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

January 16, 2009

LEAHY: Good morning. Glad to see all of you familiar faces in this -- in our hearing room. I'm thinking Senator Specter and I have spent a significant portion of our lives in this -- in this room. I look around and I'm missing one of the -- one of the senators I sat here with for over 30 years, Senator Biden, who has now left the Senate for other duties of sorts.

And so I welcome all of you. Yesterday, we met in the Senate Caucus Room from 9:30 to 7:15 so every senator, Republican and Democratic alike, would ask Eric Holder whatever questions they had. It's a historic room for an historic nomination.

Senator John Warner of Virginia, once again, showed the bipartisanship and leadership he's shown for over 30 years in the Senate. He noted the problems facing the Department of Justice and the country so great that he was urging everybody to put aside partisanship and work together. He presented and endorsed Eric Holder to be attorney general, described his outstanding qualifications, integrity and independence.

Congresswoman Norton was eloquent in her statement of support for Eric Holder, a former judge for nominated by President Ronald Reagan and then a prosecutor in the District of Columbia.

LEAHY: So we asked -- everybody asked questions they wanted to. The senators of both parties have done so. Much of the questioning was substantive. We touched on many important issues. And the senators were -- technically, the third round was a five-minute round, but we went 20 and 25 minutes and longer for some of the senators until everybody said they'd asked all of the questions they wanted.

Having heard Mr. Holder's testimony, I'm more convinced than ever he's a person who will reinvigorate the Department of Justice, serve ably as a member of the president's national security team, pursue the Justice Department's vital missions with skill, integrity, independence, and a commitment to the rule of law.

As I said before, he's a prosecutor's prosecutor. And I'm not going use all my time because I want to get to the -- to the witnesses. But I'll yield to Senator Specter.

SPECTER: Thank you, Mr. Chairman. The attendance is substantially less than yesterday. I can't imagine why considering the impressive array of seven witnesses who are here. But I join the chairman in that I thinking all of you for coming. And outside witnesses are we important to give a fuller picture.

As I said yesterday, I had hoped to have initially 12 and then down to seven and only three witnesses have been permitted here. But I don't intend to press that point because I know that there is great disdain in the American public for disagreements or bickering in Washington, D.C.

So the chairman and I have had a very cordial relationship for 28 years -- actually, before that. I met him when he was the district attorney of Burlington. I had a smaller city, Philadelphia.


The district attorney. And we had the national convention in Philadelphia and I met this young fellow. He was not as tall then. He had a lot more hair.


And we have worked very closely together and we have had a disagreement about the handling of the scheduling and the handling of witnesses on a number of matters here. And I do want to help President-elect Obama. It's very important. There are enormous problems facing this country, and we all ought to do everything we can. There is the constitutional that this committee has on advice and consent. We're at the consent part now.

And separation of powers is the rock bed of our republic. And independence is very important. And I have emphasized that yesterday in questioning of Mr. Holder. So we have an important role to perform here, and we appreciate your coming in.

In the interest of time, I'm going to yield back the balance of my two minutes and 37 seconds.

LEAHY: Thank you.

The first witness who was there for a good part of the hearing yesterday is Louis Freeh. Judge Freeh is the former director of the Federal Bureau of Investigation. I read this from the notes, Judge. I don't think there's anybody in the room that needs to know that, but you are. Your career began in the Department of Justice in 1975 when you became a special agent for the FBI.

He has a long and distinguished career as a public servant under both Democratic and Republican presidents. He will appointed by President George H.W. Bush as a federal district court judge -- a lifetime appointment in the southern district of New York. He had been a career federal prosecutor in the United States Attorney's office for the southern district of New York serving as chief of the organized crime unit.

Now, he gave up that lifetime position to take appointment as the head of the FBI. And I -- I know -- I should note for the record I've known Louis Freeh and his wife Marilyn and family for years. And I am thrilled and I feel honored that's now a part-time resident of the state of Vermont.

And, Judge, please go ahead. We will start with you and then I'll introduce each one. And if it's OK with you, I thought we'd just go through and let everybody testify and then we'll ask some questions.

FREEH: All right.

(Inaudible) good morning to you. It is a pleasure to be before you. I've been in front of this committee dozens and dozens of times over the years. And I'm very pleased to come here and speak in support of the nomination of Eric Holder.

We have presiding over the committee today not just two chairman, Senator Specter being a former chairman of the committee, but two prosecutors, two district attorneys who know firsthand the importance and the challenges of protecting our laws and our society but also adhering to the rule of law and being politically independent as you make important decisions, decisions which are subject to review and criticism.

So I think the country and the Senate could not have two more knowledgeable and experienced people to lead the inquiry. And I commend the committee and you, Mr. Chairman and the ranking member, for the fairness and thoroughness of your hearing.

You know, I was confirmed twice by this committee. I spent 25 years serving in the United States government, mostly the Department of Justice. I left the FBI director's job after eight years. One of the things I was proudest of is when I left Washington, no one in the Senate, no one in the Congress had called for my resignation while I was here. No one said I was politically partisan. No one said that I was not independent. And for me and the FBI, that was a great feeling.

I also left town without being further investigated which, as you know, is a great benefit to any federal-serving official.

When I was a prosecutor, Attorney General Thornburg, at the time, sent me down to Atlanta to work on a bombing case. It was a pretty egregious case. Someone had killed a federal judge and also the head of the NAACP in Savannah.

That was my first opportunity to meet Griffin Bell. Griffin Bell, in his typical humility, called me up. I was in the U.S. attorney's office in Atlanta. And he said, Mr. Freeh, he said, if I can help you in any way, I know a few people in town here.

FREEH: When he was attorney general, and you probably have heard this story, he was in his conference room, the great conference room where both of you have visited. And he was presiding over a meeting. And his secretary came out. He was a new attorney general. And she was very excited. And she said, "General, General, the White House is on the phone."

And he looked at her and he said in his typical Southern drawl, "I don't take calls from buildings."

The importance of that statement, I think, is very relevant to your inquiry here and to what I want to say about Eric Holder. The attorney general of the United States is the chief law enforcement officer of the United States.

Beyond competence, the elements of integrity, the elements of leadership, and I think most importantly, political independence is critical. Attorney generals, like district attorneys, like U.S. attorneys, like FBI directors, will make decisions from time to time with which people disagree. And that is an important facet of the service and an essential element of our democracy.

I made many decision when I was an assistant U.S. attorney, when I was the deputy U.S. attorney, certainly, when I was an FBI director that people disagreed with. And Eric Holder has made decisions with which I disagree. And I'll talk about those briefly in a moment.

But it's not the decision to me as much as the process and the principles and the integrity and independence with which that decision is made. My very strong belief with respect to Eric Holder is that he has tremendous integrity. He has great character. He's got good judgment. He has excellent competence as a lawyer, which I'll talk about because I also worked with him in the private sector, as you know.

But he does have political independence. He's not afraid to say no, in my view, to an attorney general and now, if he's confirmed by the Senate, the president of the United States. And I think if we look at those essential characteristics and elements, we can put into better perspective decisions which we made. And as a said, some decisions which he yesterday told you he regretted and with which I also disagreed.

The men and women of the Department of Justice -- and I can speak, I think, for the men and women, many of them in the FBI -- have tremendous respect for Eric Holder as U.S. attorney. And as you know, when you were district attorneys, if someone wanted to really find out about what kind of a job you were doing, they would ask your assistants, they would ask the assistant district attorneys who worked for you, your chiefs. And they would give a pretty honest and pretty accurate view as to your qualities as a leader, whether or not you were strong, whether you were politically independent, whether you had the courage, the moral courage to take on difficult cases and make difficult decisions.

And with respect to Eric Holder, beyond the background investigations which the FBI, of course, performed with respect to him, the agents who worked with him, particularly when he was a line assistant, had told me time and time again that he was -- he was -- he was smart. He was honest. He was fair. He was not afraid. He exercised his office without fear or favor whether he was looking at a very powerful political subject of an investigation. As you know, he did prosecute one as U.S. attorney. And he didn't pull his punches when it came to fair and thorough investigations.

That reputational evidence, to me, is quite essential. The federal rules of evidence allow reputational evidence to be heard by a jury because our experience has found that it's very reliable. His reputation as a good prosecutor, an honest prosecutor, and an independent prosecutor are very, very well established. I've never heard anything to dispute that. And I think that that's an essential evaluation for you to conduct.

The letters that you read yesterday, Mr. Chairman, you know, those endorsements are not come by very easy, in my experience. The International Association of Chiefs of Police -- I'm on one of their boards -- they don't casually or routinely endorse people. It's not a coincidence that you have all those endorsements. You have them because his reputation and the experience of the men and women who have worked with him on the line and worked with him in the Department of Justice see him and have experienced him as a good, honest, tough, and independent prosecutor.

