costs of litigation. what's wrong with that as a preferable course to immunity which keeps the courts opened to determine what happened? and not deprive a party's 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. >> i think this was obviously something that was 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, 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

was a robust one. there are people who certainly -- >> this debate within the department of justice? >> i meant in congress. more generally -- >> i know about that debate. i wouldn't say it was robust. how about the attorney general's position? position of the department of justice? why not do that, have a substitution? >> i think the administration has taken the position we are now dealing with a determination has been made by congress. we are dealing with existing law. we are proceeding in that way. >> on the issue of the substitution this is not obviously determinative, then-senator obama voted in favor of the substitution. would that influence you at all? >> well, i will talk -- if this were something the president wanted to revisit i would

certainly listen to where he is now. i don't know -- >> think there's a difference in institutional approach from being a senator to being a president? >> possibly. he may have the same position. he may not. i don't know. he's my boss. i would listen to him. >> mr. attorney general, attorney general mukasey, your predecessor, invoked the immunity defense. you make an independent determination after becoming attorney general as to whether the immunity defense should be invoked? >> i didn't -- >> should be invoked? >> i'm not shore -- >> 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. my question to you is, did you

consider not using the immunity defense? >> 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, i didn't see there was a huge amount of flexibility that the department had. 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 disdiscretion as to how you handle cases, quasi judicial. if you think it's an unfair defense, you don't have to invoke it. let me move on. chief judge walker has some really fascinating cases in front of you. i'm concerned about having a determination made on these matters by the supreme court of

the united states. i have 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 program unconstitutional. sixth circuit reversed on grounds of standing, very flexible standard, with the dissent in my opinion being much more authoritative than the majority opinion. it looks to me like it's a matter they didn't want to see side. then the supreme court of the united states denied certoria. and there you have a classic case of conflict between congressional authority under the foreign intelligence surveillance act, which provides

the exclusive means obtaining warrents, and the assertion of the president of his article 2 power as commander in chief. and one of the questions that i tend to explore with the nominee judge sotomayor is her standards for what cases should be be taken. going to ask her a question how she would decide something, but i think it's fair to ask a question sometimes it's more important what cases they turn down than what they decide. would you think it worthwhile to -- think it appropriate to have a mandate that the court take cases like a terrorist surveillance program? >> i'm not familiar -- i have no read your proposal statute. i would be a little concerned about -- i'm not sure it's been

done in the past. that's a separation of powers concern about mandating supreme court review in a particular matter. obviously the court's jurisdiction can be defined. >> congress has the authority to do that. has done it in a fair number of cases. >> my only concern would be not a technical separation of powers as much as i think the congress does have that ability, but whether or not it's an appropriate use of congress' authority. i have not had a chance to review the proposed bill. and i'd have to look at that before i can comment in a more intelligent way. >> would you look at the proposed legislation and respond . mr. chairman, i ask consent that a letter i sent to you, attorney general holder be included in the record concerning health care costs, subcommittee had a hearing on that. and we had testimony that there

are some people who are claiming money under medicare and medicaid who are deceased and doctors submitting claims who are deceased. looking at ways to save money, that's on the front burner. if you look at that and respond i would appreciate it. >> without objection, the letter will be made part of the record. >> thank you, mr. chairman. >> thank you, senator. >> senator schumer. >> it's good to scall 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. my appreciation and sympathies. first on hate crimes, i know you have spoken about 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. and 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. i don't think this is something that we are doing in great hayes. this is -- great haste. this is something we have been doing for a decade. given the recent events we have seen the need for this legislation is 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 a bipartisan bill, now it's still a bipartisan bill, there are other members on the other side on the -- who support it, although they are welcomed to come over like senator specter did and make it a partisan bill. in any case we are talking about

