following up on o.l.c., senator durbin asked about the status. when we first asked, we were told on february 18, 2008, that this investigation was already pending. so we know it predated february 18 of 2008. we know that o.p.r. completed its investigation and provided a draft report in late december of 2008. we know that on may 4th of this year, the comment period for those who were the subjects of the investigation closed in their chance to respond to the draft. and we also know that the c.i.a. was given an opportunity for both sub stantive comment, and for classification review. my question is, is it now the

c.i.a. through its request for either substantive comment or its release that is holding up the release of this report? >> no, it is not. i met yesterday with the head of o.p.r. which indicates there are things they are working on, chiefly in response to the responses that were received i guess in early may or so. she is new to the office of professional responsibility, understands the seriousness of this particular report, and that has also had an impact on the timing of the release. >> the role of the c.i.a., both in substantive comment and in slass identification review, raises some interesting

potential conflicts of interest. can you tell me what assurances the department of justice has received from the c.i.a. that those who seek to influence the o.p.r. report through substantive comment, or those who have the effect of delaying the report through classification review, are not congressman plift -- complicit or involved in the underlying case? >> i think, as i testified earlier, it is our hope to release as complete a report as we can. and one of the things that i think we want to do is declassify as much of this report as we can, so that when

people read it, either in this body or the general public, they will have a full feeling for what it is our lawyers in the office of personal responsibility dealt with and what is the basis for the conclusions we reach. so we will be pushing, as i said, to declassify as much of this report as we can, so that the american people will have a real sense of what it is that drove the conclusions that we reach. >> i appreciate that, but it doesn't address the questions of whatever assurances you got from the c.i.a. that in the discharge of their either substantive comment or classification review roles that the people involved in that, you can assure us, actually had clean hands with respect to this program and pr giving legitimate untainted, unbiased, unimplicated advice. >> i don't think we've gotten

anything yet from the c.i.a. with regard to what their position is concerning the declassification issue. so i think i have to wait for that, and this may not be an issue at all. to the exten tent that it is an issue, then i would interact with director panetta and raise the question just to our general feeling that we want to have as much of this declassified. it will be the director that ultimately will make the decision, who i don't think is actually tainted. i would make the decision with him in determining what should be and should not be declassified. >> and on their comments, how do you assure that isn't tainted by people who are in the program? isn't that an important point? >> yes. >> is it or is it not important that the c.i.a. in exercising its substantive comment role it sought should be doing so in a

manner that keeps the agency's hands clean of implication in the underlying subject of the report? yeah, i'm less worried about the substantive accounts. ultimately it would be the justice department lawyers who will make the determination as to what goes in the report, the con includings that the report reaches. so i certainly want to give them the opportunity to express whatever their views are. >> would they be likely to evaluate the recommendations of the c.i.a. differently if on the one hand the c.i.a. had not assured the department that its recommendations were coming from individuals who had clean hands vs. those who did not? is that not an important factor in evaluating the substantive comment that the c.i.a. would seek to propose? >> yeah, i guess those are things that one would take into consideration. but so much of this is really fact driven. that, i think, is what people will find in the report.

it is fact-driven, really. the conclusions that one draws from the facts, i guess, can differ, but ultimately it will be the justice department's view that will control based on the facts that we have uncovered. but also taking into account whatever other views people have of those same facts. >> thank you, attorney general. my time has expired, chairman. >> thank you very much. senator. >> mr. chairman, thank you. thank you for being here, mr. attorney general. i was listening to some of my colleagues going through some of the cases and concerns that they have, and i think a misplaced comment about politicization, and i was wondering what was the most high-profile twhite collar case you have dismissed? what would that be? >> i would probably say it is the senator stevens. >> that would be correct, the republican senator. and i was also thinking of the decision you made early on to

allow the republican-appointed u.s. attorneys to stay in place until a new u.s. attorney had been appointed. was that the policy, you know, when bush came into office, of allowing the previous u.s. attorneys to stay on for a length of time? >> i don't know exactly what the policy was. the policy we had was to maintain continuity in the attorney general's offices examine to leave in place those people who were doing a good job. there has been turnover, but we have not pushed anybody out. we are starting now to get our nominees before this committee and hope to have them confirmed and in place relatively soon. >> and how many nominees have been confirmed by this administration so far for the u.s. attorney? >> none. >> you would like to move that along, i would hope? >> that would be for us a priority, to get our u.s. attorneys in place as soon as possible. it is good for the offices, it is good for law enforcement. it is good as we try to get our

