KYL:
Thank
you, Mr. Chairman. If that's all right with you, Mr. Holder -- and by the way,
I think Herb may just be look for some new talent for the Bucks. Be careful
there.
(LAUGHTER)
It's
good to visit again. And I appreciated our discussion in which we discussed a
wide range of issues. And as I mentioned at that meeting, one of the first
things I did like to do is to just have you state for the record your views and
commitments you made regarding the whole series of issues that we discussed.
The
first one relates to DNA. As we discussed last December, the Justice Department
published regulations that require federal agencies to collect DNA samples from
individuals who are arrested under federal authority and from illegal
immigrants who are being deported.
The
regulations require these agencies to collect DNA samples at the same time that
they take fingerprints and mug shots. The Justice Department is charged with
implementing and administering the new regulations. It's the department's job
to ensure that the DNA samples are collected and analyzed.
Mr.
Holder, if you're confirmed as attorney general, will you see to it that the new
DNA regulations are enforced and that DNA samples are collected and analyzed as
required under the new rules? And will you seek sufficient resources to
implement the regulations?
HOLDER:
Yes,
I will, Senator. The collection of that evidence is, I think, critical for
crime solving. You use of DNA evidence is often seen as a way in which people
who are charged with crimes are absolved. And that certainly is a beneficial
effect. But I think, too often, people forget that the collection of this evidence
is a very important crime-fighting tool.
And
so I will support those regulations. I think, as you indicated, it's entirely
possible that one of the things that we're going to need are additional
resources to make sure that we have the capacity, the ability to do that job in
the way that Congress intended.
KYL:
And
I'll do my best to help to make sure Congress supports the resource
requirements.
Next,
capital habeas. As you know, in 2005, Congress passed an amendment that will
implement the opt-in system for a faster review of state capital cases in
federal courts.
The
amendment requires of
If
you are confirmed as attorney general, will you review the state of
HOLDER:
I
will take my obligations seriously under those regulations and look at the
evidence that the states provide with me that they have complied with the
regulations. And to the extent the states do, I will give the relief that is
dictated by those regulations.
I
want to make sure that, in fact, the resources in capital cases that the
regulations call for are provided to defendants. But for states that actually
do meet those requirements, I will check the necessary boxes.
KYL:
And
what you stated, I think, is absolutely true. We're just interested that it
doesn't drag on beyond the time that normal review process would require.
Next,
we talked some about FISA. One of the amendments to FISA deals with the
so-called lone wolf terrorists. These are individuals who have believed to be
involved in international terrorism but who we, at least, don't have any
evidence that they are actually taking orders from a particular organization.
And
the provision was enacted specifically because of the FBI's previous inability
to obtain a warrant to monitor Zacarias Moussaoui, the co-conspirator in the
9/11 plot who was arrested before the attacks but who could not be searched
pursuant to FISA because despite his likely involvement in preparations for
terrorism, agents could not link him to Al Qaida or any other group.
The
lone wolf provision needs to be reauthorized by the end of this year. Will you
support reauthorization of FISA's Lone Wolf Surveillance Authority?
HOLDER:
I
expect that I will. There are three provisions that are up for reauthorization.
What I'd like to do is examine how those provisions have worked, talk to
people, investigators and lawyers, and get a sense of what it is they think has
worked well with regard to those provisions, what perhaps needs to be changed.
At
least a couple of those provisions were contained in a proposal that President
Clinton made back in the late '90s and I went before a couple of congressional
committees seeking their institution. One of them was lone wolf and the other
had to do with roving surveillance.
So
I would expect that, with regard to those, I would probably be supportive of
them.
KYL:
And,
in fact, let me just discuss this because we discussed all three. And these are
the other two.
One
is the reauthorization of the Patriot Act's multi-point wiretap authority and
the other is reauthorization of Section 215 of the Patriot Act.
When
we discussed this, I neglected to note -- although you're probably aware --
that unlike the typical administrative subpoena, this requires a judicial
approval before it's granted. First, with respect to the multi-point wiretap authority,
would you support reauthorization of that?
HOLDER:
Again,
I would like to have some interaction with the people who are responsible for
the use of that tool. It's a very useful tool. And make sure they're satisfied with
the way in which it is presently constructed. But I would expect that I would
be able to support that.
KYL:
And
with regard to Section 215 orders as well?
HOLDER:
That's
one that I think has certainly generated more controversy, I believe, than the
other two. And I think that the examination, the questions that I need to ask
people in the field and who have been using that, I'd want to know as much as I
possibly can.
