and we're going to examine this issue in detail in the hearing next week. but it's also important the department continue to fulfill its core criminal justice mission. i know the attorney general and i shared an unshakable commitment to keeping americans safe, supporting the men and women on the front lines of law enforcement and help victims rebuild their lives. we work closely last year and i appreciate that. after we authorized the violence against women act. and the trafficking victims protection act. the critical improvements to protect all victims. after a three-year effort, last year the president signed into law my public safety officers benefits improvement act. it will make significant improvement to public safety

officers' benefits which is so important to our first responders. i appreciate the attorney general's strong support for the goals of the justice and second chance re-authorization act and forensics reform legislation. each one are going to improve the effectiveness of our criminal justice system and i'd like to see them enacted this year. i know a lot of people in law enforcement would like to see them enacted. i appreciate the attorney general's recognition of the bipartisan efforts currently under way in this committee, to address the unsustainable growth of our prison population. the rate we're going, there will be no money for law enforcement, it will be just in prisons, even to the extent of having geriatric units in these prisons. in a time of shrinking budgets, all levels of government, i think the problem we have in the expanding prison population presents devastating consequences for our other critical public safety priorities. if you do nothing and we just allow the federal prison population to consume more than a quarter of the department's budget, with eventually even more than that, that makes us less safe. incremental changes to mandatory minimums for nonviolent drug offenders is a good place to

start and i'm optimistic we'll be able to pass a bipartisan bill out of this committee to do that. so, thank you, attorney general, for returning to the committee to discuss these important issues. i also want to thank the men and women of the department of justice who work hard every day to keep us safe. i met with a lot of them. you're the face of the department of justice. as you know, there are thousands of people whose faces will never be in the news but are out there every single day, throughout the country, and abroad, keeping us safe. we pray for their safety. we appreciate what they do. they deserve our gratitude and respect. senator grassley. >> before i read my statement, i'd like to say to general holder, obviously you and i were bit by different political bugs but -- and we have policy differences. maybe we got more agreement than what you and i might realize at

a particular time. and i think those policy differences are legitimate and we can live with them. in my statement, i'm going to make some comments about some administrative action where i think there's no excuse for and congress isn't being respected by your department and whether it's you or people within your department, i think the very least we ought to have responses to things where there should be no political differences. just wanting information. so i hope you appreciate the fact that if we disagree on policy issues, that it doesn't carry over to things that, when congress simply wants administrative action on your part. i thank you, chairman leahy, for this hearing. it's a very important hearing. oversight's very, very important. and i thank the attorney general for coming here. you take some beating by coming here. but at least you're fulfilling a

constitutional responsibility of giving us information that we need in public. i have to start by pointing out to the chairman that we still haven't received answers to our questions for the record from the last oversight hearing with the attorney general, which was almost 11 months ago. as i've indicated, i think this is unacceptable. the department should show sufficient respect for this committee to answer its questions, at least prior to the next oversight hearing. now 11 months elapsed. we also haven't received replies to questions directed to other department officials who testified at various hearings over the past year. this hearing also affords me the opportunity to call to your attention, general holder, the many letters that the department hasn't yet answered. it's unfortunate that we always

have to start a department oversight hearing with the same request, to respond to unanswered questions from the congress. for instance, back in early november, i wrote you about the justice department council to health and human services on the affordable care act, h.h.s. says that in consultation with your department, it decided not to apply the antikickback statute to the affordable care act. this is a clear violation of congress' move to strengthen antifraud laws and you've helped us strengthen a lot of antifraud laws. since i haven't received an answer to my letter, i'm going to ask you about that today. i've also written to you about the department's handling of cases in which the national security agency employees abuse their signals intelligence authority. in august after news reports

about these cases, i wrote to the n.s.a. inspector general about them. in response, the inspector general indicated that since 2003, there were 12 documented instances of n.s.a. employees abusing these authorities, in many cases by spying on loved ones. it's good that the number of cases was very small. but even one case too many. according to the inspector general, at least six of these cases were referred to your department for prosecution. so in october i wrote to you to request information about how the department handled these cases. i asked for a response by december 1. i haven't received one. it's important for the public to know whether the department is taking these cases seriously. we need to deter this kind of behavior in the future. given n.s.a.'s powerful capabilities.

in addition, this committee has spent a considerable amount of time considering various reforms to n.s.a.. in his speech on this a few weeks ago, the president directed you as attorney general to work with the intelligence community to develop, quote, options for a new approach, end of quote, to the bulk collection of telephone metadata. i'll be interested in hearing how that is proceeding. the president has also asked you to do a review of the f.b.i. whistleblower protection and recommend changes on how to improve them. the assignment was contained in presidential policy directive 19, which claimed to create protection for whistleblowers with access to classified information. the president gave you 180 days to complete the review and it's now 10 months overdue. there's a lot of lip service to whistleblower protection, but

this is another example of how the actions don't match rhetoric. i'm concerned about the president's directive. i recently had a whistle blower from the c.i.a. contact my office. he was seeking to report alleged violations of the whistleblower protections in the president's directive 19. false statements to congress and concerns related to legislation. he tried to get permission to share the classified details with me. yet a c.i.a. lawyer wrote a letter denying permission, claiming judiciary committee members aren't authorized to receive classified information from the c.i.a., which is, of course, false. but it scares whistleblowers and it intimidates them into silence. this is one of several things that suggests to me that even with the president's directive we need stronger legislative protection for national security whistleblowers.

another topic to discuss is the department's nonenforcement of controlled substance act. in august the department announced that it wouldn't challenge laws in colorado and washington, legalizing trafficking of marijuana. the department apparently believes that so long as these states create effective regulatory schemes, key federal enforcement priorities wouldn't be undermined. those priorities include the diversion of marijuana into other states, increased use among minors, and more drug driving fatalities. however, i'm concerned that in many ways, this policy is based on willful ignorance of the realities in these states. example, as a result of failure to adequately regulate medical marijuana, colorado has seen a sharp increase in public health law enforcement problems related to these federal priorities in a

few years. just a few weeks ago, a senior drug enforcement administration official told my and senator feinstein's caucus on the international narcotics control that what was happening in these states is, quote, reckless and irresponsible. at a minimum, it is important that the department set firm criteria to meriwether or when its federal priorities are harmed, so much that the decision not to challenge these state laws is revisited. this is all the more important now that i understand you will soon announce additional guidance that will permit marijuana distributors in these states to use the banking system

to engage in what is under federal law money laundering. i'm also concerned that this administration hasn't been faithful to the constitution on a number of areas, by unilaterally changing or ignoring laws passed by congress. in my view, many of these actions are inconsistent with the constitution's requirement that the president, quote, take care that the laws be faithfully executed, end of quote. however, your department's office of legal council is involved with this because they provide an independent check on executive action. the office of league counsel is responsible for advising the executive branch on constitutional questions. moreover, it reviews the constitutionality of all proposed executive orders. last night, during the state of the union address, the president signaled that he will use executive orders aggressively to advance his agenda this year. transparency should be brought to the office of legal counsel's analysis of proposed executive orders so that the american

people can see whether they are subject to a rigorous constitutional review. thank you very much. >> thank you. please go ahead, attorney general. >> chairman leahy, ranking member grassley, members of the committee, i want to thank you for the opportunity to appear before you today to discuss the recent achievements in the ongoing priorities of the united states' department of justice. i'd like to thank the members of congress for coming together earlier this month to pass a bipartisan budget agreement that restores the department's funding to pre-sequestration levels. we are reviewing this legislation to determine its impact on specific programs and components. but we anticipate it will provide for the hiring of additional federal agents, prosecutors and other essential staff. this will allow us to invest in innovative programs, to keep supporting state and local law enforcement agencies, and to continue building upon the outstanding work that my

colleagues have made possible over the past year. as i've often said, the department's top priority must always be the protection of the american people from terrorism and other national security threats. since i last appeared before this committee, we have continued to strengthen key intelligence gathering capabilities, to refine our ability to identify and to disrupt potential terrorist plots. and to ensure that those charged with terrorism-related offenses can be held accountable to the full extent of the law. as president obama noted in his speech at the justice department, roughly two weeks ago in carrying out this work it's imperative that we continue striving to protect our national security while upholding the civil liberties that all of us hold dear. on monday we took a significant step forward in this regard when the department acted to allow more detailed disclosures about the number of national security orders and requests that are issued to communications providers.

the number of customer accounts targeted under those orders and requests. and the underlying legal authority. through these new reports methods, communications providers will be permitted to disclose more information than ever before to their customers. allowing disclosure of this data will resolve an important area of concern to communications providers as well as to the public. and in the weeks ahead, as we move forward with the timely implementation of this and other reforms directed by the president, my colleagues and i will work closely with members of this committee and other congressional leaders to determine the best path forward. we also will continue enforcing essential privacy protections and other safeguards concerning data possessed by the government, as well as by the private sector. the department of justice takes very seriously reports of any data breach, particularly those involving personally identifiable or financial information.

