extended war. and with job creation, that is a sticking point. and i'm not sure president obama, great speech maker that he is can explain to the american public why we need to be doing that. that's what they face. >> there was reference made by senator levin to the republicans. can you inform our audience about what the republican reaction is going to be if senator levin has the president's message right? >> i guess the most -- most republicans have stressed the need to have an iraq-type surge in afghanistan, which means a significant amount of troops, about 40,000. they probably would support more. and senator levin was referencing the fact that if president obama doesn't do that, anything below that would prompt criticism from the republican party. if he wants to sends 40,000 troops, that means that some of his biggest supporters in congress would be the republican party because you aren't going

to see that level of strong support from the democrats. >> he wasn't saying that was the message coming from the president, but he said he wished that was the message coming from the president. we expect there will be a increase. >> combat troops? >> in addition to the trainers. i don't think they can do anything less, just because of the pressure from within the military but that we need these troops. and it's hard for them to say, no, you don't need them. >> one part i hope you can help me understand, i thought i heard him suggest that the afghani army is already capable of handling their own defense. did you hear that as well? >> i think that is a little bit of a gap between his understanding and what secretary gates said yesterday in the press briefing. secretary gates didn't think that any transfer of security to

the afghanis was imminent. it depends on the regions and the districts. it's a case-by-case basis. the understanding in the pentagon is not the same, that they are in fact able to take over. >> capable and willing are two different things. they might be capable of doing it. but i don't think they are willing to do it. >> one minute left, you pressed the senator a few times on the don't ask, don't tell policy, why is that? >> he made a promise and there are a lot of people in the gay rights community that they were going to have a hearing in december. i'm not surprised that it has been put off. >> what about the rank and file in the military? >> depends what you are talking about. we have found that a lot of tolerance to change except among the senior commanders who may face leadership problems as a result of that.

the day is coming is when it will happen. >> did you learn anything on the fort hood discussion? >> that congress definitely will perform oversight, that they're not going to leave this to the military alone or the executive branch, that they really want to exercise their role in oversight. >> and hearings will happen soon? >> yes. >> thank you both for being here. [captions copyright national cable satellite corp. 2009] [captioning performed by national captioning institute] >> next, attorney general eric holder talks with a senate committee about his decision to hold 9/11 conspiracy trials in new york city. and later a house hearing on the government's role in the bank of america merger in 2008.

>> in 19889, judy shelton wrote about the soviet crash and the monetary system. now she's talking about the u.s. economy. >> this is unprecedented spending, unending deficits and what i consider an unconscionable aaccumulation of debt. >> judy shelton tonight on c-span. >> attorney general eric holder answered questions on wednesday before the senate judiciary committee on his recent decision to hold the trial of 9/11 trit khalid sheikh mohammed in new york city. vermont senator patrick leahy chaired the hearing. this is four hours.

go morning, everyone. i would note for senators this is the first hearing to be held in this room now that we -- it's been rebuilt and reconstituted. those of you who have been here a long time know this thing was sort of like the dark hole. it was probably the worst place to have to ever have a hearing because it was so dark and awful and now it -- and i commend -- i commend the architect of the capitol and the sergeant of arms, everybody else who put this together and has made it better. attorney general holder, welcome and glad to have you here. i -- i commend the attorney

general for moving forward last week with plans to proceed on several cases against those who seek to terrorize the united states using the full range of authorities and capabilities available to us. just as president obama is using our military diplomatic, legal, law enforcement and moral force to make america safer and more secure, the attorney general is exercising his responsibilities in consultation with the secretary of defense to determine where and how best to seek justice against those who have attacked americans here at home and around the world. after nearly eight years of delay, may finally move -- be moving forward to bring to justice the perpetrators and murderers from the september 11 attacks. i have great confidence in our attorney general. the capability of our

prosecutors, our judges, our juries and the american people. in this regard. i support the attorney general's decision to it pursue justice against khalid shaikh mohammed and four others accused of plotting the september 11 attacks and go after them in our federal courts in new york. they committed murder here in the united states and we'll seek justice here in the united states. they committed crimes of murder in our country, and we will prosecute them in our country. we're the most powerful nation on earth. we have a justice system that is the envy of the world. we will not be afraid. we will still go forward, and we will prosecute them. war crimes and crimes of terror and murder can successfully be

prosecuted in our federal courts, and we've done it over and over and over again. america's response to these acts is is not to cower in fear but to show the world that we are strong, resilient and determined. we don't jury-rig secret trials or kang rue courts as some of our adversaries do. we can rely on the american justice system and i urge this committee and american people to support the attorney general as this matter proceeds, urge the congress to proceed such assistance as will be needed including providing the victims of those events the ability to participate. many surviving members of those killed that day have said after years of frustration it's time to have justice and i will work with the department of justice and our courts systems, as i depend in the trial of timothy mcveigh to make sure that there are ways that the victims can watch these trials. federal courts have tried more

than 100 terrorism cases since september 11th, more than 100 since september 11th. they proved they can handle sensitive classified information, security and other legal issues related to terrorism cases. and since the beginning of this year, more than 30 individuals charged with terrorism violations have been successfully prosecuted or sentenced in federal courts. the federal courts located in new york city try and convicted the so-called blind sheik for conspireing to bomb new york city landmarks and yam see yousef for the first world trade bombing. new york was one of the primary targets of the september 11 attacks. those who perpetuated the attacks should be tried there. they should answer for their brutality and for the murder of thousands of innocent americans. like mayor bloomberg, i have full confidence in the capacity of new york. and i have full confidence in commissioner ray kelly, one of

the finest police officers i've ever known, and the new york city police department. the attorney general personally reviewed these cases, along with defense secretary gates and based on the protocol they announced they determined to use our full array of powers by proceeding against the september 11 plotters in federal court. those charged with attack on the "uss cole" outside this country will be tried before a militarily tribunal determined to go against major hassan in the court-martial for the deadly attack at ft. hood just two weeks ago. i think the three different venues used for these three ses sets of crimes are appropriate and i commend you for that. the president spoke at ft. hood last week in a tribute to our brave men and women of the armed forces there and he expanded on that matter in his weekly address over the weekend. every member of congress, every

member, joins the president and military community in grieving for the victims and their families. we pray for the recovery of those who are wounded. hasan has been charged with 13 counts of premeditated murder. the army is leading the investigation with the support of the fbi and the president has ordered a review of what was known ahead of time and i think that's appropriate and i look forward as this committee conducts appropriate oversight to find out exactly what happened, where steps were taken and especially where steps were not taken. i caution everybody to do it in a manner that does not interfere with the investigation and prosecution of this case. we want the prosecutors to be able to go forward with the case and not have anything we do interfere with it. i've already written to john brennan, the assistant to the president for homeland security and terrorism on behalf of this committee. i have asked him to provide us results of the internal investigation by the fbi, army

intelligence agencies that's under way. both owe an interim classified matters, both senator sessions and i should be informed and i've spoken both with the attorney general and with fbi director moeller and yesterday the ranking member and i as well as the chairman of the intelligence committee senator feinstein were briefed on the status of the investigation. we should and we will conduct responsible oversight. try not to do it in a reckless fashion because we should not take steps that are going to interfere with the ongoing investigation. or standing in the way of military prosecutors. i want them to be able to compile a thorough and complete case. also yesterday the attorney general and treasury secretary geithner announced the creation of a financial fraud task force. it's a significant step in our efforts to strengthen fraud prevention and enforcement. it uses the authority we provide

in the fraud enforcement and recovery act. i worked hard with senator grassley and senator coffman to draft -- draft this act and get it passed. i was pleased to be there when the president signed it into law. it gives law enforcement new tools and resources to investigate and prosecute the kind of financial frauds that are undermining our country. we're now hard at work in [ inaudible ] as well. just this week we learned the government has paid more than $47 billion in questionable medicare claims. as we prepare to consider health reform legislation, we have to address these issues of health care fraud. i hope that our new act that we worked on in a bipartisan way will help that. we have to complete our legislative work on a media shield bill. the u.s. aid patriot act, sunset extension act. and on these matters, i

appreciate the support we have from the attorney general. so, with that, let me yield to senator sessions and then attorney general holder. >> thank you, mr. chairman and i'm glad we could have this hearing today. we agree on a number of things on the matter of the prosecution of chal lid sheik mohammed in the 9/11 terrorists we don't agree. mr. attorney general, i appreciate you, enjoy working with you. you've got a tough job. when i complain to my wife about this or that, she looks me straight in the eye and says don't blame me, you asked for the job. so, you've got a tough job but you asked for it. you know -- with your experience, you know what you're asking for before you got it. let me acknowledge several people in the audience today, david beemer from florida and alice hoaglund from california are here. they came here for the hearing

today. david lost his son todd, a and alice lost her son on flight 93. lisa dohan here she lost her husband navy captain robert dolan at the pentagon september 11th. deborah burlingame, i believe is here and she lost her brother, a pilot. also we are honored tim brown from the new york fire department is here. tim worked night after night on the rescue and recovery efforts of the world trade center. so, it's a privilege to have each of you with us today. on september 11th, 2001, o@@@@@k bin laden stated they were at war with the united states and intent was to kill innocent americans and bring ruin to the united states. the death and destruction they caused in new york, washington and pennsylvania was an act of war. at the time, that was crystal clear to us.

if there is now among some folks in washington any confusion on that point is because time has dulled their memory or because other matters have clouded their judgment. but the american people remember that day well and they know that the facts have not changed. president bush responded to the 9/11 terrorist acts swiftly and forcefully and we have been blessed that the dedicated work of millions of americans has prevented similar attacks. not. and this effort is not. as we sit in this chamber, 188,000 american men and women in uniform fight tirelessly to root out terrorism from foreign battlefields, our military and

intelligence personnels are, in fact, at the war this very day. seven days a week, on a dangerous and adverse conditions because this congress has authorized and asked them to go there and we sent them there. the best way to honor these men and women is to work just as hard and just as smartly to ensure that what we do supports them and the goals that we have set for them. regrettably when i look at the policies taking shape under the new administration, i fear that that is not the case. i just am worried about those decisions. over the past nine months, we've seen the administration continue to delay providing clear leadership to our troops in afghanistan. call for an investigation and potential prosecution of cia agents who risked their lives to capture dangerous terrorists and who previously

have been cleared of investigation. they've cut a deal on a media shield legislation to protect individuals when they leak classified information unto the mass media in a way that i think is not good. they concede to a weakened form of the patriot act, a vital legislative tool for our intelligence community. and decline to provide basic information, to date, at least, that we're going to have to have as we go forward with the ft. hood investigation. and now announced that they will bring khalid shaikh mohammed, the self-proclaimed mastermind of 9/11 back to manhattan to be treated as a common criminal in u.s. courts. taken together, i think these policies signal to our people, to our country, and to our military, and to the international community that,

for the united states, fighting global terrorism is not the priority it once was. that we can return to a pre-9/11 mentality. the problem is this, al qaeda doesn't agree. they continue to seek to do us harm as we all well know, and we must continue to be vigilant, as we track down these as we track terrorists and bring them to justice. and we must use all lawful tools to do so. lives are at stake. today's hearing will focus on, among other issues, the attorney general's decision to prosecute khalid shaikh mohammed and four other terrorists in u.s. courts rather than in military courts. i believe this decision is dangerous, i believe it's misguided, i believe it is unnecessary. it represents a departure from our longstanding policy that