program together. i would also urge, respectfully, that this committee and the senate act on the other nominees for other justice department positions that have been set up -- erg everything from tax, environmental resource division. there are a variety of positions still awaiting approval. >> in our state we had a lot of uproar over a political appointment, and then attorney general mckazie put someone new in, and he is staying on until the person i recommended is recommended by the president. we have some major cases pending in my jurisdiction. this is the most interesting thing i learned this week as i recommended a marshall. there are 94 marshals. do you know how many are women in the country? >> no, i do not. >> there is only one in the state of florida. i thought that was interesting,

and i thought i would share that with my colleagues as we go forward. i thought i would ask a few questions about things that are closer to home that people have been focused on in my state, and that is the white collar fraud. the madoff case hit and came through our state due to a whistle blower. can you tell us what's going on to implement f.e.r.a. as well as the changes to enforce some of the white collar losses? we look at the money going out, the t.a.r.p., things like that, that there could be even more white collar fraud. >> we are in the process of ironing out the last wrinkles in what will be a comprehensive announcement about the program that we're going to have with regard to financial fraud, white collar crimes more generally, mortgage fraud. we have been working with our state and local counterparts with the other federal agencies to come up with this effort.

this is a priority for this department of justice to hold people accountable who have defrauded huge numbers of people with almost unheard of amounts of money or those who would seek to misuse the recovery money that is now being -- now trickling into the economy. these are things that we will be taking very close looks at and will be emphasizing in our enforcement efforts. >> i know you are also work wg secretary sebelius on the health care question, too, as we're going into the summer focusing on health care. there is still significant problems with health care fraud. estimates are amounting to billions of dollars. i saw cases myself as a prosecutor of identity theft in hospital settings and things like that. i think it would be very important as we moved into this health care debate that the work that you do with this new focus is understood. do you want to talk a little

about that? >> i would totally agree with that. if you look at the statistics from last year, i think it was about $1.2 bill recovered as a result of the fraud found in the health care stifment that's why -- health care system. that is why secretary sebelius and i have made a joint effort to look at these issues in addition into what we're doing more generally. i mean, that's a lot of money. when you think about $1.2 billion. it is enforcement efforts that are needed, and we plan to keep those efforts as robust as they are. >> one thing that came out -- i care about this a lot because i come from a state where we value high-quality health care and we haven't had a lot of cases of this -- but there have been cases of people risking patient harm with unnecessary surgeries

and things like that. what are you doing to combat this particular kind of fraud? >> there is ven only an economic consequence to some of the fraud that we see, there are health care outcomes that get affected in a negative way by some of the things we have seen. that i found to be very surprising and saw the results of some of these f.b.i. efforts. so we are going to be looking at not only the financial aspect of this but, in some ways, the ultimate fraud. whether or not patients are getting the care -- or the government is getting the care for which it is paying, and whether or not people's lives are being put at risk. to the exten tent that we procedure ties this, although the financial component i think will be important, to be sure that no one's life is put at risk, and that the kinds of treatment people are expecting to get they are actually receiving. >> one last issue, and i can

talk to you about later, but it is the reauthorization for the violence against women act. we had a hearing that chairman leahy conducted, and we had focused on the new friends -- trends that are happening there, and one of them is states not being willing to help with things like rape kits and other things, and a line-up, i think l.a. county is the worst at some of these tests that haven't been done on the rape kits when we could be protensionly finding and prosecuting people who are committing sexual assault. so that's just something i am sure we will talk about in the future, but i'm looking forward to working with you on that. >> mr. attorney general, i join my colleagues in welcoming you here and compliment you on your many abilities, including handling a marathon. i begin on the question of the

immunity for the telephone companies. it's been subject to a lot of analysis and a lot of consideration by the congress. i had pressed an amendment to substitute the government for the telephone companies as they -- the parties defended. the provision on immunity, i thought, was very trouble some because what it does, in effect, is take away the jurisdiction from district court to determine what has happened. it's a more sophisticated way for courts to run, which on constitutional grounds i find unacceptable. it is not the supreme court of the us -- united states, but marbry vs. madison established judiciary here.

