the response we use with regard to what happened to the killing of dr. tiler was one where the justice department has used its resources to protect doctors who are engaged in reproductive activities with regards to the killing of the recruitment officer -- that's when the department that has primary responsibility for it. we have offered our assistance. >> the the part -- the prosecution of that would be outside the door of justice? >> no. i you're talking about the protection efforts. >> [unintelligible] >> that would be the responsibility of the justice department. there is a component of that being done by the local prosecutor. >> to current hate crimes lost cover that act?

in arkansas? >> if there were a determination made the killing were based on the race of the victim, yes i think it is arguable. but if the motivation was because of his military status, i do not think that would be a under the hate crimes. >> regardless of what is stated motivations might have been? >> we would have to consider the motivation of the person. >> should we consider legislative proposals to protect soldiers are recruiting offices? >> we would have to look at the extent of the problem. that's not to minimize the seriousness of what happened. what happened was deplorable. it's not something that should in any way be tolerated. but i think we want to look at what is the nation -- what is the nature and extent of the

hate crime we're trying to legislate. the categories we have now come certainly show there are substantial numbers of crimes that happen and with regard to categories the administration thinks we ought to expand to with regard to military personnel, i want to look and see what the statistics and facts show. >> thank you. we will get into that again. one of the things we discussed during your hearing, and we have different positions on this, but you are going to review geller -- review heller with respect to laws restricting the second amendment. did you do that before issuing a recommendation on so-called assault weapons? >> i'm not sure i've done

anything with regard to weapons. i'm cognizant with the heller decision, but i don't think the department has issued any rules or regulations with regard to weapons. >> in terms of recommendations, it's basically your own record of what the best to propose the assault weapons ban. the comment that she made during your confirmation hearing was in fact that she would to a rigorous review of heller before recommendations were made. if you did that, what was your findings that cause you to propose a new assault weapons ban? >> i don't think i have said we need a new assault weapons ban. what i said is that we need to look at the situation we have, with the violence we have that is gun-related and, with measures that will effectively deal with that issue. >> on february 25 at a news

conference, you said you are for reinstating the ban on assault weapons. my question is, the commitment to make to this committee, was that you do a rigorous analysis before you made any recommendations. i just want to know if you did this or if it was impromptu at a press conference. >> there is a firearms review that is ongoing and we will take into account the decision, but the administration has not taken a position with regard to reinstituting the assault weapons ban. >> thank you very much. i do have a few additional questions like to submit for the record. >> we will keep the record opened throughout the week. >> i understand you had exchanges with my colleagues

about the issue of prolonged detention. i chaired a hearing on this topic last week and would urge you and the department to consider the various legal and policy concerns involved. any system of indefinite detention raises those issues. i would say even with the kind process protections you discussed, i do think this could be a big mistake, especially because of how such a system could be perceived around the world after some of the progress the administration is making through the president could work on our relationship from the world. on another topic, i wrote to the president on monday about my continued concern that the administration has not formally withdrawn legal opinions, including the white paper that provided legal justifications for the bush administration's warrantless wiretapping program. the letter was prompted by recent speech by the director

of national intelligence. he asserted the program was not illegal, but he later clarified that. in a speech to the american constitution society, you said the following -- i never thought i would see the day when the president would act in direct defiance of federal law by out of rising warrantless interfaced surveillance of american systems. the president himself has several times said during the campaign that the program was illegal. now that you are attorney general, is there any doubt the wireless -- or loss wiretapping program was illegal? >> i think as it existed at that point was unwise in that it was put together without the approval of congress. as a result, it did not have all the protections and strength it might have had behind it that now exists with regard to to having had congressional approval.