it. two questions. can the department of justice support a well-balanced reporter shield bill? can you commit to working with senator specter, myself, and of course chairman leahy to get such a bill to the floor quickly as possible so we can pass it this year? >> yes. i think the department can support the, the administration can support such a bill. the concern we have again is with protecting, making sure that the bill doesn't impede our ability to protect the national security or our ability to prosecute those who would leak national security information. even given those concerns, i think there is a way in by we can construct a bill that all would find acceptable. >> i would just urge your staff and myself to move those and conclude those. i don't think we are that far apart. i think wheel protect whistle blowers and people like that and at the same time not deal with state secrets. there was a bill that was way over and just said almost no recognition of either secrecy,

grand jury secrecy or lings things like that or secrets. that is not our bill. our bill is a balanced bill. we need you to get onboard as quickly as possible. we are willing to make changes. the third and last question i have is i.c.e. authority. senator feinstein talked a little about some drug trafficking. we are facing a sustained and organized effort by sophisticated cartels. but i.c.e. doesn't have clear title 21 authority to deal with all forms of illegal contraband, particularly in the context of border enforcement and enforcement at our ports. the issue was just raised yesterday 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 i.c.e. to give i.c.e. agents authority to arrest drug smugglers on the border? what are the status of any discussions you are having with

the department of homeland security about remedying this problem? >> this is an unbelievably timely question. as we left the white house last night at about 7:15, 7:00, secretary napolitano and i were talking about -- >> i talked to her about it this week. >> we were talking about this very issue. we are in a position to announce we have an agreement. i don't want to steal anybody's thunder. i think we have reached an agreement and i think it's going to be announced within days. >> i think you just announced it and i'm glad you did. >> this is not a formal announcement. it's an envelope -- informal announcement of an agreement. 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 carks especially when you are a he dealing with people you are tracking down and chasing and everything else. i'm glad that you and secretary napolitano have come to an agreement. i spoke to her last week about it and she seemed positive. mr. chairman, i yield my

remaining two 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 are 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 o.l.c. 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. i think that's fine. >> someone suggest otherwise. that's what the government accountability office does when they make a report, they give people a chance to do that.

i understand attorney general mukasey and others have asked 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 part of that record? >> we actually have -- views expressed by former department attorney 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 have not checked with them but i assume they would not have objection to that. assuming they did not i would make that part of the report. >> previous you heard reference to warrantless wiretapping. suggesting this was a great violation of constitutional rights. but for the most part's understand these difficulties they arise from a lawful intercept, maybe a foreign upon country, maybe of a satellite

phone or something in afghanistan, and those are legally intercepted and i think emails could be, too, as part of an intelligence gathering operation. what happens is -- 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. 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. >> you're saying you actually have existing authority on somebody who is overseas who happens to place a call into the united states? >> that's correct. >> it would seem to me -- >> that's what we have 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? if you have a lawful tap on a foreign person, i think the principle is the same. that's all i'm saying. i think we have exaggerated the extent this is somehow violates our constitution. this is my view. >> obviously minimumization requirements. >> there are minimumization requirements. if you go to the center here that deals with that, they have incredible discipline on those issues. with regard to the -- your statement concerning the office of legal counsel's opinion apparently concluding that it's unconstitutional, the d.c. voting bill that was passed, congressional voting act. you say you have yet to release those internal memorandum. but apparently members of this

committee think it's right to demand those kind of releases. and have demanded, for example, the terrorist interrogation memorandums. and actually have -- they have had the legal analysis for some time t bothers me you had no real concern or the president didn't to release portions of that -- those memorandum that deal explicitly with techniques that could be used which i think could be helpful to the enemy. that's the way i would see that. >> with regard to those memos the decision the president made was based on i guess a couple factors. one, the information contained in those reports was largely public. the techniques that were described in those memo has been banned by the president. and we also on this vote the continued use of those techniques or the thought also gave a propaganda victory to

those who want to do us harm. for all those reasons we thought the release was appropriate. >> it was disapproved by your predecessor, judge mukasey, and mr. hayden the d.i.a. director. they didn't approve of that at all. i don't think it was necessary. i think it makes your opinion that you're hesitant to release internal memorandum concerning the d.c. voting bill is less persuasive, frankly. >> i disagree with that because i think they are fundamentally different. >> one is political and one has to do with life and death. they are different in my opinion. >> i wouldn't agree with that. we use neutral and detached principles in making decisions in both cases. it was not a political component in the decision to seek -- releasing some material and withholding others. there's no political consideration on my part at all. >> one involves nothing but a matter of important legislation