But
as I said, the tools that we have been given by Congress in FISA are important
ones. And so I would look at all three of these and make the determination as
to whether or not I will be able to support them. But I would expect that I
would.
KYL:
We
also discussed -- let's see here -- the operation streamline -- I'll tell you
what. Before I ask that, we discussed the warrantless surveillance. Since
that's somewhat related to this, you indicated that comments that you had made
in a speech on June 13, 2008 were directed to the status of the law pre-FISA
modifications from the legislative branch when Congress later -- I believe it
was the next month -- modified the FISA law, there was an explicit type of
search that was provided allowing warrantless monitoring of suspected
communications of international terrorists predicated on the principle that the
4th Amendment gives greater leeway to intelligence investigations of foreign
threats.
Do
you agree with that general principle? But more importantly, in the context of
our conversation, do you believe the new law is constitutional? And if
confirmed, will you support its enforcement?
HOLDER:
Yes,
I believe that the law is constitutional. One of the things that I think is, in
some ways, regrettable is that the program -- that I've not been read into and
I don't know all the dimensions of it -- but as I understand it that program is
a very useful tool. It's a very essential tool for us in fighting terrorism.
I
think that what was unfortunate is that we could have had that tool
congressionally sanctioned at a much earlier stage. I think that, as we saw in
the Steel Seizure concurrence of Justice Jackson, the president has his
greatest power when he acts consistent with congressional directives. And I
think that, in this instance, that's instructive.
Had
the administration come to Congress and asked for that enhanced authority many
years before, I have no doubt that Congress would have granted him that tool.
Having done that though and having had Congress say that this is an appropriate
thing to do, I think, as I said, that is a very useful tool and one that we
will make great use of.
KYL:
We
discussed, in the context of illegal immigration, an operation called Operation
Streamline by the Border Patrol. And there's a Department of Justice aspect to
this.
Essentially,
that's been utilized in two Border Patrol sectors. A third one is now underway.
I specifically discussed the
And
that resulted in extraordinary disincentive for them to try to cross illegally.
In the
However,
as with so many of these other things, it requires resources. And in that
regard, a lot of the resources fall on the Department of Justice side. I hope
I've gotten to you already, but I promised I would get you a letter from Judge
John Roll who is the chief judge for the Arizona district, in which he outlines
some of the requirements for additional judges, magistrates, U.S. marshals,
prosecutors, defense attorneys, as well as the hearing space and detention
facilities.
And
if you'd like to address all of those things individually, fine. But just as a
general proposition, if you are confirmed, will you support the appointment of
the additional personnel and the resources for the items that I mentioned to
try to continue to expand Operation Streamline for as long as we may need that
along our southern border in order to help deter illegal immigration?
HOLDER:
Senator,
that was -- I did not -- I was not aware of that operation until you brought it
to my attention during our meeting. I think it's actually a pretty interesting
concept and, I think, one that ought to be explored and I'd want to work with
you all to see if it's something that can be expanded.
I
think one component of it -- at least, as I understand it. You can correct me
if I'm wrong -- for an initial -- the first time a person comes across, I don't
think they're jailed. I think the person is warned and then is put in jail the
second time?
KYL:
It's
after the first crossing. In other words, it's for repeat offenders.
HOLDER:
Repeat
offenders, yes. And I think that is something that is worth looking at.
One
of the things that has always worried me is that a disproportionate share of
what is a national problem is borne by the states along our southern border.
Resources that need to be directed to what is, in essence, a national problem
are too often not sent to the place where it is really needed. The states of
So
my commitment would be to try to work with you, as I think we have in the past,
to try to determine what resources are necessary and what programs would be
good to try to affect a reduction in the number of illegal immigrants who come
across those borders.
KYL:
I
appreciate that. I just introduced your good friend and colleague, Governor
Janet Napolitano, from
Holder does not say he is going to suspend or amend the regulations. He says he will enforce the requirements in the regulations. The requirements in the regulations are only those in the statute, which expressly forbids adding additional requirements. The ABA and the usual suspects called on DoJ to spit in the face of Congress and add additional requirements anyway (as the Ninth Circuit did in Spears v. Stewart, which is why Kyl put that language in the bill). Holder says he is just going to enforce the regulation. We will be watching carefully to see that he keeps his word.
Kyl said he hopes DoJ will not drag its feet in ruling on state applications, but regrettably he did not extract a commitment to that effect from Holder. That would be a good item for a follow-up question, in writing if not in the hearings. Because the statute provides for de novo review by the D.C. Circuit, simply getting DoJ to get off its duff and decide may be more important that what it decides.
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