And I have another note here, Mr. Chairman, when I would submit for the record from Ron Noble who, as you know, is the director general in Interpol and assistant U.S. attorney, Senator Specter, in Philadelphia, a protege of Ed Dennis. He said he would fly over here if anybody wanted to speak to him. But he says that Eric Holder is exactly the kind of attorney that we should trust as our attorney general.

You know, I worked with Eric Holder probably more than anybody in this room. I saw him on a daily basis sometimes when he was deputy. We disagreed a lot. We argued over things. He would overrule me from time to time. I would challenge him occasionally, maybe more than occasionally on things. And we came out sometimes on different ends of a point or a position.

But in all of those dealings, what I saw was a smart, intelligent, skillful attorney, a great public servant, somebody with humility and somebody with independence who was not afraid to say no and call something as he thought it had to be called. And for me, that's very essential. Let me talk just two minutes -- not two minutes -- but briefly about the Mark Rich and the FALN matter. You know, on the Mark Rich matter, I was the deputy U.S. attorney in the southern district of New York. That was a southern district of New York case.

One of the things I did while I was deputy U.S. attorney is I went over to Switzerland. I actually negotiated with the Swiss to get a warrant of extradition served on Mark Rich. The pardon of Mark Rich was a corrupt act. There is no other way that I could describe it.

And committees here have looked at it. They've evaluated it. It was a corrupt act. But it was not an act by Eric Holder. Let me give you just a quick picture of what was going on at the end of the Clinton administration when this pardon took place.

Nobody in the Department of Justice, nobody in the FBI had a clue about who was on the pardon list. The White House staff and its leadership, whoever was working this process, activity conspired to ensure that nobody knew what they were doing.

On the morning of Inauguration Day, the morning of Inauguration Day, I sent two FBI agents to stand at the west gate of the White House so they could read the list of pardoned officials when it was published because they wouldn't tell us who was being considered.

Eric Holder made some terrible mistakes, which he told you about yesterday, in allowing himself to be used and co-opted with respect to the facilitation of that pardon. But he did not understand, he did not authorize, he certainly did not execute this pardon.

And he's learned a lot from that. I think, as Senator John Warner told us, we can be sure from that experience that he will never allow himself again to be put in that position.

The FALN pardon, you know, I wrote the letter to the Department of Justice vehemently opposed to that. The FBI took a very strong position. We were continuing FALN investigations at the time of that pardon. But the pardon process functions as a quasi judicial process. Both the pardon attorney who prepares the materials for the deputy and, ultimately, the president of the United States function in a quasi judicial manner.

I did not agree. I do not agree with the decision with respect to that pardon. I opposed it personally. I opposed it as director. And I don't think it was a reasonable act to be done.

But there are many, many judicial decisions, some of which I made briefly when I was a judge, with which people disagreed. The process, however, that was followed was the process prescribed in the department and by the president. And I don't think it's fair or a good index of the character, judgment, and independence of Eric Holder to look at that without the context of 26 years of dedicated, independent, and brave leadership.

Briefly, in private practice, you know, I hired Eric Holder when I was general counsel at MBNA Bank of America. (NYSE:BAC) I had a very complex piece of litigation in Texas, and I hired him to handle it. I could have hired any lawyer in America -- and a lot of my colleagues from the southern district were wonder why I didn't hire them.

I didn't know Eric Holder in a social frame. I still do not know him in a social frame. I hired him for that case because his legal skills, his integrity, and his willingness to tell me independently whether or not the case was one that should be tried or settled in a very complicated scheme was someone who I trusted.

He litigated the case. He did a superb job. The judge ended up sanctioning the plaintiff's lawyers which, as you know, rarely happens in federal court. And by everybody's estimate, both by lawyers in the bank and co-counsel and the judge, he did an absolutely outstanding job.

Let me just finish by, you know, echoing what John Warner said. And I agree with you, Mr. Chairman, I mean, it was such a pleasure to see him and hear him yesterday. He nominated our oldest son to the Naval Academy. He was my senator for eight years. And just the template of what we want for public service and government.

And remember what he said. He said, you know, the theme and the phrase I keep hearing with respect to this man is he's a good man. And being a good man in the attorney generalship of the United States is critical. And beyond good, as I said, I think he has superb lawyering skills. I mean, where do with find for our attorney general someone who's had the trial and prosecutorial experience of someone like Eric Holder?

He's a man of integrity. He's a man of the law. And I think and I know he will exercise political independence. This committee will make sure that he does that. The media will make sure that he does that. The people in the FBI will make sure that he does that. And if he doesn't, you're going to hear about it.

I don't think you will because I don't think he will be anything except independent. But you have a great candidate here, and I really urge you to approve him for confirmation. Thank you.

LEAHY: Thank you very much, Judge Freeh.

The next witness, Chuck Canterbury is a national president of the Fraternal Order of Police, one nation's largest and most prominent voices for law enforcement officers. He served in numerous capacities in that organization -- national vice president, national second vice president, of course, now, he's president.

Twenty-five years of experience in law enforcement, police officer in South Carolina -- it was in Horry County, wasn't it? He's also been appointed by President George W. Bush to serve on the Medal of Valor board. He serves on our nation's Homeland Security Council. He's certainly no stranger to this committee.

And, Mr. Canterbury, please go ahead, sir.

CANTERBURY: Thank you, Mr. Chairman, Mr. Ranking Member Specter. We're very pleased to be here and graciously accepted the invitation. As the spokesperson of the largest law enforcement organization not only in the country but, obviously, in the state of Pennsylvania and, hopefully, one day in the state of Vermont, Senator, we're very pleased to be here to offer our strong up the for this candidate to be the next attorney general of the United States.

Also, very fortunate to have both of you gentlemen and the leadership that you provide for the law enforcement community across this country is greatly appreciated by my peers in law enforcement.

Upon hearing the news that President-elect Obama intended to tap Mr. Holder for this Cabinet position, we directed our legislative staff to probably conduct the most exhaustive examination of a candidate's record for anybody that we've ever endorsed for a position of attorney general.

We looked at his record of his 12 years at the Department of Justice in the Public Integrity Section, his role as the deputy attorney general, and that of the time he spent in the judicial branch as a judge. It was an extremely thorough review. His positions, his policy work, and the official acts were consistent with the goals of the FOP. And we have every reason to believe that he will be an exemplary U.S. attorney general with whom we will have a very productive relationship.

I think the FOP brings a unique perspective to this nomination because of our familiarity with his record in the courtroom and as a judge and as a U.S. attorney. As part of this review process, we talked to the rank-and-file officers in the District of Columbia, one of our largest groups, and talked to them about his time in superior court as a judge.

CANTERBURY: To a man, every individual that we talked to reported that he was fair and tough and they spoke favorably about U.S. Attorney Holder describing him as able and aggressive as a prosecutor. And from the perspective of the line officers who work on real cases, those are the adjectives that you want to hear as a police officer.

The FOP has a better sense and a complete picture because of the interviews that we conducted with our membership with the men on the street that actually worked cases with Eric Holder.

I'd also like to add that we talked to a lot of our career employees, members of our organization who worked at the Department of Justice -- the best of the best. And many of them are members of our organization and they were anxious for us to endorse Eric Holder for this position. It's one that they felt was one of their own who could take the helm of the department and restore of integrity that we felt the department needed.

The FOP with also privileged to have the opportunity to discuss with Mr. Holder a number of different issues including his vision for the Department of Justice and the ability to have input and talk to him about the crime-fighting strategies and the policies that affect our members, the rank and file, the boots on the street.

I believe that the president-elect has made a great choice in Eric Holder to be the next attorney general of the United States. We want to emphasize that all the major law enforcement organizations have announced their support. I believe it's unprecedented that you have the chiefs, the rank and file, the sheriffs, all organizations standing together on this.

I urge the committee to complete their review of this nominee in as quickly as fashion as possible and favorably report this to the Senate floor. As you examine his record, I believe you'll find him not only well qualified but excess possessing the requisite character, knowledge, and skills to do this job and be an extremely effective leader for the department.

And, again, Mr. Chairman, Mr. Ranking Member, we thank you for the invitation and we urge you to move this along as quickly as possible. We believe that he will be a fine attorney general.

Thank you, sir.

LEAHY: Thank you, Mr. Canterbury. And I thank you for -- your organization for all the time that you have spent up here for this committee, the (inaudible), Mr. (Inaudible) who's here often on critical law enforcement matters that we have before us. And I appreciate that.

Our next witness is John Payton. He became director counsel and president of the NAACP legal defense fund last March. This is after a very good long and distinguished career in private practice.

He's the sixth person to lead the legal defense fund in its 67- year history. It was started by Thurgood Marshal. Mr. Payton is recognized as one of the premiere litigators in this country. His civil rights experience includes Supreme Court arguments defending the use of race-based remedies in the University of Michigan's admission criteria. He worked in private practice here in Washington, D.C. for the law firm of Wilmer Hale.

