you solicited a second opinion from the solicitor general's office after it was found the dc act was uncontroversial. and questioning the constitutionality and you said -- you declined to make that memorandum public saying that it was not final and so i want to ask you about that. what is there that remains to be done before that opinion will be final? >> well, i guess, no decision has actually been made by the administration with regard to the position it's going to take concerning the constitutionality of the statute so that process is still ongoing and as long as that is ongoing and also the concern i think i expressed was it reflected -- i was concerned about releasing documents that

reflected internal deliberations in the justice department. so those were the two concerns that -- if i didn't express both those are the concerns i have with the releasing of the documents. >> given the fact that it was not released what sense is the memorandum not nine is because the administration will now make a decision whether or not it disagrees with the office of legal counsel or not? >> yeah, the determination has not been made by the president, by the administration as to what the position is going to be of the administration, and so while that matter is ongoing, that was one of the two concerns i expressed about releasing the materials that you requested. >> well, would you -- would you foresee a situation where the office of legal counsel would render a legal opinion that a statute was unconstitutional where the president would take a contrary position?

>> you have to look, you know, at the specific fact situation. olc has some of the best and the brightest in the justice department. but even the best and the brightest can get it wrong. we look at what they say. i review what it is that they say. great deference is given to what olc says. it's extremely rare for an attorney general to take a contrary position and i understand this has generated some interest. but it is possible. i mean, olc has delegated power from the attorney general. it's ultimately my responsibility to make sure the opinion that comes out of the justice department is one that i am fully comfortable with. >> but i understand the difference between lawyers having different opinions. that happens all the time, but what you're suggesting is that the president of the united states would make a policy decision on a question of law and essentially overrule the

decision of the office of legal counsel. is that what you're suggesting? >> no, i'm not saying that. one of the things the president has got to decide in preparing policies, making policy judgments -- there are a whole variety of legal things that come from the justice department, legal opinions. there's obviously policy considerations. i wouldn't say that the president for pure policy reasons would necessarily overrule an olc opinion. the president might have a different legal view than the office of legal counsel, a different view than the justice department with regard to a particular statute or policy initiative. >> well, i certainly understand the role of the olc in front forming the executive branch about what the law, in fact, is. indeed, in the area of enhanced interrogations and rendition and other controversial areas that you're well familiar with and i am as well, the question is what is the law? and, of course, but here on the discreet issue on the

constitutionality of the statute, how in the world would the president of the united states have an opinion that would be anything other than a political decision that might overrule a judgment on the office of the legal counsel. isn't that the kind of politicization that we've heard decried here in this committee and in congress over the last few years? >> well, you're talking about a hypothetical the likes of which i've never heard. but it would seem to me -- >> excuse me, but you're the one who said that the president -- the administration may or may not agree with the opinion. so that's not a hypothetical in that sense, i would submit. >> well, i think i was focused really more on the attorney general not necessarily agreeing with what an olc opinion -- an olc position might be. olc plays an important role, a vital role in saying what the justice department's view is on the constitutionality of a statute and a whole variety of  things.

the president in front formulating policy takes into account a wide range of things -- things that come from the justice department, opinions that come from other places. there are policy determinations that go into it. and -- i don't know -- i'm not -- i'm not as bothered as you are apparently by the notion that a president in taking into account the wide range of advice and opinions that he or she gets comes up with a determination that might be different from what the justice department has recommended. >> would that have to be based on a legal argument or would that -- could that be based purely on political considerations? >> usually the experience that i've had is that we're talking about legal arguments. the justice department takes a view -- i don't know maybe the state department, the defense department takes a different view with regard to a legal

determination. the president weighs those legal determinations and then decides one way or the other which legal view he thinks is most appropriate. >> mr. chairman, i know my time is up. i find troubling, though, the idea the office of legal counsel would render an opinion on the constitutionality of a statute in that the administration might in its discretion overrule that decision. i understand in forming policy by saying what the law is going to into an overall policy judgment but on a discreet legal question involving the constitutionality of the statute, i'm troubled -- >> it's probably all the more reason why we should get on with the confirming of the head of the olc. >> well, not if we're going to overrule them in the white house. i don't think -- >> well, just to be clear here, with regard to the particular thing that we're talking about, the dc voting rights, this doesn't involve the president. this involved me. it was my determination that the better view of the statute was that it was constitutional.