these kind of cases should be treated under the well-established rules of war. khalid shaikh mohammed is a terrorist, is alleged to be a terrorist, he's alleged not to be a common criminal but who has a desire not for ill gotten gains but for the destruction of our country. the correct way to try him is by military tribunal. this distinction is important because the military courts and civilian courts have different functions. the united states -- the united states court system was not designed to try unlawful enemy combatants. and, mr. holder, i don't think these are normal defendants. these are people we are at war with. and we are dropping bombs on

them, this very day very attacking their lairs wherever they hide. the fabulous police lawman who went after hasan was participating in a war effort. the enemy who could have been obliterated on the battlefield on one day but captured instead does not then become a common american criminal. they are once a prisoner of war, the laws of war say, as did lincoln and grant, that the prisoners will not be released when the war -- until the war ends. how absurd is it to say that we will release people who plan to attack us again? secondly, as part of their military activities, if they violate the laws of war, then and only then may they be tried for crimes. that's what happened to the nazi

saboteurs and exparte commissions, military commission trials are fair, they are recognized not only by our country by nations all over the world. far from seeing our actions as some sort of demonstration of american fairness, i suspect our cold blooded enemies and our clear eyed friends both must wonder what is going on in our heads. are we, they must ask themselves, still serious about this effort? so as former attorney general michael mccasey wrote in 2007, terrorism prosecutions in this country have unintentionally provided terrorists with rich sources of intelligence. mr. attorney general, we're concerned about what's happening today. we respect and like you, but this is a serious question and we'll have a number of -- we'll

raise a number of issues as we go throughout the hearing. thank you. >> well, obviously senator sessions and i have a differing view on this, but there will be differing views here, and that's why we thank you for coming here. although i must admit, senator sessions, that i'm delighted to hear somebody from alabama vote approvingly, ooh list is s. grant. >> and they were winners too. >> and appreciate that acknowledgment too. we probably best leave that one alone. i will put in the record the letter i sent to john brennan, the assistant president for homeland security and counterterrorism asking for the -- when they finish their

investigation that this committee be able to see what we have found both what went right and what went wrong. attorney general holder, thank you for being here. please go ahead, sir. >> thank you, mr. chairman, senator sessions and other members of the committee. when i appeared before this committee in january for my confirmation hearing, i laid out several goals for my time as attorney general. to protect the security of the american people, to restore the integrity of the department of justice, to reinvigorate the department's traditional mission, and most of all, to make decisions based on the facts and on the law. with no regard for politics. in my first oversight hearing in june, i described my early approach to these issues. five months later, we are deeply immersed in the challenges of the day. moving forward to make good on my promises to the committee and the president's promises to the american people.

first and foremost, we're working day and night to protect the american people. due to the vigilance of our law enforcement and intelligence agencies, we have uncovered and averted a number of serious threats to domestic and international security. recent arrests in new york, chicago, springfield and dallas are evidence of our success in identifying plots and stopping would-be attackers before they strike. violence can still occur, however, as evidenced by the recent tragic shootings at ft. hood. we mourn the deaths of the 13 brave americans, including dr. carveil a psychologist with the bureau of prisons who had been called to active duty. the federal bureau of investigation is working diligently to help gather evidence that will be used by military prosecutors in the upcoming trial of the individual who was alleged to have committed this heinous act. we're also seeking to learn from this incident to prevent its

reoccurrence. future dangerousness is notoriously difficult to predict. the president has ordered a full review to determine if there has -- if there was more that could have been done to prevent the tragedy that unfolded in texas two weeks ago. we have briefed the chairman and ranking member of this committee and other congressional leaders on our efforts and will continue to keep congress abreast of this review. now, my written statement addresses a number of other issues before the department. but i'd like to use the rest of my time allowed to me today to address a topic i know is on many of your minds. my decision last week to refer khalid shaikh mohammed and four others for prosecution in federal courts for their participation in the 9/11 plot. as i said on friday, i knew this decision would be a controversial one. this was a tough call. and reasonable people can disagree with my conclusion that these individuals should be tried in federal court rather

than a military commission. the 9/11 attacks were both an act of war and a violation of our federal criminal law. and they could have been prosecuted in either federal courts or military commissions. courts and commissions are both essential tools in our fight against terrorism. therefore, at the outset of my review of these cases, i had no preconceived notions as to the merits of either venue. and in fact, on the same day that i sent these five defendants to federal court, i referred five others to be tried in military commissions. i am a prosecutor. and as a prosecutor, my top priority was simply to select the venue where the government will have the greatest opportunity to present the strongest case in the best form. i studied this issue extensi extensively. i consulted the secretary of defense. i heard from prosecutors from my department and from the defense department's office of military commissions.

i spoke to victims who were on both sides of this question. i asked a lot of questions and i weighed every alternative. and at the end of the day, it was clear to me that the venue in which we are most likely to obtain justice for the american people >> now i know there are members of this committee and public who have strong feelings on both sides. there are some disagree with the decision to try the alleged co-bomber and several others in a military commission just as there are some who disagree with prosecuting the 9/11 plotters in federal court. despite these disagreements, i hope we can have an open, honest and informed discussion about that decision today and as part of that discussion, i would like to clear up some of the misinformation, misinformation that i have seen since friday. first, we know that we can prosecute terrorists in our federal courts safely and securely because we have been doing so for years.

there are more than 300 convicted international and domestic terrorists currently in the bureau of prisons custody, including those responsible for the 1993 world trade center bombings and attacks on our embassies. our courts have had a history of handling these cases and no district has a longer history than the southern district in new york of manhattan. i have talked to mayor bloomberg and commissioner kelly believe we can hold these trials safely in new york. second, we can protect classified material during trial. the classified information procedures act establishes strict rules and procedures for the use of classified information at trial and we have used it to protect classified information in a range of terrorism cases. standards recently adopted by the congress to govern the use of classified information in military commissions are based

on derived from the very rules that we would use in federal court. third, khalid sheikh mohammed will have no more of a plaintiff to spew his hateful ideology in federal court than he would have had in a military commission. before the commissions last year, he declared the proceedings an inquestion situation, condemned his own attorneys and our constitution and professed his desire to become a martyr. those proceedings were heavily covered in the media, yet few complained at that time that his rants threatened the fabric of our democracy. . @ @ @ @ @ @ @ @ and if khalid shaikh mohammed

makes the same statements he made in his military commission proceedings, i have every confidence that the nation and the world will see him for the coward that he is. coward that he is. i'm not scared of what khalid d has to say at trial. and no one else needs to be afraid, either. fourth, there is nothing common. there is nothing common about the treatment the alleged 9/11 conspirators will receive. in fact, i expect to direct prosecutors to seek the ultimate and most uncommon penalty for these heinous crimes. and i expect that they will be held in custody under special administrative measures reserved for the most dangerous criminals. finally, there are some who have said that the decision means we have reverted to a pre9/11 mentality, or that we don't realize that this nation is at war. three weeks ago, i had the honor of joining the president at

dover air force base for the dignified transfer of the remains of 18 americans, including three dea agents who lost their lives to the war in afghanistan. these brave soldiers and agents carried home on that plane gave their lives to defend the country and its values. and we owe it to them to do everything we can to carry on the work for which they sacrifice. i know that we are at war. i know that we are at war with a vicious enemy who targets our soldiers on the battlefield in afghanistan and our civilians on the streets here at home. i have personally witnessed that somber fact in the faces of the families who have lost loved ones abroad, and i have seen it in the daily intelligence stream that i review each day. those who suggest otherwise are simply wrong. prosecuting the 9/11 defends in

court does not presume whether or not we are at war. we are at war. and we will use every instrument of national power, civilian, military, law enforcement intelligence, diplomatic and others, to win. we need not cower in the face of this enemy. our institutions are strong. our infrastructure is sturdy. our resolve is firm. and our people are ready. we will also use every instrument of our national power to bring to justice those responsible for terrorist attacks against our people. for eight years, justice has been delayed for the victims of the 9/11 attacks. it has been delayed even further for the victims of the attack on the ""uss cole."" no longer, no more delay. it is time. it is pastime to finally act. by bringing prosecutions in both our courts and military

commissions, by seeking the death penalty, by holding these terrorists responsible for their actions, we are finally taking ultimate steps toward justice. that is why i made the decision. now, in making this and every other decision i have made as tern general, my paramount concern is the safety of the american people and the preservation of american values. i am confident that this decision meets those goals, and that it will also withstand the judgment of history. thank you. >> thank you, attorney general. as you know, i have discussed with you several times that my belief is when people commit murder, commit murder here in the united states, commit murder on this scale, they should be prosecuted. and i would hope they'd be convicted. i'm glad to see that finally after all these years they are being prosecuted in the same way

timothy mcveigh, who committed mass murder in this country, was prosecuted. let me go to another horrific tragedy. we had the murder of 13 individuals, including 12 soldiers, wounding of more than 30 others on the ft. hood army base in texas. our thoughts and prayers are with these people, and my church on sunday they prayed for the families, for those who died, but for the families left behind. and that's why i sent this letter to john brennan to find out what happened. i want the results of the investigation ordered by the president. several of us were briefed yesterday morning, senator feinstein, senator sessions, myself and others, on what is happening. i think -- in fact, i know that you want to find out everything

that happened. not only what happened there, but what may have gone right, what may have gone wrong prior to that. we're both former prosecutors. we don't want to compromise a prosecution. what resources is your department using to learn whether steps were missed that could have been taken to avert this tragedy? >> the fbi is certainly intimately involved in the investigation in working with the military investigators, the military prosecutors, who ultimately try the case. all of the resources of the justice department that have been requested have been made available and will be made available in order to determine exactly what happened at ft. hood and also to try to deemergency rod determine how we can prevent future events like this from occurring. >> certainly when the court

martial comes on, we will all learn more facts about what happened. i mostly am interested in knowing if there were things that were overlooked that could have been avoided. will you commit to share with this committee if in your investigation, yours as the justice department, that you find if there were things that were missed that should have been picked up prior to this tragedy? >> the president has directed we have such an inquiry and it would be our intention to share the results of that inquiry. we should sequence this in such a way we do not interfere with the potential prosecution. but that information needs to be shared with congress generally and with this committee specifically. >> i can assure you as chairman of this committee i want a successful prosecution. i also want to know what happened. i think we can sequence it in such a way we do not interfere with the prosecution.