He was corporation counsel of the District of Columbia. He served as president of the District of Columbia Bar. He's taught at Harvard, Georgetown, and Howard Law Schools.

Again, he's no stranger to this committee. And Mr. Payton, thank you very much, sir, for being here.

PAYTON: Thank you, Mr. Chairman.

It is a pleasure to be here, especially, on the occasion of the nomination of Eric Holder. I'm here to support enthusiastically his nomination to be attorney general of the United States. The legal defense fund views it as a national imperative that the Department of Justice live up to its name by delivering justice and equality for all people in the United States.

The harsh reality today -- and it's a very harsh reality today is that the Department of Justice is in shambles. Mr. Holder, if he's confirmed, will inherit a department with its very credibility in question. The entire department has been decimated by scandal and controversy from the firings of the U.S. attorneys to the use of an ideological test for the Justice Department's honors program to the assault on the civil rights division.

The task at hand is nothing less than to reclaim the soul of the Department of Justice. As former Attorney General Edward Levi phrased it immediately after Watergate, a strikingly analogous set of circumstances, but I believe the core of the soul of the Department of Justice is its civil rights division.

Yes, integrity must be restored to all of the department's operations. And, yes, it must regain its independence from political influence. But the area in which the department has been most damaged is the civil rights division which has been plagued by problems that have shaken its very foundation.

Press reports and hearings from this committee have revealed the insertion of politics into litigation decisions. The weakening of enforcement, improper or possibly illegal personnel practices, and a substantial decline in cases filed to protect racial and ethnic minorities. Politics and ideology have triumphed over even-handed enforcement at almost every turn.

Career civil rights lawyers in the department have been demoralized and many have been literally driven out of the department. This Tuesday, the department's office of inspector general and the office of professional responsibility released their joint report on an investigation of allegations of politicized hiring and other improper personnel actions in the civil rights division.

The report was completed last July but only released this week. It is a shocking report. It shows, as the earlier report identified, an enemies list that was used to actually keep people from becoming members of the department. The entire Department of Justice honors program used the enemies list. Our organization, the legal defense fund, was on the list.

The second report is even more shocking than the first. It concludes that hiring in the special litigation section, the employment litigation section, the voting section, the criminal section, the appellate section, all were illegally infected with political and ideological considerations. And it makes a criminal referral to the U.S. attorney's office.

But as I said, the entire Department of Justice has suffered grievously. The challenge for the next attorney general requires very special leadership and very special commitment. It requires someone who can inspire and be an example.

Yesterday's hearing, I believe -- and I sat through almost all of it and heard the rest -- was a dramatic example and dramatic evidence of why President-elect Barack Obama has selected Eric Holder to lead the Department of Justice at this critical moment.

We face perilous times both internationally and domestically. The legal issues before us are complex and dynamic. I think there is no better person than Eric Holder to restore integrity and honor to the entire Department of Justice and the ethical standing and reputation for excellence of its civil rights division.

He has an exceptional resume which you heard about yesterday. Columbia, Columbia Law School, the honors program, lawyer in the public integrity section, a judge, U.S. attorney, deputy attorney general, partner at a very prestigious law firm.

Let me just add one other things to his resume. He began his legal career as a legal intern at legal defense fund. And ironically, in the recently past, that would have disqualified him from working at the Department of Justice.

I also know Eric from my own history and professional experience in this town. As you said, Mr. Chairman, I was a partner at a law firm for many years here. I was corporation counsel. I was president of the D.C. Bar. I've known Eric for almost that entire time. We are friends.

I think that his personal commitment to issues of justice and equality is exceptional. His experience and the strength of his commitment to fairness assure me -- and I'm sure they assure this committee -- that the odious practices identified in this week's report by the inspector general will never be tolerated on his watch.

Let me reiterate one final point. I don't think there is a better person to lead the Department of Justice at this critical moment than Eric Holder. And with his nomination, we can begin to restore the crown jewel of our nation's legal system.

I urge the Senate to confirm Eric Holder as the next attorney general of the United States. He'll make us all proud.

LEAHY: Thank you, Mr. Payton.

And I do appreciate that. I'm actually -- with your testifying -- reminded me of something I was going to do yesterday. And because we went so late, I didn't. But we've -- Judge Freeh has talked about all the different people who have written in in support of Eric Holder. Mr. Canterbury talked about the unique nature of all the different types of law enforcement being for him.

And I put letters from those different organizations in the record yesterday. But we've also received letter of support for Mr. Holder's nomination assigned by more than 60 civil rights organizations. According to the NAACP, the Leadership Conference in Civil Rights, the Southern Poverty Law Center, the Mexican-American Legal Defense and Education Fund, the National Women's Law Center, the American-Arab Anti-discrimination Committee, the Anti-defamation League, the AFL-CIO, the Asian-American Justice Center, and a whole lot more.

So I will put the whole entire list of support into the record along with a -- along with the letters.

So thank you very much.

Ms. Townsend, it's always good to see you.

And she was, until last year, homeland security and counterterrorism adviser to President George W. Bush, where she chaired the Homeland Security Council. Certainly one person that most people in the country, when you would be interviewed on television or others, would listen very carefully to on a subject that effects every one of us. She advised the president on homeland security policy, anti-terrorism matters. Certainly, have been in meetings with the president and has gone out of his way to praise the advice you've given him.

Previously, Ms. Townsend spent 13 years at the Department of Justice in a variety of senior positions including counsel to attorney general for intelligence policy -- which I believe was probably the first place we met -- acting deputy assistant attorney general, director of the office of international affairs, chief of staff to the assistant attorney general in the criminal division.

She worked with Mr. Holder during his tenure as a U.S. attorney and as deputy attorney general. He served as a federal prosecutor in the United States Attorney's office in the southern district of New York. She began her prosecutorial career as an assistant district attorney in Brooklyn, New York. That was probably after Eugene Gold.

The reason I mention him, he and I served on the board of the National District Attorneys Association. We, oftentimes, had meetings in his office.

So thank you for appearing. And please go ahead -- please go ahead and do your testimony.

TOWNSEND: Mr. Chairman, thank you for the warm welcome I've received. It really is a privilege and an opportunity to be here today before the committee to testify in support of the nomination of Eric Holder to be attorney general.

You went through my resume, if you will, and I suppose to many here my appearance in support of Eric comes as something of a surprise given my most recent position. But as you noted, my 23 years of public service included 13 years at the Department of Justice where I worked both with Eric Holder and for Eric Holder at various points.

Eric's career, both as a superior court judge and as a career prosecutor in the public integrity section in the criminal division rightly earned him both the respect and the affection of career prosecutors not only here in Washington but around the country in the U.S. attorney's offices around the nation.

Not surprisingly, given his experience, I found Mr. Holder to be open-minded, fair, and respectful of the views and the opinions of career lawyers. Mr. Holder was never reluctant to hear discussions between career and appointed staff if there was a disagreement among them and, oftentimes, that was the case.

He decided those issues in accordance with the facts and his best judgment, giving serious consideration and respect to the advice of the career lawyers. In his interactions with the office of intelligence and policy review, he took his national security responsibilities seriously and he always made himself available whenever he was needed.

He carefully reviewed the detailed documents prepared for submission to the foreign intelligence surveillance accord when his approval was required and unfailingly deliberated on the questions and facts before signing such submissions.

In yesterday's testimony, Mr. Holder spoke about being at the department during the East Africa Embassy bombings and in 2000 during the Cole. One of the cases I thought I might mention to you because I think it's very relevant to the execution of his national security responsibilities was the successful prevention of the millennium attack of 1999 into 2000.

As the committee is aware, and as Director Freeh will recall, this was a very difficult time. We had very specific threat information. Both Attorney General Janet Reno and the deputy attorney general were personally involved in the Justice Department and FBI's investigations.

TOWNSEND: We took risks to prevent that attack. We made considered legal judgments to prevent that attack. We applied the foreign intelligence surveillance act in a far more aggressive way that had ramifications beyond the disruption of the millennium attack. That case could have, if tradition had held, been prosecuted under criminal wiretap laws. I believed at the time, and recommended both to the director and the attorney general, that we use the foreign intelligence surveillance act legally and appropriately in that investigation.

Eric Holder was a part of that deliberation. They were persuaded that the use of the foreign intelligence surveillance act to disrupt that plot was correct. That plot was not only successfully disrupted. Individuals who were later criminally prosecuted, the prosecutors in the southern district of New York legally and appropriately used the tapes from the foreign intelligence surveillance and that was upheld on appeal.

That's the kind of man Eric Holder is. That was a difficult legal decision. It was a close call. And it was a decision that he was willing to take because he understood the seriousness of the threat.

