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House of Representatives,
Committee on the Judiciary,
Washington, DC.

    The committee met, pursuant to notice, at 10:06 a.m., in room 2141, Rayburn House Office Building, Hon. Henry J. Hyde (chairman of the committee) presiding.

    Present: Representatives Henry J. Hyde, F. James Sensenbrenner, Bill McCollum, George W. Gekas, Howard Coble, Lamar S. Smith, Charles T. Canady, Bob Inglis, Bob Goodlatte, Steve Buyer, Ed Bryant, Bob Barr, William L. Jenkins, Asa Hutchinson, Edward A. Pease, James E. Rogan, Lindsey O. Graham, John Conyers, Jr., Barney Frank, Howard L. Berman, Robert C. Scott, Melvin L. Watt, Zoe Lofgren, Martin T. Meehan, and William D. Delahunt.

    Staff present: Jon Dudas, staff directory/deputy general counsel; Diana Schacht, deputy staff director/counsel; Rick Filkins, counsel; Sharee Freeman, counsel; Rob Corry, counsel; Ray Smietanka, chief counsel, Subcommittee on Commercial and Administrative Law; Shawn Friesen, staff assistant; Shelly Pelletier, office manager and clerk; Annelie Weber, assistant to the staff director; Julian Epstein, minority chief counsel/staff director; Perry Apelbaum, minority general counsel; Stephanie Goodman, minority counsel; and Maria Tamburri, intern.

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    Mr. HYDE. [presiding] The committee will come to order.

    The subject of this morning's hearing is the reauthorization of the United States Department of Justice. We welcome Eric H. Holder, our new Deputy Attorney General, who will be testifying this morning, and in addition, Stephen Colgate, Assistant Attorney General for Administration, has accompanied Mr. Holder to answer any technical questions regarding the Department's budget request.

    Authorization is the process by which Congress creates, amends, and extends programs in response to national needs. Authorization is perhaps the most important oversight tool that a committee can employ, and today's hearing is a culmination of extensive oversight of the Department that began early last year.

    Through authorization, legislative committees establish program objectives and set ceilings on the amounts that may be appropriated for them. Once a Federal program has been authorized, the Appropriations Committee recommends the actual budget authority, which allows Federal agencies to enter into obligations and actually spend the money that's authorized.

    Until recent years, many authorizations were permanent, being provided for by the statutes that created the agencies and programs. Today Congress typically authorizes appropriations for a limited period of time. Authorizations may extend for 1, 5, or even 10 years. With respect to the Department of Justice, the law requires that all money appropriated must first be authorized by an Act of Congress. Notwithstanding this obligation to authorize, Congress has not properly reauthorized the Department's activities as a whole since 1979. Since that time, several attempts have failed, either because of bad timing or because the reauthorization bills were loaded with controversial amendments. This 19-year failure to properly reauthorize the Department has forced the Appropriations Committee in both Houses to reauthorize and appropriate money.
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    The de facto ceding of the authorization power to the appropriators has diminished the role that the House and Senate Judiciary Committees have traditionally played in overseeing the structure and funding of the Department's activities. The unwillingness of this committee to regularly reauthorize the Department deprives the Congress of the institutional knowledge and collective wisdom that it has gained through the regular oversight of the Department.

    H.R. 3303, the Department of Justice Appropriation Authorization Act, is both an attempt to improve the efficiency of the Department and an opportunity to reaffirm the authorizing authority and responsibility of the Judiciary Committee. This reauthorization endeavor is supported by the substantial oversight that the committee has conducted, and will continue to conduct, during the 105th Congress.

    Let me say a little about the Justice Department itself. The Department is the premiere law enforcement institution in the world, with more than 108,000 employees. The Department plays a primary role in protecting American citizens against criminals and subversion, in ensuring healthy competition of business in our free enterprise system, in safeguarding the consumer, and in enforcing drug immigration and naturalization laws.

    The Attorney General presides over a Department that has become increasingly decentralized. The vast majority of the Department's litigation is handled by the 94 U.S. attorneys' offices around the country with little or no participation from main Justice.