i base that on my review of the constitutional authorities who, in fact, said the same thing, among them ken starr, viet din people who are certainly conservative in their views who i thought had a better view of the constitutionality of the statute. the president was not involved in this at all. let's be clear. this is the determines that i made. >> just to be clear, the reason you won't release the memo because you disagree with the legal conclusion? >> no. the reasons that i think the memos should not be revealed is because this is an ongoing matter and also because i'm concerned about revealing internal deliberations in the executive branch and specifically in the justice department. >> senator cardin? >> attorney general holder it's a pleasure to have here and i appreciate your comments particularly as it relates to the civil rights division and the message that you've sent and some of the other areas i want to talk about a few. i want to talk about predatory lending. the civil rights movement was

responsible for the passage of significant legislation that was intended to end discrimination in housing. the fair housing act, the equal credit opportunity act, the home mortgage disclosure act, and the community reinvestment act, just to mention a few. and i think it did an incredible job in red lining. the problem today we have reverse red lining where minority communities have been targeted particularly for subprime loans. let me just give you some of the statistics that we have for 2006 leading up to the current housing crisis. we find that the high cost loans that 35% who were placed in these high cost mortgages could have been placed in traditional fixed rate loans. but the disturbing fact is that of those placed in high cost loans, it was 53.3% for black borrowers, 46.2% for latino and 17.7% for white.

the subprime rate of foreclosure is much higher than in the traditional fixed rate loans. now, let me, if i might, quote from the national association of colored people legal defense and education fund noticed a case brought by the civil rights division of the department of justice reverberates throughout the community, the state and the region. it can have industry-wide impact in terms of deterrence and reform. the broad base injunctive review cannot be matched through the efforts of individuals nor private lawsuits. my question is, we haven't seen a case brought since 2000 as it relates to predatory lending by the department of justice. i sent you a letter about a week ago concerning the circumstances of maryland where minority communities were targeted with subprime mortgages.

my question to you or my request is that the department of justice investigate and look at the circumstances concerning predatory loan being in particularly minority communities to see whether there's a need for aggressive action by the department of justice in order to protect our communities and i would just request that you do this and get back to us. >> we will do that. senator, i will tell you now that i think there is a need by aggressive action by the justice department in this field. we announced an initiative -- of it was a joint initiative with the ftc and the department of housing and urban development and the justice department and the justice department component of that initiative was to look at the very thing that you've talked about. and that is the use of these mortgage instrument proportionately where minorities are found and the impact that that has had, the devastating impact that has had on minority communities as people have not been able to make payments and

abandon their houses and all the negative inflows that come from that. >> it's not just in home mortgages to buy homes. we find in the refinancing the minority communities were targeted. and a large number were convinced to go into a refinancing in a subprime market now losing their homes. it appears like it was an intentional effort. i think the department of justice activities here could be very helpful to make it clear that we won't tolerate reverse red lining. >> right. >> let me weigh in on the guantanamo bay issues. i must tell you i thank you very much for your comments as it relates placing due process in regards to those that are going to be detained and i agree with the analysis that was made by senator graham and others about that process. i chaired the terrorism subcommittee and we intend to have some hearings the chairman has authorized us to have some hearings in this -- and senator feingold has already had

hearings in regards to the long term detainees. as you start -- as senator graham said, a fresh start in how we are going to with detainees, it is important that it be an open process and i would just urge us -- we need to develop what's right for america. but we also need to engage the international community 'cause we need to have better understanding from the international community as to what america doing in regards to its detention policies as we tried to lead internationally on human rights issues. i would urge you as part of this process to be open and go beyond just our country in trying to get better understanding as to what we intend to do and the reasons why we're pursuing these policies. >> no, i think you're absolutely right, senator. i've made two trips to europe so far. and have spent a good portion of both of those trips talking about the issue of guantanamo with our allies.

the state department has a gentleman dan freed literally who has traveling the world talking about this issue with other countries. so what we're trying to do is make the world understand we're trying a different approach. an approach that i think is consistent with who we are as a nation and that i think will stop the ability of our adversaries to use guantanamo as a recruiting tool and i think rehabilitate some of the relationships with other countries that have been frayed. >> i think some of the things that you already announced are helpful so we want to be supportive and as has been indicated on both sides of aisles there's been support on what you're trying to do. i want to bring up the surveillance statutes. let me focus on the three that expire at the end of this year and again, the terrorism subcommittee is going to do some work here. we have the lone wolf positions of wire wiretaps, and roving

wire taps and they expire at the end of the year. and i very much appreciate the fact that you need adequate full time to review the effectiveness of these provisions, whether they need to be extended and if they need to be extended, whether there needs to be further modifications. we have an incredibly busy schedule in congress and these issues are not always without controversy and i would just urge you as quickly as possible to share information with this committee so that we can make adequate judgments on the reauthorization of these tools that at least the fbi director said are important for national security. >> yeah, we will endeavor to do this as quickly as we can because we are mindful of the fact this is obviously a very busy committee, a very busy congress but we want to make sure that we also have a good gauge of how effective these