and looks into allegations that are brought to its attention. now, while we generally do not discuss specific matters under investigation, i can confirm that the department is investigating the breach involving the united states retailer target. and we are committed to working to find not only the perpetrators of these sorts of data breach, but also any individuals and groups who exploit that data via credit card fraud. beyond this important work, the department will continue to build on the progress that we have seen in confronting really a wide variety of other threats and challenges from combating drug and human trafficking, to addressing cyberattacks, protecting americans from violent crime, and taking really commonsense steps to reduce gun violence. earlier this month the department strengthened the federal background check system by clarifying federal rules concerning mental health-based prohibitions on firearm purchases.

under the leadership of our civil rights division, we are working diligently with our federal agency partners to implement the supreme court's ruling in united states vs. windsor, to make real the promise of equal protection under the law for all american families and to extend applicable federal benefits to married same-sex couples and we are vigorously enforcing federal voting protections around working with congressional leaders from both parties to refine and to strengthen the proposals that congress is currently considering to help ensure that every eligible american has access to the franchise. in addition, last year as part of our ongoing efforts to hold accountable those whose conducts the seeds of the mortgage crisis, we filed suits against bank of america and the ratings firm, s&p. in november the department reached a $13 billion settlement with jpmorgan chase and company. this is the largest settlement with any single entity in american history to resolve federal and state civil claims

related to the company's mortgage securitization process. now, i think that these results demonstrate that no firm, no matter how profitable, is above the law. and they reinforced our commitment to integrity and equal justice in every case in every circumstance and in every community. this commitment is also reflected in the new smart on crime initiative that i announced this past august, to strengthen our federal criminal justice system, to increase our emphasis on proven diversion, rehabilitation, and re-entry programs, and to reduce unnecessary collateral consequences for those who are seeking to rejoin their communities. as part of the smart on crime approach, i mandated a significant change to the justice department's charging policies to ensure that people accused of certain low-level, federal drug crimes will face sentences that are appropriate to their individual conduct. and that stringent, mandatory

minimum sentences will be reserved for the most serious criminals. alongside other important reforms, this change will make our criminal justice system not only fairer, but also more efficient. and it will compliment proposals like the bipartisan smarter sentencing act, introduced by senators durbin and mike lee, which would give judges more discretion in determining appropriate sentences for people convicted of certain federal drug crimes. i look forward to working with chairman leahy, the distinguished members of this committee, and other leaders who have shown a commitment to commonsense sentencing reforms, like senator rand paul, to help advance this and other legislation. i want to thank you all once again for your continued support of the united states' department of justice and i would be happy to answer any of the questions that you might have. thank you, mr. chairman. >> thank you. and thank you for mentioning sentencing, what senator durbin and lee and paul and ryan and others, who are all working together to try to get something that not only makes sense but

can pass. the old one-size-fits-all, we realize, one, it doesn't make us safer, two, it doesn't deter crime. but, three, it means we're spending a huge amount of money on things that don't make us better and takes money away from good law enforcement that we need. last week the privacy and civil liberties oversight board issued a report that concluded the n.s.a.'s phone records program should end and i agree with that. for the recommendations, you and the director of national intelligence will develop in the coming months, but executive action is not enough. i think congress has to act to ensure that this legal theory, that's what i consider legal theory, is not used by any administration to spy on its citizens.

now, d.o.j.'s current interpretation of relevance in section 215 could allow the government to acquire virtually any database that might someday down the road for some reason, somehow, find useful. first, is there anything in the constitution that allows this to pass such an overbroad law? to allow us to search anywhere we want? and is there any meaningful limiting principle for the government's of section 215? >> i think that you can look at what the government has been able to do in terms of surveillance, whether it is wiretaps, mail covers. there are a number of statutes that congress has passed that allows the government to engage in that kind of surveillance activity. i think the difference between those kinds of i think universally recognized programs in what we have seen under

section 215, the metadata program, is that these other materials, the other programs are really kind of predicate-based. the metadata program is really an accumulation of material without necessarily a predicate. although i will say that the query database, there has to be a predicate. i think that makes it consistent with what has been passed by congress before and constitutionally upheld by the courts. >> we can pass something and stuff has been constitutionally upheld but we can also pass -- congress could pass a law, for example, that would allow any police officer to seize anybody and lock them up for five years. we can pass such a law. you're a former judge and you're attorney general of the united states. i think you'd agree with me and everybody else that would not pass constitutional tests at all.

so i ask again the question, does the constitution give us a right to pass a law to allow n.s.a. or bureau of land management or anybody else to collect such untraveled metadata on american citizens? >> i'd say 15 judges in the fisa court, two judges, one in california, one in new york, have looked at this question and made the determination that the 215 program is in fact constitutional. one judge in washington, d.c., has decided it is not. but i think that really only deals with one half of the question. i believe that they are correct, that it is constitutional. it is an appropriate use in a constitutional sense of the government's power. but the question is, and what the president has posed to us, just because we can do something, should we do it?

and that's what the director and i are going to be wrestling with over the next 60 to 90 days, to modify the program in a way the president has indicated. >> another question i was going to ask, as you do that, are you going to be consulting with the privacy and civil liberties oversight board? >> yeah. we will be touching base with them. obviously they have reports that we can look at. but i think we want to make this a pretty wide-ranging interaction with those people who have been critical of section 215 and the other surveillance programs so we have as much information, both pro and con, before we make recommendations back to the president. >> there are news reports this past week that the n.s.a. and a british intelligence agency are working together to collect detailed personal information from smartphone apps. i'll have questions that i'll ask you in a classified form. what protections are in place to ensure the n.s.a. doesn't do an

end run around u.s. surveillance rules, including the fourth amendment, obviously, by just going to another foreign agency and saying, hey, we're prohibited from collecting this information on americans, would you do it for news is >> well, under executive order 12333, the intelligence community is not permitted to ask a foreign government to collect information that we ourselves would not be allowed to collect. and so any attempt to have a foreign government acquire information that we are not permitted to gather ourselves would be a violation of that executive order. >> recently approved six test sites of drones. the f.a.a. is developing plans to allow drones to be operated in commercial air space by next year. we've also heard, though, in this committee that drones are already being used for a number of areas, homeland security, law enforcement purposes, that

raises significant privacy concerns. i can almost feel what my reaction would be if i saw a drone flying around over my farm house in vermont. and what i'd be inclined to do, not knowing where it's coming from or what it was. what plans does the justice department have to use drones within the u.s. for law enforcement purposes? and what kind of safeguards are being developed? the orwellian aspect of them i find very chilling. >> with regard to the use of these unmanned aerial systems, at this point the only component with the department that is using them in an operational way

is the f.b.i.. and i think we have to understand that if used appropriately they can serve a useful purpose. i don't think we remember the young child who was held hostage in a tunnel, i think it was in georgia or alabama someplace. use was made of a drone in that case and proved decisive in resolving that situation in a good way. the inspector general and the justice department has recommended that we come up with a uniform system of rules and regulations within the department to control how these devices are used and that is something that i support and something that we will be developing. >> that i'd like to work with you on the development. i think other members of the committee on both sides of the aisle -- because simply the fact that we have the technology, i can see it in the hands of some, boy, this is the latest and greatest thing, let's just go spy on everybody's backyard and everything else.

and i think the reaction of the american public would be pretty significant. as compared to the very specific targeted law enforcement, the missing child thing that you mentioned. and lastly and i apologize to senator grassley, but we talked about it, the federal prison population. this is something of concern to many of us here. more than 500% it's grown in the last 30 years. that's money that -- you have money that can't be used to hire more prosecutors or agents or providing assistance to state and local law enforcement. in fact, the inspector general said the bureau of prison's budget is at the top of its list of management challenges for the department. the top of the list. what is this increasing prison population doing to your other

priorities? >> well, the budget takes up roughly 1/3 of the justice department's entire budget. and it precludes us from doing a variety of other things that i know members of this committee are interested in. and those are interests that i share. our ability to help our state and local partners is impacted. our ability to hire more prosecutors, more agents, more support personnel is impacted. we have to fund the prison system to make sure that the people who are in those systems are safe, that we provide constitutional care to people who are incarcerated. but unless we take a fundamental look, as has been suggested by you, senator durbin, senator lee, senator paul, unless we take that fundamental look, we're going to have a prison system that impedes our ability to do the kinds of things the american people expect the justice department to do.

and i'm very concerned about that and that's why i announced that smart on crime initiative back in august, and i think what i announced is consistent with what members of this committee have suggested as well. and that's why i want to work with you, to try to get a handle on what is, i think, a growing and potentially very dangerous problem. >> please do. because you have broad bipartisan support across the political spectrum to find our way out of this. and we need the advice. senator grassley. >> before my time starts, could i follow up on -- i have the same concern you do about privacy being violated by drones. but i want to point out that with airplanes in iowa and nebraska, e.p.a. has some authority to spy on certain animal feeding operations. but they were spying on people they didn't have the right to regulate with airplanes. we're going to have a bigger problem with the government abuse of privacy, with drones

now. so i just raise that as an issue. not for you to comment on or not for you to comment on. general, in my opening statement, a couple of questions on something i've already discussed with you. i mentioned that i wrote you back in october, concerning the department's handling of cases referred to in which the national security agency employees intentionally or willfully abused surveillance authority. but i never received a response. we need to know whether the justice department is taking any action or even whether you consider the cases serious. can you tell me whether anyone at the n.s.a. has been prosecuted for this conduct? and if they haven't, why maybe they haven't been prosecuted. >> i think the concern that you raise is a very legitimate one.

