that's normal as far as i'm concerned. but for all these reasons, can you just explain to me what if any factors were used to measure the appropriate level of force in personnel for the utah operation? here's the article on the 17 arrests for these violent drug situations. that's about it. but give me some reason for all this. our people up there are up in arms and i think properly so. >> first, let me express my sympathy for the family of the person, the doctor who took his own life. obviously that is a very sad thing and if it was related to this operation it is something that saddens me. it is not something certainly that we intended to have happen. >> the completely destroyed the feelings for the government in that whole community.

>> the arrests that were done were felony arrests and as best as i can tell, they were done in accordance with the f.b.i. and bureau of land management standard operating procedures. when arrests are made and even cases that seem to be nonviolent, there is always the danger for the law enforcement officer who is affecting that arrest. and it's a difficult thing to ask them to assume certain things as they're -- >> i'm with you on that but in this case, this is a doctor who everybody respected, everybody loved in the community. i'm just centering on his case since he was so overwrought that he took his life. to get outstanding doctors to move into these rural communities and do what this man was doing. now, again, i don't justify

stealing or taking indian art facts if that's what happened here. but i guess -- and nor do i want to put you through a lot of pain here, i just hope you'll do something about that type of activity. in the future. you can bring all the force you want against drug dealers and people had who clearly are violent felons where people might be in danger but in in this case there wasn't the slightest possibility anybody could have been in danger down in that county. >> well, we want to use the appropriate amount of force that is necessary but we also want to keep in mind the protection, the responsibility i have to make sure that the lives of law enforcement officers engaged -- >> i'm with you. but again, i say in that instance. let me just change the subject for a minute. i'm concerned about the state secrets privilege. the department of justice has been conducting a review of pending cases in which the state secrets privilege have been eadvocated by the bush administration. in the first 100 days of the obama administration, the

department of justice elected to defend this privilege three times. i have no problem with that at all. i think the correct. the administration's picked up -- or -- where the bush administration left off in three pending cases. thition lambic foundation and others. during an april television interview, you stated that in your opinion, the bush administration correctly applied the state secrets privilege in these cases. now tomorrow the senate judiciary committee will begin marking a bill. last year after hearings were held on this manner in the 110th congress, attorney general sent a letter expressing the justice's department's views on the state secrets protection act. the department of justice had several concerns regarding this legislation. chief among them was the constitutional questions raised by the proposed legislation. this bill seriously limits the ability of the executive branch to protect national security information under the well

established standards articulated by the supreme court. my time's up but let me just finish this question, if will you, mr. chairman. i'd be grateful for that. for that courtesy. but i also don't want to -- i don't want to get on the wrong side of the chairman. >> you never have. >> i never have. that's for sure. any attempt to reallocate national security decision making from the executive to the judicial branch usurps the executive branch's power to make such determinations. now, that was the department's view last year after hearings were held on the state secrets privilege. the same bill has been introduced again and there were no changes in the language and no attempt on the part of the bill's oughters to address the concerns. now this bill has been on the committee's calendar since late april and we have yet to hear the justice's department view on this. so while i have you here, would you be kind enough to give me the justice department's view on the state secrets protection act of 2009? >> we want to work with this

committee and with congress in dealing with whole issue of state secrets and the doctrine of state secrets privilege. we have and are about to release, i think, what our views are as to how this problem can be handled, this problem can be handled, to the extent that it is one. i think it's argued that the proposals that we're going to make will deal with many of the concerns that i think generated the need, the feeling in some people that there was the need for legislation. so i would hope that we would have a chance to have members of this committee in congress look at the proposal that we're going to make and see if that will be sufficient and then work with the members of the committee on any legislation that might be contemplated. i actually think, though, that the proposals that we're going to make, i think, will be sufficient. >> when are you going to release those to us? >> it would be my hope that we can do this within a matter of days. this is not something i think that's going to take --

