, the resolutions of the senate found it deplorable, and I would have hoped that you would have been more forceful with the president on the rich pardon.

And if you had done so, you would have helped protect him and his legacy, which was the smirch about this. Richard Cohen, his ally, has been opposed to your confirmation, because you didn't resist that pardon effectively and it just troubles me.

Thank you, Mr. Chairman.

LEAHY: I think, I would note, parenthetically, that tens of millions, some would say hundreds of millions of dollars of Republican-controlled Congress went on for six years to try to besmirch President Clinton's reputation in a number of areas.

I'd also note that I do wish that President Obama had some of the advantages, I mean, than President Bush did when President Clinton left him, than President Bush, the largest surplus in America's history for paying down the national debt and creating enormous number of jobs.

President Obama will inherit the largest deficit of any nation on earth, in history, and the largest deficit and the tripling of the national debt.

I realized that prior to that cause was all these hearings that might be besmirching President Clinton's decision and legacy. But the fact is, I think of all us, Republicans and Democrats, wish we're inheriting the economic situation that President Clinton left his successor, rather the one that's being left to President Obama.

I'm not going to take the 20 minutes. Everybody has been taken over their five minutes here, but I'll just cover quick points.

Am I correct that as deputy attorney general, you had no final decision-making power to grant clemency or pardon? Is that correct?

HOLDER: That's correct.

LEAHY: And am I correct that your memo, the FALN, did you remember that the White House made no recommendation of clemency for the prisoners on where they provide analysis with multiple options for each prisoner? Am I correct?

HOLDER: That's all I've been able to find. If the options memo which lays out the whole pot -- the range of possibilities that the president could consider. But I have to say, Mr. Chairman, I do think that in some formal fashion I conveyed a recommendation to him. I just don't -- well, I can't find it.

LEAHY: Am I correct that none of the FALN members offered clemency by President Clinton were present when individuals were killed or injured?

HOLDER: That's correct.

LEAHY: Am I correct that the prisoners were released under strict supervision of Federal Probation Authorities and none have caused any future harm?

HOLDER: That is my understanding.

LEAHY: Am I correct that the clemency offers were conditioned on the prisoners' willingness to renounce violence, and each of them had already served either 16 -- somewhere from 16 to 19 years in prison. Am I correct?

HOLDER: That's correct.

And two of the -- as Senator Session's noted -- two of the individuals who were offered clemency would not exceed to that demand, that is to renounce violence and they've, therefore, did not get out of prison.

LEAHY: They stayed in prison?

HOLDER: They stayed.

LEAHY: The clemency provided by President Clinton was supported by various members of Congress, numerous religious, Human Rights, labors, Hispanic, civic, community group, including former President Carter, Archbishop Desmond Tutu and Coretta Scott King, am I correct?

HOLDER: That's correct.

LEAHY: Am I also correct that your nomination to be attorney general has been enthusiastically endorsed by the nation's top law enforcement organizations and numerous law enforcement officials, including many who were among the biggest critics of the FALN clemency. Am I correct on that?

HOLDER: I think the Fraternal Order of Police testified in the hearings that were held and criticized the FALN pardons, and the Fraternal Order of Police has endorsed my nomination.

LEAHY: And as we put into the record their endorsement of your nomination, and, of course, we'll have, among others, former director of the FBI, Louis Freeh, no shrinking violent when it comes law enforcement matters, who enthusiastically and strongly supports you.

Senator Coburn?

COBURN: Thank you.

SESSIONS: Mr. Chairman, Senator, we kind of have a little...

I take a personal privilege there. May I have this two minutes, one minute?


SESSIONS: One minute.

LEAHY: Start the clock.

SESSIONS: I think it is true that President Clinton did sight your recommendation in his later basis for granting the pardon on number one...

LEAHY: Which part is that, Senator?

SESSIONS: The FALN. No, Marc Rich...

LEAHY: Rich's pardon, yes.

HOLDER: That's right. Excuse me.

SESSIONS: And Osama Bin Laden and Khalid Sheikh Mohammad weren't directly involved in the murders. They were conspirators to that, and they probably and morally are more accountable in my view and equally co-accountable as those who actually carried out the attacks in the United States. Wouldn't you agree?

HOLDER: I would, but the FALN people are not in the same category as Khalid Sheikh Mohammad or Bin Laden in that they were not the heads of the organization. That is not my understanding of the people who were with the, part of risk.

Again, I want to emphasize, these people were criminals. They were terrorists. I'm not giving them a pass. They served substantial amounts of time. And I want anybody...

SESSIONS: You recommend it against the law enforcement people that they not serve the full time when they were sentenced, and they wouldn't even file papers. I don't think any of them actually even asked for a pardon. They were hardcore about it. Excuse me. OK, my time is up.

LEAHY: Senators, five minutes has gone to 24 minutes.

Senator Coburn?

COBURN: Thank you. And I promise not to take 24 minutes.

First of all, I'm sorry you...

LEAHY: I'm going to need a doctor if you do.

COBURN: And I know the Chairman wants to get home to his grandchildren and I know you all would like a break and have a dinner, so I'm going to be very short.

Three points for the record. One, the only thing I would say about the FALN is that clemency was granted after the Oklahoma City bombings. And so, there is a lack of sensitivity there. It wasn't to the same degree, but the intent was.