and we will get a response to you in greater detail. but the fact that -- and there were those referrals. but the fact that members of the n.s.a. who have access to this information, access to these techniques, these capabilities would misuse them for -- and i think you're right, as you said in your statement, for essentially personal use, to spy on people with whom they had relationships, is totally inappropriate. we will get you a fulsome response to indicate how those cases were dealt with by the justice department. i share the concern. >> is it possible you could do that soon? >> yes. we will do that soon. i will write that one down and make sure we get back to you on that. >> i referred to a presidential policy director 19, released 15 months ago. this follows up on my interest of making sure whistleblowers have protection. it mandates that you deliver a report to the president within

180 days. that would be april of last year. to assess the effectiveness of f.b.i.'s procedure of handling whistleblowers. why i raise this issue, because we've had whistleblowers' rights violated like robert kolbus, jane turner, getting a run-around for years. even after the inspector general has found in their favor. however, to date there's been no public announcement that your review has been completed. why you have not issued the report nearly 10 months after deadline? what you have learned from your review? will you provide a copy to the committee of the review? >> ill i'll have to check on the status of that review. i'm not sure what shape it is in and whether it is ready for dissemination. but i will look at. that again, i share the concerns you have about whistleblowers. i think people who have concerns about the way in which government is conducting itself

have to have the feeling that they have places that they can go. and report these things in a way that does not do damage to the government itself. and so if there is not that feeling that they have mechanisms, established means to share those concerns, we then end up with people sharing things and i think in an inappropriate way, perhaps with newspapers, owe other media. so the concern you have is a very legitimate one and this is another one where i will have to get back to you and let you know where we stand. >> when you mentioned the concerns of the government, i appreciate that. because government's got certain responsibilities. but when you got one individual against the government, it seems to me it's pretty easy to see how that one individual's going to be run over if we don't see that they get their constitutional rights protected. i had a question on drones but i think you've answered that.

i'll go to the office of legal counsel's review of executive orders that i spoke about. i mentioned my concern that the president's been using executive orders to circumvent the will of congress and the american people. i'm sure he doesn't feel that way. you probably feel he hasn't either. but i'll tell you, it's a big concern for people that come to my town meetings. it appears that he may continue to do this. he said so last night. in the interest of transparency and with transparency account comes accountability, would you disclose to the public the legal counsel's analysis of all proposed executive orders so that the american people can see whether they are subjected to rigorous constitutional review? it seems to me that would be one of your responsibilities. it seems to me you would want the president to only do those things that are legal and constitutional. and if you wouldn't make these public, would you tell me why?

>> first, let me say that with regard to the use of executive authorities, what the president has talked about was a desire in the first instance to work with congress, to try to pass legislation, but in the absence of that, to use the power that he has as president in the way that he described. what he has described is consistent with what other presidents have done over the years. i think if one looks at a various number of studies that i have seen, this president has used far fewer executive orders than his predecessors. >> i'm not questioning whether or not he can do it. i might have some question about the legality and constitutionality of it. and if he's got the constitutional authority, if he's got the legal authority, we can't do it. we're just trying to determine whether or not he's exceeded that authority. and your people making that determination, is there anything wrong with the public saying what the basis of it is? >> i think we can certainly look at the requests that are made. we'll have to see exactly how the president proposes to use

these executive authorities and to the extent that we can share the o.l.c. determinations or whoever in the justice department is looking at and making these determinations. i would be inclined to try to share that with congress in an appropriate way. >> will you at least, if you can't share it with me, will you tell me why you can't share it we me? because i just don't want a big black hole here. >> the concern we generally have with regard to the dissemination of o.l.c. opinions is that we want to have full conversations, fulsome discussions about these matters where o.l.c. lawyers write both pros and cons about a particular issue -- >> we're probably only interested in the outcome, not the debate within your agency. just what's the outcome. >> yeah, well, the memos will contain all of the arguments with a conclusory couple of pages or whatever. we'll try to find ways in which we can share this information

with you so that you and other members distribute american people feel that the president is acting in an appropriate way. to the extent that he makes use of this authority at all. as i said, his primary inclination and desire is to work with congress to pass necessary legislation that i think all the american people want to see happen. >> i think the chairman would give me a couple of minutes because he took 2 1/2 minutes. [laughter] >> i'm not sure about that. [laughter] >> the last question or maybe a half a question after this one would be this simple. this is a discussion i had with the secretary of health and human services in another committee. they announced that it does not consider affordable care act plans to be, quote, federal

health care programs, unquote. that exempts them from the antikickback laws and undermines the clear intent of congress and the health reform law to make kickbacks a violation of the false claims act. so you got my interest in the false claims act as well. secretary sebelius said that she maid this decision after consulting with your department. i asked secretary sebelius why these plans are any different than medicare advantage. she claimed advantage plans are different because payments are made directly from the medicare trust fund. so, i wrote to you about this last november. i'd like to know when i might be able to expect a response. but more importantly, whether you agree with secretary sebelius that the affordable care act plans should be exempt from the antikickback laws. it doesn't seem to me like you'd

want to exempt anything from antikickback laws. and what's the department's advice to the h.h.s. documented in writing? if it was, i'd like to have a copy of that. >> that's something i'll have to examine and see what we have there. but i will say that we have been very aggressive in enforcing the antikickback laws and recovered record amounts of money over the last few years. i'd have to look at the particulars with regard to the affordable care act. >> i can understand that. >> see the applicability of those provisions. >> but presumably this is action, according to the secretary, that your department's already taken. there should be some sheet of paper around there that you can give to us. the half question i was going to ask you, you have one more day to decide whether or not the boston bomber's going to be subject to the death penalty. what's your decision? >> we'll be announcing that by the deadline.

>> thank you. the amount of money the department of justice has collected finds an anti-kickback audit, i believe it's a record, i congratulate you on that. >> it was the grassley amendment that brought us into this world in terms of bringing members of congress and their staff into the affordable care act which we are now under and if it was not complete when it came to anti-kickback and such, we want to make sure that it is. >> i didn't know -- they tnt know that why did you have to tell them? >> i think every staff member in the congress who are now paying more for their health care know it is the grassley amendment that did it. >> mr. chairman, if i can address two questions related to the wheels of justice. each year when you appear, mr. attorney general, i ask you the same question and you give me the same answer, about racial profiling guidelines, and you say really soon we're going to

work on this. this year, i would like to ask you, how quickly an we expect new racial profiling guidelines when it relates to issues of religion, national origin and whether it applies to national security and border security cases? >> i don't want to repeat the words really soon given what you said so i will say that they are forthcoming and that -- in the holder lexicon, forthcoming is shorter than really soon. we are working with those -- there has been a review under way. we are, and i mean this sincerely, we are truly in the final stages of this, the proposal is just being circulated for comment within the department and my hope would be that it would be out the department very soon. obviously there's some white house involvement because we're talking about a 2003 executive

order but i would hope that we would have an ability to talk about the modifications that i think are appropriate in a forthcoming way. >> thank you. wheels of justice question number two. 155 detainees remain at guantanamo. i want to say for the record, this has been the subject of a lengthy debate here in congress. the president made his intentions clear when elected to close guantanamo, and yet resistance in congress has thwarted him from accomplishing that. for those who want an establishment of the record, over 500 people have been convicted of terrorism and terrorism-related crimes through our judicial process since 9/11. in federal courts. in contrast, there have been six convictions and one plea agreement from guantanamo's military commissions, two of those convictions have been overturned.

the most dangerous terrorists who have been convicted through our judicial system reside in our prison system and the worst of the worst in maximum security. we spend, on average, $78,000 a year in facilities like florence, colorado, maximum security, to hold the most dangerous criminals in america, including the most dangerous terrorists and there has never, ever, ever been a -- an escape or a question that they would escape. we are spending, for the 155 detainees in guantanamo, on average, not $78,000 per year by $2.7 million a year, per detainee. it is an outrageous waste of taxpayers' dollars. we are going to start a process to start reviewing the 155 detainees in the hopes that we could dispose of some, dismiss some, transfer some, it took a long time to get started.

the wheels of justice unfortunately went very slowly. the president issued an executive order in march of 2011. the first periodic review board hearing at guantanamo took place in november of last year. and earlier this month, the board recommended the transfer of the first detainee in question. the second periodic review board hearing occurred yesterday. i'm glad to hear this progress has been made but with 155 detainees, 71 of whom are eligible for evaluation, mr. attorney general, we can't live long enough to go through this process. at $2.7 million a year per guantanamo detainee, can we get this process moving in an orderly, faster way? >> i think we can. the president has indicated from the day he took office that he wanted to close guantanamo

facility he put me in charge of an niche review that was done within a year. that categorized the people in guantanamo, those who could be tried in military commissions or article 3 courts, those who could be released and those who had to be detained. we did that. we did that. i will say with all due respect, congressional restrictions placed on us thwarted our attempts to close guantanamo in a more timely fashion. you're right. we are now in the process of going through this review board process that is largely based on the work we did in that earlier task force that i was the head of. we are trying to do all we can to close guantanamo and i am actually grateful for the loosening of the restrictions in the latest act that makes it easier for us to effectuate that closure -- closure.

but this is commg that for the -- this is something that for many reasons, that facility has to be closed. >> the sooner the better, from my point of view. i wish more members of congress felt the same way. you were in chicago in november of last year. at the installation of the u.s. attorney for the northern district, zach fardon, a unanimous choice of senator kirk, myself, and our bipartisan review panel and you made some encouraging statements about commitments that were going to be made to chicago to deal with the violent crime problem and murder issue, giving credit where it's due, mayor emanuel and his superintendent of police, mr. mccarthy, have made extraordinary progress in this regard but we need this help. can you be more specific in terms of the resources and personnel that you will make available to help us fight these problems with violent crime?