of a political nature here in the congress. that's what you don't want to release. but you were willing to release matters that the d.n.i. and attorney general believe were damaging to our national security. >> 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 of that information was appropriate as well as the president of the united states. i respect their opinions, but hi to make the decision holding the office that i now hold. >> with regard to the guantanamo, i just would offer that we do give them now initial review, thorough and initial review someone was brought into guantanamo, and we give them an annual status review. 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. you think with regard to the

firearms question that the right to keep and bear arms is a fundamental right under the constitution? >> it's the second amendment right. >> it's a fundamental right. >> yes. the supreme court has indicated such. >> 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 is to whether it applies to the states is a question of whether it's a fundamental right. >> that's a good point. i need to go back to law school. you raise a very good point. >> 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. this is a serious matter we are dealing with, national security. >> sure. and obviously we have worked together well. you have been supportive of me when you thought that was appropriate. you have taken me to task when you thought that was also appropriate. and you actually have been a teacher for me today. thank you for that. >> senator graham. >> thank you, mr. chairman. i know you got to go to lunch. i appreciate your patience. you have done a very good job of testifying before the committee. i just talked to the white house a moment ago, rahm emanuel, he's indicated to me the president will not let these photos see the light of day. he would prefer the congress to act. have you seen the lieberman-graham amendment that would prohibit the release of these photos for a three-year period if the secretary of defense certifies them to be a danger? >> i have not seen that. >> i will get it to you. do you agree with me it would be

the preferred route in terms of impressing the court congress would act on this subject matter rather than executive order? >> i think that having congress act would be a preferred way. >> give us a stronger hand and better way to deal with this issue. >> yes. >> i would like to let the committee know my beef is not with the courts. unless these documents are classified or congress acts, the courts are making a reasonable interpretation of the freedom of information act as it exists today. i want to applaud the administration for asking them to stay and have the supreme court review that case, but quite frankly, mr. attorney general, i would be very -- i would not be surprised if the court decided not to hear this case or honor your pe significance and let the order stand. i think it's very imperative that one of us act. the congress or administration. i have been assured by rahm emanuel and yourself that the president's position is not to let these photos see the light of day.

we are going to -- the majority leader's going to give us another vote in the senate. i would ask the administration after that vote to urge the house to take it up. because that's the best way to protect the troops. do you agree? >> i do. i think there are compelling reasons why these photos should not be released. >> i would like to introduce into the record the statements of general petraeus filed by the government as part of their declaration as part of the lawsuit indicating the danger to our troops if they were released to back up what you're saying. >> without objection. >> thank you, mr. chairman. military commissions act, i'm amazed we are eight years into this war, basically, since 9/11, september will be the eight-year anniversary. we are still talking about how to deal this. it's very complicated. most of your questioning today has been about matters, legal matters surrounding the war. i'll continue to call it war. you call it anything you'd like. the military commission act the

administration would like to make some changes. i agree with that. i'm working with senator levin and mccain in the armed services committee to make some changes in the next few weeks for the defense authorization bill. i would urge you to get with us soon. will you do that? >> yes, we will. we have been discussing this internally. we have some thoughts and i think it's time for us to share those. >> i would like to do more than just amend the military commission's act. i would like to deal with this third bucket, folks that may not be subject to trial but too dangerous to let go. and the reason i say that is that we are losing -- whatever damage we are trying to repair with the international community at guantanamo, we are losing the public here about closing the facility. when you look at the polling data, there's been a severe change against the idea of closing guantanamo bay. have you noticed that? >> believe me, i have noticed that.

