go back and forth -- senator kyl is working on health care as a number of us are. .

and i think it is a disparity that is destructive 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 that have expressed for some time they have a problem with this disparity. i don't want what appears to many people to be one rule for white america, a different rule for black america. >> senator, can i just say i share those concerns. senator hatch and i have had nine years of legislation to make a substantial improvement in that.

we have created a bipartisan bill. other attorneys have also supported significant improvements in the way that is done. it is not healthy now. we need to fix it. one problem we are having on our side is the finance committee. senator grassley let me know he is, of course, ranking on that committee. senator kyl and senator hatch are also members of that committee. >> i will keep the record open for the rest of the week for additional questions to be submitted. senator cornin. >> thank you, chairman. i want to note that there is no more important chee in the senate than the judiciary committee. >> i do think the finance

committee, health committee have taken 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 for continental airlines, and i trust immunized alliance of national airlines. according to u.s. us -- to u.s. codes the secretary was obligated to make a final decision by may 2009. in late april the secretary approved a tentative approval of that alliance in star, but then the may deadline came and went. i wanted to ask you about this because some have indicated that the transportation secretary's failure to meet the statchtri deadline was due in -- statutory

deadline was due in part to the anti-trust division encouraging the division to delay the decision until the anti-trust division could have input. i'm concerned about the open-ended nature of this, and i wonder if you could shed any light on why that deadline was not met, and what you anticipate the deadline might be. >> senator cole asked the question earlier. with did ask the secretary to have input, and the secretary agreed to allow us to participate in that. i do not think this will extend the time. it is 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. i expect that the determination will be made by the secretary after having consulted with the

lawyers in our anti-trust division. >> i could understand the desire to have input, and i appreciate that. however, i know there are others that would appreciate a decision as soon as possible. so i would appreciate that. >> i with want to ask you a little about the d.c. voting rights. i sent to you a d.c. voting story saying you sliffletted a second opinion from the solicitor general's office after it was determined the d.c. voting act was unconstitutional. i request that you produce the document questioning the bill's constitutionality, and you declinde kleined to make that -- and you stated that you delined -- declined to make that public. what is there that remains to be

done before that decision is final? >> well, i guess no decision has actually been made by the administration yet with regard to the position it is going to take concerning the constitutionality of the statute that is there. that process is still ongoing, and as long as that is ongoing -- and also, the concern i expressed, was releasing documents with internal deliberations from the justice department. those are the two concerns i have now with regard to the release of the documents. >> given the fact that the memoranda was signed by the acting head of the office of legal counsel, in what sense is the memoranda not final? you say the administration will make a statement whether it agrees with the determination or not? >> the decision is not by the

president as to what the decision will be of the administration. that was one of the two concerns i expressed about releasing the materials you requested. >> would you foresee a situation where the office of legal counsel would render a legal opinion that the statute was unconstitutional or the president would take a contrary position? >> you have to look at 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 denches -- deference is given to what o.l.c. says. it is rare for an attorney general to take a contrary position, and i understand that's why this is -- this has at least generated some interest. but, it is possible.

the o.l.c. has delegated power from the attorney general. it is ultimately my responsibility to make sure that the opinion that comes out of the justice department, even an o.l.c. opinion, is one i am fully comfortable with. >> i understand the difference between lawyers having different opinions. that happens all the time. what you are suggesting is that the president of the united states would make a policy decision on a question of law and essentially overrule the office of legal counsel? is that what you are suggesting? >> no. i'm not saying that. one thing the president has to decide in preparing policies and making policy judgments, there are a whole variety of legal opinions that come in. there are obviously policy considerations. i wouldn't say that the president for pure policy reasons would overrule an o.l.c. decision. the president might have a different view than the justice department in regard to a

particular statute or policy initiative. >> i certainly understand the role of the o.l.c. in informing the executive branch about what the law, in fact, is. indeed in the area of enhanced interrogations and renditions and other controversial areas that you are well familiar with, and i am as well. the question is, what is the law? 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 counsel? isn't that the kind of politicalization that we've heard decried? >> you are talking about politicalizat many ion, the likes of which i have never heard. >> but you said the president

may or may not agree with the opinion. so that's not a hypothetical in that sense. >> i was focused on what the attorney general -- focused on the attorney general not necessarily agreeing with what the o.l.c.'s opinion might be. the o.l.c. plays a vital role on what the justice department says about the constitutionality of a statute. the president, in formulating policy, takes into account a wide range of things. things that come from the justice department. there are policy determinations that go into it. i'm not as bothered as you are apparently by the notion that a president in taking into account the wide range of advice and opinions that he or she gets

comes up with a determination that might be different than what the justice department has recommended. >> would that have to be based on a legal argument? could that be based purely on political considerations? >> the experience that i have had is that we're talking about legal arguments. the justice department takes a view -- i don't know, maybe the defense department takes a different view with regard to a legal determination. the president weighs those legal determinations and then decides one way or the other which legal view he thinks is most appropriate. >> mr. chairman, i know my time is up. i find troubling, though, that the office of legal counsel would render an opinion on a statute and that the administration in its discretion might overrule that decision. i understand that informing policy is going into an overall policy judgment, but on a