and i thought the telephone companies were good citizens. they ought not be subject to damages, not subject to the costs of litigation. what's wrong with that as a preferable course to immunity which keeps the courts open to determine what happened, and not deprive a party's plaintiff of their constitutional rights, and let the government bare the cost of whatever is involved, because it is something for the benefit of the government? >> well, i mean, this was obviously something that was debated at great length many months or so ago, and i think a determination was made that given what the telecom companies had done, the reasons why they had done it, the interaction with the government that the

immunity was appropriate. we have been conducting ourselves on the basis of what i consider to be at this point settled law. i think the debate was a robust one. >> this debate within the department of justice? >> no, i mean in congress. >> i know about that debate. i wouldn't say it was robust. i would say it was falacious. how about the attorney general's position? >> i think the administration has taken the position that we are now dealing with a determination that has been made by congress, we're dealing with existing law, and we are proceeding in that way. >> on the issue of the substitution, this is obviously not determinetive, but then

senator obama voted in favor of the substitution. would that influence you at all? >> well, i will talk -- if this was something the president wanted to revisit, i would certainly listen to where he is now. >> do you 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, your predecessor invoked the immunity defense. did you make an independent determination after becoming attorney general as to whether the immunity defense should be invoked? >> i'm not sure -- >> there was 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. given the fact that congress had spoken, it didn't seem to me there was a huge amount of flexibility that the department had. so it seems to me the immunity having been conferred, that that pretty much settled the question. >> well, you're the attorney general. i recollect that even district attorneys have discretion as to how you handle cases, quasi-judicial. if you think it is an unfair defense, you don't have to invoke it.

>> let me move on. chief judge walker has some really exciting in cases in front of him, and i'm concerned about having a determination made on these matters by the supreme court of the united states. i've introduced legislation senate bill 877 which would mandate the supreme court take up issues like the terrorist surveillance program. that case was never decided. the federal court in detroit found the terrorist surveillance program unconstitutional. s the 6th circuit reversed on a very inflectionible standard with the dissent, in my opinion, being a much more authoritative than the majority opinion. then the supreme court of the united states denied certiorari.

there you have a classic case of a conflict between congressional authority under the foreign intelligence surveillance act which provided exclusive means for obtaining warrants and an assertion of a president that his article 2 power as commander-in-chief. one of the questions that i intend to explore with a nominee, judge sotomayor, is her standards for what cases should be taken. i wouldn't ask her a question as to how she would decide something, but i think sometimes it is more important what cases the court turns down rather than what they decide in cases. would you think it worth while or appropriate to have a mandate that the court take cases like a

terrorist surveillance program? >> i'm not familiar with -- i have not read your proposed statute. i would be a little concerned about -- i don't know, not much has been done in the past, but the separation of powers concern about mandating supreme court review in a particular matter. obviously the courts -- court's jurisdiction can be defined. >> congress has the authority to do that and has done it in a fair number of cases. >> my only concern would be not a fair number of technical, but whether or not it is it is an appropriate use of congress' authority. i have not had a chance to review the proposed bill, and i would have to look at that before i could comment in a more intelligent way. >> would you take a look at the proposed legislation and respond ? mr. chairman i ask consent that

a letter that i sent to attorney general holder be included in the record concerning health care costs. the subcommittee had a hearing on that, and we had testimony that there are some people who were claiming money under medicare and medicaid who were deceased, and doctors who were submitting claims that were deceased and looking at ways to save money. that's really on the front burner. if you would take a look at that and decide. >> that would be made part of the record. >> thank you, mr. senator. >> senator schumer. >> thank you, mr. chairman. it is good to call you mr. chairman. i have three questions. i will get them done quickly. i know you have to get to the house and do the same thing here. so my appreciation and sympathies. first on hate crimes. i know you spoke about the need to pass improved hate crimes. i believe we have to move this legislation quickly.

