recommendations of the cia differently if on the one hand the cia had not assured the department that its recommendations were coming from individuals who had clean hands versus those who did not? is that not an important factor in evaluating the substantive comment. >> those are ones that would take into considerations. so many of this is fact-driven. that's what people will find important. it is fact-driven really and the conclusions one draws from the facts, i guess, can differ but ultimately it'll be the justice department's view that will control based on the facts that we have uncovered. but as i say taking into account whatever other views people have of those same facts. >> thank you, attorney general my time has expired, thank you

very much. >> senator klobuchar. >> i was going through some of the cases and the concerns that they had and i think a misplaced argument about politization and as you were talking i was thinking what was the most high profile case you have dismissed, white collar cases since you came into office. what would you say that is. >> i'd probably say it was the senator stevens -- >> that would be correct, yes. the republican senator and i was also thinking about a decision you made early on to allow the republican appointed u.s. attorneys to stay in place until new u.s. attorneys was appointed. was that the policies until bush came into office of allowing the previous u.s. attorneys to stay on for a length of time? >> to be honest, i don't know what exactly the policy was. the concern that we had, though, was to maintain continuity in the u.s. attorney's offices and to leave in place those people who were doing a good job.

there's been turnover but we have not pushed anybody out. we are starting now to get our nominees before this committee and hope to have them confirmed and in place relatively soon. >> and how many nominees have been confirmed so far by the u.s. attorney? >> none. >> okay. so you'd like to move that along, i would hope? >> yeah, that would be for us a priority. to get our u.s. attorneys in place as quickly as possible. it's good for the offices. it's good for our law enforcement. it's good for us as we try to get our program together. i would also urge respectfully that this committee and the senate act on the other nominees for other justice department positions that have been sent up. everything from tax to environmental natural resources division, olc, there are a variety of positions that are still waiting senate approval. >> very good. and i can tell you in our state it's worked very well. we had as you know a lot of uproar over a political appointment and then attorney general mukasey put someone new

in. he is still staying on until the person i suggested has now been recommended by the president and we're hoping that we can get him in there soon. we have some major cases pending in our jurisdiction. the other interesting thing -- this is just my most interesting thing i learned this week, attorney general holder, as i recommended a marshall. do you know there's 94 marshalls. do you know how many of those are women in the country? >> no, i do not. >> there's only one in the state of florida. and i thought that was quite interesting. i thought i would share that with my colleagues as we recommend people as we go forward. i'm going to just ask a few questions about things that are a little closer to home that people have been focused on in my state and that is some of the white collar fraud, the madoff case hit a lot of people in our state as we know that came in through a whistle blower to the fcc and nothing was done. can you talk about steps for changes to enforce some of the white collar laws as we look a

large amount of money going out and the t.a.r.p. money and things like that that there could be even more white collar fraud. >> yeah, we are in the process of -- i think what i'll call the last wrinkles what is going to be a comprehensive announcement about the program that we're going to have with regard to financial fraud, white collar crimes, more generally. mortgage fraud. we have been working with our state and local counterparts with the other federal agencies come up with this effort. this is a priority for this department of justice to hold people accountable who have defrauded huge numbers of people with almost unheard of amounts of money or those who would seek to misuse the recovery money that is now being -- now trickling into the economy. these are things that we will be taking very close looks at and will be emphasizing if our

enforcement efforts. >> and i know you're working with secretary sebelius on the healthcare provision as we're going into the summer focusing on healthcare, there is still significant problem with healthcare fraud amounting to billions of dollars. i saw cases myself as a prosecutor of identity theft in hospital settings and things like that. i think that it will be very important as we move into this healthcare debate that the work that you do -- that you're doing with this new focus is understood. do you want to talk a little bit about that? >> i would totally agree with that. if you look at the statistics for last year we spent $1.2 billion that was recovered as a result of the fraud found in the healthcare system. that is why secretary sebelius and i have made this a priority. and it is why we have announced a joint effort to look at these issues in two additional cities in addition to what we're doing more generally. i mean, that's a lot of money

when you think about $1.2 billion in actual money received by the federal government as a result of its enforcement efforts. we plan to keep those efforts as strong as they are. as robust as they are. >> and one of the things that came out in the fbi's financial crimes report for 2007 was that they're actually seeing some cases and i care about this because i come from a state where we value high quality healthcare. we haven't had a lot of issues with this but there have been recent healthcare fraud cases which included medical professionals risking patient harm with unnecessary surgeries and things like that. what are you doing to combat this particular kind of fraud? >> i mean, that's a very good point. there's not only an economic consequence to some of the fraud that we see. there are healthcare outcomes that get affected in a negative way by at least some of the things we've seen. and that i found to be very honest with you very surprising when i became attorney general and saw the results of some of these fbi efforts. and so we are going to be looking not only at the