i think the concern i expressed in that speech no longer exist because of the action congress has taken. >> i asked you not whether it was unwise but whether you consider it to have been illegal. that is the implication of what you said. the explicit statement of the man who is now president. >> what i was saying in that speech was that the action the administration had taken was inconsistent with it -- the dictates of fisa. i think i used the word contravention. as a result, the policy was an unwise one and i think the concerns i expressed then have been remedied by the fact that congress has now authorized -- >> do you think it was illegal? >> i think it was inconsistent with the statute and unwise as a matter of policy. >> has something happened as change your opinion since your statement from june 2008 would

make it hard for you to say that it is illegal? >> i do not think so. and i don't think what i am saying now is inconsistent with what i said at the convention in the speech i gave. >> it sounds awfully mild compared to a very clear statements on a very important principle -- not only that this has to do with the scope of the price of what the underlying constitutional issue that people like me and others believe that if the statute is that explicit under the third test that is in fact unconstitutional for the president and illegal to override the expressed will of the congress. >> i think i said contravention of or inconsistent with. i am not sure i ever used the term illegal. i hear to what i said then and when i am saying now is consistent with what i said in a speech. >> that may well be, but i would

hope you use the word is illegal now. i sent a letter to the president on monday that the attrition withdraw the 2006 white paper and other classified memos providing legal justification of the program. i know you have started a review of these memos and sort mimosa pauperized torture which have been withdrawn and you discuss this already today. what is the status of your review concerning the wireless -- the war was wiretapping program? >> i've asked the office to review these programs, including those dealing with surveillance and making them public consistent with our national security interests and consistent with ensuring robust debate can happen within the executive branch. it is my hope that process which is ongoing will lead to the release of several opinions in a relatively short time.

>> i want to reiterate how important it is for a legal justification for this program to be withdrawn. i am concerned these memos that make unsupportable claims of executive power will come back to haunt us if they remained in effect and if you believe, as i think the president has indicated in the past, the present -- the program is legal, they cannot stand. in his national security speech, the president indicated he is concerned about the overuse of state secret privileges. he says the administration is undertaking a thorough review of the practice and says each year we will voluntarily report to congress. we have invoked the privilege because i said there must be proper oversight of our actions. since february, have been seeking classified briefings on the three cases and has continued to assert state secrets privileges. these are controversial cases of one to understand why the administration is exerting these

privileges. state secrets of the legislation is before the committees i am on. my request is consistent with the desire for the president to brief congress and do oversight. will you make sure i can receive this briefing? >> i will try to get them permission to. -- i will try to get that information to you. we want to see whether or not the document was properly invoked with regard to the 20 or so cases in which it has been used and what can we do going forward? we have some proposals we are working on that i think we will make public in a matter of days that we will put forth for consideration by this committee and congress about the way in which we should handle a state secret issue. >> is there reason i cannot a briefing at this time? >> we will try to get it to you and make you aware -- >> thank you. >> thank you.

senator hatch. >> thank you, chairman. we know that you have a difficult job and we want to be helpful if we can. but last week, there is something that bothered me. after a two-year investigation, the fbi in cooperation with the part of justice arrested 19 people in utah trafficking in indian artifacts from federal lands. i'm extremely concerned by the manner in which sees once were executed. they came in in full combat gear like they were going after the worst drug dealers in the world. in the process, i don't believe anybody should be taking indian artifacts, but in the process, one of the leading figures in the whole county down there was a leading doctor had delivered almost everybody who lives in the county as a doctor, he committed suicide. he was by all intents and purposes and that standing

member of the community and a decent man. critical to the community. from health and welfare standpoint. the way they came in there -- i have no problem going after people and violate the law, but they came in like they were the worst criminals on earth and in the process, this man -- a very strong individual and good person, decided to commit suicide. this bothers me. media reports state that over 100 federal agents were used in this operation. explains why the force has been [unintelligible] that it is not only unnecessary but brutal. i'm questioning the motivations of some of the pirates at justice and the interior. the day after the raids were conducted, the deputy attorney

general appeared before the media touting how successful the investigation was. i have been in the senate for 33 years and i felt like it was a dog and pony show and i know one when i see it. this has all the classic signs of one. the offenses for which these warrants were issued were nonviolent offenses. one has to think the manpower and resources allocated to this operation are usually reserved for resting truly violent felons. let me contrast this case with another federal suite that occurred last week in north texas. after a two-year investigation, 17 people were arrested in a large drug trafficking organization next of texas to massachusetts. the fbi seized cash, weapons, realistic, vehicles and say the ring allegedly distributed 228 -- $22 million in cocaine. there is no major press event regarding the drug sweeps.