we -- members of the senate incidentally, your letter supporting the patriot act reauthorization bill that we passed on this committee is very helpful, and i appreciate that. we requested the administration work with us to provide more information on classified issues related to patriot act authority, first in a letter sent to the department in june, again this week. i'm stating this rather broadly, because you know the particular classified areas we're looking for. with the department's scheduled briefing in the coming days, so senators can be briefed fully on this prior to the debate on the floor. >> yes, mr. chairman, we are working on ways in which we can make available to senators and

congressmen who will be asked to vote on the reauthorization of the patriot act and that information will be made available in a way that's consistent with the protection of those very important tools that must remain classified. but that information will be made available. >> on the patriot act, senator sessions and i and others have been working on a managers amendment to address the few remaining issues in the bill, these do not concern operational matters, and i hope we can circulate that to members of this committee. are you satisfied that nothing in the bill reported by the committee endangers your ability to use those tools effectively to keep us safe and secure? >> i'm confident, based on my own examination and my interaction with members of the intelligence community that -- talking also to fbi director moehler that the reauthorization not have any impact to use them

in an effective way. >> and i think i know the answer to this next one, but would you agree that it's important that we get the bill reauthorized? >> it's absolutely important. these are vital tools we need to have to fight against those who do us harm. >> when the president first took office in january, i encouraged the obama administration and the many supporters of a federal shield law to work together to reach consensus. i congratulate the department of justice, in fact all the shareholders for working together in good faith to reach this consensus. we have a compromised bill that restores important protections, i helped craft to protect bloggers and freelance journalists. attorney general holder, in the letter you and director of national intelligence blair said to me earlier this week, admiral blair, you said that the compromise federal shield bill provide, quote, appropriate protection for national security.

do you support the compromise bill? >> i do. i think that it is a better version than that which had previously been considered. there were a number of concessions made with regard to the concerns that i raised that were raised by the intelligence community. it strikes a good balance. it's a compromise between the concerns we had in law enforcement in the intelligence side and the legitimate interests, i think, of the media. >> i'm going to try to make sure we stay within the time. my last question is this. i have a lot more questions but the last is this, in 2004 democrats and republicans worked together to pass the justice for all act. try to make our criminal justice system more efficient, effective and fair. a key component of that was the w. smith back log reduction act. significant funding for the testing of -- to reduce the backlog of untested rape kits. so victims don't have to live in

fear, while these kits languish in storage. now i've been disturbed to learn recently in hearings that despite the legislation and the hundreds of millions of dollars in funding, substantial backlogs remain in communities around the country, and victims are still facing inexcusable delays in seeking justice. found 12,500 untested rape kits in the los angeles area. other cities reporting almost as severe. you found in the justice department that in 18% -- find that 18% of open and unsolved rape cases, evidence has not even been submitted to the crime lab. can we work together in your department, find out what went wrong, find out how we get these rape kits tested, how we do it in a way that protects the

victims, and gives us a chance to prosecute the people who committed the rapes? >> mr. chairman, i not only pledge that we should, we have to work on this for every crime that remains unsolved there is a rapist who is potentially still out there and ready to strike again. the justice department looks forward to working with this committee to come up with a way in which we do away with that backlog and fully comply with the intent of what i think was a very good piece of legislation five years ago. >> thank you very much. senator sessions, and then senator cole. >> thank you, mr. chairman. these are very, very important issues, this decision on how to try the people who attacked us on 9/11.

it has the ramifications. it's not cowering in fear of terrorists to decide the best way for this case to be tried, is to be tried by military commission. you've indicated that military commissions can be used, that, therefore, i assume you believe, mr. holder, that a military commission can fairly and objectively try certain of these cases. >> yeah, i think that's right, and that's why i sent five of those trials to military commissions. i expect that as i make further determinations i will be sending further legitimate way that other nations that used, as well as the united states, to try people in the rules of war? >> that is correct. when appropriate i will make use of those commissions. >> i want to tell you, i think that this is causing quite a bit

of concern. i think that today in new jersey, where they chaired the 9/11 commission, they think that this is a mistake. that it will provide khalid sheikh mohammed with the position of being a martyr and al qaeda sympathizer around the world. the united states attorney under president clinton has tried these cases, and the decision has been strongly criticized by the former mayor of new york, rudy giuliani. the associate attorney general and federal prosecutor himself in manhattan is opposed as well. he was the associate attorney general. he has complained about former attorney general mukasey, who has also criticized his

decision. i do not think that the american people are overreacting. i do not think that they are reacting fearfully. i think that they think that this is more. that the decision that you have made to try these cases in federal court represents a policy or a political decision. cases in federal court represents a policy or political decision. wouldn't you agree? >> no. >> it's a policy decision at least, is it not? >> it was a decision case driven, based on the evidence i know. it frankly, some of the people who have criticized the decision do not have access to. the decision i made was based on my judgment looking at all of the evidence, talking to the people who have gathered that evidence and the determination made by me as to where we can best prosecute these cases and come up with the best chances for success. there was not a political component to my decision. >> i would offer for the record

also, mr. chairman, a statement from the 9/11 family members and new york firefighters strongly opposing this decision. >> without objection. >> you indicated in one of your factors -- well, first of all, president obama and you have established a review committee. as i understand it, that committee, the detainee policy task force, i guess is the correct name of it, which concluded that there is a, quote, presumption that where feasible, preferred cases will be prosecuted in an article iii court. closed quote. that is a federal criminal court. is that still the policy of the department of justice? that there is a presumption that the cases will be tried in federal court? >> that is the presumption, but it's also clearly a presumption that can be overcome and as evidenced by the fact that five

of the people who i made the determination and announced last friday will be going to military commissions. we make these decisions on a case-by-case basis using the protocol of which the -- you mentioned, and a part of that is that presumption. but it is not an irrebuttable presumption, it is a presumption and only that. >> well, that's baffling to me from the beginning. i know that was part of the last campaign, and the president criticized president bush continuously and many of his allies did for his conduct of the war on terrorism. but i think the idea that a captured combatant who, if eligible to be tried because they've committed violations of the laws of war, would be tried in military commissions is only common sense and part of our history. isn't it true that to avoid the presumption that the commission -- your task force

said it would take compelling factors to change that? >> there's a variety of circumstances that have to be examp examined but we have to look at the commissions as shining examples of what ought to be done. there were, as i count, three trials. three proceedings brought before these military commissions over the great many years that they existed. they had to be reformed, as a result of the way in which they were initially set up. we have the article iii courts that have tried these matters before. we have judges who i have great confidence in, prosecutors whovy great confidence in. i also have great confidence in the people of new york to sit down and fairly judge these cases and to mete out the appropriate punishment. >> i don't think the people are happy with the decision. i think there are clear advantaged to try cases by military commission as opposed to the -- what can become a spectacle of a trial.

with high-paid defense lawyers and others focused on using that as a forum. there are a lot of ways that i think compelling that are -- these commission cases can be tried fairly and effectively without many of the problems of the public -- or the normal trial. with regard to the specific decision that you made, i know that you've referred that -- to the "cole" and to another case in which a military person was killed, but isn't it true that on 9/11 the united states pentagon, the center of our defense establishment, was directly attacked by the people who had declared war upon us? >> there's no question that is true. one of the factors, it's one of the factors that i considered in making this determination. the number of people who were

killed on 9/11 were largely civilians, though there was obviously a very grievous and heinous act that occurred at the pentagon. but because of the fact that this was an act -- an act that occurred on our shores with a victim population that was largely civilian, among other things, including the admissibility, my desire to make sure, to ensure that certain evidence would be admitted, it was my determination that bringing that case in an article iii court made the most sense. >> well, certainly military personnel were killed on 9/11, they attacked our pentagon, and i don't think we should give a preference to military commission trial simply because the enemy attacked civilian people rather than military people. thank you very much. >> thank you.

i will also put in the record a number of items in support of what you're doing. i won't read all the names, i notice ranging from former ambassador of the united nations to barry goldwater, jr., to john whitehead the president of rutherford institute and so forth. that will be placed in the record in support of what you're doing. i'd also place in the record a number -- a letter from a number of people, including former come dant marine corps and others in support of what you're doing. i will put into the record a group from -- including bob barr, david king, the chairman of the american conservative union, grover norquist and others in support of what you're doing.

and a letter from a number of the families of those who were killed in 9/11 in support of what you're doing, and i'll place that in the record also. >> thank you, mr. chairman. mr. attorney general, last january i was pleased by your commitment to close the detention center at guantanamo bay. for too long it's tarnished our image around the world and complicated our efforts to combat terrorism. although you faced greater than expected hurdles, nevertheless i'm disappointed that this morning president obama said that we would not meet his goal of closing guantanamo bay by january 22, 2010. i'd like to get an update on where you are in this process currently, 215 detainees who remain at guantanamo. administration officials have said that 40 to 50 will be transferred to the united states

to face prosecution in federal courts or military tribunals and about 100 will be transferred to other countries. what is your timeline for accomplishing these goals, what will you do with the remaining detainees, and when do you think that we will meet our goal of closing guantanamo? >> yes. the president did announce today that we will not be able to meet that deadline. we had unexpected difficulties in trying to reach that goal. we have made tremendous progress in closing guantanamo. we have more than 100 detainees who have been approved for transfer. 25 had been transferred overseas to date. more than 40 detainees have been referred for prosecution, and we will make additional decisions on the remaining detainees in the near future. the decisions for the remaining detainees are still pending approval, but we expect to have decisions for all detainees well before even the january 22nd

deadline. it will then be a question of trying to, among other things, determine where those people who have been approved for transfer can be placed. i think that is going to be our biggest problem in ultimately closing guantanamo. >> do you have some idea of what that may arrive upon its conclusion? >> i saw a report, i guess, on what the president indicated during his remarks, and i think he said was sometimes this year we ought to be able to do that. >> wisconsin lost two brave service members during the shooting rampage at ft. hood. it is a tragedy that, while preparing to defend us from threats around the world, that these brave soldiers faced dangers here at home. as you know, major hadsan came o the afence of the fbi last december because of e-mails he wrote. but the fbi did not pursue an investigation of him because they concluded that the e-mails

were consistent with his research at walter reed and no contact was made with the department of defense. i understand that a thorough investigation will take time to complete, but we need to protect our troops now, as i'm sure you would agree. going forward now, what changes have you made or will you make to prevent something like this from happening again? >> i think what we have to do is understand what happened that led to that tragedy. were there flag that's were missed? were there miscommunications or was there a lack of communication? and once we have a handle on that, i think that we can propose and work with this committee on ways in which we can prevent such a tragedy from occurring again. we are at close to the beginning stages of this inquiry, and i think we have to determine on the basis of a sound investigation exactly what happened. i will say that on the basis of what i know so far, if is disturbing to know that there was this interaction between

hasan and other people. that is, i find, disturbing. >> but you do recognize, i'm sure, that there is an urgency about that mission, to arrive at some decisions with respect to better protecting our troops. >> there is certainly urgency and the president has given us to the end of november to come up with some findings, some determinations, so that's an indication of how seriously we take this and how quickly we want to try to get to the bottom of it. >> mr. holder, last week you announced that the department will bring the guantanamo detainees accused of planning the 9/11 attacks to trial in new york as we talked about this morning. on friday you said that you'd not have authorized prosecution if you were not confident that the outcome would be successful. however, many critics have offered their own predictions about how such a trial might well play out. one concern we have heard from

critics of your decision is that the defendants could get off on legal technicalities, in which case these terrorists would walk free. does this scenario have any merit? if not, why? and in the worst case scenario, if the trial does not result in a conviction, what would be your next steps? >> many of those who have criticized the decision, and not all, but many of those who have criticized the decision have done so, i think, from a position of ignorance. they have not had access to the materials that i have had access to. they've not had a chance to look at the facts. look at the applicable laws and make the determination as to what our chances of success are. i would not have put these cases in article iii courts if i did not think our chances of success were not good. if i didn't think our chances of success were enhanced by bringing the cases there, my expectations is that these capable prosecutors from the justice department will be

successful in the prosecution of these cases. >> but taking into account that you never know what happens when you walk into a court of law, in the event that for whatever reason they do not get convicted, what would be your next step? i'm sure you must have talked about it. >> what i told the prosecutors and what i will tell you, and what i spoke to them about is that failure is not an option. failure is not an option. this -- these are cases that have to be won. i don't expect that we will have a contrary result. >> well, that's an interesting point of view. i'll just leave it at that. thank you. thank you, mr. chairman. >> thank you, senator kohl. senator hatch? >> thank you. thank you, mr. chairman. good to see you again, general, and appreciate the work you're trying to do down there, although i have a lot of problems with what you've just done in this area.