    While the Department overall does an outstanding job carrying out its mission, it certainly is not without its problems. Last year, for example, this committee examined seriously operational failures in the FBI and the Immigration and Naturalization Service. Some of these problems were caused, in part, by the Department's rapid growth during the past 15 years. For example, in 1981, the Department had an annual budget of only $2.3 billion. That's 1981. By 1993, its budget had grown to $9.8 billion, and the number of prosecutors doubled.
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    The budget request for fiscal year 1999 tops $20 billion, a 4.4 percent increase over the current fiscal year. This unprecedented growth was justified by the explosion of crime during the 1980's and 1990's, and the Department's ever-increasing responsibilities in enforcing the Nation's criminal and civil laws. There's no doubt that Congress' investment in the Department has played a role in the dramatic drop in crime that has occurred across America over the past couple of years, and there's little doubt that Congress will continue to support the government's war on crime to help make this drop permanent.

    Let me briefly summarize the reauthorization bill we have introduced. It has four titles.

    Title I authorizes appropriations to carry out the work of the various components of the Department of Justice for fiscal years 1999, 2000, and 2001. H.R. 3303 proposes a 3-year reauthorization for the simple reason that a 3-year reauthorization is a more realistic cycle for the Congress. Moreover, I believe a 3-year authorization can accurately project the needs of the Department in the out years, where a longer authorization—for example, 5 years—cannot.

    Title I adheres to the Department's budget request for fiscal year 1999. Although the Department provided substantial technical assistance to the committee in the drafting of H.R. 3303, and we appreciate that assistance and cooperative spirit, it is not yet in a position to project its budget numbers for fiscal years 2000 and 2001. The bill will, however, give the Department an overall 5 percent increase for fiscal years 2000 and 2001. These proposed increases, though an approximation of the Department's actual budgetary needs, track the historical trend. The committee can have a high degree of confidence that the H.R. 3303 appropriation authorization for fiscal years 2000 and 2001 is accurate.
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    Section 151 of title I is a modest attempt to increase the productivity of lawyers who litigate criminal and civil cases for the Department across the Nation, but who are based in Washington, D.C. This provision would require the Attorney General to transfer 200 lawyers of her choosing from main Justice to U.S. attorneys' offices—again, of her choosing—where they can be more effectively and efficiently utilized.

    It would put 200 more assistant U.S. attorneys on the front lines, where they can do the most good. The rationale behind this provision is very simple. An attorney for the government is most effective when he or she lives in the Federal judicial district where his or her cases are pending. Trying to litigate a case from Washington is like being a ball player who's playing an away game; you're always at a disadvantage when you're playing on someone else's turf. It's not the most practical cost-effective way to investigate and prosecute a case.

    This transfer provision in no way is meant to denigrate the fine work of the many trial attorneys who are based in Washington. Main Justice will always play an important support and oversight role vis-a-vis the U.S. attorneys' offices. This provision offers a way for the Department to more effectively utilize its litigating staff, and will give the taxpayers more bang for their buck.

    Let me add that the number of transfers proposed by H.R. 3303, 200, is the best estimate that staff could provide, given the paucity of information made available to it as to how many litigating attorneys work at main Justice. We welcome the Department's input on this provision in an effort to make sure we get the number right.

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    Title II of the bill reauthorizes for 3 additional years several successful programs whose authorization will expire at the end of this fiscal year. Those reauthorized programs will, for example, combat violence against women, expedite the deportation of aliens who have been denied asylum, and fund additional training for law enforcement officers.

    Title III would grant permanent authorizing authority for numerous noncontroversial functions of the Department inherent in its operations. The Department should have the authority to purchase automobiles, firearms, ammunition, and uniforms for its employees. The Department has requested permanent enabling legislation in the past, and it has appeared in several reauthorization proposals since 1979. Title III largely mirrors the versions appearing in these earlier bills except to the extent that it's been updated to meet the changing needs of Federal law enforcement in the 1990's.