>> i'm sure the president has. >> i think it was raised, i don't remember by who, about the notion of having our plan out there. and i think that is something that we are planning to do and we need to do as quickly as possible. i think we need to have our views on the entirety. >> exactly. >> our comprehensive views on buckets one, two, and three all the related things out as quickly as we can. >> habeas we view. i want to congratulate you for appealing the district court's decision to apply habeas corpus rights to detainees at the bear -- air base. why? >> it's our view of the law. very good judge. i think the judge is just wrong. i just don't think that habeas applies to theaters of war. >> it would really disrupt the war effort if our troops and commanders would be subject to appearing before federal judges, called off the battlefield, back to the united states. it would be disruppive and something that's never been done before. is that correct?

>> as far as i know. that was the reason we sought the appeal. >> senator leahy and specter introduced a habeas reform bill allowing detainees at guantanamo bay a one-time shot at it. and they could not bring money damages to our troops. are you supportive making sure any habeas doesn't allow the terrorists to sue our military members? >> i have to tell you i have evisceral positive reaction to that view. clearly we want to have habeas rights that protect the welfare of the people who are being detained, but the notion that our troops might be the subject of lawsuits is something that i would be very -- >> the only reason i mention is because lawsuits were brought against an army doctor for medical malpractice by one of the detainees. we have streamlined hall of fameous procedures in other areas of domestic law, is that correct? >> we do. >> there's no right of anybody

to an unlimited habeas appeal. >> that's true. i'd like to look what the specific proposal might be. >> what i want you to consider is that since these detainees have habeas rights that we can look at consolidating their cases uniform standards so we don't have different standards by different judges and to put the burden on the government to make sure that we have a uniform way of looking at this. and this is something we need to talk about sooner rather than later. because as the armed services committee moves forward on amending military commissions act, i think there will be a comprehensive proposal coming out from senator mccain and myself and i'd like to work with you about how to do that. >> sure. look forward to working with you. >> final thing. if we are following a slight phone in afghanistan -- satellite phone in afghanistan and we believe the person in question is a member of the enemy force what, is your understanding of the law if they are talking to someone else in afghanistan but due to the

routing system it goes through an american interchange? do we have to get a warrant in that situation? does that make sense if we do? >> so we have parties overseas, two parties in afghanistan. >> being monitored by our military. >> by the military. >> right. they are active combatants, they are being monitored by our military intelligence services, they are talking to each other in afghanistan, the only connection to the united states is that due to the phone system in question they have to go through an interchange in the united states. what's your view of the law as to that circumstance? >> it's not my view we would need a warrant if that's the question you asked me in order to intercept that conversation. but let me make absolutely certain. i don't believe we need a warrant. i think it depends on the location of the parties. >> the only reason i mention this, i know i've run over my time when, we had the two soldiers kidnapped in iraq, during this whole debate about wiretapping, they picked up

communication from one of the kidnappers to someone else in iraq, and because it went through an exchange in the united states it took two hours to get approval to continue to monitor that conversation. we lost valuable time. please look at this and make sure that we are not in the name of making ourselves to be a rule of law nation not doing something unrequired and quite frankly stupid. i don't want americans to be monitored as being suspected fifth column movement members of al qaeda. if you think i'm a member of al qaeda, i want you to get a warrant. if i'm talking to somebody overseas. when it comes to battlefield communications let's don't let this debate hamper our ability to protect our troops. i'm afraid that's where we are headed. >> if we have two nonu.s. persons speaking to one another i don't think there is the need for -- >> i can tell you in this case because american phone companies interchange was involved they lost valuable time. please look at that and i'll

talk with you further about it. >> thank you. >> attorney general holder, let me ask you if i might about voting rights cases because we haven't really touched on that too much during this hearing. the section 5 of the voting rights act we all know that this is on appeal -- on hearing now before the supreme court. i was there during the oral arguments. but the preclearance congress felt was a very valuable tool to deal with potential and actual discrimination against voters. and congress recently acted to re-authorize the voting rights act. i just want to get your views how important you think the preclearance provisions are, and how you will be monitoring what the supreme court decision might restrict. >> obviously we await the supreme court's decision. but that portion of the voting rights act is a key for our efforts in