several events have transpired since your last appearance before this committee and i hope to cover hopefully all of them in my short time. now, in my opinion a significant event was the fbi's@@(áh$ @ we are still engaged in this war against terror. you will recall that at the confirmation hearing there was a special believe that the united states was currently engaged in a war. last week during a press conference they announced the transfer of ksm, and you referred to the action seventh ksm and his conspirators as extraordinary crimes. you made reference to the attacks of 9/11 as an act of war and a violation of federal law. last week during the announcement you referred to the actions as extraordinary crimes. do you still believe that the

united states is engaged in a war on terror? >> as i indicated in my opening remarks, the united states is at war. ates is ato war. there is no question about that. and the act that's khalid shaikh mohammed perpetrated are not only crimes, they are acts of war. no question about that. >> i just wanted to establish that. as i just referenced last week, you announced the intent to bring khalid shaikh mohammed, ksm, to stand trial in new york city. i don't agree with that decision. i want you to know right off the bat. not because i don't think the federal government can detain dangerous terrorists, not because bringing them to a metropolitan area will create an even bigger bull's-eye on that city, it's because i believe as the longest serving person on the committee on intelligence that military commissions are the preferable venue to protect national security information

and prevalent -- and prevent a disclosure of sources and methods. that is not to say that article iii courts cannot handle terrorist prosecutions from providing material support of terrorism. that same conclusion was reached by the 9/11 commission in its findings, the commission concluded that, quote, unfortunate consequence, unquote, of excellent prosecutorial efforts in the initial 1993 al qaeda attack on new york created an impression that the law enforcement and criminal justice systems were well equipped to cope with terrorism. let's just example the overall record of successful prosecutio prosecutions. there are numbers that some 195 terrorists have been, quote, successfully, unquote, prosecuted since 9/11. however i believe the actual number is a fraction of that. since 9/11, approximately 26

terrorists attacks have been disrupted. so what is the actual number of successful justice department prosecutions of persons convicted providing material support to al qaeda since 9/11? and how many of those defends who were investigated and captured on u.s. soil? >> i know we have over 300 people who are in our prisons at this point who have been convicted of either domestic or -- >> i'm talking about the -- i'm talking about those convicted of providing material support to al qaeda. not other categories. >> been convicted of domestic or international terrorism, would include those people convicted of material support charges. i do not have at my fingertips the numbers of people who have been convicted of material support, but that information i can get to you. >> i believe that number is closer to 50 than it is 195 that's been bandied about. and i would like to have that answer. okay? i would like to shift to what has been considered a, quote, successful prosecution, unquote.

in june you said the transfer of ahmed juli ani for bombings in kenya and tanzania. as you're aware, he was previously indicted for this act by a federal grand jury in new york. during the announcement you mentioned four co-defendants were already, quote, successfully prosecuted, unquote. however, i wouldn't exactly characterize these prosecutions as successes. i base this on the fact that these terrorists were not given the death penalty. the government in fact -- the government in fact -- did in fact seek the death penalty, but a juror, despite knowing he was deciding a capital case, later disclosed he could not in fact support a verdict that would result in imposing the death penalty on the four terrorists. because of this the government was not able to obtain the sentence of death after conviction. for reasons that escape me, the

government has not chosen to seek the death penalty against mr. julani. will they seek the death penalty of khalid shaikh mohammed and his co-conspirators, and why did they not elect it in the case of julani? >> it is my intention after the processes have gone through to seek the death penalty with regard to the 9/11 plotters, we made the decision not to seek the death penalty with regard to mr. julani. four defendants in that case, the prior prosecution did not seek it with regard to two, did with the other two and the jury made the determination not to impose the death penalty. as we looked at mr. julani's role, the other two defendants, did not. >> the trial judge and the

prosecution of the blind sheikh, omar abdul raqman. and the padilla case. an experienced judge has always asserted that the trials of the conspirators from the 1993 world trade center bombing damaged national security. for example, the prosecution is compelled by the rules of discovery to provide a list of unindicted co-conspirators. this list made it to the hands of osama bin laden. the nephew of ksm and mastermind of the 1993 world trade center bombing, testimony about a cell phone tipped off terrorists that their communications had been compromised. the end result was the disclosure of a source and method and the loss of useful intelligence. i could go on and on and cite numerous examples from these trials that i know you're familiar with them, having been at the department of justice back then.

what i would like to know, and my time is just about up. but let me just ask this last question. what i'd like to know is how do you intend to ensure the sensitive national security information does not end up in the hands of terrorists and their associate's, especially if ksm or other detainees decide to represent themselves? is the classified information procedures act, cipa, really sufficient to safeguard classified information if these detainees do or do not have counsel? >> well, it has been brought -- it has been argued that the -- bringing these cases in article iii courts will somehow reveal information. i suppose that otherwise might not be revealed, or could be better protected in the military commissions. the reality is that the information protection act that exists in military commissions is based on cipa that we use in article iii courts. and if i might, there have been some -- there's been

misinformation with regard to this whole question of this co-conspirator list and about the phone records allegation. the co-conspirator list was not a classified document. it had -- had there been a reason to try to protect it, prosecutors could have sought protective order. but that was not a classified document. with regard to the phone record allegations, during the embassy bombing trials, the allegation is that the admission of these phone records alerted bin laden to the fact that his cell phone was monitored and that he stopped using it. this allegation is simply wrong. bin laden stopped using the phone long before that information was disclosed in court proceedings. the phone records were used in the embassy bombing trials, not the ramzi trial as has been reported. production of discovery in the embassy bombing -- embassy bombings case did not begin until december 17th of 1998, and the phone records were not

disclosed in court until march 20th of 2001. so with regard to those allegations and those contentions is a factual problem. there are factual inaccuracies that underlie those contentions. and it is my firm belief that through the use of cipa we can protect information article iii courts in the same we they can be protected in military commissions. >> thank you. >> if i can just add -- >> patrick -- well, if you want to add that, i'll just note patrick fitzgerald whom we all acknowledge was a prosecutor in the embassy case, he said, when you see how much classified information was involved in that case and when you see there weren't any leaks, you can be pretty darn confident the federal courts are able of handling these prosecutions. that's what u.s. attorney fitzgerald said.

senator feinstein. >> thank you very much, mr. chairman. welcome, general. i've thought quite a bit about your decision to try these five people in the federal court. and i just want you to know that i fully support it. i've been on this committee for 17 years now. i happen to believe that our federal courts are our finest. i happen to believe that our federal judges are our best. and i happen to believe that new york city is able to handle this in a very professional and definitively legal manner. in my serve on intelligence i've watched the failure of the military commissions for the past seven years. as you've pointed out, only three cases have essentially been tried. and there's been a great deal of controversy surrounding those decisions. the attack in new york, as you point out, was both a major attack of war and a major and

horrific criminal event. it's something none of us in america ever thought could happen. but it did. and i think the fact that these men are going to be tried in the finest of the american judicial system by strong prosecutors and by a fair judge is really very, very important. i assume that the reason that you made the decision is because you believe that there is sufficient untainted evidence to obtain a conviction. is that correct? >> that is correct. and that was one of the main drivers in my decision to deal with what evidence could i present or could we present in whatever forum and to try to minimize the chances that we would have to deal with the issue of tainted evidence. >> thank you very much. let me move to another subject. in august, president obama announced the creation of the high value detainee

interrogation group known in the city of acronyms at hig. it would be made up of experts from several intelligence and law enforcement agencies. the interrogation unit will be housed at the fbi by will be overseen by the national security council. can you describe with some specificity the role that the fbi will be playing in this effort and the type of oversight that will be placed on interrogation? >> well, what we've come to call the hig is an effort to gather people in anticipation of the acquisition of the capture of high-value detainees, to have a group of people who are steeped in who these people are, who have determined how we can successfully interrogate them, using methods consistent with our values as an american nation, the fbi will play a part of -- play a part in there, along with members of the

intelligence community in acquiring this information and in also devising interrogation techniques that will be effective with regard to the specific person that is in front of them. there will be a team of people for each of those high value -- potential high value detainees. >> when could we expect the announcement of the director, and when will it be operative? >> i'm not sure what our time frame is, i know that we're in the process of gathering the people, the work -- the underlying work is underway, and i would hope that we would have an ability to identify -- perhaps not members of it, but certainly the people who would be running it relatively soon. >> and i would assume the auspices they would use would be the army field manuel plus any additions the task force has made? >> right, those are the conditions as set out by president obama. >> thank you. let me go to another subject. in 2008, the fbi bureau -- excuse me, the federal bureau of

prison staff confiscated 1,519 cell phones from federal pris s prisons, and 255 cell phones from secure federal institutions. i was in san diego talking with an fbi agent, and he pointed out that most of the narcotics trafficking is actually done out of the prison system in the united states. particularly the california prison system. and he mentioned one prison, pelican bay, in specific. and then i came back, and i found that there are all these cell phones in prisons which enables a group, name l right out of prison on territories, dealers, and i think that this is a very serious thing. i have introduced legislation that would make cell phones contraband in federal prison with possession punishable by up

to an additional year in prison. what do you think of this? what are you doing? it is a real problem, mr. attorney general. >> it is. i had experience with that right here in washington, d.c.. there was a large drug dealer here that was conducted -- convicted and sent to jail and continued to run his enterprise from prison and was convicted again for that. the maintenance of cell phones in prison is unacceptable and i think we need to find ways to confiscate them. i think that you are right, they should be considered contraband. i also think we need to look at the means that we have to block cell phone signals in prisons. >> would you take a look at my legislation? your support would be appreciated. >> i would. >> thank you. appreciate appreciated.

the concern you have is legitimate and one we have to deal with. >> thank you. in june of '09 the gao released a report indicating that individuals on terrorist watch lists succeeded in purchasing guns, an astonishing 865 times between 2004 and 2009. this dangerous loophole in federal law is known as the terror gap. and it's continued to allow the individuals on the fbi's terrorist watch list to purchase guns, despite the fact they're not allowed to fly on an airplane. the bush administration's justice department drafted and supported federal legislation to close this gap in the 110th congress, and identical legislation has been introduced in the 111th congress. does the justice department support closing this gap? and will you support that legislation? >> yes, we will support that

legislation. it seems to me we would bar certain people from flying on airplanes because they are on the terrorist watch list and yet would still allow them to possess weapons. i think the legislation initially proposed by the bush administration was well conceived and we will continue to support that. >> excellent. thank you very much, general. thank you, mr. chairman. >> thank you, senator feinstein. and senator grassley. >> i have an observation and a couple questions. my observation, i don't want you to respond to, i don't know how you can make a statement that failure to convict is not a option when you've got juries in this country -- i think a lot of americans thought o.j. simpson outh to be convicted of murder rather than being in jail for what he's in jail now. it seems to me ludicrous -- i'm a farmer, not a lawyer, but i just want to make that observation. a question. you previously pledged -- >> i think only fair he ought to be able to respond to that.