>> we're looking to come up with ways to increase the number of federal agents who are in chicago on either a temporary basis or permanent basis, also looking for grants we can make available to the city. i am going to be speaking to mayor emanuel tomorrow. the purpose of the conversation, at least one of the things we'll be talking about, are the specific needs he can identify that we might be able to help with. i will also be talking to the u.s. attorney there to get his perspective on this as well. i think that we want to do as much as we can but i don't think that that should obscure the fact that the city administration, working with the new u.s. attorney, i think has made significant progress. i don't think necessarily get all the credit they deserve for a pretty dramatic decrease in crime in chicago. but there is federal assistance we want to try to make available. >> my time is up but i hope with the new appropriation bill you'll be able to find some u.s. district attorneys to help with that effort. thank you.

>> welcome, mr. attorney general. appreciate your service. i'm going to try to ask a series of questions, i'll try to cauch them so you can answer yes or no so we can get through a lot of stuff, so if you could do that i'd appreciate it. i'd like to talk about the department's refusal to enforce the controlled substance act. marijuana is widely available across the utah border in colorado. federal, state, and local law enforcement have seen success in going after marijuana growers on public lands in utah. there's a direct link between the u.s. marijuana trade and large scale drug trafficking organizations that threaten the safety and well being of our country. legalization in colorado threatens the success that we have been seeing in tackling the problem.

controls on legal marijuana are unlikely to deter drug cartels from ramping up their operations on public lands in utah and elsewhere. especially since the -- since demand in colorado is wildly exceeding supply. i think this policy shift sends a mixed and dangerous message to both the law enforcement community and fellow citizens. do you share my concern that legalization in one state can encourage more illegal marijuana production on public lands by drug cartels and others in bordering states? >> i'll be brief, i have concerns and those are expressed in the eight priorities we set out, three of them preventing diversions from states where it's legal to other states, preventing the growing of marijuana on public lands and preventing use on federal property.

these are three of the eight things that would precipitate federal government action and enforcement of the c.s.a. >> now general holder, the debate about n.s.a. surveillance is in full swing. the illegal and selective leaks last summer were hardly the best way to start this debate and i think they undermine rather than enhance but here we are. a lot of attention is being focused on the n.s.a.'s collection and analysis of so-called telephone metadata as you mentioned. it's worth reminding ourselves what that information is and what it is not. it includes the telephone number calling, the number being called, and the date, time, and length of the call, is that correct? >> that's correct. >> it does not include any information about the identity of the caller or the content of the call, is that correct? >> that's correct. >> the privacy and civil liberties oversight board issued its report last week. excuse me.

concluding that the patriot act does not provide legal authority for the n.s.a.'s metadata program. in an interview last week, you noted that at least 15 judges on dozens of occasions have said that the program itself is legal. that's correct? >> that's correct. >> to be clear, is it your position that the collection of metadata under section 215 of the patriot act is legal and that the oversight board's conclusion on this point is wrong? >> that is my view. >> that's mine too. as someone on the intelligence committee and who helped put this through. in your judgment has the n.s.a. abused or misused its capability to collect and analyze telephone metadata? >> i think the n.s.a. has acted in a way that's consistent with the law but as i indicated i think that's part one of the analysis, part two is whether or not we are getting from the

acquisition and retention of that data material that is sufficient to deal with the civil liberties and privacy concerns others have expressed. >> but they haven't misused or abused it? >> that's what the president asked us to look at. >> one more question about the eversight board's conclusion about the legality of the program. in creating the board, congress authorized it to do two things. first, to ensure that the need for executive branch actions and protecting us from terrorism is balanced with the need to protect privacy, that's true? >> yes. >> second. to ensure that liberty concerns are considered in the development of laws and policies in this area, that's true? >> i believe that's true also. >> these responsibilities certainly call for recommendations and conclusions about policy but i dent see how they include opining on legal issues such as the legality of the metadata program.

did the oversight board exceed its statutory mission in addressing this issue? >> i'll be honest with you, i'm not as familiar as perhaps you are as to what their statutory mission is. i will accept as legitimate the concerns that they expressed though i do not agree with their legal determination, their legal analysis. >> i think they exceeded the statutory mission but so be it. so year clear on what, in my opinion, on the very limited information that the n.s.a. collects and analyzes, we are clear that the metadata program is legal, and that the n.s.a. has not abused or misused its authority to collect and analyze this information, as far as you know. >> there have been some compliance issues that have been identified by the courts or by the justice department, sometimes by the n.s.a. but those have all been corrected, once brought to the attention of the n.s.a. >> is my next question is how to know whether the program is

valuable. the president's -- the report said that the metadata program was not esen torble preventing a specific terrorist attack. is that the right standard? must there be proof that this program alone prevented an actual attack in order for it to be valuable for national security and for it to continue? >> i'm not sure -- i think we've followed into a false analysis. i'm not sure that the the only way to judge the validity or value of the program. there's a mosaic of things that we take into consideration in determining if we are acting in an optimal way. there are questions enge that can be legitimately be brought and that we are going to consider about the continued need for section 215 but i don't think the only way you can test the validity or the need for 215 is whether or not it prevented x number of attacks. >> on march 5, 2012, in a speech -- the chairman is granting me a

little more time so i can fin herb this line of question. >> without objection, the gentleman will be given two more minutes. >> i'm grateful to him. in the -- you discussed surveillance programs under the foreign intelligence surveillance act. the justice department conducts oversight reviews at least once every 60 days and report to congress twice a year. i understand the surveillance program under patriot act and under fisa are different but would you say the metadata program enjoys similarly rigorous oversight to that which you described for collection under section 702? >> i think there is sufficient oversight of section 215 between what the justice department lawyers are looking at as we are looking at materials presented to us by fisa, by the fisa court

and then what n.s.a. is doing internally. i think there's a great deal of oversight and that oversight has yielded issues that have been identified as problematic and been resolved. >> that's right. >> one of the president's proposals is for telephone companies rather than the n.s.a. to store the metadata. it's been represented that telephone companies don't support this idea but suppose they do. today only 22 individuals at the n.s.a. have access to this metadata. 22 people. but there are dozens of phone companies, each of which would have to maintain these records. that would have some number of employees with access. how can you provide a comparable level of supervision when this data is stored in numerous different locations and is accessible by far more

individuals than it is today? >> one of the things the president asked the director and i to do is come up with an alternative way in which information can be stored and the issue you have raised is one that has to be resolved. i think that the n.s.a. has done a good job in the way it has stored the information. if we're to move to a deferent scheme i think we have to answer the question of how can we put it in a different place and maintain the integrity that -- of the process that i think the n.s.a. has tone a pretty good job of. >> i agree with that and i have additional concerns about the security of the metadata at the phone canes. verizon's own data breach investigation reports privileged abuse and misuse by insiders played a role in data breaches over the last year. a company can only do so much to protect against outside threats to its networks, look at target and neiman marcus. do you believe the metadata

would be more secure in the hands of the private sector than the n.s.a.? >> i think we have to find out if we can do it, if we can maintain security, do it in a different setting than we presently do at the n.s.a. that's one of the tasks the president has give to me and the director. >> but they're doing the job at n.s.a. >> i think they've done a good job. >> thank you, mr. chairman, i appreciate the extra time. >> thank you, senator hatch. now i yield myself seven minutes. plus whatever else i might need. it is very good to be here. i want to thank the attorney general for the good work he does. i know he is aided with great, great skill by two former schumer employees who work for you, elliot williams who has been gone for a while and brian fallon who we miss very much and is doing a good job for you.