Number two, as far as the comments by my colleague, Senator Whitehouse, your soon-to-be boss when you're sworn-in as attorney general made great efforts on Homeland Security committee to take away the parochialism of the Homeland Security grants. And only three members of this committee voted with you to make it on the basis of risk instead on the basis of parochialism.

So, I hope you'll look at that as you see this necessity of trying to rearrange the money that you have in terms of looking at risk instead of parochialism that makes us all look good.

I want to get you on record. We talked about this in the office. Your boss and I passed a bill called the Transparency and Accountability Act. It requires the submission of where you spend your money, the contracts, sub-contracts, the grants and the sub- grants. Is your intention to comply with that on a timely basis so the American people can see that?


COBURN: Thank you.

And then my last question about guns. Promise, I'll never ask you another one in the committee hearing. And all I want is a yes or no, because I think people need to hear where you're going on this. There's some uneasiness among the second amendment crowd in this country, and what I'm trying to do is clarify that.

Will you commit to protect and preserve the rights of those 40 states that have a -right-to-carry law by opposing legislation that would encroach upon those rights?

HOLDER: In the opposing state legislation? I'm not...

COBURN: No, opposing federal legislation that would encroach upon those rights.

Let me say it again.

HOLDER: Yes, I understand the question. I'm just not sure how -- what the appropriate role would be for the federal government in the situation that you described. I don't...

COBURN: Well, if we're passing a law, that's obviously going to do that as the supreme enforcer of the law in this land. As the head law enforcer, it should be upon you to challenge that and accord when it, obviously, is going to violate the Heller decision.

So, what I'm asking you is to specifically state that if we pass something that violates these state laws, in other words, are going to limit these state laws, take away second amendment rights as being defined by the Heller decision, will you in fact intercede on the basis of that Heller decision to defend the rights of the state to have carry laws?

HOLDER: Well, I wouldn't support any law that violated the dictates of Heller.

Now, I don't know -- the question you asked is hypothetical. It's hard to answer hypotheticals without having all of the facts. But I will state, as I said, I think earlier, Heller is the law of the land. It has to be taken into account with regard to any legislation that might be considered.

COBURN: Well, let me just pin you down just a little bit closer so I can get comfortable.


COBURN: Do you believe the states presently have the right to establish carry laws in the states?

HOLDER: I think...

COBURN: Either concealed carry, or not concealed carry law.

HOLDER: Without agreeing or disagreeing with them, I think states do have those rights.

COBURN: Yes, the states do have. Will you work to protect that the states will continue to have that right?

HOLDER: Senator, yes, I guess -- I mean, in favor...

COBURN: You're making my second amendment crowd really nervous. They want to hear you say, "Yes, they have that right and they ought to be able to maintain that right." That's what they want to hear you say.

HOLDER: And I guess what I'm saying to that same crowd is that I have no intention -- this administration has no intention of doing anything that would affect a states regulation of firearms, who can carry a firearm, under what circumstances. There is nothing that we have discussed, nothing that is in planning, nothing that I can imagine that we're going to be doing in that regard, so.

LEAHY: Well, if the Senator yields to me.

COBURN: I'd be happy to.

LEAHY: Just to ask for a clarification. The State of Vermont has very simple laws on guns. During hunting season, deer hunting season, and your semi-automatic are restricted to a certain number of rounds to give the deer a chance.

We post signs outside the limits, city limits of Montpelier, our state capital, saying that if you're going to hunt deer inside the city limits of Montpelier like for example, crossing the Statehouse Lawn or something, you are limited to shotguns. That's the only place you are.

Anybody, unless they are a felon are allowed to carry a loaded concealed weapon above the certain age without a permit. Nobody does. We like the fact that we can. The vast majority of us in Vermont like myself, own numerous firearms.

Do I understand you to say you're not going to be on a crusade to have the federal government come in and override the laws of the State of Vermont?

HOLDER: That would be true. I've made and I express...

LEAHY: They are a lot less restricted than laws of Senator Coburn's state.

HOLDER: Maybe I've not expressed this well, but this is not an agenda item. It's not a focus. It's not an expectation that I have for this administration. I'm not sure how I can say it any plainer than that.

There are things that we want to do with regard to crime prevention and to reduce crime. But the concern that you have raised is not on any of the menu items that I have seen or could imagine.

COBURN: Thank you for your answers. It's not the one I wanted to hear, but thank you for the answer.

Mr. Chairman, we will submit additional questions, and thank you for being patient.

And thank you, Mr. Holder, for the fine job you've done today.

HOLDER: Thank you, Senator.

LEAHY: We will -- the witness is dismissed with our thanks.

HOLDER: Thank you.

LEAHY: And with me, you're dismissed with my admiration and my gratitude.

HOLDER: Thank you very much. I think I've been very...

LEAHY: I'm very clear I'm going to vote for you. We'll reconvene tomorrow morning with the panel at 10 o'clock in the Senate Judiciary committee hearing. With that, we stand recess.

HOLDER: Thank you, Senator.

Barack Obama, Senate Confirmation Hearing for Attorney General Nominee Eric Holder: Day One Online by Gerhard Peters and John T. Woolley, The American Presidency Project

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