>> as long as it doesn't come out of my time. >> that's fine, and maybe i should have been more -- maybe i should have been more expansive in my response to the request that senator kohl put to me. i have thought about that possibility. and one of the thing that's this administration has consistently said, in fact, let congresses pass legislation that would not allow for the release into this country of anybody who was deemed dangerous. and so that if -- if there were the possibility that a trial were not successful, that would not mean that that person would be released into our country. that is not a possibility. but again, i want to emphasize  that i am confident that we will be successful in the trial of these matters. >> yeah. and it's my understanding that if he's not convicted and somehow -- the judge let's him off on a technicality or something, then he becomes an enemy combatant and right back

where you started. so what do you gain? but anyway, you understand the law, i don't. i'm just trying to bring a little common sense to this. you previously pledged to respond, quote, fully and in a timely fashion to judiciary committee inquiries. senator leahy and i wrote you in october with a list of outstanding unanswered requests. i appreciate your courtesy reply and your willingness to have your staff meet with mine to work this backlog requests, but i am disappointed that your reply to chairman leahy and me indicates that you are considering not answering pre-2009 committee questions to the department. this is completely -- for whistle-blower law enforcement. are you not -- you're not

upholding your pledge to respond to all outstanding requests that you -- as you told me you would when you came to my office prior to confirmation. i even tried to help you by giving you a big, thick file of things that were unanswered. i want to save you any embarrassment and president obama any embarrassment for what the previous administration didn't respond to proper requests so why are you in the department not willing to answer these questions? >> well, what we've tried to do is certainly answer all of those questions that have been propounded to us brought to this administration and we're up-to-date in that regard. i do remember that booklet that you gave me, and i think that we have done a pretty good job in responding to those. i know our staffs are meeting i believe on monday and tuesday of next week to try to discuss this. it is our hope that we can find a way to stay current with the

questions that are given to us and also deal with the backlog that you are discussing. it is not a question of us not trying to do that. we really were trying just to prioritize the way in which we respond to these questions, and i hope our staffs will be able to work together and find a way through this. >> senator leahy has committed to me that he'll work with me to get that job done and thank you very much, and i hope we'll be successful. on guantanamo, the decisions to bring detainees to the united states and afford them civilian trials is highly questionable. i want to know more about who is advising you on these decisions. there are attorneys that the justice department working on this issue will either represent a guantanamo detainees or work for groups who advocated for them. this prior representation, i think, creates a conflict of interest problems for these

individuals. for instance, deputy solicitor general neil cantwell, representative osama bin laden's driver and bodyguard, in his case challenging the earlier versions of military commission act that congress passed on a bipartisan basis. i'm quoting national journal. mr. cantwell has want recused himself and is still working on detainee matters at the justice department. the article indicates that other attorneys with previous involvement and detainee issues are also on detainee issues at the department. another example, "the new york post" reported that your department hired jennifer doscall with the national security division and he also serves on a task force deciding the future of terrorist detainees according to the article, miss doscall has no

national security experience and no prosecutorial experience. she has, however, a background of advocating for detainees. one example of her advocacy is from a 54-page report that criticized guantanamo bay's treatment of the terrorist detainees where she stated one detainee described as a self-styled poet, quote, found it was nearly impossible to write any more because the prison guards will only allow him to deep a pen or pencil in the cell for short periods of time. as a consequence of these three examples, i want to know more about these potential conflicts. would you provide me and members of the committee with the following information, the names of political appointees in your department who represent detainees or who work for organization advocating on their behalf. the cases or projects that these appointees work with respect to detainee prior to joining the

justice department and the cases or projects relating to detainees that have worked on since joining the justice department. would you please provide that information to me and the committee? >> i will certainly consider that request, but i want to make sure that you understand that the people in the department understand their ethical obligations and to the extent that recusals are appropriate on the basis of prior representations or prior connections. people in the department have recused themselves from specific cases. i have been recused from a couple of the habeas cases pending here in the district court of the district of columbia, not because i did, but my firm had a connection to the person that is the subject of the habeas proceedings. we are aware of that concern and people who should want be participating in certain decisions do not do so.

>> but i -- i ask you for information, will you provide it? >> i will consider that request. >> well, let me tell you then, i think your department is doing what's usual, but let me quote law professor dean of college of law don burnett. what's unusual is the size of the cluster of the individuals who are affected and so, you know, you've got a big job ahead of you that you've taken on, moving this up from military commission and it seems to me we need to know who is involved in it and what their fred elections are. >> let me say this about the people who work, they are fine people that worked in the department, they a ply the law as best they can. they are patriots and they're concerned about the security of the american people and whatever

their previous roles, i'm confident that they can put those aside or recuse themselves, and i am confident that the people that i am speaking with and relying on have the best interest of the american people including the national security uppermost in their minds. >> the very least you can give me is a list of the recusals. >> as i said, i will consider that. >> senator feingold? >> general, i want to commend you for your decision to try khalid shaikh mohammed and other 9/11 plotters in federal court. it's about time that we bring these criminals to justice and your decision shows the world that this country stands firmly behind its legal system and the constitution. as you know, i don't agree you've made in this area. i remain skeptical about the decision to try five other detainees in military commissions, but too much of the criticism directed at using our federal courts has not been

based in fact. some conservative commentators have gone so far to call it care mongering and have called it to stop. 200 terrorist defendants have been prosecuted in the federal court systems since nech and federal prisons securely hold 300 inmates whose cases were terrorism-related. zacarias mice sowy was successfully prosecuted in federal court of conspireing with al qaeda in the 9/11 attacks and serving a life sentence and i don't remember hearing the uproar about the decision to try moussaoui in federal court that we're hearing now. it's disheartening that critics of your decision have little faith in our system of justice. mr. attorney general, how does your decision to seek justice in federal court support our fight against terrorism. >> well, i think that i have great faith in our system and it's not a speculative faith. it's based on experience. the cases that you mentioned, the familiarity i have with

federal courts having been a prosecutor in those courts gives me the belief that we're going to have an ability to maintain courtrooms in a way that is consistent with what i think we want. there will be a level of decorum. i think we have an ability to introduce the evidence that we seek to introduce and that our courts are capable of handling this whole concern that people have expressed about the dispersal of classified information. we have done it in the past, and i am confident that we can do it with regard to these five individuals. >> i've been raising concerns for a while now about the possibility of establishing so-called indefinite detention regime and recently a statement rejecting it was issued by more than 130 former members of congress, diplomats, federal judges, prosecutors and high-level military officers and national security experts representing the full political

spectrum. the declaration said this, instituting a system of indefinite detention without charge of the united states with terrorism suspects would threaten the constitutional protections enshrined in the justice system is just bad policy. can you tell us whether any guantanamo detainees will be either prosecuted or transferred to another country and is the administration holding detainees without trial for an indefinite period of time? >> the possibility exists that at the conclusion of our review with regard to the detainees and people held at guantanamo that there will be a number of people who we will seek to detain under the laws of war. we will that those determinations are, as i said, making sure that it is based in the process and the reviews are done on a periodic basis to make sure that anyone held under that regime is a danger to the country. that possibility exists. >> in the status of a prisoner

of war? >> no, under the laws of war. >> we will need to pursue this at greater length later. i would like to flag my concern again. as several senators discussed, we were all disheartened by the tragedy at fort hood. two brave wisconsin soldiers were murdered, several more were injured. the president wants to know what went wrong, i am sure that my colleagues will be interested in the outcome of that committee. it is important not to jump to conclusions and especially not to jeopardize the murder prosecution but i hope that the review will be expedited. the share results with members of this committee are appreciated, but i want the record to be clear, will you commit to making public to the greatest degree possible the conclusions so that the american

people, most of all the families that lost loved ones, have an opportunity to understand what could have been done? >> in a way that is consistent with ensuring that we do not do harm to the potential trial. . ensuring that we don't do harm with the potential trial? i think it is our obligation to make clear to this committee and to the american public what the results of our investigation are so that we have a way in which working with this committee we prevent further tragedies like occurred at ft. hood. >> general, during town hall meetings and exchanges i've had with a lot of wisconsin law with a lot of wisconsin law enforcement people over the last i've heard that progress has been made in combatting methamphetamine production use which is good news. unfortunately, there's also been a significant increase of heroin. coming into the state, quite possibly as a replacement for meth and this heroin is often very pure and therefore very dangerous. wisconsin law enforcement

reports not only is that there's increasing violent crime associated with heroin trafficking, but there's been an increase in heroin-related deaths and rock county, my home county in south central wisconsin has already had 12 heroin-related deaths this year and i'm concerned this may be part of a larger nationwide trend. senator cole and i have addressed this increase in rock county by requesting that it receive funding through the high intensity drug trafficking assistance program. we would like to know whether this trend is emerging in other states and what steps is the department taking to reduce heroin trafficking in wisconsin and elsewhere? >> we certainly have seen an increase chiefly from mexico in the movement of heroin into the united states. the problem that you've identified in wisconsin is one that we see in other parts of the country. i know that baltimore has a particular heroin problem, but we see it in other states as well. the department of justice, in conjunction -- the dea is part

of the justice department is using all of the tactics we have, all of the skills we have to try and get at that emerging heroin problem. i think a lot of us -- a lot of people thought that heroin was a problem of the past, but the concern that you are raising is a very, very legitimate one and one that we are focusing on. we have to combat heroin yet again and we are doing so. >> thank you, general. >> thank you very much. senator kyl. >> thank you, first of all senator grassley asked me one thing here. attorney general, holder s my understanding correct that you will not commit to providing senator grassley a list of your recusals? >> a list of my reduceals? >> yes. >> the list of recusals that he was requesting when he examined you just a moment ago. >> what i said would i consider that request? >> my understanding is that you're not committed to providing that for him, correct? >> i said i would consider it.