>> thank you, senator schumer. >> first on autism spectrum disorders. i know you're familiar with the case of avanti o'kendall. he's a child with autism spectrum disorder he wandered away from his school this fall, about 50% of children with this condition wander, and his remains were found three months later. the heart of new york went out to him and his mother and grandmother. i've met with them and know their grief and heartache, shared by many parents with autism, you can imagine, when a child wanders away and many of them are nonverbal, very, very heart wrenching situation and a dangerous situation as unfortunately asv -- avanti's death showed. right after avanti went missing, showed. right after avanti went missing, i called on the department of

justice to expand a current grant program you have in place which has provided support for the use of tracking devices to agencies who work with patients diagnosed with alzheimer's and families of those patients. the program's administered by the bureau of justice assistance. now we've been doing this for alzheimer's patients. justice department funds the program. so it seems almost obvious, you know, like a hand fits into a glove, that we could do this and people with alzheimer's as you know, wander as well. it seems like just a perfect fit to do the same thing for children with autism who tend to wander. now i understand that the program that's used for alzheimer's is not available for families of children with autism. so have you been able to identify any other streams of assistance pursuant to my request? >> well, i think the concern

that you have is a very good one a legitimate one and the fact that you brought it to our attention is something that is going to help a lot of kids who deal with this issue and we have made the determination that the burn grant program can be used for the purchase of these devices, these transmitted bracelets, i think they're called. >> sometimes bracelets, sometimes around the ankle, even in the clothes because occasionally kids with autism want to take off the bracelet. >> but the grant money can be made and will be made available for purchase of these devices. >> localities and police departments can start applying immediately? >> yes. >> that is great news and will help in a lot of situations. i appreciate that. it's a big, huge step forward. now one other question on this. in order to ensure ha a permanent adequate stream of money for this, i've introduced legislation, we call it new york avanti's law, named after this lovely boy.

it will create a new, specific, d.o.j. grant that will be available to local law enforcementing schools and nonprofits that aim to assist children with autism spectrum disorder and will authorize $10 million, i think that's what we spend on the alzheimer's, to help fund the purchase of voluntary tracking device, training for parents, schools and local law enforcement as well as other innovative methods. what you're doing is great and will solve the problem immediately but to ensure its -- it's permanent. we all know at some point there will be a different attorney general, many years away, and so legislation would ensure this. i know the way it all works. you can't commit to specific legislation until it -- until you see the details but do you agree with the general principle of trying to enact this in statute and ensure the revenue for years to come? >> yes. given the unique nature

of issues that kids with autism issues face and given the way in which our nation has responded to adults with alzheimer's issues that they ought to be treated in much the same way and so i can't commit but i can say that personally i think that a dedicated funding stream makes a great deal of sense. >> thanks. we'll get you the legislation and you can put it through the long, la boirs you executive branch traps, it probably has to go through 47 different agencies, but get the support for this legislation which we hope will be forthcoming. now i'd like to turn to media shield. i appreciate the support for freedom of information. additionally the revised guidelines of obtaining evidence for members of the news media are a step in the right direction. however, they haven't been finalized and it's more than six months after the department sent its report to the president.

when will the revise guidelines be finalized and when will they go into effect? >> i would expect we would have them available for comment within the next couple of weeks. i hoped that we would have them done by this hearing. there was a little glitch toward the end but i think we'll get through that and we'll have them available for public review and comment within weeks. i will say that in spite of the fact that they are not yet issued, we are working under them as if they were in place and we are also looking to people the board that we are putting together as part of the review process. mr. fallon has been working on that. >> then it's in good hands. does that include, you know, you mention this media review committee. has that been established? has it been convened? is it officially working? unofficially working? give us the status of the review committee and the media -- the

news media dialogue group, i think is what you called it, to, quote, assess the impact of the department's revised new media policies. has that been established? >> there will be two bodies, one within the department oassist the attorney general about making requests to access information about the news media and another one that would involve outciders who will assist us on a periodic basis to give us an update on how are we going with regard to the reforms we have put in place and to consider other unwiths. mr. fallon has been working to come up with the appropriate people for that outside board and i think we've mad a -- made a lot of progress. >> how soon do you think? i don't want to steel mr. fallon's news thunder here. >> we expect the first meet welcome in february. >> thank you very much mr. joan.

-- mr. general. and i will do two things now. call on senator sessions and turn over the august process, engage in the august process of turning over the chair's gavel to the wonderful senior senator from minnesota, senator klobuchar. >> and you finished within your time. very well. attorney general holder, you mentioned gun violence and crime. i would just note, i watch your statistics that your prosecutions, total prosecutions of gun crimes declined 5.2% this year from last year and i think prosecution, vigorous prosecutions do make a difference and i would encourage

you to keep those numbers up and as you go forward. a lot of our members are discussing how to deal with the mandatory sentences. i would just say, i was there when we had the revolving doors in the 1960's and 1970's and we as a nation turned against that. we've created a system that requires certainty in punishment, swifter trials and the result is a very great drop in the crime rate. so to my colleagues, we just have to be careful as we go forward. i know you've been a united states attorney, attorney general holder and you've seen it as a judge, a u.s. attorney, and i think we just have to be careful. we need to have good data as we go forward to analyze how we can find some areas where crime and punishments could be reduced and i do agree with you about the

n.s.a. and the metadata question, i think you've thought this through, i believe the -- your position is sound. attorney general holder, when i became a united states attorney in 1981, the percentage of young people in high school, high school seniors, according to the university of michigan, authoritative national survey, was 50% plus had admitted using an illegal drug previously. in the previous year. that was a dramatic thing. and the nation energized itself. nancy reagan had the just say no program. in my district, this was done all over america, groups formed, the partnership for youth, the coalition for a drug free mobil, e, we met, i was involved with it and we created and worked to create in the country hostility to drug use. to create the impression that it's not socially acceptable and children shouldn't be using it and it's wrong and the trend started the other way.

by the time -- within 10 years, less than 25% of the high school seniors under that study admitted using illegal drugs. i invested a tremendous amount of my time, citizens all over america invested huge amounts of their time, volunteer efforts, financial contributions, to break the cycle of drug use among young people that were threatening the very viability of our education system and the future of so many. it was just a very serious thing. so i have to tell you, i'm heart broke ton see what the president said just a few days ago. it's just stunning to me. i find it beyond comprehension. this is the atlanta -- this is "the atlantic" article surveying what the new yorker, the president's interview with the new yorker said.

the headline is, obama on pot legalization -- it's important for it to go forward. that's the president's quote. he goes on to quote from that interview, he said the following things about smoking marijuana. quote, i view it as a bad habit and vice, not very different from the cigarettes i smoked as a young person. i don't think it's more dangerous than alcohol, he said. in fact it's less dangerous than alcohol, quote, in terms of its impact on the individual consumer. and he goes on to say, well, those who argue for legalizing marijuana as a panacea, and it solves all these social problems, i think are probably overstating the case. this is just difficult to me to concede how the -- to conceive how the president of the united states could make such a statement as that. so first, do you support the

president's view in that regard as the chief law enforcement officer in america? >> well, a couple of misimpressions. we are prosecuting the same number of people we did from 2007 to 2013, there may be fewer cases but that means the cases we bring are more significant. one seventh of all the cases we bring involve guns. >> i have the data on that, i'll submit it for the record, people can decide the number of gun cases are down according to data from the department of justice. but what about the president's view on this important subject? do you agree with it? >> i've not read the article but

as i understood what the president said in its totality was that he thought that the use of marijuana by young people was not a good thing, one of our eight priorities is the prevention of distribution of marijuana to minors, if there is indication of marijuana being distributed to minors that would require federal involvement. that was in the memo to the field. >> you think it's a bad habit but not much worse than smoking? >> well, i mean -- >> in your opinion. give us your opinion. >> i think that the use of any drug is potentially harmful and included in that would be alcohol. >> the president said i don't think it's more dangerous than alcohol. close quote. do you agree with that? >> as i said i think any drug used in an inappropriate way can be harmful. alcohol is among those drugs. >> using marijuana against the law is that appropriate use?

>> well, as i said for young people to do that is something that violates federal law and something that we said would be something that we would continue to use our federal law -- >> are you aware that the drug czar the president appointed has said this in december, young people are getting the wrong message from the medical marijuana legalization campaign. if it continues to be talked about as a benign substance that has no ill effects, we're doing great disservice to young people by giving them that message. close quote. do you agree with that? >> i think that's right. that's why we have said that the distribution of marijuana to minors will involve -- will entail the very vigorous federal response. >> are you aware, isn't it a fact, that if the laws are relaxed with regard to adults, it makes this drug even more available to minors? >> i'm not sure that's necessarily true. >> attorney general holder, isn't it true that if marijuana is legalized for adults, it makes it more available for young people?

>> i'm not sure that's true. i say that only because the -- the alcohol -- people cannot buy alcohol until you're age 18 or 1 21 but young people find ways to get alcohol because adults can have access to it. i'm not sure that we will see the same thing here given what we have said with regard to our enforcement priorities. >> did the president make -- conduct any medical or scientific survey before he waltzed into "the new yorker" and opined contrary to the position of attorneys general and presidents universally prior to that? that marijuana is not is not harmful, did he study any data before he made that statement? >> i don't know. >> did he consult with you before he made that statement? >> we didn't talk about that. >> what about this study from the american medical

association, october 2013, heavy cannabis use in adolescents causes persistent impairment in neurocognitive performance and i.q. and use is associated with increased rates of anxiety, mood, and other disorders or this report from last december, the study found that marijuana use verse abnormal brain structure and poor memory and that chronic marijuana use may lead to brain changes resembling schizophrenia. the study also reported that the younger the person starts using marijuana, the worse the effects become. would you dispute that -- those reports?