But I wish to be clear. I am not here because I believe that, if confirmed as attorney general, Eric Holder will decide legal issues necessarily in the same way that I would. On the contrary, I expect that there would often be times where this is not the case. I am here because I believe Eric is competent, capable, and a fair-minded lawyer who will not hesitate to uphold and defend the laws and the Constitution of the United States.

I know Eric to be an honest, decent man of the highest ethical standards who both understands and appreciates the strong and proud traditions of the Department of Justice and will protect and honor them.

The attorney general position must be filled quickly. We remain a nation at war and a nation that faces the continuous threat of terrorist attack. We cannot afford for the attorney general position to sit vacant or for there to be a needlessly protracted period where the leadership of the department is in question.

For these reasons, sir, I humbly and respectfully recommend that the committee move expeditiously to confirm Eric Holder as attorney general of the United States.

Thank you.

LEAHY: Ms. Townsend, thank you very much. I appreciate that. And I -- especially, as you stated, the areas where you disagree with Mr. Holder.

I think in my 34 years here, there has never been an attorney general from a Republican or Democratic administration, including attorneys general I voted for, that I haven't found something where I've disagreed.

Joseph Conner is the son of Frank Conner. Frank Conner was still a young man when he lost his life in a bombing at Fraunces Tavern in New York. The bombing was conducted by Puerto Rican nationalist group called the Armed Forces for National Liberation -- FALN.

Mr. Conner testified before the Senate Committee on Foreign Relations in 1999 about the clemencies granted to some FALN members. He worked with Senator Hatch to introduce the Pardon Attorney Reform and Integrity Act to Congress in 2000.

I was (inaudible) very much at reading your testimony, Mr. Conner, all of which will be placed in the record, of course. When you spoke about the fact that your father would never get to see his grandchildren.

My colleagues on this committee have to hear my stories ad infinitum about my grandchildren because it's one of the greatest joys of life to have your grandchildren. So we thank you for coming back to the Senate. You've been here before. And please go ahead, sir.

CONNER: Well, thank you. Thanks for having me back. They say you love your children but you really love your grandchildren. So...

LEAHY: Without taking up your time, I'd add that I've told people that I've discovered this hidden clause in the Constitution which requires grandparents to spoil their grandchildren then turn them back to the parent (OOTC:KIDSQ) to have to deal with the consequences.

CONNER: Oh, so that's what happens, I guess. OK. Thank you. Thanks for the insight.

My name is Joseph Conner and I'm here, as the senator said, for a second time once again addressing the unimaginable, immoral, really dangerous 1999 clemencies to 16 Puerto Rican terrorists of Los Macheteros and the FALN. We'll call them the FALN.

These terrorist proudly claimed responsibility for over 130 bombings in the U.S., including the murder of my 33-year-old father, Frank Conner, as he ate lunch at Fraunces Tavern in downtown New York. It was January 24, 1975. Despite the warnings and recommendations to the contrary from the FBI, the Bureau of Prisons, prosecutors, Janet Reno herself, then deputy attorney general or current attorney general nominee, Eric Holder yesterday flatly admitted recommending release of those terrorists.

Upon hearing those words yesterday, some questions popped into my mind. One was: Did he actually believe in their cause? Number two, did he recommend the release at someone else's direction, perhaps, the president? Or number three and maybe most disturbing, did he not know what they did?

It seemed that a lot of the issues that were raised, he claimed he didn't know about from the surveillance tape of them building bombs to the -- to their threat of judgment (inaudible) at their sentencing. And that was disturbing.

He admitted to have taken advice from people outside our government, dignitaries, if you will, folks like Desmond Tutu, Jimmy Carter, Coretta Scott King and ignored those people within our government -- the FBI, the Bureau of Prisons, the prosecutors. Something didn't add up.

When we look back at the people whose recommendation he did take, on what information were they basing their recommendation? Where they told the political prisoner -- I put that in quotes -- line that the pro-FALN people were passing? Or did they actually know the facts? Something tell us me if they knew the facts, they wouldn't be recommending this.

Putting aside his well-documented involvement in the outrageous pardon of Mark Rich, the attorney general nominee's egregious recommendation for playing Russian roulette by unleashing unrepentant terrorists on the American people against the advice of the FBI, Bureau of Prisons, prosecutors, even Janet Reno herself should disqualify him on its own merit.

It's almost ten years ago but, incredibly, we're revisiting today the same issues. The recriminations of the hearings and how sad that we have to go through this again. We knew the clemencies were wrong in 1999. After all, the Senate voted 95 to 2 to condemn them. Yet here we are contemplating the confirmation of the architect of that very release as a top law enforcement officer in our country. How can this be?

If anything, the devastating attacks of 9/11, we should be more resolute in our opposition to anybody who would be soft on terror or support any terrorist organizations.

If anyone needs to be reminded about what terrorism can do, give me a couple of minutes. It was a beautiful January on January 24, 1975. I had just turned nine. My brother Tom had just turned 11. That night, my mom was cooking us a dinner to celebrate our birthdays, and we were expecting our father home on time to celebrate with us.

Well, after we got home from school, we found out that there was a bombing downtown. We didn't know my father was in it right away. My mom didn't know he had a meeting that day. He wore an old suit when he wasn't expected to be with clients. But when she called up, he didn't answer. She knew then something was wrong.

After hours, we finally got the news that he'd be killed. He and three others were murdered that day intentionally and, as we may find out later from Rick who will give a bit more information, the bomb was meant to kill a lot more people than the four that it ended up killing.

My dad was only 33, as a mentioned. He was the only child of immigrants Thomas Conner and Margaret Maloney. His father was an elevator operator downtown and his mom was a cleaning lady at J.P. Morgan. She was so proud when she got him the job so he wouldn't be in a dangerous position. His friends were becoming cops and firemen or working in the subways. But he got a job in a nice office at a high school.

And his was an American success story. He went to college at night. He worked his way up to an officer position at J.P. Morgan. And he had two sons and he had made something of himself.

From a cleaning lady to an officer at the bank. It was an amazing story. Although my mom is remarried to a fine man and my brother Tom and I have families of our own, not a day passes without us feeling devoid that this was left in our lives. My father's death has become a wound. And it was reopened when the clemencies were offered, and it's been reopened now by this nomination.

These terrorists took away my dad's life. As we mentioned, he never got to see his sons graduate high school, college, meet his daughters-in-law, or be a grandfather.

You know, we ask why. My kids ask why. What happened. It seems that it was all done for politics. Was a direction from the president to further his wife's Senate future. Or was it something else? Was it a -- someone who believed in the cause of the terrorists?

Who were the FALN? Like I said, Rick will get into it a little bit more. But contrary to the disingenuous claims we heard yesterday, there was nothing non-violent about these people. These people blew up 130 bombs in the U.S. They killed five people. And they meant to kill a lot more.

They have devastated lives and maimed. The day after their release, one of them was on with Tim Russert. And when asked about the Fraunces bombing, one of the released, one of these people who was non-violent, had nothing to do with it said well, you know what, the restaurant didn't take the proper precautions.

Blaming someone else, never taking responsibility for what happened. And these people were released. On 9/11, my brother Tom and I commuted through the World Trade Center. We left -- I said goodbye to him in the World Trade Center and I went my way, he went his. At quarter to nine, a saw the tower -- the north tower explode out my window. I couldn't get Tom on the phone and I called my cousin Steve who worked at Counter Fitzgerald. Steve never answered. Steve was my father's godson. He was killed on 9/11.

Tom and I got home that night safely to our families. But there's consequences. Terrorism cannot be treated as a political tool. It has to be treated for what it does. It kills people and it hit our family very hard twice.

Despite what Mr. Freeh just said, the clemency process was not followed properly. We were never informed as a family of their release. Although, I understand we were supposed to have been through the Victim's Rights and Restitutions Act of 1990. The terrorists did not request clemency. They did not express remorse. They were not acquired to provide information solving other crimes. They were allowed 30 days to decide to accept the conditions. And they were given conference calls between prisons.

Now, clemency is an individual grant, yet they were treated as a group. And that's not right.

Supporters were given nine meetings with Mr. Holder and his group. You know how many we got? None. He never talked to us. Despite what he said yesterday, he didn't -- there was no consideration to the victims, at least, to the people I know.

Had we been properly notified, we would have told him what happened because it seems like yesterday from the conversation he didn't know about the threats to the judge. He didn't know about them building bombs. It was a very disturbing moment in the interviews yesterday.

The biggest issue that I read in the recently-released memos as they came from the Justice Department was how the public relations fallout might be if these guys committed more crimes. Not what might happen to those people who were injured by them, but what the public relations issues would be for Holder and his team if something went wrong.

I have a whole litany of questions I would like to put into the record. I know I'm kind of going late now. I can read them now or I can do it at another time. But I have a bunch...