what i am saying is i know you well. we have been friends for many years. i have great respect for you and we may differ on some things, but that is normal as far as i'm concerned. but for all these reasons, can you explain to me what, if any factors, were used to measure the appropriate levels of force and personnel for the utah operation? here is an article on the 17 arrests on these violent drug situation said that is it. but give me a reason for all this. our people are up in arms and rightly so. >> me express my sympathy for the family of the doctor who took his own life. obviously, that's a very sad thing. if it was related to this operation, it's something that

saddens me. it's certainly not something we intend to have happened. >> it has completely destroyed the community. >> the arrests that were done were felony arrests. as best i can tell, there were done in accordance with the fbi and the bureau of land management stand there -- standard operating procedures. when arrests are made, even in cases that are seen to be non- violent, there is always a danger for law enforcement officers affecting that rests -- that arrest. it is difficult to ask them to assume certain things. >> i'm with you, but on this case, it's a doctor everyone respected and everyone loved in the community. i'm centering on his case since he was overwrought by and took his life.

you know how hard it is to get upstanding doctors to move into these rural the indies. -- these rural communities. i don't justify stealing indian artifacts if that is what happened here, but nor do i want to put you through a lot of pain, i just hope you will do something about that type of activity. you can bring all force you want against regulars and people who are violent felons where people might be in danger, but in this case, there is not the slightest possibility anybody could have been in danger. >> we want to use the appropriate amount of force necessary and we also want to keep in mind the responsibility i have to make sure the lives of law enforcement officers engaged -- >> i'm with you, but in that instance -- let me change the subject for a moment. i'm concerned about the state secrets privilege.

the department justice has been conducting a review of cases in which the state secrets privilege have been invoked by the bush administration. in the first 100 days of the obama administration, the justice barker has defended his three times. i have no problem with that out. -- the justice department has defended this three times. during an april television interview, you stated that in your opinion, the bush administration correctly applied to state secrets privilege in these cases. tomorrow, the senate judiciary committee will begin marking up a bill tide of the state secrets protection act. last year, after hearings on this matter in the 110th congress, the former attorney general sent a letter expressing the justice department's views on the state secrets protection act. the department justice had

several concerns on this legislation, chief among them is the constitutional questions raised by the proposed legislation. the 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 is up, but let me finish this question, mr. chairman. i know want to get on the wrong side of the chairman. >> you never have. >> that's for sure. any attempt to reallocate national security decision asia -- decision making from the executive to judicial branch, you have such power to make such determinations. that was the department's view after hearings were held on the state secrets privilege. the state -- the same view was introduced again and there were no changes the language, no attempt on the part of the authors to address the justice department of concerns. this bill has been on the calendar since late april and we have yet to hear the justice

department's view on this legislation. while i have you here, could you be kind to give me the justice department prosecute on the state secrets protection act of 2009? >> we want to work with this committee in congress to deal with the doctrine of states' secrets. we are about to release what our views are as to how this problem can be handled to the extent that it is one. i think it is our view that the proposals we will make will deal with many of the concerns that generated need, the feeling in some people that there is need for legislation. i would hope we would have a chance to have members of this committee and congress to look a proposal we're going to make fancy if that will be sufficient and then work with the members of the committee on any legislation that might be contemplated. i think the proposals we're going to make will be

sufficient. >> when will you release those? >> it's my hope we can do this in a matter of days. this is -- >> as the attorney general knows, i have been pushing for the same kind of response because otherwise we will mark up the bill. as i would with any department of either party, i would like to have the department possible use. we do not have them, we will go ahead and mark up the legislation. >> that is incentive enough right there. >> senator durban. >> thank you for being here. i would like to ask about an issue related to chicago. i met with the head of the chicago public school system and he told me and absolutely stunning statistic -- this last school year recently completed, over 500 schoolchildren in