>> i might note that the senator from utah has as the attorney general knows, i have been pushing for that same kind of response because otherwise we will mark up the bill. i would like to have as i would with any department, i would like to have the department's views, but if we don't have them we will had go ahead and mark up the legislation. >> that's enough right there it seems to me. >> you'll have our views. >> thank you. senator durbin. >> mr. attorney general, thank you for being here. first i'd like to ask a question related to an issue in chicago. i recently met with the head of the chicago public school system and he told me an absolutely stunning statistic. in this last school year recently completed, over 500 school children in chicago were shot, at least 36 of them fatally. i think you'll share my view that this is unacceptable in chicago or anyplace in america. i think under the second amendment people have the right

to own a gun, responsibly and legally, but children also have the right to be able to walk to school without being caught in the crossfire of a gang war. i'd like to ask for your help along with the help of secretary of education, arne duncan, and other members of the administration, to work with mayor daley and state and local officials to deal with this serious problem in president obama's hometown. >> yeah, the problem that you have detaillighted is simply unacceptable. i met with mayor daley last week here in washington. and we discussed that problem and some other crime issues in chicago and what i told him then and what i'll tell you now is that we are committed to working with him as partners in trying to come up with ways in which we can deal with that issue. that is, you know, one is too great a number, but the numbers that are coming out of chicago are simply unacceptable.

and we have to take really strong measures to try to come up with ways in which we deal with it. >> there are many aspects of it, gang activity is clearly one of them, the proliferation of the sale of guns to these drug gangs by irresponsible gun dealers, there is a federal aspect of this and i appreciate your being willing to help us and cooperate and deal with that. there were two investigations you inheritted from the bush administration related to activity that preceded your arrival. one was the bush administration investigation of the destruction of c.i.a. interrogation videotapes and the second involved an investigation of the justice department attorneys who authorized the abuse of abusive interrogation techniques like water boarding. senator whitehorse asked general kasey to give us a coppy of the investigation and report of the office of professional responsibility about the activities of these

three persons. he did not do that. although i understand that the o.p.r. completed his investigation, he determined that he would do something which i thought was extraordinary. he submitted the report before he gave it to the public or to congress to those who had been investigated to review and comment on the investigation. i understand that they have submitted their are he plies to that some six -- replies to that some six weeks ago. the obviously question is when -- the obvious question is when can we expect to receive a copy of this report? >> i sat down with the head of the office of professional responsibility and this is one of the things we've discussed. they are close to getting to the end of their process. it was lengthened by the responses they received from the people who are the subject of the investigation. mrs. brown indicate what is they wanted to do was look at those responses and there are changes they're making to the report in light of the contentions that were con tauned in the responses --

contained in the responses they examined. we are pretty close to the end of that and my hope is to share as much of that report as i can with members of congress and with the public. there are some potentially classified portions of that report that i think we want to work to declassify because it has been expressed by the head of o.p.r. and i agree with her that you can't get the full context for this report unless the entirety of the report, close to the entirety of the report, is declassified. >> can you give me a time frame when we can expect to receive the declassified or unclassified portions of this report? >> i think we're talking about a matter of weeks. they're pretty close to the end. and then i think we have to try to work through the declassification process. but we with a -- we'd be in a position to release the

classified portion. i wouldn't worry about that because as people look at this -- the work that the o.p.r. has done, i'd like them to have the full range of information that o.p.r. had and considered and that's why i think the declassification process is so important. i wouldn't want to put in the public record an incomplete report. so we have to work our way through that as well. >> mr. attorney general, you made a point which we have discussed before about the question of race and justice in america as one of your earliest statements. you're aware as all of us are that african-americans are incarcerated at nearly six times the rate of whites in our country. one of the major reasons for that is the so-called crack powder disparity when it comes to could he dane -- cocaine. i use this simply as an illustration that under our current laws someone who is guilty of selling this amount

of cocaine is subject to the same incarceration as someone who sells this amount of crack cocaine. this disparity sadly i voted for. many of us did 20 years ago. we didn't know how terrible crack would be but we were told it would completely change narcotics in america. it was so cheap, so plentiful and so devastating that we had to do something extraordinary and the net result was this 100 to one disparity in terms of sentencing. there are men and women presently in incarcerated in the united states for 10 and 20 years because of this 100 to one disparity between two forms of cocaine. we held a hearing in the subcommittee, crime subcommittee of judiciary, and we had expert testimony not just from those who said there is no no basis, scientific basis for this disparity, but also from law enforcement officials, including the gentleman who came to us from miami, florida, and said that the miami police chief who said