tools are. whether or not modification, slight or major, need to be made. we want to be cognizant of the fact that there are civil liberties interests that have to be examined as well as the law enforcement inequities we will have. we will be, i think, our views to you all relatively soon and certainly i think with enough time so that they can be considered as we -- as you will have to consider the reauthorization question. >> thank you. thank you, mr. chairman. >> thank you, very much, senator kyl? >> thank you, mr. chairman. i second senator cardin's motion and i appreciate your response. the sooner we get your views on these three issues, the sooner we'll be able to deal with them in an appropriate way. secondly, since i'm the ranking member on the same subcommittee, and i've been advised we're going to have a hearing on the detainees at guantanamo, i'd also like to ask you to get some information to us on that. i had asked in a letter that i

sent back in may for some information following up on the president's speech when he talked about the fact that our super max facilities holds hundreds of convicted terrorists. i had written asking if you could break that down for us. i don't have response. let me just do this. i'm going to submit for the record a question 'cause i know you can't answer it just sitting here to find out who they are, what kind of categories of folks that they are, if there are any that are really comparable to the high value detainees that are at guantanamo today. that would be very helpful to us. second, if you'd like to comment on right now, fine, to get a sense of what kind of capacity we have. my understanding is that we're way overcrowded in the super max facilities today. by the way, can you just tell us do you know whether that's true or not right now or do you want to respond on the record? >> whether they're overcrowded? >> yes. my understanding there's a capacity of like 13,000-something and there are like 20,000 being held. >> senator, i'd have to get you those statistics. i just don't know offhand.

>> all right. i appreciate. two other follow-up questions on that same matter. one has to do with the recruitment of terrorists in jail. we know that's a big problem with this particular kind of militant islamist. and it's something the fbi director testified in the house of representatives about. is there anything that you would like to offer us today on that question about how we could prevent that from occurring or if you'd like to respond in the same way, i'm happy to receive that. >> i mean, i understand the concern but i think there are measures taken to minimize that possibility. terrorists -- people who are considered terrorists are generally held out of the general population so there's not the ability to interact with other prisoners in the way that some might and have an ability to radicalize them. and what we tried to put in place are programs to deal with -- to occupy the time of the people who are in these facilities so that they have alternatives.

they have the ability to think of a life outside the prison and if they have options, if they think they have a life that they can lead on the right side of the law, they are far less susceptible to these radicalization efforts. >> guantanamo was constructed into such a way to accommodate this particular requirement. it may be more difficult with the super max facilities, without having you respond today, would you include some information in response to us. i think it would be helpful in response to our hearing. >> we will detail how we think the facilities we have can be used to minimize the concerns that you have expressed. >> and then the final question in this area is, senator sessions has pointed out that it would be against the law today to release a terrorist or accused terrorist into our -- into the united states and into our society. can you comment on -- i mean, if that's not an option in other words, the resolution of the president's dilemma here about

closing guantanamo does that mean releasing anyone into the united states then i guess we don't have to worry about it. but if it does include that option, what is your response to the point that existing law the immigration nationality act would make that a crime or would prevent it from happening? >> well, certainly the house has already passed as part of its supplemental appropriations bill -- i guess, identity going to be considered by the senate and what i'm hearing, my intelligence tells me it's going to be passed by the senate so there will be provisions in that bill that would forbid the bringing into the united states of people who are presently being detained at guantanamo and to those people who would either be transferred or released to place them in other countries. that is the focus of our efforts. >> thank you. let me quickly switch now to immigration and drug violence on the border. i tie the two together because, unfortunately, as you undoubted

know better than most of us, the cartels that are now controlling the drugs have basically taken over the control of all the things that are being smuggled including illegal immigrants much to their disadvantage as individual human beings, i might add. two general lines of questioning here and again, i can -- i can ask you to respond to some of this for the record if it would be easier for you. you and i talked about operation streamline. this is actually to prosecute people who are caught crossing the border. they get jail time and as a result of that, it's a huge disincentive for them to cross because they can't -- they can't do what they want to do which is mostly to work, if they're in jail. and i ask you if you would get some information for us that would be helpful in seeing whether or not we could pursue this across more of the border than just in the del rio, yuma and tucson areas since which is a program that is working. i asked you to meet with me on

may 5th, increases of personnel and so on that would be required for this. do you know whether your folks would be able to do that. >> i'm not sure we have completed that. >> well, let me include that question in the record as a reminder of the information we were seeking and as soon as you can that to us that would be helpful, we can't get the funding for these things until you tell us what's needed and obviously we've already gone by one budget cycle. also, helpful in that regard would be information and i'll just ask this for the record of how -- how many people have been involved in this program. how well we think it's worked and so on. if you'd provide that for us. >> sure, will do that. >> finally, on the matter of the state criminal alien and assistance program, you're aware that the federal government is authorized to pay states money to -- as compensation for the housing of illegal immigrants who have committed crimes. our former governor, janet