financial aspect of this but the -- in some ways the ultimate fraud whether or not patients are getting the care or the government is getting the care for which it is paid and whether or not people's lives are being put at risk. to the extent that we prioritize this -- although the financial component obviously will be important. what we really will emphasize is making sure that no one's life is put at risk and that the kinds of treatment that people are expecting to get, they already, in fact, are receiving. >> and one last issue and i can talk to you about it later, but it's just the upcoming reauthorization for the violence of women act. we had a very good hearing that chairman leahy conducted and we had to focus on some of the new trends on things that are happening there and one of them is just because of economic problems, states not being will or unable to pay and help with things like rape kits and other things. and a lineup i think l.a. county is the worst of these tests that haven't been done on the rape

kits when, in fact, we could be potentially finding and prosecuting people who are committing sexual assault and that's something i'm sure we'll talk in the future. >> i look forward to working with you. >> thank you. >> senator specter? [inaudible] >> thank you, mr. chairman. plaintiff attorney general, i join my colleagues in welcoming you here and compliment you on your abilities and handling a marathon that. i begin on the question of the immunity for the telephone companies. i've been subject to a lot of analysis and a lot of consideration by the congress. i had pressed an amendment to substitute the government for the telephone companies as the parties' defendant.

the fight for immunity is very troublesome because it, in effect, takes away from the jurisdiction district court to determine what has happened. it's a more sophisticated way for which on constitutional issues i find unacceptable. it's not the supreme court of the united states but marbury vs. madison established judicial supremacy here. and the position which i pressed was to have the government substituted as the party defendant. i thought the telephone companies were good citizens. they ought not to be subject to damages, not subject to the cost of litigation. what's wrong with that is the preferable course to immunity which keeps the courts open to determine what happened and not deprive the parties' plaintiff

of their constitutional rights and let the government bear the cost of whatever is involved because it's something for the benefit of the government. >> well, i mean, this was something that was obviously debated at great length. months or so ago. many months or so ago i think in a determination made that given what the telecom companies had done, the reasons why they had done it, their interaction with the government, that the immunity provision was appropriate, we have been conducting ourselves on the basis of what i consider to be at this point settled law and as i said, i think the debate one -- >> this debate within the department of justice? >> no, i meant in congress and more generally. >> oh, i know about that debate. i wouldn't say it was robust. i would say it was fallacious. how about the attorney general's position, the position of the

department of justice? why not do that? >> well -- >> have a substitution. >> we're dealing with existing law and we're proceeding in that way. >> on the -- on the issue of the substitution. this is obviously not determinative but then-senator obama voted in favor of the substitution. >> if there were something the president wanted to revisit, i would certainly listen to where he is now. i don't know -- >> you think there's a difference in institutional approach from being a senator from being a president? >> possibly, possibly. he may have the same position he may not. he's my boss. i would listen to him.

>> well, attorney general, attorney general mukasey, your predecessor invoked the immunity defense. did you make an independent general after becoming attorney general in the immunity defense general be invoked. there's a period of time before the court decided the case after you became attorney general and there was speculation, at least in the media, that the new administration might not seek to invoke the immunity defense in that case. and my question to you is, did you consider not using the immunity defense? >> well, as i said, i think we dealt with the question based on the law as it existed. and given the fact that congress had spoken, it didn't seem to me

there was a huge amount of flexibility that the department had. and so it seemed to me the immunity having been conferred that pretty much settled the question. >> well, you're the attorney general. i recollect that even district attorneys have discretion as to how you handle cases, quasi judicial, if you think it's an unfair defense you don't have to invoke it. but let me move on. chief judge walker has some really fascinating cases in front of him in a number of directions and i'm concerned about having a determination made on these matters by the supreme court of the united states. i've introduced legislation, senate bill 877, which would mandate the supreme court to take up issues like the terrorist surveillance program.

that case was never decided. the federal court in detroit found the terrorist surveillance programs unconstitutional. i the sixth circuit reversed on grounds of standard, a very flexible standard with the dissent in my opinion being much more authoritative than the majority of opinion. it looks to me like it's a matter they just didn't want to decide and then the supreme court of the united states denied certiorari. and there you have a classic case of conflict between congressional authority under the foreign intelligence surveillance act which provides the exclusive means for obtaining warrants and the assertion of the president of his article 2 power as commander in chief. and one of the questions that i

intend to explore with with the nominee, judge sotomayor, is her standards for what cases should be taken. i wouldn't ask her questions with how would she decide something, but i think it's fair to ask her a question -- sometimes it's more important what cases turns her down than the decided cases. would you think that it's worthwhile to do you think it appropriate to have a mandate that the court take cases like a terrorist surveillance program? >> i'm not familiar -- i've not read it -- your proposed statute. i'd be a little concerned about -- i don't know, you know, i've -- i'm not sure it's been done in the past but it's a separation of powers concern about mandating supreme court review in a particular matter. obviously, the courts' jurisdiction can be defined.