discrete legal issue, i don't understand that. >> probably why we should get on with confirming head of the o.l.c. >> well, not if we're going to rule him at the white house. >> the particular thing with 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 based that on my review of the constitutional authorities who, in fact, said the same thing. ken staur, people who are -- ken starr, people who are conservative in their views. this was a decision that i made. >> the reason you won't release the memo is because you disagree with the legal conclusion? >> no, the reason i think the memos should not be revealed is because this is an ongoing

matter and because i'm concerned about revealing internal deliberations within the justice department. >> attorney general holder it is great to have you here, and i appreciate your message with regard to the civil rights division. there are so many other areas i want to talk about. let me first, i might, talk about predatory lending. the civil rights movement was responsible for the passage of significant legislation that was intended to end discrimination in housing. the fair housing act, the equal credit opportunity act, the home mortgage act, to name a few. and i think it did a great job in ending redlining. the problem now is we have reverse redlining. let me give you some of the statistics from 2006 leading up

to the current housing crisis. we find that the high-cost loans -- 37% that were placed in these high-cost mortgages could have been placed in traditional fixed -rate loans. the disturbing fact is that of those placed in high-cost loans it was 53.3% for black bororers, 46% for latino, and 17.7% for white bowo -- borrowers. the percentage is much higher in the traditional fixed-rate homes. it was noted a case brought by the region reverberates throughout the region. the broad-based injunkive relief

cannot be -- injunctive relief cannot be matched by individuals. my point being, we have not seen a case brought since 2000 as it relates to preditory lending. i sent you a letter a week ago where in baltimore minorities were targeted with subprime mortgages. my question to you is that the department of justice investigate and look at the circumstances concerning predatory lending, particularly in minority communities, to see if there is aggressive action needed to protect our communities. i would request that you do this and get back to us on this. >> i will tell you that i believe there is the need for aggressive action in this field. we announced an initiative, a joint initiative with the credit

department, the f.t.c., the department of housing and urban development, and the justice department. and the justice department's position was to look at these mortgage instruments disproportionately in areas where minorities are found and that the devastating impact that has had on minority communities as people. so this is something that we will aggressively be looking at. >> it is not just in home mortgages to buy homes, we find in refinancing minority communities were targeted, and a large number were convinced to go into refinancing and are now losing their homes. so it appears that it was an intentional effort. and i think the department of justice activities here could be helpful to make it clear we won't reverse -- we won't allow

reverse redlining. >> let's move on to guantanamo. i agree with the analysis that's been made about that process. i chaired some subcommittees, and the chairman has authorized us to have some hearings on this, and senator feingold has already had hearings on long -standing detainees. as senator graham said, we need a fresh start in how we will deal with detainees. it is going to be an ongoing process. we need to engage the international community. we need to have better understanding from the international community as to what america is doing with regard to its detension policies as we try to lead internationally on human rights issues. so i would urge you as part of

this process to be open and go beyond just our country in trying to get better understanding as to what we intend to do and the reasons why we are pursuing these policies. >> i think you are right, senator. i have made two trips to europe so far, and i have spent a good portion of both of those trips talking about the issue of guantanamo with our allies. the state department has a gentleman literally traveling the world to talk about this issue with other countries. so what we're trying to do is make the world understand that we're trying a different approach, and it is an approach that i think is consistent with who we are as a nation and that i think will stop the ability of our adversaries to use guantanamo as a recruiting tool, and i think rehabilitate some of the relationships that have been frayed over the last two years. >> i think you are off to a

great start there. i think some of the things you have announced are helpful. we want to be supportive. as indicated on both sides of the aisle, i think there is support for what you want to do. >> the last thing i want to bring up is the surveillance statute. three expire this year. we have the lone-wolf provisions, roving wire taps, and the -- and i understand you need time to review the effectiveness of these provisions, if they need to be extended, and if they need to be extended whether there needs to be further modifications. but understand we have an incredibly busy time here, and these times are not always without controversy. and i would urge you as quickly as possible to share information with this committee so that we

can make adequate judgments on the reauthorization of these tools that at least the f.b.i. director said are important for national security. >> we will endeavor to do this as quickly as we can, because we are mindful of the fact that this is obviously a very busy committee, a very busy congress. we want to make sure, also, that we have a good gauge of how effective these tools are, whether or not mod fantastics need to be made. we want to be cognizant that civil liberties have to be examined as well as the law enforcement equities. and we will get these to you as quickly as possible, as you will have to consider the

reauthorization. >> thank you. >> i second the motion and appreciate your response. the sooner we get your views on these three issues, the sooner we will be able to deal with them in an appropriate way. secondly, the ranking member on the same subcommittee, i recognize we are going to have a hearing on the detainees at guantanamo. i would like to also ask you to get some information to you on that. i had asked in a letter that i sent back in may for some information following up on the president's speech when he talked about the fact that our super max facilities hold hundreds of convicted terrorists. i had written asking if you could break that down for us. i don't have response. i am going to submit for the record a question, because i know you can't answer it sitting here, to find out who they are, what kind of category of folks they are, if they are congressman rabble to the kind of -- comp rabble -- comparable