>> i have not read the report bus if they are from the a.m.a. i'm sure they are good report bus that is exactly why one of our eight enforcement priorities is the prevention of marijuana to minors. >> lady gaga said she's addicted to it and it is not harmless. she's been addicted to it. patrick kennedy, former congressman kennedy said the president is wrong on this subject. i just think it's a huge issue. i hope that you will talk with the president, you're close to him, and begin to push back, pull back from this position that i think is going to be adverse to the health of america. thank you, madam chair. >> thank you, senator. senator whitehouse. >> thank you. welcome back to congress, attorney general. thank you for the terrorism work work that you are doing as our attorney general. as a former u.s. attorney and friend of the department, i not only have my own opinion but i

have other folks who are observers of the department and i think we're very appreciative of the fine leadership you're providing the department of justice. let me talk with you for a moment about cyber. our effort to address the cyberthreat in the -- on the military side have been quite distinct and have led to the establishment of a cybercommand with two four-star generals -- with two four star generals in charge, one double headed to lead n.s.a. on the law enforcement side, our advancement has been, to put it mildly, incremental. the responsibility for cyberthreats within the department of justice themselves is divided between the dwegs and division and the

national security division and the enforcement responsibility is divided between the f.b.i. and secret service though the f.b.i. has a dominant role and by the way, does a terrific job. in the spending bill that was just passed thanks to chairman mikulski's exemplary legislative talents, there is a provision that requires the department of justice within 120 days to put forward a multiyear strategic plan for this. you know i have had this discussion with the department of justice and the department of justice has said we can't talk about this because o.m.b. is not in the room and they will whip us unmercifully if we talk about budget stuff without their presence because it will look like we're submarining the prerogatives of the white house over budget issues so we brought o.m.b. in. and those discussions have gone forward at a moderate pace.

i just wanted to flag for you this legal requirement that it be done within 120 days because i'm expecting that there will be a report within 120 days and i'm hoping that you and o.m.b. will both put considerable effort into it because if you look out four or five years at the rapid rate in which the cyberthreat is growing, in which it is morphing into more complex and varied threats, and at all the ways in which it can affect the lives of ordinary americans, i think that we are both underresourced and inadequately structured to deal with that program, that problem in the long haul. so what assurances can you give me about how you guys are going to handle this responsibility for a multiyear strategic plan on cyberwithin 120 days? >> i don't want to be alarmist, but i think the concerns that you have expressed over the

years is well founded. this nation needs to be afraid. where we could be after a cyberattack. when you see the proliferation of cybercapabilities to criminal organizations, to nation -- to nation states. our nation is at risk. our infrastructure is at risk. we as a nation have not, i think, adequately responded to it. i think the 120-day examination that we have to do to come up with this multiyear plan is indeed a good thing and we'll take it very seriously and respond within that time frame, bringing into it o.m.b. and i think bringing members of congress who have expressed an interest, you, for instance, into this process as well, at least to be a part, so we have your views in formulating what this plan is like. but we as a nation have nod dedicated the attention, the resources to a problem that is 21st century in its conception

-- inception and will be with us for, i suspect, throughout the duration of the century and is only going to get worse. the danger to us is only going to be heightened. >> i spoke to the f.b.i. cyberdivision i guess yesterday morning and used the example of the united states air force, which before the opportunity and threat of air warfare was fully appreciated began as a subcomponent of the army cigna corps and then obviously it had to grow and then it became the army air corps and finally we got a u.s. air force. i think a similar process needs to be planned for on this. the other issue i wanted to raise with you is this -- many of us have been shocked by the discrepancy between the filings that political organizations have made at the internal revenue service, promising under

oath they weren't going to spend any money on political activities, and at the same time filing declarations under oath at the federal election commission that they have spent tens of millions of dollars in political activities. i suspect that those discrepancies reflect false statements that could be prosecuted under 18 u.s.c. section 1001. there have been no cases from the department in that respect because the i.r.s. hasn't referred anything. i think the i.r.s. is frightened of the power behind the big political machines so they have chickened out and pitched it in. but now they decided to take a look at those rules. i would ask you to assign somebody on your staff to track the i.r.s. process, make sure that you are comfortable with where those rules are coming out and make sure that if there are open and notorious conflicts between foreign statements -- between sworn statements from these organizations it leaves room for the department of justice to step in and get before a grand jury and find out

if they are the prosecutable false statements they appear to be oner that face. >> i think that is something worthy of examination. i think the problem exists in that under the tax reform act, this is information called tax return information that is always guarded very zealously. there's a memoranda of understanding -- >> you don't get to look at it unless they refer to you. but when an open and notorious ax appears tbhping, i don't think there's anything that says act appears tos be happening, i don't think there's anything that says you can't say, what is going on here, they say -- these statements can not both be true. we'd like to look into it. >> i think those refer referrals only come in extraordinary circumstances and it's a question of the fining what extraordinary means.

i think that an examination of this issue makes a great deal of sense. this is not an ideological issue. this is one that groups on the left, on the right, i think should be held to the full letter of the law. >> the crime of lying to a federal official has no partisan component to it and i'd appreciate you looking at it from that point of view. i've gone over my time and i yield back. >> very good. senator cornyn. >> thank you, madam chairman. good morning. good morning, general holder. i want to introduce you to a constituent of mine and senator cruz, katherine engelbrecht in houston, texas. she founded two organizations to improve elections. she leads a coalition of citizen volunteers who work as election monitors, who provide resources

for voter registration drives and are dedicated to rooting out election fraud. yet the federal government has targeted katherine and her organizations with harassment and discrimination. in spring of 2010, true the vote and king street patriots both filed for nonprofit status. like so many organizations, they just wanted to participate in the political process. when the i.r.s. failed to respond in january, 2011, i wrote a letter inquiring about the status of true the vote's application. a few weeks later, the now notorious cincinnati office of the i.r.s. began a series of gratuitous and invasive inquiry into mrs. engelbrecht's organizations. this investigation but so over the top that the federal government demanded, among other things, every facebook post and every tweet that she'd ever posted.

for more than three years the i.r.s. denied true the vote and king street patriots the nonprofit status they requested and subjected both of them to this kind of harassment. this kind of abuse of power was not limited to the i.r.s., however. according to c.b.s. news within two months, or within months of true the vote's filing, two arms of the justice department targeted her. the f.b.i. made calls to king street patriots and attended some of its meetings. and the a.t.f. has twice audited her business. coincidence? maybe. but where there's smoke there's fire. the i.r.s. finally, three years after they applied, granted true the vote's tax exempt status it requested. but we now know that true the

vote was just one of the conservative organizations targeted were discrimination, harassment and intimidation by the federal government, the i.r.s. in particular. i.r.s. officials at the highest levels targeted the leaders of conservative organizations based solely on their political beliefs. in this case, the intimidation tactics were shocking. threatening to bankrupt an american family and the business they built simply because they dared criticize the federal government. this is chilling. and it should be unacceptable in the united states of america. the president, his credit, agrees that this is a terrible abuse. he called the i.r.s. scandal intolerable and inexcusable and called for those guilty of this misconduct to be held accountable. but when your department was asked to step in and

investigate, no one has been held accountable for this abuse. in fact, your department installed a political donor of the president's to lead the investigation. according to -- appointing a political donor to investigate a political activity is, i think, calls the entire investigation into question and i can't imagine how this would be designed to instill public confidence in the investigation. now f.b.i. director -- the f.b.i. director said this investigation was an important one for his agency. now it's been peculiarly reported that the department will not pursue criminal charges against any i.r.s. official even though the f.b.i.'s investigation has not yet been concluded.

and shockingly, the department made this decision, if it's true, and you can certainly confirm it or refute it if it's not, they made the decision without even talking to katherine englebrecht. i talked to her yesterday, she verified she has not heard a word from the department of justice or the f.b.i. so i would like to know, general holder, what you have to say to her and to other americans who spent thousands of dollars defending themselves against harassment by the internal revenue service for daring to exercise their constitutional right to participate in the political process. and i'd like to ask you whether you will agree to make sure that your department consults personally with every victim of this type of intimidation by the federal government. and if you can tell us what kind of accountability can the american people expect from this abuse of power.