>> well, congress has the authority to do that and it's done it in a fair number of cases. >> right. my only concern would be not a technical separation of powers question because i think congress probably does have that ability but whether or not it's an appropriate use of congress' authority. i've not had a chance to you have radio the proposed bill. and i'd have to look at that before i can make a comment in a more intelligent way. >> would you take a look at the proposed legislation and respond? mr. chairman, i ask consent that a letter that i sent to attorney general holder be included in the record concerning healthcare costs. the subcommittee had a hearing on that and we had testimony that there are some people who were claiming claiming money under medicare and medicaid who were deceased and doctors who were submitting claims who were deceased and looking at ways to save money. that's really on the front burner. if you could take a look at that letter and respond, i'd

appreciate it. >> without objection, the letter will be made part of the record. >> thank you, mr. chairman. thank you, mr. attorney general. >> thank you, senator. >> senator schumer? >> thank you, mr. chairman. it's good to call you mr. chairman. i have three questions. we'll try to get them done quickly. i know you have to get to the house and do the same thing here. so my appreciation and sympathies. first on hate crimes, i know you've spoken on the need to pass improved hate crimes legislation. i think we have to move this legislation quickly. it seems -- it's hard for me to believe that people oppose hate crimes legislation aimed -- you know, aimed to protect any group. whether it be religious, racial, ethnic or sexual orientation. would the administration support a move to bring hate crimes up very quickly here and help us try to get that through? >> absolutely, senator. this is a priority for us. i testified on behalf of this hate crimes bill 10 years ago

when i was the deputy attorney general so i don't think this is something that we're doing in great haste. i mean, this is something we've been talking about for a decade and given the recent events that we've seen in the nation, i think the need for this legislation is all that much more apparent. >> second, as you know my staff has been working with yours and the white house to -- on a reporter shield bill. senator specter and i when we were on opposite sides of the aisle had a bipartisan bill. now it is, i guess -- it's still a bipartisan bill. there are other members of the other side who support it although they're welcome to come over like senator specter and make it a partisan bill. [laughter] >> but in any case, we are talking about it. two questions, can the department of justice support a well balanced shield bill and can you commit to working with senator speck are it, myself and, of course, chairman lay. i to get such a bill to the floor so we can pass it this

year? >> i think the department can support, the administration can support such a bill. the concern we have again with protecting -- making sure that the bill doesn't impede our ability to protect national security or our ability to prosecute those who would leak national security information but even given those concerns i think there's a way in which we can construct a bill that all would find acceptable. >> i would just urge your staff and my staff have had good negotiations but to move those and conclude those. i don't think we're that far apart. >> i think that's right. >> i think we can protect whistle blowers and people like that and not deal with state secrets. there was a bill that was way over that just said almost no recognition of either secrecy, grand jury, secrecy or things like that or secrets. that is not our bill. our bill is a balanced bill and we need you to get on board as quickly as possible. and we're willing to make changes. the third and last question i have is ice authority.

senator feinstein talked a little about some drug trafficking and we are facing a sustained and organized effort by sophisticated cartels, but ice doesn't have clear title 21 authority to deal with all forms of illegal contraband. particularly in the context of border enforcement and enforcement of our borders. the issue that was just raised in the "new york times" by a senior bush advisor on homeland security. it makes no sense for the main agency stationed along the border to lack power to arrest criminals there. so two questions, my two last, do you intend to remedy the arrangement you currently have with ice to give ice agents authority it off arrest drug smugglers on the border and what is the status of any of the discussions you're having with the department of homeland security about remedying this problem? >> this is an unbelievably timely question as we left the white house at 7:15, 7:00, secretary napolitano -- we were talking about this very issue

and i think we're in a position to announce that we have an agreement -- i don't want to steal anybody's thunder. we have reached, i think, an agreement and i think it's going to be announced within days. >> okay. well, i think you just announced it and i'm glad you did. >> don't count this as an formal announcement. >> it's an informal announcement of an agreement but it makes sense to do and it really hampers our ability to control our borders when the agency that's doing all the patrolling has to call somebody up. they have to get in a car especially when you're dealing with people you're tracking down and chasing and everything else. and so i'm glad that you and secretary napolitano have come to an agreement. i spoke to her last week and she seemed very positive as well. mr. chairman, i yield my remaining 2 minutes and 25 seconds so that the attorney general can have some lunch before he has to get over to the house. >> with your indulgence, mr. attorney general, there are a few members who would like to have a second round. i think we can handle it pretty quickly if you're prepared to continue.