LEAHY: I've read them. And if you want to (inaudible), go ahead.


LEAHY: I'm trying to give as much flexibility to all the witnesses...

CONNER: I appreciate that. Look, I know I'm going long.

LEAHY: OK. I know this is a difficult time. I'm not trying to cut you off. And your whole statement, of course, will be made part of the record. But if there's some of those questions you'd like to emphasize, please go ahead.

CONNER: Thank you. Yesterday, a lot of issues came up that caused this -- my statement to change and my questions to change because he said some things that were just a surprise.

He admitted that he know so little about the terrorists. As he testified yesterday, he hadn't seen the surveillance video, didn't know they threatened the judge. How then could he know enough about the case to feel comfortable in releasing them? What does that say about the judgment there?

CONNER: He said none of these terrorists were part of any attacks that killed or hurt people. Given his limited knowledge on the subject, how could he possibly know that? And given what Ricardo Jimenez said on "Meet the Press," that's just not true. He took -- he took advice of others over his own due diligence from what I could see, and that's irresponsible. It borders on incompetence.

Now, I know he has a long record, and I know there's a lot of good people here who have spoken to his -- his -- you know his successes in the past, but it's not unprecedented that one mistake can -- can disqualify you.

Look what happened when -- when Clinton had Zoe Baird and Kimba Wood. They were both very qualified people, and both of them had to withdraw their nomination, because they did something like hire illegal aliens to work in their house and didn't pay taxes on them, which to me is far less egregious than what he did.

We talked about -- you mentioned yesterday that Cardinal O'Connor supported clemency. That's not true. I have a letter from the cardinal specifically saying he didn't, because I contacted the cardinal at the time.

We -- we came here in 2000 and introduced the Pardon Attorney Reform and Integrity Act, and we warned at the time about future terrorist that, and we hoped that that by instituting this act, which never was instituted, that there wouldn't be releases like this, that there would be a light shining on people so they would -- everyone would know what the pardon attorney was doing and what the Justice Department was doing before the clemencies were released.

And that's a transparency that we need, not -- not yesterday in the meetings when Mr. Holder was asked to produce a document recommending that you clemency. He didn't want to do it.

Now, this new administration is supposed to be the most transparent in our government history, yet his attorney general has no transparency.

I'll go now, but I urge the Senate to review Mr. Holder's record, put aside any politics, put themselves in the shoes of ordinary Americans, who had given them their trust in their vote, and decide if this man, who recommended playing Russian roulette with the American people by releasing unrepentant terrorists, should be charged with protecting our fellow citizens.

I think ordinary Americans would agree the answer is very clear. Thank you.

LEAHY: Thank you, Mr. Conner.

Mr. Hahn, Richard Hahn, is the president and CEO of R. Hahn & Company Inc., a security consulting and investigating company specializing in counterterrorism and homeland defense. He retired from the FBI after a distinguished career that spanned 33 years -- is that correct, Mr. Hahn? -- as a senior supervisory agent and as a special agent.

As a member of the FBI, investigated domestic and international terrorist organizations, specializing in events carried out by the armed forces and the national liberation of the FALN.

And he testified before this committee in 1999 -- 10 years ago -- about the FALNL and clemencies.

Thank you for coming back and testifying again. Of course, your whole statement will be made part of the record. Please go ahead, Mr. Hahn.

HAHN: Thank you, Mr. Chairman.

(OFF-MIKE) My purpose in being here today is to make clear just who and what the FALN Macheteros were.

These organizations were no less terrorists than any of the terrorist organizations recognized by this government today. These were clandestine organizations with cellular structure and secret membership.

This makes knowing who did what acts inside the conspiracies difficult, not impossible. But despite this, through investigation some acts attributable to those who received clemency are known.

Former FALN member Freddie Mendez chose to cooperate with the government after being convicted on federal charges, but before being sentenced. Mendez described being mentored by FALN leader Oscar Lopez, one of those offered clemency.

Lopez taught Mendez how to detect and avoid surveillance, used dead drops for communications, the code words used by the FALN, how to operate safe houses, and how to build a bomb.

Mendez participated in the preparation of bombs in October of 1979 and which were coordinated with the Macheteros. On that occasion he was assisted by Oscar Lopez and Ida Luz Rodriguez and carried a bomb with Ricardo Jimenez to the Democratic Party headquarters in Chicago with the intention of placing it in their offices.

Three bombs were placed in Chicago that day.

He participated with Oscar Lopez, Dylcia Pagan, Ida Luz Rodriguez, Haydee Torres, Luis Rosa, Ricardo Jimenez and William Morales in the armed assault on a National Guard Armory in Oak Creek, Wisconsin, to steal weapons and explosives. Employees were put on the floor, guns placed at their heads, and they were repeatedly threatened during the takeover.

He also participated in the armed takeover of Carter-Mondale campaign headquarters in Chicago for the purpose of intimidating campaign workers and delegates to the convention.

Mendez named participants in the planning and execution of this invasion as himself, Oscar Lopez, Carmen Valentine, Dylcia Pagan, Ricardo Jimenez, Ida Luz Rodriguez, Luis Rosado and Alicia Rodriguez.

It is noted that they carried rifles and a variety of pistols into the assault, and again workers were threatened, bound, gagged, and the offices ransacked.

Mendez was arrested in Evanston, Illinois, along with Carlos Torres, Haydee Torres, Adolfo Matos, Ricardo Jimenez, Dylcia Pagan, Ida Luz Rodriguez, Alicia Rodriguez, Luis Rosa, Elizam Escobar and Carmen Valentine.

Some of these conspirators had just participated in the armed takeover of a truck rental agency, not only stealing a truck, but robbing the patrons of personal effects.

The group had gathered in Evanston for the express purpose of robbing an armored car that serviced Northwestern University. All were wearing disguises and armed.

In a separate investigation of an FALN safe house apartment operated by Alejandrina Torres and Edwin Cortes, over 21 pounds of dynamite, 24 blasting caps, four handguns, over 3,000 rounds of ammunition were discovered and seized. Also found were disguised materials, false identification and terrorist training manuals.

Cortes and Torres were videotaped as they built firing circuits for bombs. They also were surveilled electronically and physically as they made plans and traveled to Wadsworth Veterans Hospital in Kansas with weapons and explosives to attempt to the escape of FALN leader Oscar Lopez.

A second safe house apartment in Chicago searched in April 1983 was found to contain a semiautomatic rifle, silencers, bulletproof vests and documents, including intelligence materials, from the police of Puerto Rico.

Cortes and co-conspirator Alberto Rodriguez were surveilled electronically as they plotted an armed robbery, and subsequently with Alejandrina Torres, as they planned bombing of military installations in Chicago.

Regarding other crimes of the FALN, as you know, they engaged in a campaign of bombings that started in 1974 and did not end until 1983. This campaign encompassed over 100 explosive and incendiary attacks, killed five and maimed scores of others, including several police officers. Some of these attacks were designed to kill. In December 1974 the FALN called in a report of a dead body in a building in Spanish Harlem. A booby trap explosive device hung up on the opposite side of the main entry door.

Exploding as the door opened, a New York P.D. officer was blinded in one eye and severely maimed. Ironically, the officer, Angel Poggi, was Puerto Rican himself, and even more incredible, it was his first day on the job.

In January 1975 the bombing of Fraunces Tavern killed four and wounded 60. Credit was claimed within minutes by written FALN communique. In August 1977 the FALN conducted the daytime bombing of the employment offices of Mobil Oil in Manhattan, killing one and maiming several others.

The Macheteros have a similar history of terrorist acts. In 1978 the Macheteros ambushed a patrol car of the police of Puerto Rico in an attempt to steal weapons, uniforms and the patrol car itself. One of the officers was killed as he resisted the ambush. The other, stripped of his uniform, was left handcuffed to a tree at the side of the road. The Macheteros proudly claimed credit for this act in a written communique.

In October 1979 the Macheteros in concert with the FALN conducted bombings on the island of Puerto Rico while simultaneous bombings were conducted in the U.S. Credit for these were claimed by a joint communique to the press, which bore the logos and names of both the FALN and the Macheteros.

In December 1979 the Macheteros with other groups conducted a well-coordinated attack on a Navy transport bus at Sabana Seca, Puerto Rico. The bus was blocked on a public highway. Then another vehicle driven by the terrorists pulled into the opposing lanes of traffic, shot the bus driver and proceeded to rake the side of the bus with automatic weapon fire. Two died, and many more were wounded.

In January of 1981 the Macheteros bondage jet aircraft of the Puerto Rican National Guard, resulting in tens of millions of dollars in damage to the specialized aircraft.

In 1983 the Macheteros fired LAW rockets at the FBI office in Hato Rey, Puerto Rico, and that the U.S. courthouse in Old San Juan, Puerto Rico.