>> well, what i would say first off, i don't remember the exact words that i used but shortly after the president made the statements that you made, i expressed similar concerns and i actually, i was the one who ordered the investigation into this these matters. they are being handled by the criminal division in the justice department, the civil rights division in the justice department, the treasury inspector general and the f.b.i. as you indicated. this is a matter that's an open inquiry, it's still going on.

press reports, i think if you're referring to with regard to how the case is ultimately going to be decided is a press report. the reporters who have made those assertions are not people privy to what is actually going on in the investigation. it is something, as i said, that is open. the investigation is proceeding. >> is there still potential for criminal charges to be brought in connection with the investigation since it's -- since it has not been concluded? >> obviously all the options we have oare on the table given the fact that there has not been a determination to bring charges or decline the case. >> don't you think it's the response thovelt department to actually contact the people with the most information about what exactly happened like this victim of this abuse of power, like katherine? >> i'm not familiar the woman who you referred to but i have confidence in the career people at the f.b.i. and the other investigative agencies to conduct a thorough, comprehensive investigation and that's what i would expect of them. that's why matters like this take as long as they do. >> would you please in conclusion, i know my time sup, would you commit here to me, publicly, to contact katherine and get her side of the story? or have somebody on your staff do so?

>> the determination as to who gets interviewed will be made by the career people conducting the investigation. i don't want to cast any doubt on what you said, she seems leek a logical basis of -- she seems like a logical person to talk to on the bay sofse what you said, i don't have any knowledge of what her involvement is but that's something i leave to the people who are, as i said, career professionals to make determinations as to who needs to be interviewed. >> i hope the department would talk to the victim. >> thank you, senator car ornyn. i'm turning the gavel over. i also want to express again to the attorney general my appreciation not only for being here but being available to so many of us on this committee on both sides of the aisle whenever we've called you. i appreciate that that has not always been the precedent in the department so i appreciate the fact that you've always been

available. >> thank you, mr. chairman. i want to make sure my republican colleagues are aware of the fact that the state of minnesota has not had a full- time u.s. attorney for 882 days. this came about because our u.s. attorney was appointed to head up the a.t.f. after the mess with fast and furious, he did an able job, he is now, through the vote of the senate, the director of the a.t.f. but during that time, for two year, he was a part-time u.s. attorney and in fact he was at the a.t.f. much more than the u.s. attorney. during that time the drug prosecutions have gone down remarkably. i've had federal judges call me repeatcally, i've had the f.b.i. director call me in minnesota repeatedly and we now have a very good candidate supported by

law enforcement, re-- supported by the republican congressman, but now is on hold because the senate decided not to take up unanimous nominees and it is being blocked. we have a situation where over 100 people are working now for 882 days without a full-time boss and i just think it is absolutely outrageous when minnesota -- outrageous. when minnesota became a state, we got our u.s. attorney through president zachary taylor in two days and we have not had a full- time boss for 882 days. this is the office that prosecuted the second biggest white collar case next to madoff in the last few years. this is the office that dealt with what have been the additional terrorist for 9/11. this is the case of the office that handled numerous complex cases and been one of the best u.s. attorney's offices. i fear knowing half the people who worked there that worked for me when i was a prosecutor, there's a decline in morale,

they need a boss. i'm angry ability this. -- i am angry at everyone about this. when senator grassley and i both have a u.s. attorney, when senator grassley has criticized the minnesota office because of the crime numbers, we need a u.s. attorney. >> i agree with you. and the point you made at the end is one that's extremely relevant and one that i hope the senate will consider. this is not simply a united states attorney for minnesota. we have a united states attorney in iowa who needs to be confirmed. we also have other people in the justice department who are awaiting confirmation and who are on the floor.

and who traditionally, these are people who are not very -- they're not controversial at all. they are simply waiting to go through the normal senate process which is usually by unanimous consent. i would hope that we would get to the point where that process can be begun again so we can have installed, senate-confirmed people in these positions buzz it does matter having a senate- confirmed person either as united states attorney, assistant attorney general, it matters. so that is something that i hope we would be able to work our way through. >> i appreciate that. and i would suggest that no one allows to go this long with a job share. i understand it but because our congress hasn't been eable to -- been able to approve people for the a.t.f. or approve people, with a u.s. attorney's office that needs a u.s. attorney, we can't take responsibility to do that job and because of that no one should ever allow their u.s. attorney to take another job at

the same time. we can't hand they will responsibility of confirming a replacement or confirming that person for that job. so we deserve what we get if that's what happens. i want to turn to something else which is sex trafficking, something that senator cornyn and i have a very strong bill with a lot of support, bipartisan support, literally takes minnesota's safe harbor model which has been very good for us in our state, just getting started but we had last month a 40-year sentence against the head of one of these rings and if you could talk about the president's interagency task force, what's going on, the super bowl is approaching this weekend, which is a concern which many have raised in terms of the uptick in the number of sex trafficking ads in dallas in 2011, there was a 300% increase in people advertising super bowl specials. can you talk about that?

>> one thing i think you said, something our country needs to take note of. where super bowls locate, you see a decided increase in human trafficking. you see young girls, women, brought into these areas for ill icit sexual purposes. that is an ugly thing that this nation has got to confront, got to deal with but it is just indicitave of a larger problem that is -- the scourge of human trafficking, trafficing is a top priority for the justice department, it's a top priority for me as welch we need to stop, we need to have effective mechanisms to investigate and hold accountable people who would engage in these activities, we need to see the young women who are involved in this as victims, not as criminals and come up with rehabilitative services for them. we have a proposal, a proposal that you have made, with regard to getting trafficking experts together to look at this problem

and come up with ways in which we are more effective in dealing with this issue. it is one that i fully support. we also have to deal, i think quite frankly, with the way in which this is advertised in the media. there are certain publications that make it known that young women -- ads that are published are available for these inappropriate sexual purposes and that is something that we need to deal with as well. we as a nation are not dealing with this nearly as effectively as we can. we have specialists in our u.s. attorney's offices trying to deal with he issue but we need to help our state and local partners as well. >> thank you. last thing, synthetic drugs, something that senator schumer and senator grassley and senator feinstein and i have worked on, with others in this room. this is the new drug on the scene. we have had several people die

in our state and i did want to thank you and the u.s. attorney's office for the prosecution in duluth, minnesota, major head shop owner, they've been going on, people literally laying on the streets from these sin at the drugs,these synthetic and we're waiting for sentencing, but it was a major prosecution and the shop has been shut down, the guy in charge, they just found something like $700,000 in bags hidden in his bathroom and i just want to thank you for that work. >> it's an issue again that we need to confront. there's this myth among young people that these synthetic drugs are not dangerous. we have to dispel that myth. our d.e.a, drug enforcement administration, is really devoting a lot of time to dealing with these issues. we've had a number of significant busts. but i think there also is an educational component to this that we really have to focus on young people about the dangers of these drugs that are marketed in such a way to make them think that there are no dangers in

using them. >> very good. thank you very much. i believe senator lee is next. >> thank you, madam chair and thank you, general holder, for joining us today. i appreciate the support you expressed earlier for the smarter sentencing act. i appreciate the opportunity to work with senator durbin on that and welcome the support of my colleagues. as we try to move forward in a way that makes our law enforcement efforts more effective. and make sure that we don't continue to escalate our federal prison population at a rate of about tenfold as we have over the last 30 years. one of the -- i wanted to talk to you first about metadata. regardless of how you read smith vs. maryland, and regardless of whether you think under smith vs. maryland and its project

-- and its progeny a constitutional case can be made for the collection of this data as it relates to american citizens, wouldn't you agree that at some point, when you amass an enormous volume of metadata on american citizens, and you retain within the federal government the capacity to search that data, targeting potentially specific americans, that gives the u.s. government a lot of power to peer into things that are by their nature very private. >> yeah. and it's one of the reasons why in the interim, before we come up with whatever our proposals are going to be, the president has indicated that in querying that database now, we should only do so through the judicial authorization. that may be something we want to enshrine in the program. that is what the president has asked us to do in the interim. unless there is an emergency situation. >> so you would make that tantamount to a warrant in other words. because right now what you have are internal operating procedures, internal regulations

that can be changed. whereas if we put that in law, that would provide greater protection. >> i think we want to try to work out who the mechanism might be so we would afford the appropriate amount of protection while at the same time not having the negative impact on the operational abilities of people who need to potentially get access to that information on a pretty quick basis. although there may be billions of records in those bases, i think the number from last year was in terms of the numbers of queries that were made was about 300 or so. >> i understand. i think for purposes of this discussion, even if we were to assume that all of the men and women serving us within the n.s.a., even if they are acting in good faith and abiding by their own rules, at some point there is a very grave risk of abuse. i don't know whether that might happen day from now, a year from now, 10 years or 20 years from how to.