    Title IV would, among other things, repeal the permanent, open-ended authorization of the United States Marshals Service. The Service's permanent authorization is an anomaly among the Department's components that immunizes it from congressional scrutiny. It should be subject to the same oversight that other components of the Department are. H.R. 3303 would grant the Marshals Service narrower permanent authority in line with the permanent authority to be granted the rest of the Department.

    I'm very pleased that my friend and colleague, the ranking member from Michigan, has agreed to co-sponsor this legislation. It's my hope that reauthorization will move forward with bipartisan support. We all have our policy differences with the Department, but let's keep them in perspective as we undertake this important and too long neglected aspect of this committee's duty to oversee the Justice Department.
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    With that said, I will ask Mr. Scott if he has an opening statement.

    Mr. SCOTT. I don't have an opening statement, Mr. Chairman, but on behalf of our side, we would like to welcome Mr. Holder and look forward to his testimony.

    Mr. HYDE. Thank you.

    Mr. Canady, do you have a statement?

    Mr. CANADY. No, Mr. Chairman.

    Mr. HYDE. I can't see Mr. Goodlatte. Mr. Rogan? Very well. Oh, Mr. Delahunt, I'm sorry. Your white hair dazzled me. [Laughter.]

    Mr. DELAHUNT. It was just simply a reflection.

    Mr. HYDE. I thought it was a halo.

    Mr. DELAHUNT. It is a halo. [Laughter.]

    Mr. HYDE. We're delighted to have with us the Deputy Attorney General of the United States, Eric H. Holder, a graduate of Columbia Law School. Mr. Holder began his legal career as a prosecutor with the Department's Public Integrity Section in 1976. While there, he participated in a number of high-profile prosecutions of public officials from New York to Florida.
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    In 1988, Mr. Holder was nominated by President Reagan to become an Associate Judge of the Superior Court of the District of Columbia. He served on that bench with distinction for 5 years, presiding over hundreds of criminal trials.

    In 1993, Mr. Holder was nominated by President Clinton to become the U.S. attorney for the District of Columbia, and he served as head of the largest U.S. attorney's office in the Nation for nearly 4 years, earning a reputation for being a tough, fair-minded, and innovative prosecutor.

    Mr. Holder was sworn in as Deputy Attorney General on July 18 of last year. He supervises the day-to-day operations of the Department of Justice. Deputy Attorney General Holder is accompanied this morning by Stephen Colgate, the Assistant Attorney General for Administration at the Department of Justice. Mr. Colgate will not be presenting formal remarks to this committee this morning, but is here to answer technical questions with respect to the Department's budget request and programs. He is the Department's senior career official and is regarded as an institution at the Department.

    It's a pleasure to have you here this morning, Mr. Holder. Your written testimony will be inserted in the record in its entirety. And so we're pleased to hear from you.


    Mr. HOLDER. Good morning. Thank you, Chairman Hyde, members of the committee. It's a pleasure to be with you today to share the Department's views on H.R. 3303, the Department of Justice Appropriation Authorization Act.
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    Today's hearing represents two firsts. It's the first time in several years that the Judiciary Committee has attempted to tackle the important issue of authorizing the work of the Justice Department. And today marks my first testimony before this committee as Deputy Attorney General. I look forward to working with you, Mr. Chairman, and also Mr. Conyers, as well as the members, the entire members, of the committee, as you begin the process of enacting an authorizing bill.

    In the interest of time, I will briefly summarize my written statement, but will appreciate, or I do appreciate your including it in the official record.

    Tomorrow the Attorney General will celebrate her fifth anniversary in that office, and she would be unlikely to highlight that achievement for you, but let me tell you that in that short time I've spent working with her as her deputy, it is an anniversary that I believe is worth noting. With the welcome assistance of members of this committee and other concerned Members of Congress, the Attorney General's tenure at the Department of Justice has been characterized by dramatic progress toward making this nation a safer place to live.