And finally, in the fall of 1983, the Macheteros engineered one of the greatest thefts in U.S. history, the theft of over $7 million in U.S. currency from a Wells Fargo depot in West Hartford, Connecticut. Much of the money ended up in the hands of Cuban agents.

All of this is a matter of public record not only accessible to the Department of Justice, but to any motivated citizen, who wishes to find these facts. All this makes clear that these conspirators were not merely activists, but in fact were indeed terrorists.

In my opinion granting them clemency in the absence of any cooperation or understanding of who committed the most heinous of crimes remains a compromise of our justice system and reflects a failure of the government personnel with oversight of such matters to competently carry out their duties.

LEAHY: Thank you very much.

Our last witness is Stephen Halbrook. He's practiced law for over 30 years. He's authored -- edited seven books and dozens of articles related to the right to bear arms.

He's also the author of an amicus brief in a recent Second Amendment case before the Supreme Court District of Columbia versus Heller, submitted on behalf of Vice President Cheney and 250 members of the House of Representatives.

Mr. Halbrook is known in my state, a state which actually, as I mentioned yesterday, has no gun laws except during hunting season. And then we have certain restrictions if you're going to hunt on the state house lawn. I also noted the fact that I own numerous weapons, and I -- I'm almost tempted -- well, I'll tell the story about Director Freeh and myself target shooting in my backyard in Vermont later on.

Go ahead, Mr. Halbrook.

HALBROOK: Thank you, Mr. Chairman. Good morning, Senator Leahy and Senator Specter. It's a real pleasure to be here.

I did file the amicus brief on behalf of not only of 250 representatives, but also 55 senators, including majority members of this committee, in the Heller case.

Heller, as you know, held that the Second Amendment means what it says. The right of the people to keep and bear arms means that individual have that -- have that right.

I'm author of the book, "The Founders' Second Amendment," and numerous other publications. I've done a lot of litigation on this subject in the Supreme Court. I'm outside counsel for the NRA. I'm not representing them here today.

And this is an issue that we have an explicit constitutional guarantee. We live in an age when people invent rights, and they seem to be implicit in the Constitution. And I like Senator Leahy's "the right to spoil grandchildren is an implicit constitutional right" -- it's a lot more innocuous than other ones that -- that might be invented -- and fully support that concept.

As you know, Mr. Holder filed -- or rather joined in an amicus brief in the Heller case, denying that the Second Amendment protects an individual right and seeking to uphold the total ban on handguns by D.C. residents.

My -- my background, by the way -- I've appeared before this committee a number of times, going back to the 1982 committee -- subcommittee on the Constitution hearing and report which is entitled, "The Right to Keep and Bear Arms."

Serious concerns I think are raised about Mr. Heller's -- Mr. Holder's position. Throughout his career he's denied that the Second Amendment basically means anything in regard to private citizens, and he's advocated basically the criminalization of what many people consider to be their constitutional rights.

And I'm talking about, for example, the advocacy of making it a five-year felony to possess an unregistered firearm in the District of Columbia. That was when he was U.S. attorney. And there's been many other draconian proposals that he's -- he's set forth.

I listened carefully yesterday to Mr. Holder's testimony -- in particular, the question that, "If the Supreme Court reconsidered the issue of the meaning of the Second Amendment, whether it was recognized individual rights does refer to the right of the people after all or some kind of elusive collective right that doesn't protect anybody, and if the Supreme Court revisits that -- that issue, what position would you take?"

HALBROOK: And Mr. Holder responded that, "First, it would depend on the facts even though facts really don't matter in the interpretation of a constitutional provision."

And he did say that steri decisis is one consideration that would be taken into account. I think the -- given that he has supported the so-called collective rights view for his career, it's most likely that he would, indeed, support a reconsideration of the meaning of the Second Amendment.

And, in addition to that, Mr. Holder, based on his career-long proposals for draconian firearm bans, would be likely to say that nothing really violates the Heller Decision if it, indeed, stands the test of time.

I'm not going to get into any policy questions, but I did take note yesterday that he advocated the reenactment of the so-called assault weapon ban as a permanent fixture. The Heller Decision did talk about firearms that are commonly possessed by law-abiding people for lawful purposes as being protected by the Second Amendment. It might depend on what a person arbitrarily chooses to call by this pejorative term "assault weapons" whether that test would be met or not. But there's a lot of meat in the Heller Decision that basically says that banning commonly possessed firearms would violate the Second Amendment.

He mentioned that the -- what he called the gun show loophole must be closed. And if reminds me of his prior advocacy of a federal law that would require background checks on all private intrastate transactions involving firearms, presumably making it a felony to give a firearm to your grandchild as a gift without a federal background check.

And, also, he has advocated the registration of all firearms that all of those background checks on private transfers would be registered with the Bureau of Alcohol, Tobacco, and Firearms and Explosives. So we would have a registration system of firearms.

He was asked yesterday about proposals to ban firearm possession by individuals who are in the age group 18 to 21 years old. And that was a proposal that he supported. Mr. Holder supported a Chart 1768 back in 1999. So you would have the phenomenon of a person who's serving in the armed forces, eligible to do so at age 18, eligible to vote, serve on juries, and it would be a federal felony for them to possess a firearm. Now the attorney general not only prosecutes federal crimes and influenced courts on the meaning of constitutional rights. The attorney general also administers and enforces the Gun Control Act through the Bureau of Alcohol, Tobacco, Firearms, and Explosives.

For his entire career, Mr. Holder has denied that individuals have any Second Amendment rights. On behalf of law-abiding citizens, he has advocated that firearms must be registered, and the possession of an unregistered firearm be punished with five years imprisonment.

The millions of Americans who exercise their Second Amendment rights rightly feel uneasy about this nomination.

Much has been said about unjust prison sentences imposed on persons who possess crack cocaine, not to mention the rights of alleged terrorists held at Gitmo and other places. And we would hope for sympathy to be shown for Americans who bother no one and who merely wish to exercise their Second Amendment rights without being sent to prison because they possess a gun without the government's permission.

Thank you, Mr. Chairman.

LEAHY: Thank you. It's interesting hearing what you're saying and listening to Mr. Holder yesterday. I have a home -- or a house in Virginia I use when I'm down here. My home is in Vermont.

I've often been struck that in your state of Virginia, your gun laws are considerably for restrictive than the laws are in my state of Vermont. For example, you couldn't just -- you couldn't carry a concealed weapon without a permit in Virginia. You could in Vermont. I mean, you could this afternoon if you were there.

I own at least a dozen weapons of different sorts ranging -- well, of all calibers and enjoy shooting in my backyard. Can't do that in Virginia. Mr. Holder -- I asked him would he support federal laws that would restrict Vermont's laws other than the obvious ones about felons who are restricted. And that's been upheld by the court in their purchase and use of weapons.

I asked him if he would support restricting Vermont laws. He said no. It's interesting.

And we have considerably less laws than you have in Virginia on firearms.

Now, Judge Freeh, we talked about your unique perspective. And, Mr. Halbrook, I'll let you go back to that if you care to after. But let me just -- the thought occurred while you were speaking.

Judge Freeh, you have this unique perspective and you did work closely with Eric Holder as you described as the FBI director. You said sometimes you agreed, sometimes you disagreed.

You certainly been very critical of the pardon of Mark Rich and you know that both I and Senator Specter have been very critical of that pardon. Of course, it was a pardon issues not by Eric Holder. It was issued by then President Clinton.

And the clemency grant of the members of the FALN, you were critical of that as was I. But the clemency was granted by President Clinton. But notwithstanding these disagreements, it he is confirmed as attorney general, he's going to be attorney general of all the country. Both you and I will be in the country served by this attorney general.

Notwithstanding your past disagreements, you do strongly support the nomination of Eric Holder; is that correct?

FREEH: Yes, sir. I do.

LEAHY: Thank you.

The question I always ask -- and I used to ask this of prosecutors in my office, and I think it's a mark of a prosecutor. I ask that they'll be politically independent, follow the rule of law, not feel they have to be subservient to any political party. I certainly prosecuted members of both Republican and Democratic Parties including a chairman of my own party.

The attorney general has to be independent of the president who nominates him. Do you have any question in your mind that he'd be politically independent?

FREEH: No, I don't. The -- I mean, as you well put it, Mr. Chairman, the attorney general is not the president's lawyer. We've had, unfortunately, in that office, I think, at times, people who thought that was the case. But he is not the president's lawyer. The president has a White House counsel for those purposes.

And I know that Eric Holder understands that difference. I think he would be very quickly able to say no to the president if he disagreed with him. And I think that's the confidence and trust that we need in that position.

LEAHY: In fact, a president -- would you agree with me that a president is ill-served by an attorney general who's unwilling to say no to him if he thinks that a president is wrong?

FREEH: Of course, he is. It not only subverts the purpose of the attorney general, but it puts the president in a very vulnerable position.