we have seen this movie before. we know how it ends and we know that it's not pleasant. this will be abused unless we put in place some very significant restrictions. i heard you mention a few minutes ago in response to some of the questions asked by senator grassley that it's the president's preference to work with congress. and that wherever possible he'd like to get congress to agree with him, to pass legislation that he would like. but of course the other side of that coin is something that the president referred to repeatedly last night in his state of the union address. which is that if he can't get congress to act, he'll go it alone. if congress won't act the way he wants congress to act, then he'll issue an executive order any time he gets the chance. this brings to mind a concern that i've had as to whether or not sufficient analysis is being undertaken when these executive orders are issued. as you know, you know, the

supreme court has since justice jackson's concurrence in certain cases, when that jackson concurrence was adopted by the majority of the court, it has tended to separate out executive orders into three categories. you know, in category one you have a situation where congress acts pursuant to authorization by congress. and that's where his authority to act with an executive order is at its strongest. category two is where you have the president acting in the absence of either a congressional authorization or a congressional prohibition. justice jackson described this as sort of a twilight zone where it's a little unclear, it's a little murky. category three is where you have the president taking measures that are incompatible with congressional command. so, i would ask, number one, is

this analysis undertaken each time the president issues an executive order? and, number two, was that kind of analysis undertaken when the president, for example, announced on july 2 of 2013, that he would not be enforcing the employer mandate of the affordable care act throughout the duration of 2014? even though by law the employer mandate was set to take effect, as of january 1, 2014. >> before the president exercised the executive authority that he discussed last evening, and again i want to preface that with i think the pretty clear indication from the president that he wants to work with congress on behalf of the american people. in in the absence that have kind of activity, as he's done with regard to raising of the minimum wage, he's used his executive authority or will use it to raise the minimum wage for those who do business with the federal government.

those kinds of activities by the president are done after consultation with the justice department and an analysis is done to make sure that the president is acting in an appropriate and constitutional way. and those three categories that you talked about, that we all studied in law school from justice jackson, are among the things that obviously are part of the analysis. where the president's authority is greatest, a that twilight zone, and then where the president's authority is weakest. >> so in which of those three categories would you put the president's decision to delay the enforcement of the employer mandate? is that category one, two or three? >> i'll be honest with you, i don't remember looking at or having seen the analysis in some time. so i'm not sure where along the spectrum that would come. >> how about the executive order that he proposed last night with regard to minimum wage? would that be category one, category two or category three? >> again, from -- without having delved into this to any great

degree -- >> but you're the attorney general. i assume he consulted you. >> there have been consultations done with the justice department. from my perspective,, i think that would put us in category one. given the congressional involvement in the matter, the ability of the president to regulate things that involve the executive branch and how contract something done. seems to me that the president is probably at the height of his constitutional power in that regard. >> so you're saying there is a federal statute that authorizes him to issue the executive order regarding the minimum wage? >> i think that there's a constitutional basis for it and given what the president's responsibility is in running the executive branch, i think that there is an inherent power there for him to act in the way that he has. >> and with regard to the employer mandate? >> again, as i said, i've not had a chance to look at it for

some time, exactly what the analysis was there. i don't know what category. give than we're talking about a statute passed by congress that delegates, devolves to the executive branch certain authorities, i would think that you're probably in category one there as well. again, i've not looked at the analysis in some time. >> i appreciate your candor on that and i see my time's expired. i'd like to point out that this is, very important and it's one of the reasons why it could be very helpful for you to release legal analysis produced by the office of legal counsel or whoever is advising the president on these issues. it's imperative within our constitutional system that we not allow too much authority to be accumulated in one person.

and it's one of the reasons why we have a constitution, to protect us against the excessive accumulation of power and i think the president certainly owes it to the american people and you owe it to the president, as his attorney general, to make sure that when he does act by executive order, that he do so clearly and clearly state the basis of his authority so that the american people can be aware of what's happening and on what basis he's claiming that authority. i look forward to hearing your explanation. perhaps you can submit something to us in writing after this hearing about his basis for making some of these decisions, particularly with regard to the delay of the employer mandate. thank you. >> let me just say that i have great respect for your legal analytical skills. clear you're your father's son. but i also want to assure you and the american people that the president will not act in a way that is inconsistent with the

way other presidents have acted in using their executive authority. he has made far less use of his executive power at this point in his administration than some of his predecessors have. and he will only do so, as i indicated previously, where he's unable to work with congress to do things together. and that is the desire of the president, to work with congress to deal with the issues that confronts the american people. >> i respectfully but forcefully disagree with the assertion, if this is what you're saying, that because the number of executive orders issued by this president might be comparable to the number of executive orders issued by previous presidents, that that means that he hasn't made more use of it than other presidents have. when you look at the quality, not just the quantity, but the quality, the nature of the executive orders that he has issued, he has usurped an extraordinary amount of authority within the executive branch. this is not precedented.

and i point to the delay, the unilateral delay, lawless delay in my opinion, of the employer mandate as an example of this. and so at a minimum i think he owes us an explanation as to what his legal analysis was. particularly given the fact that it's difficult to imagine who's got standing to challenge this and it's difficult to imagine who, if given -- if acquiring the standing to challenge this, could do so in a timely enough manner so as to avoid a mootness problem in the case. so it's all the more reason why it's important in this case. thank you very much. >> we have to separate then. i mean, with regard to the notion that there's a usurpation or that the president has acted in a lawless way. i think that's totally inconsistent with what the president has done and what his desires are to do. >> very good. >> thank you, madam chairman. i want to begin, i hadn't planned to begin this way, but i

want to begin by respectfully taking issue with my colleague, senator lee, and say that the use of executive orders in the past has been very sparing and cautious and in fact in my view, the numbers of executive orders, which have been far less than any recent president, reflect that very sparing and cautiousness in my view too cautious and too sparing, and i applaud the president's apparent determination to use his authority more aggressively and more vigorously in areas that matter so much to the well-being of the american people, particularly when it comes to economic opportunity, as well as to immigration and veterans issues. the basic concept here is that the president is using his authority. whether you adopt the construct of three categories or any other

method of analysis, at the end of the day, the president is simply executing the law. and using authority that has been granted to him by congress for the well-being of the american people. to protect their health and safety and to advance the national interests. in my view, and i've expressed this view through the subcommittee that i chair on regulation, in some instances the delay in using that authority has been more on the side of caution than on the side of how aggressively it should be used. so, i think your position that any use of executive power will be in accordance with the law and its legal authority, clarifies the point that i think has been missed in a lot of the reaction to the president's speech, where some of his critics have said that he's going to be legislating or

bypassing the congress. in county fashion he is using legislation that has granted him authority. let me just say on the issue of sex trafficking, i welcome your comments on that score. i've proposed a resolution, bipartisan resolution with my colleague rob portman, who is not a member of this committee, basically saying that there should be more vigorous enforcement of these laws, particularly around the time of the super bowl. because the trafficking on websites like backpage.com tends to increase during this time. so i welcome your comments. and let me just add briefly, to take senator leahy's comment, i want to thank you and the department of justice for really over these past years viewing these legal issues on their merits, on their legal merits, putting politics aside. the justice department went through a dark period in my view under a previous administration

when politics all too often became a part of the analysis and i want to thank the career justice department employees who work so hard and long under you to make sure that the rule of law is preserved. let me turn to a part of the president's speech where i might have hoped he had said more on the issue of preventing gun violence. the mention by the president was very brief. but i hope and i hope you will join me in the view that the president remains completely committed to ending gun violence in this country, adopting commonsense sensible measures like background checks and mental health initiatives, a ban on straw purchases and illegal trafficking. the bill that was before us

unfortunately failed to pass. but i'd like your commitment on behalf of the administration that he remains resolutely and steadfastly in support of these initiatives. >> yes, we do still have that commitment. the worst day that i've had as attorney general of the united states was the day that i went to newtown to thank the first responders, crime scene research officers who were there and they took me on a tour of that school. and if people had the ability, if the american people, if legislators, members of congress had had the ability to be with me on that day, to walk through those classrooms and see the caked blood, to see the carpet that i didn't understand when i saw it, carpet picked up and i realized that was -- that's where bullets had gone through and picked up the carpet. if people had seen the crime scene search pictures of those little angels, i suspect that the outcome of that effort that

we mounted last year would have been different. our resolve remains the same. my resolve is as firm as it was back then and i think what we should also understand is that the vast majority of the american people still want those commonsense gun safety measures that we advanced last year. our commitment is real and we will revisit these issues. >> and on the subject of the use of the president's authority, my hope is, and i would urge that he take whatever action is possible, as he has done in a number of steps already, and as you have done in trying to clarify the mental health issues that have to be reported to the system, my hope is that additional measures, executive actions are contemplated under that authority.

>> the president -- it is his intention to again try to work with congress. but in the absence of meaningful action to explore all the possibilities and use all the powers that he has to frankly just protect the american people. >> thank you. one last subject. i am hoping that the administration will also explore very vigorously what it can do to stop sexual assaults on campus. i applaud the president's initiative and you were part of a task force that was appointed. the council on women and girls very recently emphasizes how pressing and pervasive this problem is on our campuses. i am attending an initiative in connecticut to try to raise awareness about it. and i'd like your commitment that you will work with me and others on this committee on this issue.

>> look forward to working with you on that very important issue. the statistics are very alarming. 20% of all young women are either sexually assaulted or an attempt made at a sexual assault. usually who are in college, usually this happens in their freshman or the early part of their sophomore years. we are going to try to use those kinds of statistics and the work of this task force that the president has put together to try to deal with that issue and we will look forward to working with you and other members of congress in trying to come up with meaningful ways that we can deal with an issue that has too often been, if not ignored, not given the attention that it deserves. thinks thato one this issue merely involves rhetoric, there is a legal basis. statutesix and other protecting women against ongoing assaults and