    The authorizing bill that you and Congressman Conyers have introduced will allow us to build upon the significant progress we have made, and we agree with almost all of the provisions, but allow me to take issue with one of the proposals in the legislation.

    As the former United States attorney for the District of Columbia, I can greatly appreciate your intention to reallocate resources to U.S. attorneys' offices. However, section 151 directs the Attorney General to hire 200 additional assistant United States attorneys. These are not to be new hires in the 94 U.S. attorneys' offices around the country. Rather, H.R. 3303 mandates that these attorneys be drawn from the existing pool of litigators currently at work at main Justice. We believe that the current allocation of resources between the divisions and the U.S. attorneys is working well, and that the flexibility of that system is one of its strengths. We believe there's no basis for limiting the Attorney General's discretion in allocating those resources.
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    The divisions perform critical missions in sending attorneys with specialized expertise to hotspots in the field, ensuring that good legal precedents are developed under new laws that are passed, and maintaining uniformity and coordination throughout the country.

    The proposed shifting of attorneys would, we believe, prevent the divisions from accomplishing their vital missions in important law enforcement areas such as civil rights, environmental protection, antitrust enforcement, and taxation. We believe it would be extremely unwise to weaken the Department's six litigating divisions and the critical functions that they serve.

    Let me now turn to H.R. 3303, generally. The legislation we are discussing today will allow us to continue safeguarding the citizenry and our institutions, and it will help the Justice Department and the nation prepare for the law enforcement challenges of the 21st century.

    For fiscal year 1999, the President's budget includes $20.9 billion for the Department of Justice. Our priorities, as reflected in the President's 1999 budget request for the Department, include fighting crime and youth violence. This priority includes an initiative near and dear to my heart, the establishment of a community prosecutor's program. This innovative new concept seeks to increase substantially the number of local prosecutors interacting directly with police officers and community residents.

    An excellent example of how well the community prosecution concept works can be found here in the District of Columbia. The Fifth District Community Prosecution Section consists of 19 prosecutors solely responsible for handling criminal cases in a particular part of the city, the Fifth District. These prosecutors handle cases from the moment they come in the door until they are completely resolved through plea, trial, or alternative disposition. Prosecutors establish and maintain open lines of communication with the community, and they have established solid working relationships with other governmental agencies.
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    There is strong evidence that this concept is working in Washington's Fifth District. In 1997, this District's crime rate saw a 24 percent drop, compared with an 18 percent drop in the rest of the city. A targeted, interagency effort brought about a 72 percent reduction in crime in one housing project alone. In addition, an open-air drug market was effectively shut down and 30 people were arrested.

    Fighting cybercrime: Mr. Chairman, the Attorney General and I believe that fighting cybercrime will be one of the greatest challenges of the next century, and we look forward to addressing this serious issue with you and members of the committee, as we together move forward with the authorization process that you have begun today. We must deal with the problem of cybercrime before it becomes an epidemic within the United States or a worldwide pandemic.

    Curbing drug trafficking and abuse: To continue to fight drug trafficking and abuse, we are seeking new resources to allow the Department to hire more drug enforcement agents and more prosecutors, and will permit us to increase drug testing and intervention programs as well. This is a balanced investment, one that will decrease overall drug use, as well as help lessen the violence that such drug use brings into our communities.

    Protecting our borders and providing better service: We are seeking support for resources which will strengthen proven existing programs and implement new measures to guard against illegal immigration and promote legal entry into the United States.

    Building the law enforcement infrastructure: In addition to bolstering our ability to defend the government, we also seek authorization for funds in fiscal year 1999 that will build the nation's critical law enforcement infrastructure. To ensure the health and safety of our law enforcement personnel, the Department's budget request includes $753.5 million in new initiatives and program enhancements to address a wide variety of infrastructure and technology needs.
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    While the Department is making progress, its automation and communications capabilities are still outdated. Without the proper tools to get the job done, current, let alone additional, attorneys, agents, and inspectors will be less efficient and less effective in performing their duties.