to the kind of detainees at guantanamo today. my understanding is that we are way overcrowded in the facilities today. can you just tell us, do you know whether that is true or not? do you want to respond on the record? >> what, that they are overcrowded? >> yes. my understand sg there is a capacity of 13,000 and there are 20,000 being held. >> senator, i would have to get you those statistics. i don't know off hand. >> two other matters. one has to do with the recruitment of terrorists in jail. we know that's a big problem with this kind of militant islamist. it is something the f.b.i. director testified in the houps about. -- testified in the house of representatives about. is there anying you could tell us about how we could prevent that from occurring? >> i understand the concern, but i think there are measures that can be taken to minimize that possibility.

terrorists, people who are considered terrorists are generally held out of the general population, so there is not the ability to interact with other prisoners in the way that some might and have an ability then to try to radicalize them. what we then try to do is put in place programs to occupy the time of the people who are in these facilities so that they have alternatives, they have the ability to think of a life outside the prison, and if if they have options, if they think they have a life they can lead on the right side of the law, they are far less consensus septemberible -- suscetible to these radicalization experts. >> it it may be easier to do that with the super max facilities. if you could include some of that information, i think all of this will be helpful in preparation for our hearing.

>> sure. we will detail for you how we think the facilities that we have be can be used to minimize the problems. >> and our final point is that senator sessions has pointed out that it would be against the law to release an accused terrorist into the united states into our society. can you comment on -- if that's not an option, in other words, the president's dilemma about closing guantanamo does not mean releasing anyone into the united states, then i guess we don't have to worry about it, but if that is an option, what would prevent that from happening? certainly the house has already passed as part of its supplemental appropriations bill, and i guess it is going to be considered by the senate. my intelligence tells me it is going to be passed by the senate. so there will be provisions in that bill that would forbid the bringing into the united states

of people who are presently detained at guantanamo. obviously we will respect that law, and to those people that would be transferred or released, to place them in other countries. that is the focus of our efforts. >> let me quickly switch to immigration and drug violence on the border. i tie the two together because unfortunately, as you undoubtedly know better than most of us, the cartels that are now controling the drugs that have taken control of all the things being smuggled, including illegal immigrants, much to their disadvantage as individual human beings, i might add, two general lines of questioning here. i can ask you to respond to some of this for the record, if it would be easier for you. you and i talked about operation streamline. this is where we use existing law to actually capture people that are caught crossing the border. they get jail time.

as a result of that, it is a huge disincentive for them to cross because they can't do what they want to do, which is mostly to work, if they are in jail. i ask you if you would get some information for us that would be helpful in seeing whether or not we could pursue this across more of the border than just in the del rio, yuma, and tucson sectors, since it does seem to be a program that is working. we met may 5, and i asked you to provide me with the resources required to do this. do you know if your people have been able to come up with this yet? >> i don't know yefment i'm not sure we have completed that yet. >> let me include that question in the record as a reminder of the information we are seeking. as soon as we can get that to us, i think that would be very helpful. we can't get the funding for these things until you tell us what's needed. obviously we have already gone by one budget cycle. obviously helpful in that would

be how many people have been involved in this program, how well we think it has worked, and so on. if you would provide that for us. >> sure. we'll do that. >> finally, on the matter of the state criminal alien and assistance program, you are aware the government is authorized to pay states money for the housing of illegal immigrants who have committed crimes. our former governor, now secretary of homeland security, used to write the attorney general every year and demand payment. senator feinstein and i actually got an authorization of $95 million a year. we need to no -- know whether the department of justice has sought funding for that. there is no funding for that in the president's budget. secondly, will you ask for funding for at least a portion of that reauthorized amount in the budget for next year? >> i think the administration

has made the determination that in dealing with that issue, there are better ways to do it than through the use of the program that you mentioned. i think that is why that is reflected as having been zeroed out in the 2010 budget. so i think that is the administration's point at this point. >> it didn't used to be governor napolitano's position, and i would be interested to know if she agrees with the proposition, given the fact she knows what the burdens on states are, if the federal government has not done its job in defending the border. >> you raise a valid point, and that is that the federal government has to be sensitive to the burdens that are placed on our state partners with regard to enforcement along the border, and we have to find ways in which we alleviate those burdenens in working with them. i think that the administration's position is that with regard to this particular program, that there

are better ways, perhaps, that we could do this. >> i would admit operation stream line is one of them. >> thank you, mr. chairman. welcome, attorney general holder. very briefly let me express my opinion that the release of the o.l.c. opinions was proper, necessary, and was wise, and was particularly important in light of the damage that had been done to that office by its plitization during the bush -- politiciation during the bush era. i think it gave the country the depth of the dive that that administration took. i think it was the right call, and i respectfully but completely degree with the ranking member on that subject.