>> that's fine. >> senator sessions? >> thank you. mr. attorney general, with regard to the questions earlier about the inspector general's report of the olc memorandum, i understand that the department of justice under your leadership has stated they think it was appropriate to allow the lawyers who participated in that to be able to respond to the report, initial draft, is that right? >> sure, that's fine, yeah. >> somebody suggested otherwise but that's what the government accountability office does when they make a report, they give the people a chance to do that. and i understand that attorney general mukasey and maybe others have asked that they be able to submit a letter as a part of that report. have you decided whether they would be able to have their response made a right pa of that record? >> yeah, we actually views expressed by former deputy

general philip and former attorney general mukasey. it would be my intention subject to their approval to include their comments, their views as part of the release of the report. i mean, i've not checked with them but i assume that they would not have objection to that and assuming they did not, i would make that a part of the report. >> previously, you've heard a reference to warrantless wiretapping and was suggesting this was a great violation of constitutional rights. but for the most part, as i understand these difficulties, they arise from a lawful intercept, maybe in a foreign country. maybe of a satellite phone or something in afghanistan. and those are legally intercepted. i think emails could be, too, as part of an intelligence-gathering operation. what happens is -- and that's lawful. it's lawful with regard to that

individual. now, if they all of a sudden make a phone call to some terrorist cell in the united states, someone could argue that's illegally wiretapping an american citizen but isn't it in truth the intercept is of a person identified as part of an intel operation outside the united states and that has never been considered something that's controlled by warrants? >> so you're saying you actually have existing authority on somebody who's overseas who happens to place a call into the united states? >> that's correct. >> it would -- >> but that's what we've been arguing over. if you wiretap a mafia leader and he calls somebody who the court does not have an approval of, you can listen in on that conversation. isn't that right? isn't that part of the approval? so if you have a lawful tap on a foreign person, i think the principle is the same. that's all i'm saying. and i think we've exaggerated

the extent to which this is somehow violative of our constitution. that's my personal view of that. >> i agree with that except there's minimization requirements -- >> there are minimization requirements and if you go center here that deals with that they have incredible distance on those issues. but with regard to the -- your statement concerning the office of legal counsel's opinion apparently concluding that it's unconstitutional, the dc voting bill that was passed -- you say you're hesitant to release those internal memorandums but apparently members of this community think it's right to defend those kinds of releases and have demanded, for example, a terrorist interrogation memorandums.

.. >> or the thought that those techniques were going to be continued to be used also gave us propaganda victory, and for all those reasons, we thought the release of those memos was appropriate. >> well, it was disapproved by sure predecessor, mr. mukasey and the cia directer.

i don't think it was necessary, and i think it makes your opinion that you're hesitant to release presidential memoranda less persuasive, frankly. >> i disagree because i think they're fundamentally different, but, you know -- >> one is political, and one has to do with life and death. they're different, in by opinion. -- my opinion. >> i wouldn't agree with that. it was not a political component in the decision to seek the, in releasing some material and withholding others. there's no political consideration on my part at all. >> well, one involved nothing but a matter of important legislation of a political nature here in the congress, and that's what you don't want to release, but you were willing to release matter that is the dni and attorney general believed were damaging to our national security. >> well, one attorney general thought that.

i am the attorney general of the united states, and it is this attorney general's view that the release was appropriate as well as the president of the united states. it's their opinion, but i had to make the decision in the office that i now hold. >> with regards to guantanamo, we do give them now a thorough initial review if someone was brought into guantanamo, and we give them an annual status review, so i'm not sure what else you're going to add to that. i'm willing to hear, but we are doing those things as senator graham has worked on to try to make them effective and appropriate under the case law and statutes of our country. do you think with regard to the firearms question that the right to keep and bear arms is a fundamental right under the constitution? >> sure. it's a second amendment right. >> and it's a fundamental right? >> yes. the supreme court has indicated as such.

>> actually they haven't. >> i'm sorry, i didn't -- >> actually they haven't, it's a matter of some significance that in the heller case they simply held that the second amendment applied to the federal government. they footnoted that they weren't saying whether or not it applied, and apparently the test as to whether it applies to the state is the a question of whether it's a fundamental right. >> that's a good point, and i need to go back to law school. you raise a very good point, mr. sessions. >> this is a big deal because the second amendment will be eviscerated if it's not considered to be a fundamental right and made applicable to the states. thank you. my time is up. i look forward to working with you. we'll disagree on some things. you're a good advocate for your views, i congratulate you on that, but this is a serious matter we're dealing with, national security. >> sure. and i, obviously, you know, we have worked together well, you've been supportive of me