LEAHY: And you've dealt with him when you were -- when he was deputy attorney general and you were director of the FBI. We have another FBI director now, well-respected by this committee. Do you have any doubt that if the current director were to come into an Attorney General Holder and say, Mr. Attorney General, I think you're wrong on this and here's why -- do you have any doubt that he would get a fair and complete hearing?

FREEH: No. He would get a completely fair hearing. And I think Eric would expect that from his staff. And I think the people in the career staff who did not do that would not be his trusted advisers and would not be serving the country in their function.

LEAHY: And, Mr. Canterbury, obviously, the Fraternal Order of Police has had some disagreements, certainly, on the clemency issue of the FALN. And I recall your organization testified to Congress. In fact, we asked you to testify to Congress at that time.

But do I understand your testimony correctly that you believe that Eric Holder will be a strong attorney general, especially on law enforcement matters?

CANTERBURY: Based on the totality of his record, we absolutely believe that. We still -- we sit here like we did in '99. We abhor the clemency that was granted. We thought it was wrong just like Director Freeh. We still think it was wrong.

But we also believe, based on the information and the record of Eric Holder, that given the position of authority of the attorney general versus a deputy attorney general and the fact that clemency was a presidential issue and not his sole recommendation. We believe that he would be fair, and we look at it from the totality of circumstances in his career. And we feel comfortable, after an exhaustive review of his decisions as a judge and as a prosecutor.

LEAHY: You're supporting him and you are joined by virtually every national law enforcement organization there is.

CANTERBURY: Every organization we know of, Senator.

LEAHY: Sorry. I went 32 seconds over my time.

Senator Specter?

SPECTER: This is a significantly different dimension on the hearing from other items that we have heard. And sometimes these matters on paper don't really reflect the kind of injury and the kind of scarring which isn't gone.

But I think it's very, very important to bear in mind what the victims have to say and how the victims feel about it. When I bumped into you yesterday in the corridor, you told me neither you or your family have come to closure. I can see it, as you described the wounds.

And I think it was really unfortunate that you weren't consulted, at least, given an opportunity to be heard about it.

Director Freeh, welcome again to this committee -- distinguished career, FBI agent, judge, director. You have come down harder on the characterizations of what Mr. Holder has done than anybody else in the hearing. You say that the Rich pardon was a corrupt act (inaudible). You said it was a terrible mistake. He allowed himself to be used and co-opted.

Pretty tough words. Tougher than Mr. Canterbury, who characterized it as abhorrent. You said that he will be independent because the committee will make sure about that. Well, my experience, 28 years on this committee, we've been more ignored by attorneys general than been able to influence them.

Every time we seek information, whether assigned jointly by Chairman Leahy and Ranking Member Specter or Chairman Arlen Specter and Ranking Member Leahy, we get nothing in return.

You say the media will make sure? Absolutely not. The media doesn't know what's going on. Sometimes they find out. But they can't stop it.

In a little bit of time, I'm not going to pursue that. I wanted to get into one question with you. With respect to the independent counsel and campaign finance, as I pressed Mr. Holder very hard about that, and I could only comment about -- about a bit of that because of the limitation of time.

SPECTER: But there's a subject I want to take up. And this is going to be what I have to say, Mr. Chairman, so I may take a little longer, if I may.

And I chaired the -- I chaired the full committee on the Rich pardon. I know a lot about that -- more than we can get into. But on the independent counsel investigation, I chaired the committee.

And you made a statement, quote, "It is difficult to imagine a more compelling situation for appointing an independent counsel," close quote. Difficult to imagine a more compelling situation for appointment of independent counsel.

That's why it seemed to me that a man of Mr. Holder's status, intelligence, experience -- that it was inexplicable. Inexplicable is the word that I apply also to the Rich pardon. Also I apply it to the FALN situation.

The matter is still under investigation, as you've said -- FALN -- a situation where two of the people wouldn't even accept clemency, that the federal government, the United States government had no standing to convict them. They wouldn't accept clemency -- people involved in murders and bank robberies. You could have a parade of victims that would fill a stadium.

But on the issue of independent counsel, Mr. Chairman, I ask consent that the memorandum from Mr. Frey to the attorney general be included in the record.

LEAHY: Of course, without objection.

SPECTER: That was the memorandum I'm about to refer to now.

LEAHY: Whatever memos that you wish to be included, they will be included.

SPECTER: Mr. Freeh, this is a matter you and I talked about when I conducted the investigation in the year 2000. I now refer to a memo, and I talked to you about it a few moments ago before the hearing started -- no surprises, no gotchas, everything on top of the table.

This is the memorandum, which you wrote to Mr. Esposito, one of your top deputies, about a meeting he had with Mr. Lee Radick, who was the head of the public integrity section of the Department of Justice. And this is what it says in part. Quote, "I also advised the attorney general of Lee Radick's comment to you that there was a lot of, quote, 'pressure,' close quote, on him and PIS, Public Integrity Section, regarding this case, campaign finance investigation, because the attorney general's job might hang in the balance, parenthesis, (or words to that effect). I stated that these comments would be enough for me to take him in the Criminal Division off the case completely," close quote.

This memo is dated December 9th, 1996, and the background was that President Clinton had been reelected, and Attorney General Reno had said she wanted to stay on publicly, and she hadn't been reappointed. And then there's this meeting between your top deputy and one of her top deputies in effect saying ease off the campaign finance investigation.

And you complain in this memo -- I won't read it fully because of limitation of time -- that the FBI ought to take over. The FBI had been kept out of the investigation.

Now, that -- that is the backdrop of what is happening in the Department of Justice, where Mr. Holder is the deputy, where they're bringing the issue to the FBI to ease off so the attorney general's job will be saved.

Now, how do you evaluate that in terms of politics -- rank politics -- reappointment of a public official interfering with investigation, law enforcement and the rule of law?

FREEH: Well, as I said, I couldn't think of a more compelling case to go to an independent prosecutor. But let me just put that in perspective. And -- and we have spoken about this before.

That was not a statement, of course, by the Attorney General. It was by her public integrity section chief.

SPECTER: Now, wait a minute, Mr. Freeh. Do you think that Radick did that all on his own?

FREEH: Well, I don't know. I never got a chance to cross- examine.

SPECTER: Of course, you don't know, but -- well, I'll draw the -- my inference. Radick's doing his boss' bidding. Now, that happens occasionally.

FREEH: Well, I would draw a different inference, but I would say the following. That statement was alarming enough, together with all the other information we had, that I renewed my recommendation that this case go to an independent prosecutor.

The attorney general disagreed. We had a very strong, perhaps the strongest disagreement in eight years over that issue.

Eric Holder, just to put it into perspective, was, of course, aware of this -- he was the deputy -- went out of his way with me and the attorney general to say that you know Louis has a different position we have to respect that position, and actually supported the fact that I was taking a different position, which is again how I adjudge him to be willing and able to speak up and be independent.

I didn't agree with the attorney general's determination, but she made that determination, subject to what she believed to be the right factors, and -- and we disagreed.

SPECTER: Well, as the record will show, this memorandum you sent you sent us a copy to Mr. Holder. I will let the memo speak for itself, where Radick, one of her top deputies, talks about a lot of pressure on him and the public integrity section. I think it's an obvious conclusion that pressure is coming from the attorney general.

FREEH: Yes, well, I don't agree with you, respectfully, Senator.

SPECTER: OK. Why not? Why not?

FREEH: Well, because there was never a conversation that we had where she indicated, and more importantly, any action that she ever turn up that we were aware of, and we were pretty aware of everything that was going on in the case, that it all indicated you know her aptitude or willingness or even consideration of trying to interfere with this investigation in any manner, so...

SPECTER: Interfere?


SPECTER: Well, you weren't on the case in any real sense. This memorandum particularizes your request to her to get these people off the case. You were submitting to pressure to put the FBI in as the leading investigative agency. You weren't the lead investigative agency, where you?

FREEH: Not at that time, no.

SPECTER: Mr. Freeh, let me move to another very delicate subject, one which you and I discussed years ago and talked about a few minutes ago.

You turned down the White House request for a briefing on campaign finance reform. Would you testify to the circumstances of that matter?

FREEH: Yes. Well, we had a criminal investigation called the campaign contributions case, and the subjects of that investigation, as you know, were senior people in the White House, including the president, the vice president and others.

And they -- at some point the White House wanted to be briefed on the criminal case, which was also the intelligence operation by the Chinese Ministry of Intelligence in the United States, to which we have documentation -- this committee has looked at it -- interfering with the electoral processes here in the United States.

So we decided... SPECTER: Interfering with the electoral process where?

FREEH: In the United States.

So we decided that we could not brief the president and senior officials, who were also the subject of the investigation on the investigation. It seemed to me a pretty no-brainer with respect to conflict, also protecting the integrity of the investigation.