chicago were shocked. at least 36 fatally. i think he will share my view that this is unacceptable in chicago or any place 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 would like to ask for your help along with the help of the secretary of education and other members of the administration to work with the mayor, state, local officials to deal with this serious problem in the hometown of president obama. >> the problem you have detailed is unacceptable. i met with the mayor of chicago last week and we discussed that problem and other crime issues in chicago. what i told him then and what i will tell you now is that we are committed to working with him as partners to come up with ways in

which we can deal with that issue. one is too great a number, but the numbers coming out of chicago are simply unacceptable and we have to take strong measures to come up with ways to deal with it. >> there are many aspects -- gang activity is one of them. the proliferation of guns to gun -- to gangs by unethical gun dealers. there is a federal aspect to this and i appreciate your being willing to cooperate in dealing with it. there were two investigations you inherited from the bush administration related to activity that preceded your rival. one with a bush administration investigation of the destruction of cia interrogation videotapes. the second involved an investigation of several attorneys in the justice department who authorized the use of abusive techniques like

water boarding. senator white house and i asked the then attorney general to give us a copy of the investigation and report of the office ever -- office of professional responsibility but the activities of these three persons. he did not do that. although i understand the opr completed the investigation, he would do something extraordinary -- he submitted the report before you get to the public or congress to those who had been investigated to review and comment on the investigation. i understand they have submitted their replies some six weeks ago. the obvious question is when can we expect to receive a copy of this report? >> i just sat down yesterday and talked to the head of the office of professional responsibility. this is one thing we discussed. they're close to getting to the end of their process. it was lengthened by responses to receive from people who were the subject of the

investigation. it was indicated that what they want to do is look at those responses and there are changes they're making to the report in light of the contentions contained in the responses that they examined. i think we're close to the end of that and my hope is to share as much of the 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 as has been expressed by the head of opr, you cannot a full text of this -- the context of this report and must the entire thing is declassified. >> can you give me a time frame in which we can expect to receive the report? >> i think we're talking about a matter of weeks. they're close to the end.

i think we have to work with the classification process. we would be in a position to release the classified portion. i really worry about that because as people look at the work of the opr has done, i would like for them to have the full range of intimation that had considered. that's why the declassification process is so important. i would not want to put in the public record and and complete report. >> you may. which we have discussed before about race and justice in america as one of your earlier statements. you are aware as all this are that african-americans are incarcerated nearly six times the rate of whites in our country. one of the major reasons for that is the crack/power

disparity when it comes to cocaine. -- crack/powder disparity becomes to cocaine. under 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 did not know how terrible crack would be, but we were told it would completely change narcotics in america. it was so cheap, plentiful and devastating that we had to do something extraordinary. the net result was this 100-1 disparity in terms of sentencing. there were men and women presently incarcerated for 10 or 20 years because of this 100-1 disparity between two forms of cocaine. we held a hearing in the crime subsidiary of judiciary and not just those who said there is the

scientific basis for this disparity, but also from law enforcement officials, including a john mccain to us from miami, fla. -- including a gentleman who came to us from miami, florida who said police departments face a much as more difficult challenge gaining trust in their communities because of the glaring inequities in the justice system that allowed to persist. i know you have, for ending this disparity, but -- i know you have come out for ending this disparity, but i would like to ask you to restore justice and restore confidence in our justice system on people in america who are presently the victims of this disparity. >> i do think we need to move with dispatch. this is one of the first initiatives we had people testify about. the assistant attorney general testified against the disparity and i think you are right. the disparity as originally intended was well-intentioned.

i don't think anybody had negative motives, but as we have seen how it played out, and a graphic demonstration you have made, also when one looks at the racial implications of the crack/powder disparity, it has bred disrespect for our justice system and made the jobs of those of us in law enforcement more difficult. i think it is time for us to make the determination that is consistent with what science tells us, consistent with what law-enforcement officials at the state and local levels of less, and a judge here in washington d.c., it is time to do away with that disparity. that will have an immediate impact on how people, not only people of color, but people in general look the criminal- justice system and it will be a positive thing for those with in the law enforcement. >> thank you.