>> you have repeatedly said that your decision to try khalid shaikh muhammad in article 3 courts is because that's where you have the best chance to prosecute and the chances of success are enhanced in article 3 courts and that you have access to the evidence so you are in a better position to judge than those ignorant of that evidence are. how could you be more likely to get a conviction in federal court when khalid shaikh muhammad has already asked to plead guilty before a military commission and be executed. how can you be more likely to get a conviction in an article 3 court than that? >> well, senator -- >> you are out of order. -- as i always do whether people are supportive or opposed to any position i take that we must have order.

we will have order. the police will remove those who don't. >> mr. chairman, let me say that your request for order is exactly appropriate and i concur with that. >> could you answer my question, mr. attorney general? >> the determination i make on where i think we can best try these cases is not depending on the whims or the desires of khalid shaikh muhammad. he said he wanted to do that then. i have no idea what he wants to do now with regard to these military commissions that as a result of the work that the committee did and this congress did now has enhanced protections and i think are better than they once were before. he may still want to do that in the military commission. i have no idea. my job is to look at the possibilities, article 3, military commission, where is my best chance of success? >> if i can interrupt you -- >> i've decided that article 3 courts were the best place to do that. khalid shaikh muhammad is not making this decision. >> of course, he's want. mr. attorney general, you base this on where you think you are

more likely to get a conviction. you talked about the best chance to prosecute, the chances of success are enhanced and so on. one of the factors has to be the fact that he has at least at some time asked to plead guilty. you have to had taken that into account. >> that was then. i don't know what khalid shaikh muhammad wants to do now and i'm not going to base a determination on where these cases ought to be brought on what a terrorist, what a murderer wants to do. he will not select the prosecution venue. i will select it and i have. >> my understanding is that one of the key reasons is where you would have the best chance of success. one would think that his expressed desire to plead guilty in the military commission would have some effect on your decision. >> senator kyl, with all respect, today is -- i don't know, november 16th, 17th, i'm not sure what the date is. do we know as a fact right now that that is, in fact, what he wants to do? do i know that? do i have special information? do you have special information

that that is cal id sheikh muhammad is planning to do? >> why is it more likely that he will be convicted in a federal court than he would before a military commission, particularly given the fact -- surely, you are not arguing that it's easier to get evidence in to an article 3 court than a military commission. you made the point that you're aware of a lot of evidence in this case that others aren't, of course, but the rules for admitting evidence are more lenient before military commissions than in article 3 court. so that can't be the basis for your decision, is it? >> that is not necessarily the case. with regard to the evidence that would be elicited in a military commission, evidence enlisted from them from the detainees and from the terrorists as a result of these enhanced interrogation techniques. it is not clear to me at all that that information would necessarily be admitted in a military commission in the use

of a team or that it would withstand appellate scrutiny and on the basis of that concern and other things my desire to go to an article 3 court and to minimize the use of that kind of information, that kind of evidence, i thought was paramount. >> suppose another terrorist, the same kind as ksm, argues that he, too, should be tried in article 3 court, but he's one of the ones destined for military commission. on what basis do you argue against that request since this appears to be simply a subjective judgement on your part as to which court is easier to get a conviction in? >> it's not of where i think we can get an easier conviction. it's a question of looking at the protocol that exists, talking to the secretary of defense and other people and trying to make determinations of where cases are more appropriately held. the case, for instance, involving the cole that involves mr. nash iry. an attack on an american war ship it seems to me is uniquely

situated for a military commission as opposed to article 3. >> how do you answer the rationale that the more heinous crime is the killing of civilians and therefore is more ripe for resolution in a military commission than an article 3 court? >> i'm not making value judgements about which case is more heinous or which lives are more valuable. i'm looking at the facts and the protocols in making decisions as to where which cases are more appropriately cited. >> it's hard to understand the rationale that when you kill almost 3,000 civilians that that therefore calls for article 3 as opposed to military commission. thattes kates me. >> the federal law that governs the law the death penalty dictates that places should be brought in the place where the case occurred so that is another factor in trying to determine where the cases should be brought. >> that assumes that the person is in the united states for one thing and he is not.

let me close with this point. you said, and this really bothers me, mr. attorney general, with all due respect. for eight years justice has been delayed for the victims of the 9/11 attacks. i want to put in the record, mr. chairman, ask unanimous consent to enter justice delayed by andrew mckarthy and i'll quote two paragraphs from this. this is chutzpah at large, he writes. the reason there were so few military trials is the tireless campaign conducted by leftist lawyers to derail military tribunals by challenging them in the courts. many of those lawyers are now working for the obama justice deputy and that includes holder who volunteered his services to at least 18 of america's enemies and lawsuits they brought to the american people and it concludes within two years ksm and four fellow war criminals stood ready to plead guilty and proceed to execution and then the obama administration blew into washington. want to talk delay? obama shut down the commission

by pleading guilty. obama's team permitted no movement of the case for 11 months and now has to repeat on a perfectly valid commission case, despite keeping the commission system for other cases so that we can instead endure an incredibly expensive and burdensome civil trial that will take years to dom pleat. the witness can surely respond to what i said. >> i don't even know where to begin. other than to say this notion of leftist lawyers somehow prolonging this. the vast majority of the time in which these matters were not brought to trial to fruition happened in the prior administration. the supreme court, not, i think, a group of leftist lawyer his concerns about the way that some of the commissions were

constructed. the congress re-enacted, and i think appropriately so the way in which the commissions were constructed. this is not a congress peopled only with leftist lawyers as mr. mccarthy would say. so that makes for nice rhetoric and it makes for, you know, good i guess fodder on the talk shows and all of that stuff. you know, but i'm here to talk about facts and evidence, real american values and not the kinds of pol emices that he seems prone to. so that's -- i'm worried about mr. mccarthy. i put into the record and the statistics since 9/11. since september 11th, 2001, the department of justice has brought 119 terrorism cases in federal court with a conviction rate over 90%. since january 1, 2009, more than 30 individuals charged with

terrorism violations have been neither successfully prosecutely or sentenced in courts nation wide and there are currently more than 200 inmates and bureau has a history of nexis and international terrorism were convicted by federal courts. our next witness and i don't doubt that you can try people successfully in federal court and there are the issues that have been raised by that and i understand senator sooil has asked the names of these cases in the defendants and have not received information on that. would you provi >> of the material support charges? >> you said there are 300 cases. i would like what they are charged with. >> i said there were 300 people in the federal system. >> would you provide the names and what they have been charged

with? i would like a yes or no. >> i do not and that was necessarily the request that was made. >> i will supply you with the 300 names and what they were convicted of. i would be glad to do that. >> the only member of the committee who actually lives in new york city is senator schumer. i yield to him. >> thank you. thank you, mr. attorney general. we all deeply live with the losses that new york and the rest of the nation suffered in 2001.

my first question relates to the practical matter of the trial in new york city. i spoke with the commissioner ray kelly about the strain of conducting trials will place on local law enforcement. obviously it is a large burden. press estimates from the city of new york, which i received yesterday, place the added costs of moving the trial s of the terror suspects to new york somewhere in the ballpark of $75 million, that as a minimum. that is just for the year at the trial. the figure does not include costs of ramping up personnel, placing additional parameter units around the courthouse and metropolitan correctional center and other assistance demands that will be placed on the police force as soon as they are physically transfer.

scot are physically transferred. as you can imagine, such high profile cases involving dangerous subjects will provide necessary power for the enhanced security and it will allow the following police officers to secure a perimeter around lower manhattan and obviously the hours will vary and there will be other times and things like that. police officers and equipment for demonstration areas and cloud control. police officers to enhance security units for city hall and headquarters, both of which are near the courthouse and the fcc as well as bridges and transit systems. increased agents, aviation flyer, sniper teams and hazmat units. this list does not come from me, but from the police officer -- the police commissioner in new york. commissioner kelly estimated, and this is a rough estimation at this early point because i just asked him to do it

yesterday that as much as 90% of the additional outlays will need to go to overtime alone because they're not going to be able to hire new police officers for all of this. all of this comes at a time when, of course, we compete, new york city does for federal grants of the cops' hiring grant. we haven't received any money for that program last year. so i worry about safety first, obviously and the burden of the taxpayers in new york and so in 1995, the host was to the trial of sheikh abdul ram an and the mastermind of the bombing at the world trade center and the costs associated with the trial were reimbursed by the federal government. so my question to you is would you recommend to the president that you include in his budget dedicated funding to cover all of new york city's added security costs? >> i think that is fair.

america was attack on september the 11th. that was of national consequence. although the trial will be hosted in new york, it seems to me that new york should not bear the burden alone. this is a national -- >> so you will recommend, and i presume, fight for these funds from omb which we know sometimes has other things on its mind. >> with your help -- >> you have my full and undivided help. i just don't want mayor bloomberg, the commissioner. they didn't make the decision, but they stepped up to the plate and willingly agreed. i don't think either they or new york city, new york state should be left hanging out there paying any of the costs of this, and i take it you fully agree with that. >> i don't disagree with that at all. >> okay. second question, and just one other thing on this. there may be other costs that we can't envision, and i take it

we're wanot going to find someby saying this wasn't in an original application or on an original request. i take it there will be flexibility and generosity because of new york's generosity here. you will be with me at omb. >> i will be there, believe me. with you or -- gladly with you rather than alone. >> i look forward to working with you in that regard. >> great. the next question is about the death penalty, as you know, because we discussed this back then. i was the primary author of the federal death penalty provisions for terrorists on the 1994 omnibus crime bill and you indicate you intend to seek the death penalty against khalid shaikh muhammad and his cohorts which i think is totally appropriate. can you tell me if you currently see any legal impediments that is existing court cases, because what we worry about here and this happened in the military courts with hamdan and other

cases that would stand in the way, provided all of the proper procedures were followed of seeking and imposing the death penalty. >> no. when i made that statement i did so on an informed basis and looked at what the potential impediments were and i do not see any legal impediments to our seeking the death penalty and we will have to convince the jury of 12 people that the death penalty is appropriate and i don't see legal impediments in that regard. my guess is a normal jury of 12 people would clearly see that, but we have a jury system and we trust it. khalid shaikh muhammad expressed a desire in the tribunal to plead guilty. if he wants to plead guilty in federal court and as you correctly point out, you have no knowledge that he still wants to do that and can't rely on the whims of him to make any decisions, but he waves his right to a jury trial for the

penalty phase, would you agree to that, for instance avoid some of the theater that some of the people are justifiably worried about. he certainly has the right to plead guilty and if we are spared a trial and simply go to the penalty phase, that is something that i think we would clearly agree to. >> thank you. one quick other question and i know my time is coming to an end. this is about ft. hood and guns, senator talked about lautenberg and terrorists and people on the watch list from getting guns and that make sense, but there is another aspect here. there are restrictions on even notificatio notification. so the people on one end of the justice system, the joint terrorism task force were not notified when major hasan bought a gun. that's not talking about whether the law should allow it or not, but clearly there should be notification, the tiered amendment, the 24 background

check requirement gets in the way of that. my question is will the justice department remove the tier 24-hour background check construction requirement to allow the fbi to keep records of guns purchased by terrorist inquiries. i'm limiting it to that issue like major hasan. >> the position of the administration is there should be a basis for law enforcement to share information about gun purchases, fully respect the second amendment and fully respect the heller decision. it doesn't seem to us that this is inconsistent to allow law enforcement agencies to share that kind of information -- and that -- for that information to be retained and to be shared by law enforcement. >> i would just urge that you write it into the budget that they would bring to us from the administration. i believe it is. i'll have to check, but i believe it is. >> thank you. i was going take a short break, but senator graham says he has a conflict so why don't i yield to

you, senator graham and after senator graham's questions we will take a very short break. >> thank you, mr. attorney general. i, quite frankly, enjoyed working with you on this typical topic and we've reached different conclusions, but this is an important discussion for the american people to understand, you know, how this affects us now and in the future. the first thing i would like to make the public understand is that you're not suggesting that by someone in a million, one of these defendants were acquitted or given a short sentence that they would be released anywhere, are you? >> we would hold them as an enemy combatant? >> as i indicated to you, senator -- as i should have indicated to senator cole when they initially asked of me, i think there are congressional restrictions in how these people are treated in such a circumstance, but the administration's position would be, ooh and this is not going to happen.