So the attorney general and I discussed it, and we made a decision not to brief them on the criminal aspects of the case.

SPECTER: Was there any aspect of any other governmental function -- foreign policy or anything else -- beyond the criminal investigation?

FREEH: There was, and that part of the case was briefed to them. In other words, Chinese intelligence operations, we briefed the national security adviser.

SPECTER: But you declined to brief the president.

FREEH: I don't think he asked me for briefing.

SPECTER: Well, was it -- could it have been a part of the briefing that the president did ask you for?

FREEH: Well, no, he didn't. He didn't ask me for any briefing at all, actually. It was the national security adviser, and we briefed them on everything except the criminal aspect of the case for which subjects in the White House were now under investigation.

SPECTER: You say the White House asked for the briefing.

FREEH: The national security...

SPECTER: Griffin Bell said the White House doesn't ask for things.

FREEH: The national security adviser.

SPECTER: OK. Well, that's -- I'm concluding now. The inferences I draw -- and I'll give you an opportunity to disagree with me -- the inferences that I draw is that this investigation was right to the top -- the president, as you testify, the vice president, attorney general's job, the question about independent counsel as to the vice president, the president being involved.

I had told you, when we talked about it at the time -- you and I and Fred Thompson had a conversation -- that I thought you were on very shaky grounds and not responding to the president's request.

If you had evidence that might activate the impeachment process, you ought to go to the speaker of the house. You came to me. I'd just been chairman of Intelligence, and Fred Thompson was chairman of Campaign Finance Reform. Well, I'll let these facts speak for themselves as to what kind of pressure there was and whether Mr. Holder was a party to a matter which succumbed to political pressure.

Thank you, Mr. Chairman.

LEAHY: Thank you.

Senator Sessions?

SESSIONS: Thank you.

LEAHY: Senator Sessions was the only one that was able to claim any kind of direct connection to the nominee yesterday, because the nominee's wife is from Alabama. Her family is from Alabama.

SESSIONS: And they are a remarkable family. She has a remarkable sister particularly, a historic figure in the civil rights movement.

And let me just say, Mr. Freeh, thank you for coming. And the matter that we're discussing here, as you can tell from Senator Specter's remarks, were pretty big deals at the time, were they not? I mean this is a very intense situation, a very difficult time for you and the FBI during all these periods of allegations in campaign contributions and so forth?

FREEH: Yes, sir, they were.

SESSIONS: I think -- I just want to say this. I believe Senator Specter felt the pressures. He felt the development of the investigations, and Senator Specter was asking the tough questions to find the truth, as he always tries to do, and felt that there was political efforts to block that, to block the truth from being discovered, which is not consistent with the highest ideals of American justice.

And it was a very difficult time. I remember it well. And so I might Mr. Holder. I think he has a lot of fine qualities. I think it's appropriate that this be inquired into. I thank you for your integrity and your testimony and in your work at the time.

With regard to the pardons, Mr. Freeh, your Department of Justice experience -- I think maybe the only panelist; maybe Ms. Townsend did, too, previously.

But there's a reason, is it not, that we have a pardon attorney. I mean there are -- thousands of people ask for pardons every year, commutations of sentences. We don't -- the president -- I think the last two or three presidents, who have served eight years, gave about 400 or 500. The vast majority are denied.

I know the case where a former public official in Alabama in his 70s and reaching the end of his life -- maybe 80s -- was convicted 40 years ago. He's contributed to his community ever since. He'd like a pardon. I doubt he'll get a pardon. Thousands are turned down, see, more deserving than the ones that got approved. That's what upsets me, and that's what caused me to question my friend, Mr. Holder, a man I respect very vigorously, at the time that -- of the FALN pardon.

So everybody can make a mistake, and maybe -- somebody said the best spin you could put on this is that Bill Clinton could talk anybody into anything, so if he wanted it, maybe he just talked Mr. Holder into doing something he really didn't want to do and -- and tried to resist, but just couldn't resist. Maybe that's what happened, but it was a big mistake I think.

SESSIONS: Mr. Hahn, yesterday I compared the fact that the people -- that some of these people didn't actually murder somebody or set off a bomb to the fact that neither did Osama bin Laden or Khalid Sheikh Mohammed. They didn't actually do it; they got people who flew the airplanes and caused all the destruction.

And Mr. Holder responded that this was not in the same category and that it was not his understanding that any of the terrorists, FALN terrorists, were, quote, heads of the organizations and leaders.

Do you -- what's your evaluation of that?

HAHN: Well, first of all, Senator, in fact, Oscar Lopez Rivera is and was a leader of the FALN. So there's no question as to whether or not...

SESSIONS: He was an (inaudible) and his (inaudible) failed to know that when he recommended the pardon.

HAHN: Correct. And the second point, of course, is these are clandestine organizations with secret membership. Who did what acts remains unknown. So it could very well have been, in fact, Oscar Lopez Rivera told Freddie Mendez that he had participated in bombings both in the United States and Puerto Rico.

Now, that's president amazing since the FALN never claimed credit for any bombings in Puerto Rico, but other groups did. So did he act on behalf of other groups when he was there? We don't know the answer to those questions. So we really don't know whether or not Oscar Lopez or any of these other people may have been involved in acts in which people were killed.

SESSIONS: Now, Mr. Freeh, that's not why you go through the pardon attorney process. You remember Kathryn Love -- I mean, Margaret Love, the former pardon attorney?

FREEH: Yes, sir. I do.

SESSIONS: For some reason, Mr. Holder removed her, I understand. She was, I thought, a woman of great integrity and handled the job -- she was a Democrat, but she handled the job exceedingly well. And -- but at any rate, those are the kind of facts that, if you go through the formal process, the pardon attorney gets. Does he not?

FREEH: He does. SESSIONS: And you avoid mistakes when you do that. And you also seek out the opinions of the prosecutors who tried the case and the agents who investigated the case.

I just feel like that was a very unwise thing. And Mr. Conner, I mean, how that went along, thank you for sharing the human perspective on this. I appreciated the little opportunity to chat with you yesterday.

CONNER: I appreciate that, Senator.

SESSIONS: And, you know, one of the things I think I shared with you that will troubling to me was after such a big controversy over this pardon, the Senate voted 95 to 2 -- Chairman Leahy and all the members of our committee voted to deplore President Clinton's pardon. The Mark Rich pardon was done not much longer after that.

So, Mr. Chairman, I'll wrap up. So I guess I'll ask Mr. Hahn or maybe -- let me ask Mr. Freeh.

It strikes me that after all of that flap over the FALN pardon that the deputy attorney general who was handling these matters should have been even more resistant to the Mark Rich pardon which you have considered to be corrupt and should have done everything possible to resist it. And certainly shouldn't have said I'm leaning toward it but should have said it's the position of the -- Mr. President, you can do what you want, but it's the -- my position is you should not execute this pardon.

FREEH: Yes. No. Senator, you're absolutely right. You were -- you were a lead prosecutor. You were responsible for an office. You know, I was -- as I mentioned before, the deputy U.S. attorney in the southern district. I went over to the Swiss authorities to negotiate for Mark Rich's arrest. I mean, there was nobody more outraged at that pardon than me and my colleagues in the southern district of New York.

But I did say earlier this morning, you know, the White House went to extraordinary lengths to deceive the attorney general, myself, the Department of Justice, and everyone about who was on the secret pardon list, whether it's a pay-for-play list or whatever you want to call it.

But this -- to put, you know, Eric Holder's position in victimization in perspective, as I said, I had two FBI agents on inauguration morning eight years ago next week. I had two FBI agents standing in the cold outside of the west gate of the White House because that was the only way we were going to see the publicly-posted list of people who were pardoned.

So the extraordinary lengths that they went to -- and Mark Rich's lawyer being a part of that cabal, I don't think it's fair to put that blame totally on Eric Holder. He takes responsibility. And he will never make that mistake again. But I think, as Senator Warner said yesterday, he's learned from that mistake and that should certainly not be the basis upon disqualifying him for a job which I think he's going to do with excellence.

SESSIONS: Thank you. I think you framed the issue for the Senate very well.

And, Mr. Chairman, thank you for allowing us to have extra time.

LEAHY: Thank you. And I'm, again, am going to put in the rest of the letters from victim's advocates and all the law enforcement in the record. I'm going to keep the record open to the close of business today. I thank all of you for being here. I know how busy you are.

Judge Freeh, you said that you were heading to Vermont this afternoon. I want you to know that my home this morning in Vermont, the temperature is 24. That's 24 below zero.

FREEH: Thank you, sir.

LEAHY: Thank you. We stand recessed.

Barack Obama, Senate Confirmation Hearing for Attorney General Nominee Eric Holder: Day Two Online by Gerhard Peters and John T. Woolley, The American Presidency Project

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