napolitano now secretary of homeland security used to write the attorney general every year and demand payment. senator feinstein and i actually got an authorization of $975 million a year. we need to know whether the department of justice has sought that funding. there was no funding in the president's budget. is there any way that you can ask for supplemental funding to cover that? and secondly, will you ask for funding for at least a portion of that reauthorization -- of that authorized amount in the budget for next year? >> i think the administration's made the determination that in dealing with that issue, there are better ways to do it than through the use of the program that you mentioned. i think that is why that is reflected as having been zeroed out in the 2010 budget. so i think as i said -- i think that is the administration's position at this point. >> well, my time is up but that certainly didn't used to be governor napolitano's position and i'll be very curious whether

she agrees with the prop given the fact she understands the burdens of the federal government's job in failing to control the border. >> the federal government has to be sensitive to the burdens that are placed on our state and local partners as a result of enforcement efforts that happen along the border and we have to find ways in which we alleviate those burdens. in working with them. i think that the administration's position is that with regard to this particular program, that there are better ways perhaps that we could do this. >> and i would submit operation streamline is one of them so let's pursue that. >> okay. >> thank you. >> senator whitehouse? >> thank you, chairman. and welcome, attorney general holder. very briefly, let me first express my view that the release olc opinions was proper, was necessary and was wise and was

particularly important in light of the damage that had been done to that office by its politization during the bush era. frankly, those were opinions that had to be seen to be believed. and it really, i think, gave the legal community around the country a far better appreciation of the depth of the dive that that office took in that period to have those out, entirely apart from all the other considerations. i think it was the right call and i respectfully would completely disagree with ranking member on that subject. following up on olc, senator durbin asked a few questions about the opr investigation and its status. >> uh-huh. >> when we first asked, we were told on february 18th of 2008 that this investigation was already pending. so we know it predated february 18th of '08. we know that opr completed its investigation and provided a draft report in front late

december of '08. we know that on may 4th of this year, the comment period for those who were the subjects of the investigation closed in their chance to respond to the draft. and we also know that the cia was given an opportunity for both substantive comment and for classification review. my first question is, is it now the cia through its request for other substantive comment or through its role and classification review that is holding up the release of this? >> no. no, it's not. though that process might not be complete there are other things that have to be done within the justice department. i met yesterday with the head opr who indicates there are still some things they are working on in the preparation report chiefly in response to

the responses that were received, i guess, in early may or so. and they are dealing with that. she is new to the office of professional responsibility. understands the seriousness of this particular report and that's also had an impact on the timing of the release. >> the role of the cia, both in substantive comment and in classification review raises some interesting potential conflict of interests. can you tell me what assurances the department of justice has received from the cia that those who seek to influence the opr report through substantive comment or those who have the effect of delaying the report

through classification review are not complicit or involved in the underlying conduct? have you got essentially a clean scrub of those at the cia who are involved in those processes to assure that they're not tainted by the program that is the subject of the report? >> as i think i testified earlier, it is our hope to release as complete a report as we can. and one of the things that i think we want to do is to declassify as much of this report as we can so that when people read it, either in this body or the general public, they'll have a full feeling for what this our lawyers and the office of professional responsibility dealt with and what is the basis for the conclusion that is they reached. and so we'll be pushing as i said to declassify as much of this report as we can so that the american people will have a real sense of what it is that drove the conclusions that we

reach. >> i appreciate that. but it doesn't address the question of whatever assurances you got from the cia that in the discharge of their either substantive comment or classification review roles, that the people involved in that, you can assure us were actually -- had clean hands with respect to this program and are giving legitimate, untainted, unbiased, unimplicated advice. >> yeah, i don't think we have gotten anything yet from the cia, at least nothing that i'm aware of with regard to what their position is concerning the declassification issue. and so i think i have to wait for that and see, there may be -- this may not be an issue at all and to the extent that it is an issue, then i will interact with director panetta and raise the questions that you raise in addition to just our general feeling that we want to have as much declassified as we possibly can. it will be the director who ultimately be make the decision.

i don't think it's actually tainted -- i would be dealing with him in trying to make determinations as to what should be and not should be declassified. >> and on the question of their substantive comment on the contents of the report, how do you assure that isn't tainted by people who are implicated in the program? >> i'm actually -- >> is that an important point. just talking across each other, is it important or not important that the cia in exercising it's substantive comment role that it sought and in performing the declassification review should be doing so in a manner that keeps the agency's hands clean of implication of the underlying subject of the report. >> yeah, i'm less worried about the substantive comments. we'd certainly invite the comments from any involved agency but ultimately the justice department lawyers who will make the determination as to what goes in the report, the conclusions that the report reaches and so i'd certainly want to give them the opportunity to express whatever their views are. but that -- >> would they be likely --ou