i'm here to tell you that i'm sure he will get convicted in federal court, but not because we're threatening the judge or the jury, but because of the nature of the case. that's not my concern because of what happens to him because he will get his day and he will meet justice, but in the future if one of these terrorists were taken to federal court and somehow acquitted or given a short sentence and the administration still felt they presented a military threat to the country, you would have the legal authority to hold them as an enemy combatant, right? i certainly think that the regime that we are contemplating, the potential for detaining people under the laws of war and that ability and we would retain that ability. >> yes, so, in a sheikh muhammad case we're never going to let him go if something happened wrong in a federal court? >> i don't anticipate that anything will go wrong. >> nor do i, but here's my concern. can you give me a case in the

united states history where an enemy combatant caught on a battlefield was tried in civilian court? >> i don't know. i would have to look at that. i think the attention -- we're making history here, mr. attorney general. i'll answer it for you. the answer is no. the delani case, he was indicted for the cole bombing before 9/11 and i didn't object about going into federal court. i'll tell you right now we're making history and we're making bad history and i'll tell you why. if bin laden were caught tomorrow would it be the position of this administration that he would be brought to justice. >> he would certainly be brought to justice, absolutely. >> where would you try him? >> we would go through our protocol and make the determination about where he should appropriately be tried.

>> would you try him -- why would you take him some place different than ksm? >> well, that might be the case. i don't know. i'm not -- i would have to look at all of the evidence, all of the -- he's been indicted already. >> well, does it matter if you use the law enforcement theory or the enemy combatant theory in terms of how the case would be handled? >> well, bin laden is an interesting case in that he's been indicted in federal court. we have things against him. where would you put him? it would depend on -- a variety of factors. say we capture him tomorrow. look at the custodial interrogation begins in his case. if we captured him tomorrow would he be entitled to miranda warnings at the moment of capture? >> again, it all depends. >> well, it does not depend. if you're going to prosecute

anybody in civilian court our law is clear that the moment custodial interrogation occurs the defendant, the criminal defendant is entitled to a lawyer and to be informed of their right to remain silent. the big problem i have is that you're criminalizing the war. that if we called bin laden tomorrow we have mixed theories and we would turn him over to the cia or military intelligence for an interrogation on the battlefield because now we're saying that he is subject to criminal court in the united states and you're confusing the people fighting this war. what would you tell the military commander who captured him? would you tell him you must read him his rights and give him a lawyer? if you didn't tell him that, would you jeopardize the prosecution in a federal court? >> we have captured thousands of people on the battlefield, only a few of which have actually been given their miranda

warnings with regard to bin laden and the desire and the need for statements from him. the case against him at this point is so overwhelming. >> mr. attorney general -- the only point i'm making that if we're going use federal court as a disposition for terrorists, you take everything that comes with being in federal court and what comes with being in federal court is that the rules in this country, unlike military law, you can have military operations, you can interrogate somebody for a military intelligence purposes and the law enforcement rights do not attach and under domestic criminal law, the moment the person is in the hands of the united states government t that is my problem with what you have done. few are a fine man. i know you want to do everything to help this country be safe, but i think you have made a fundamental mistake. you have taken a model that will allow us flexibility when it comes to intelligence gathering and have a compromise

the country's ability to deal with people who are at war with us interjecting into the system the possibility that they may be given the state constitutional right as any american system. the main reason that she is going to court is because of mainly the people he killed here in the united states. i think that is a perversion at the united states justice system. >> what i said repeatedly is we should use all of the tools available to us. the conviction of osama bin laden would not depend on any custodial statements that he would make. the case against him and for his involvement in the 9/11 would not be dependent on custodial

interrogation. i think in some ways you have thrown out something -- with all due respect -- that i think is a red herring. >> every military lawyer i talked to is deeply concerned about the fact that if we go down this road we are criminalizing the war and putting intelligence gathering at risk. i will have statements from them to back up what i am saying. will have statements from them to back up what i'm saying. senator graham, my time is up, and i look forward to talk to you. there are some issues we can agree on. >> one thing i would say with regard to those people captured on the battlefield, we make the determinations every day as to who should be mirandized and who should not. most were not mirandized and the people involved in that decision involve not only lawyers and agents, but also military personnel who make the determination as to who should be mirandized, but again, the notion that a conviction of khalid shaikh muhammad would

depend on his getting miranda rights is simply not accurate. >> and senator graham, you were out of the room when i put into the record some very significant, well-qualified military people who support what attorney general holder has done as well as numerous other commentators. . i would also put into the record the statements of those who called for the closing of guantanamo, general colin powell, defense secretary robert gates, chairman of joint chiefs of staff admiral mullen, admiral blair, marine corps major general michael leonard former navy general counsel, alberta mora. >> that's to close guantanamo, but not -- >> -- we've already put into the

record statements across the political spectrum >> thank you for your appearance. i would like to call your attention to a matter that has been discussed, a matter of discretion by the attorney general of trying an accused terrorist before the tribunals of barley and that are available.

in fact, the terrorist who was being tried was accused of being the 20th hijacker on 9/11. the decision was made by the previous administration to try the terrorists and article 3 courts in the eastern district of virginia, literally 15 minutes away by car from the pentagon where on 9/11 innocent lives were lost and family still grieve to this day and we join them in that creek. that decision was made in 2006. grief. that decision was made in 2006 to try zacarias moussaoui in the eastern district of virginia. i do not recall any complaints from either the republican side of the aisle of their president, president bush's decision through his department of just toys try that case in an article 3 court or on our side of the aisle either. and i ask you, as you reflect on

the parallels between khalid shaikh muhammad's prosecution in new york and this prosecution in eastern virginia. can you tell me what the distinction might be why khalid shaikh muhammad might be tried in a military commission? >> again, we've learned, i think, a great deal from the moose sowy troil that i think will assist us in the conduct of the khalid shaikh muhammad trial and the other four. again, i think determinations are made as to what's the best form for a particular case. what i have tried to do is make individualized determinations in trying to decide what's in the best interests of the american people in terms of safety. what is consistent with our values and have made determinations that some should go to our article 3 courts and some should go to the reformed

military commissions. >> i would like to quote former mayor giuliani who has been outspoken of the trial of khalid shaikh muhammad and what he said about the trial tried in an article 3 court. at the same time i was in awe of that system. it does demonstrate that we can give people a fair trial that we are exactly what we say we are. we're a nation of law. i think it's going to be a symbol of american justice. that was the trial of an accused terrorist, 20th hijacker, 9/11 in an article 3 court within a minute's drive away from the scene of that horrific loss of life at the pentagon, and i struggle to find the difference, but i want to draw one point, too. you refer, accurately so, reformed military tribunals, reformed military commissions, and it reflects the fact that because of supreme court decisions in hamdan and actions by congress at the time controlled by the republicans,

that we changed -- we have changed the laws when it relates to military tribunals to try to come in conformance with supreme court requirements. you've noted that since 9/11 only three have been successfully tried before military tribunals accused of terrorism. and i want to ask you this question. as you referred the five to military tribunals under the reform, are you not also aware of the possibility that some will challenge this new procedure as to whether or not it conforms with earlier supreme court decisions which may lead to procedural delays and some delay in the final outcome of those tribunals? >> no, that is a distinct possibility. and something that we will have to try to deal with or the prosecutors in that case will have to deal with. and that is something we will certainly not have to deal with in bringing khalid shaikh mohammed and his cohorts in the article 3 court in manhattan. we have a 200-year history of trying cases, these kinds of

cases. and so the question of legitimacy is not an issue we'll have to deal with at all. >> so we have a very close parallel with the bush administration decided on the 20th hijacker from 9/11 to prosecute him in the article 3 court in a venue very close to the scene of the horrific tragedy. we have a situation now where some are calling for any future trials to be military tribunals or commissions which have procedures still not ruled upon by the supreme court which could lead to some ultimate delay in the outcome of those proceedings. i think those are things which should be made part of this record and our hearing today. i'd like to move, if i can, to the issue of the future of guantanamo. i support the administration's decision in closing guantanamo. it is consistent with positions taken by general colin powell who said if i had my way, i wouldn't close guantanamo tomorrow. i'd close it this afternoon. secretary of defense robert gates, under both president bush and president obama, has called for the closure of guantanamo

because the danger that it presents to our troops in the field. president bush, on eight separate occasions, called for the closure of guantanamo. admiral mullen, chairman of the joint chiefs of staff, called for the closure. general david petraeus called for the closure, all believing that the existence of guantanamo was, in fact, an incitement for those who would do harm to our soldiers and to the american people. and so now there is a possibility that we will find another venue. and one of the opportunities or possibilities is in my home state of illinois in a small town of thomsen, fewer than 1,000 people. in the northwestern part of our state, a rural area. and the bureau of prisons, department of defense, have been out to look at this site. it is my understanding that they are considering the configuration of this facility, if it is chosen. and one of the things they're proposing is to put a new perimeter fence beyond what currently exists at this maximum-security prison built

eight years ago and never fully occupied. and it's my understanding that if this new perimeter fence is installed, this would, indeed, be the most secure, most -- the safest maximum-security prison in america. is that correct? >> that is correct. >> and to date we have never had an escape from a supermax facility in the united states. >> that is also correct. >> you mentioned some 300-plus convicted terrorists, domestic and international, being held. in our state some 35. and incidentally one of those happens to be a man accused of being in a sleeper cell for al qaeda. al bardy who is serving in the marion federal penitentiary without any danger to the surrounding community. i might also ask one of the congressional critics in my state has said that there would be a requirement if we brought the guantanamo detainees to thomsen, illinois, that they would be allowed up to ten visitors which means if there were 100 transferred, we would, in his words, have 1,000

jihadist followers going through o'hare, trekking across illinois to visit, as he said, they were legally entitled to do. my understanding is that those held in military facilities, and this would be a military facility for guantanamo detainees, are denied access to any visitors, family or friends. and the only visitation is from legal counsel. is that your understanding as well? >> that's my understanding. >> so the statement that's been made about 1,000 jihadist followers streaming across the highways of illinois is inconsistent with the law. >> that's not consistent with my understanding of how people are held in military detention. >> thank you, mr. holder. i appreciate your testimony. thank you very much. senator cornyn. >> mr. attorney general, please forgive my voice. we're going to try to put this together. let me just ask, do you acknowledge the legitimacy of

military commissions? >> absolutely. i think that what congress has done in response to the supreme court concerns in reforming the military tribunals has legitimized them and makes them places in which people can be referred and tried. and it's one of the reasons why i sent five of those people there last friday. >> and so your decision to try some of these 9/11 co-conspirators in article 3 court is not compelled by any law. it was a matter of your judgment and discretion. >> a matter of my judgment, my discretion, my experience, my interaction with the secretary of defense, my interaction with prosecutors both on the military side and on the civilian side. all of that went into making that determination. >> does the president of the united states agree with you?