police departments face a much more difficult challenge gaining trust of their communities because of the glaring inequities in the justice system that are allowed to persist. i nouveau come out for end -- i know you've come out for ending this disparity but i'd like to ask you if we need to move with dispatch on this issue to restore justice and to restore confidence in our justice system among people in america who are presently the victims of this disparity. >> senator, i do think we need to move with dispatch. this is one of the first initiatives that we had people testify about, the assistant attorney general for the criminal division testified against the disparity. and i think you're exactly right. that the disparity as originally sbeppeded, originally proposed in an act, was well intentioned. i don't think anybody had any negative motives, but as we have seen how it has played out i think in the graphic demonstration that you have

made and also when one looks at the racial implications of the crack powder disparity, it has bred disrespect for our criminal justice system, it has made the job of those of us in law enforcement more difficult and i think it is time for us to make the determination that is consistent with what the science tells us, consistent with what law enforcement officials of the state and local levels have told us. something that i observed as a judge here in washington, d.c., that is time to do away with that disparity. that will have, i think, an immediate impact on how people, not only people of color, but people generally look at our criminal justice system and will be a very positive thing for those of us in law enforcement. >> thank you, mr. attorney general. thank you, mr. chairman. >> just so you know where we are, senator corn by next, senator carden, senator cao and a lot of the senators have been going back and forth.

discussion with senator kyle is working on health care which a number of us are. on the thing that senator durbin raised on the crack cocaine, powder cocaine, i would like to see us move legislation this year to remove that disparity, make it more realistic. i understand that some of the negotiating room it gives prosecutors but i also have this image of people, wealthy people, well established in society using their powdered cocaine with virtually -- virtual immunity, a lot of young people from a far less affluent area often minorities getting hit on crack cocaine

and i think it's a disparity is depe instructive to our whole penal system and our justice system and to our respect for the rule of law. i will work with senators on both sides of the aisle, i've expressed some time of this disparity. i just -- i don't want what appears to many people to be one rule for white america, a different rule for black america. >> mr. chairman, can i just cite, i share those concerns. senator hatch and iish guess, for nine years have had legislation to make a substantial improvement in that. senator cornyn and senator prior and former senator, now secretary salazar, bipartisan bill for former attorneys generals have also supported substantial improvements in the way that is done. i think the not healthy now. we need to fix it.

i would just note one reason we're having a hard time, mr. chairman, on our side is finance committee. that was masters of the universe setting our health care policy. senator grassley het me know that he is ranking on that committee. senator hatch, senator corner and senator kyle also are members of that important committee. so i'm glad they can at least be here for a while. >> thank you. i'm glad, too. of course i will keep the record open for the rest of the week for additional questions to be submitted. senator corner -- senator cornyn. >> thank you, mr. chairman. i want to note for the record, mr. chairman, there is no important committee in the senate than the judiciary committee -- judiciary committee. >> i liked you anyway. you didn't have to say that. but i do think the finance committee, the health committee, are taking a lot of our members and i understand why. >> mr. attorney general, i just have two areas i want to ask you questions about. in november, 2008, the

department of transportation declared the record complete in the continental airlines which is headquartered in houston, texas. their application of joint star alliance and anti-trust immunized alliance of international airlines. according to u.s. code, this means that the secretary of transportation was obligated to make a final decision by may 31, 2009. in late april, 2009, the secretary issued a preliminary decisions tentatively approving that membership in star alliance but then the may 31 deadline came and went. i wanted to ask you about this because some have indicated that the transportation secretary's failure to meet the statetory deadline was due in part to the request from the department of justice, specifically the anti-trust quigs, -- division, encurminging the secretary to delay the decision until the d.o.j. anti-trust division could have some input.

i'm concerned about the deadline having come and gone and the open-ended nature of this and wonder if you can shed any light on why that deadline was not met and what you anticipate the timetable might be. >> senator kohl asked the question earlier, we did ask the transportation department to allow our anti-trust division to have input into the decision that he will ultimately reach and the secretary agreed to allow us to participate in that. i don't think this will extend the time. it's regrettable that the deadline has passed but i don't think this will extend it a matter of months or even beyond a few weeks. and i expect that the determination will be made by the secretary of transportation after having consulted with the lawyers in our anti-trust division. >> i could certainly understand the desire to have them input and appreciate that. i know there are others who would appreciate a decision as