it is hard for me to believe that people oppose hate crime legislation aimed to protect any group, whether it be religious, racial, ethnic, or sexual orientation. would the administration support a move to bring hate crimes up very quickly here and help us try to get that through you. >> i testified on behalf of these hate crimes legislation, so i don't think this is something we're doing in great haste. this is something we've been thinking about for a decade, and given the recent events we have seen in that this station, i think the need for that legislation is all that much more apparent. >> second, my staff has been working with yours and the white house on a reporter shield bill. senator spectre and -- specter and i when we were on ops sides, it is still a bipartisan bill.

there are members on the other side who support it, although they are welcome to come over like senator specter did and make it a partisan bill. in any case we are talking about it, can the department of justice support a well balanced shield bill, and can you commit to working with senator specter, myself, and senator leahy to get such a bill to the floor and pass it quickly? >> yes, i think the administration and the department can support such a bill. i think the decision we have is to make sure the bill doesn't impede our ability to prosecute those who would leak national security information. even given those concerns, i think there is a way in which we can construct a bill that all would find acceptable. >> i would urge your staff and my staff who have had good negotiations but to move those and conclude those. i it don't think we are that far apart. i think we can still protect

whistle blowers and people like that and at the same time not deal with state secrets. there was a bill, as you know, that was way over, and said almost no recognition of either seek recessy, grand jury seek rist recessy, or things like that or secrets. that is not our bill. our bill is a balanced bill, and we need you to get on board as quickly as possible. the third and last question i have is ice authority. senator feinstein talked about drug trafficking, and we are facing a sustained and organized effort by sophisticated cartels, but i.c.e. doesn't have clear title 20 authority to deal with all forms of illegal contraband, particularly in border enforcement and in enforcement at our ports. the issue was just raised in "the new york times" by a senior bush advisor. it makes no sense for the main agency along the border to lack power to arrest criminals in.

so my last question, do you intend to remedy the authority you have to give i.c.e. agents authority to arrest drug agents on the border, and what, if any, discussions are you having with the department of homeland security in regard to this? >> this is an unbelievably timely question. as we left the white house last night secretary napalotano and i were talking about this very issue. >> yes, i talked to her about it this week. >> i don't want to steal anybody's thunder here, but we've reached an agreement, and i think it will be announced within days. >> i think you just announced it. >> it is not a formal announcement. >> it is an informal announcement of an agreement, but it makes sense to do, and it really hampers our ability to control our borders when the agency that's doing all the patroling has to call somebody up, has to get in a car, especially when you are dealing with people you are tracking

down and chasing and everything else. so i'm glad you and secretary napalitano have come to an agreement. i spoke to her last week and she seeped positive about it as well. >> mr. chairman, i yield my 20 minutes so that the attorney general can have some lunch before he has to get over to the house. >> with your indulgence, there are a few members that want a second round. i think we can handle it fairly quickly if you are prepared. >> that's fine. >> with regard to the questions about the inspector general's report about the o.l.c. memorandum, i understanded 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. the initial draft. is that right? >> sure, i think that's fine.

>> somebody suggested otherwise. but that's what the government accountability office does when they make a report, they give the people a chance to do that. i understand that attorney general mckayzie and maybe others have asked if they could submit part of that report. would you be able to answer whether they could have their views expressed in that report? >> we actually have views expressed by former deputy attorney generals. it would be my opinion, subject to their approval, to include their comments and views as part of the release of the report. i have not checked with them, but i assume they do not have objection to that. assuming they did not, i would make that part of the report. >> previously you mae made a reference to warrantless wire tapping and suggesting that this was a great violation of constitutional rights.

but for the most part, as i understand these difficulties, they arise from an unlawful intercept, maybe in a foreign country, maybe from a satellite phone or something in afghanistan, and those illegally intercepted, and i think e-mails could be, too, as part of an intelligence gathering operation. what happens is -- and that's lawful. it is lawful with regard to that individual. now, if they all of a sudden make a phone call to some terrorist cell in the united states someone could argue that's illegally wiretapping an american citizen, but isn't in truth the intercept is the personified as part of an intel operation outside the united states, and that has never been considered something that's controlled by warrants? >> so you're saying you actually haxi