>> i believe that he does. i have not had direct conversation with him. i've seen reports indicating that he agrees with the decision that i made. but the decision i made, i think, is consistent with his archives speech where he laid out how he viewed how the detainees at guantanamo should be handled. >> well, you acknowledge that you work for the president of the united states. he could fire you if he disagreed with you, that he could overrule you, correct? >> i -- yes, he could do that. >> well, i want to ask you, you mentioned that we are currently offering miranda rights or reading miranda rights to suspected terrorists on the battlefield, is that correct? >> no. what i said was, that happens very, very rarely. it happened during the bush administration. it happens very rarely. i've talked to the fbi about this. there was some misreporting about the notion that people captured on the battlefield were

automatically be read their miranda warnings. there are thousands of people captured and a very small number have been read miranda warnings. after military lawyers, civilian lawyers, investigators from both sides made the determination that there was some reason to give miranda warnings to those captive. >> and you support that decision to give miranda rights to some suspected terrorists? >> well, give them, you know, miranda warnings if that means it's going to preserve an option for us. i think that's why it's done. >> and you support it? >> well, i would support it into the limited extent that it is done. i defer to the people in the field who make these determinations, and i think, you know, are capable of making those determinations given the facts that they have to confront that are right in front of them. >> and should khalid shaikh mohammed have been read his miranda rights? >> there's no need -- there was

no need. we don't need his statements. >> >> that is true. should there be an appeal. but i am confident that the way in which this case will be structured that given the way in which and the various places we will be able to sign statements that he made that the need for miranda warnings, there is no need for miranda warnings. >> he did ask a lawyer, didn't he? >> i frankly do not know. >> a few are not aware of the fact that he asked for a lawyer and said he wanted to go to new york? >> i do remember those things. >> he is getting his wish. when did he first get a lawyer? >> i do not know the exact date.

t could deal with knowledge the possibility that the judge consistent with what you believe to be sound policy of providing iran their rights would conclude the -- and miranda rights would conclude he was denied his rights and he cannot be prosecuted for the crimes for which you anticipate charging him? >> you have been a judge. i have been a judge. no one can say with any 100% degree of certainty that a judge would not look at a particular set of facts and rule of a particular way. as i look at the facts surrounding the interaction with the detention of him and the evidence we will present, i am very confidence that marion the issues will not be a part of that trial. >-- that miranda issues will not

be a part of that trial. >> you have said you will not differ to him in determining the venue where she will be tried. hat decision. but isn't it the fact that you won't be the one making that decision? ultimately if an attempt to transfer venue based on the notoriety of this event on 9/11 is such just like timothy mcveigh who killed so many americans in oklahoma, he was tried in colorado. isn't it a distinct possibility that a judge would transfer this case based on a local prejudice? >> sure, that's entirely possible. and there may be a motion for a venue change, but just as in the mcveigh case, the venue change

did not have a material negative impact on the outcome of the trial. he was convicted, and he was executed. >> well, in terms of local security arrangements, i mean, this case might be tried in connecticut, vermont, some other part of the second circuit. and you can't control that. i can't control that. the judge is ultimately going to make that decision, correct? >> well, i would think one of the things the judge would take into account -- again, we're speculating about the possibility of this case being moved. >> but you have to consider all the possibilities, don't you? assessing the risk? >> we consider the possibilities, and i would hope that the judge would take into account in deciding where the case would be tried, the very real security concerns that this trial would present. >> and you said that if khalid shaikh mohammed is acquitted, he will not be released. what if a federal judge orders the department of justice to

release him? will you defy that order? >> we have taken the view that the judiciary does not have the ability necessarily to certainly require us to, with what people are held overseas, to release them. it's hard for me to imagine a set of circumstances given the other things that we could do with khalid shaikh mohammed. there are other things that we can do with him aside from simply immigration. there are other legal things we can do with him. it's hard for me to imagine a set of circumstances under which if he were acquitted, that he would be released into the united states. there are other matters. there are other things that we have the capacity to do, other legal matters that we can bring. >> well, you recognize the supreme court has said you can't hold somebody indefinitely. for example, who can't be repatriated to their home country. >> sir, you can certainly hold people in connection with matters that are pending. and we have the capacity to make

sure that khalid shaikh mohammed is not released into the united states. >> my time's expired. >> thank you. of course, i might say only half facetiously, i suspect a lot of people in new york wouldn't mind having him released onto the streets of new york. i suspect he would not want to be released onto the streets of new york. senator cardin. >> thank you, mr. chairman. attorney general, it's a pleasure to have you before the committee. there's risks involved in any trial, whether it's a military trial or whether it's a civilian trial. and i think you've gone over that very well. you give us great confidence of the confidence that you have in this trial with our terrorists. so i think we need to also underscore the advantages of trying the terrorists in the civilian courts. article 3 courts. it gives us an established process that has been used before. it gives us the credibility of our system, which is

internationally understood and respected and gives us the ability to showcase that we are using the american values to hold the terrorists responsible. so i think there's a lot of positive reasons to use article 3 courts, particularly considering the history of how we have not only ignored international laws, we've ignored our own laws as the supreme court has held on previous occasions. i want to follow up on senator kohl's point where we were talking about the closing of guantanamo bay, which i strongly support. and senator feingold's point of how you have made informed decisions as to how to basically classify the detainees at guantanamo bay, those who are going to be relocated to other countries, those who are going to be tried in military courts, those who are going to be tried in our article 3 courts. and then in response to senator feingold, your ability to detain these individuals, basically

indefinitely, under certain circumstances. when you previously testified before us, you indicated that there was going to be a process. a more open process with accountability. can you just share with us how that is progressing as to how we can showcase to the world that, in fact, we are using fair procedures, that everyone who is detained has their opportunity to challenge the methods that we are using. >> well, that's something that we're still in the process of trying to put together. actually, it's something that i've worked a great deal with or talked about with senator graham about the mechanism that we would use in order to detain somebody under the laws of war. but it certainly would involve a due process determination at the outset that this was a person who could be detained under the laws of war with some periodic review, to ensure that the continued detention of that person was appropriate, that that person continued to be a

danger to the united states. it would not simply be placing somebody in a gulag and never hearing from or seeing that person again. there would be continuous reviews, as i said, to make sure that that person's detention -- continued detention, was appropriate. >> i would just encourage you to be as open as you can on the procedures that are being used so that we can, in fact, justify the issues. i don't think anyone disagrees with the need to preserve public safety and the need to deal with the urgencies of war. but we want to make sure that it's not an arbitrary decision, one that can withstand international scrutiny and the more transparency that you bring to that process i think would be valuable for our country. >> senator, what i want to assure you and all the members of this committee and the american people is that if we were to put such a regime into place, it would be done with the

approval. we would seek the approval of congress, hold hearings, however that is to be done to ensure that the mechanisms that we put in place had the support perhaps generated by the executive branch but have the support of the legislative branch. that's where the executive is most powerful, when it works in conjunction with the legislature. >> thank you. i want to mention another area of concern on terrorist activities in the united states. and that's cybersecurity. i held a hearing yesterday on the subcommittee on terrorism and homeland security. and the department of justice was represented very ably at that hearing. we also had the department of homeland security and the nsa. and i think the consensus there was that the responsibility lies with the department of justice although there are interagency working groups now. the vulnerability of america is great here. the assessment was made that we might be able to prevent 80% of the attacks.

and i made the comment, we would never do a defense budget based upon an 80% efficiency. we have to do better than that. i just want to get your assessment as to how high a priority you're placing on dealing with this issue. there's been some recommendations made about establishing a cybersecurity person who's principally responsible on the interagency issues. there is the legal matters as to whether our current laws are adequate to deal with this from the point of view of both protecting our country against cyber attacks as well as protecting individual liberties of the people in america. it is a complicated area, but it's an area that is changing every day and making us more at risk every day. >> no, you're absolutely right, senator cardin. and i think that the hearing that you held yesterday was an important one because i think it draws attention to something that has not gotten the attention that it needs. the cyber issues present problems for us when it comes to espionage, when it comes to

terrorism, when it comes to economic harm that is done to our country. the potential in all those areas is great. and unless we have an effective response, an effective defensive capability in that regard, i worry about what the future could look like. and so i think we have to devote attention. we're doing that at the justice department. we're working with our partners in the executive branch. but we also need the help of congress to, as you have done, examine these issues, propose legislation where that is appropriate. we have to be partners in dealing with this very real 21st century issue. >> thank you. i look forward to working with you. i just really want to point out for the committee, in your report to us, the section you have on civil rights. i don't want this hearing to go by without just applauding you and urging you to continue to make civil rights a priority. we know the problems we had in the last administration. we're very pleased that we have

moved forward with tom perez as the head of the civil rights division. and i notice that you are taking action on voting rights, as you did for military personnel on absentee ballots. we think that's absolutely the right thing to do, that you're moving forward with native americans. we would urge you to continue on aggressive point as we get into redistricting and the challenges that that has to protect americans' rights of voting as well as the other civil rights issues that have been, i think, not given the priority that it deserves in the previous administration and restoring that confidence to the civil rights division. >> well, as i said, at my confirmation hearing, my primary focus, i think, has to be on the national security responsibilities that i have. what the justice department also has to do the traditional things it has always done under republican as well as democratic attorneys general, vitalized civil rights division that i believe in some ways is the conscience of the justice department remains a priority

for me. the confirmation and now the installation of tom perez as the head of that division, i think, will help a great deal. i think there's a sense, as i walk around, that there's a greater sense of mission among the lawyers, the career folks in the civil rights division. and i think we are starting to see that in the statistical things that i see in terms of number of cases filed, where they have investigations opened. i think the civil rights division is coming back. there's still more work to be done, but think we're on a good path. >> thank you. thank you, mr. chairman. >> thank you very much. i would also put in the record a number of military and other national security and terrorism expert experts, their support for the closing of guantanamo.

and senator coburn, you're next. thank you for waiting. >> mr. attorney general, welcome. we're about through here. i appreciate your patience. just to clear up some small things, i sent you a letter on march 30th, about thousands of oklahomans that are freedmen, and i have not gotten a response. i would just appreciate if you'd get us a response on that. that affects thousands of people in my state, and i would very much appreciate it. >> senator, i will get you that response. >> also, i'm not going to spend a whole lot of time on what has been the main subject, and you during your press conference you noted federal prosecutors have successfully -- you alluded to it earlier. the three questions i would expect you to answer, how many were picked up in afghanistan or elsewhere, how many were held without being. that is and how many were

interrogated by the cia to the other? i would appreciate that. one other question i have, we recently issued a list of recipients of federal funds who submitted reports to the government that were fraudulent on information. does the department have a plan to prosecute that fraudulent behavior are reporting? >> yes. and that that was one of the things we mentioned yesterday in the announcement of the task force. one of the areas that we will be focusing on is the misuse of recovery act funds connected to the recovery act funds. we will work with our partners at the treasury and the state and local counterparts.