soon as practble. so i'd understand that. i want to ask a little bit about the d.c. voting rights issue. as you know i wrote a letter to you expressing my concerns about a "the washington post" story that said you'd solicited a second opinion from the solicitor general's office after the office of legal council originally concluded that the d.c. voting rights act was unconstitutional. i requested that you produce the o.l.c. memorandum requesting the bill's constitutionality and in response, as you'll recall, you said that you declined to make that memorandum public, saying that it was not final. and so i wanted to ask you about that. what is there that remains to be done before that opinion will be final? >> well, i guess no decision's been made by the administration yet 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 document as it reflected internal deliberations in the justice department. so those were the two concerns that -- if i didn't express both, those are the two concerns i have now with regard to the release of the documents. >> given the fact that the mem ran rap dumb was signed by the acting head of the office of legal council and since was the memorandum not final? is it because you said the administration will now make a decision whether or not it disagrees with the office of legal council or not? >> yeah, the determine new york yankees as i -- the determination's not been made by the president, by the administration, as to what the decision is going to be of thed a sfration and while the matter was ongoing, those are one of the concerns i released. >> would you foresee a

situation where the office of legal council would end render a legal opinion that a statute was unconstitutional where the president would take a contrary position? >> you have to look at, you know, the specific fact situation. o.l.c. 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 o.l.c. says. it's extremely rare for an attorney general to take a contrary position. and i understand that's why this is at least gotten some -- generated some interest. but it is possible. o.l.c. has delegated power from the attorney general. i think it's ultimately my responsibility to make sure that the opinion that comes out of the justice department, even an o.l.c. opinion, is one that i'm fully comfortable.

>> 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 questionable law and essentially overrule the decision of the office of legal council, is that what you're suggesting? >> no. one of the things the president has to decide in preparing policies, making policy judgments, there are a whole variety of legal things that come in, legal opinions, obviously policy considerations. i wouldn't say that the president for pure policy reasons would necessarily overrule an o.l.c. opinion. the president might have a different legal view than the office of legal council, a different view than the justice department with regard to a particular statute or policy initiative. >> well, i certainly understand the role of the o.l.c. in 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 wling. the question is, what is the law? and, of course, but here on the discrete issue, on the constitutionality of a 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 legal judgment of the office of legal council? isn't that the kind of politicalization that we've heard decried here in this committee and in congress for the last few years? >> well, you're talking about a hypothetical, the likes of which i'm not sure i've ever heard. but it would senal to me -- >> excuse me, you're the one who said the administration may or may not agree with the opinion. so that's not a hypothetical in that sense, i would submit. >> i think i was focused more on the attorney general not necessarily agreeing with what an o.l.c. opinion or position might be.

the o.l.c. has placed an important -- 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 other things. the president in 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 determine nages that go into it and -- determinations that go in it. i'm not as bothered as you are apparently by the notion that the president in taking into account the wide range of vice and opinions that he or she gets comes up with a determination that might be different from what the justice department has recommended. >> what that have to be based on a legal argument or could

that be based purely on political considerations? >> no, 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, defense department takes a different view in regards 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 it troubling, though, the idea that the office of legal council would render an opinion on the constitutionality of the statute in that the administration might in its discretion overrule that decision. i understand informing policy by saying what the law is going into an overall policy judgment but on a discrete legal question involving the constitutionality of the statute, i'm troubled. >> probably all the more reason why we should get on with confirming the head of o.l.c. >> not if we're going to overrule them at the white

house. >> just to be clear here, with regard to the particular thing that we're talking about, the d.c. voting rights, this didn'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 star, people who are certainly conservative in their views but 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 was the determination that i made. >> just to be clear, the reason you won't release the memo is 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 within the justice department. >> senator carden. >> attorney general holder, it's a pleasure to have you here.

i very much pressure -- appreciate your comments, it particularly as it relates to the civil rights division and the message you've sent and other areas i want to talk about. let me first talk about predatory lending. 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 community reinvestment act, just to mention a few, and i think it did an incredible job in ending redlining. but the problem today is that we have a reverse redlining where the 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 borrowers. 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 noted that a case braut by the civil rights division of the department of justice reverberates throughout the community. the state and the region. it can have industrywide impact in terms of deterrence and reform. the broad-based injunktive release cannot be matched by the efforts of individuals or private lawsuits. my question is that we haven't seen a case