    Mr. Chairman, I welcome this committee's willingness to consider authorizing legislation for the Department of Justice. The legislation that you and Congressman Conyers introduced is, we believe, a very promising start.

    The authorizing bill we will discuss over the coming weeks and months will, if enacted, help us address our ongoing challenges and prepare for new ones. It is fitting and appropriate that this committee is considering authorizing the Department of Justice, so that we can more effectively face the law enforcement challenges of the new millennium.

    Thank you. Steve Colgate, the Assistant Attorney General for Administration—and I would agree with you, an institution—is with me today to answer any budget questions that you may have, and I look forward as well to providing any information that may assist the committee in its consideration of a Justice Department authorization bill.

    [The prepared statement of Mr. Holder follows:]


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    Good morning. Chairman Hyde, Congressman Conyers, and members of the Committee, it is a pleasure to be with you today to share the Department's views on H.R. 3303, the ''Department of Justice Appropriation Authorization Act, Fiscal Years 1999, 2000, and 2001.'' Today's hearing represents two firsts: it's the first time in several years that the Judiciary Committee has attempted to tackle the important issue of authorizing the work of the Justice Department, and today marks my first testimony before this Committee as Deputy Attorney General. I look forward to working with you, Mr. Chairman and Mr. Conyers, as well as with the entire Committee, as you begin the process of enacting an authorizing bill.

    Most of the Department of Justice has operated without an enacted authorizing statute since fiscal year 1980. It is my sense, however, that the authorization process can serve a useful function.

    Allow me to give you a brief overview of some of the things all of us have achieved together in the last few years. Tomorrow, the Attorney General will celebrate her fifth anniversary in that office. She would be unlikely to highlight that achievement for you, but let me tell you that in the short time I've spent working with her as her Deputy, it is an anniversary worth noting. With the welcomed assistance of members of this Committee and other concerned Members of Congress, the Attorney General's tenure at the Department of Justice has been characterized by dramatic progress towards making this Nation a safer place to live.

    Violent crime has dropped every year since the President worked with Congress to pass historic crime legislation in 1994. To date, that legislation has paid for over 70,000 police, funded new prison cells, and has helped make ''Three Strikes and You're Out'' the law of the land. We're working in tandem with our state and local partners to start to stem what was once a rising tide of juvenile violence. After jumping 69 percent in seven years, the rate of youth violent crime arrests has fallen almost 12 percent in the last two. We continue to beat back the scourge of drugs. We are adding border patrol agents in record numbers, we are deporting criminal aliens at a record pace, and we are dispatching agents around the world to head off migrant trafficking at its source. Our efforts to combat computer crime are ongoing, and our plans to protect the Nation from terrorist attack are in place. With the Committee's assistance, we are moving in the right direction.
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    The authorizing bill you and Congressman Conyers have introduced will allow us to build upon the successes I have described. We agree with almost all of its provisions. Allow me, however, to take strong exception to one of the proposals included in the bill. In particular, section 151 of H.R. 3303 would direct the Attorney General to hire 200 additional Assistant U.S. Attorneys. These would not be new hires in the 94 United States Attorneys' Offices around the country. Rather, H.R. 3303 mandates that these attorneys be drawn from the existing pool of litigators currently at work in the six litigating divisions based here: the Antitrust, Civil, Civil Rights, Criminal, Environment and Natural Resources, and Tax Divisions.

    The litigating divisions and U.S. Attorneys strive to perform complementary roles—each is expected to be a center of initiative and, in differing circumstances, a provider of support to the other. Recognizing the strengths of having both national litigating divisions and U.S. Attorneys, the current system for allocating workload is designed to be flexible and to bring the appropriate balance of resources to bear in each individual case—from substantive expertise to trial experience; from a national perspective on an issue to familiarity with local conditions and judges. And while many of the cases and families of cases retained by the litigating divisions continue to be among the Department's most important—often with national ramifications and billions of dollars at stake—these cases represent a relatively small portion of the universe of cases.

    We agree with your objective of augmenting the staffs of the United States Attorneys Offices. Indeed, you will find references throughout our fiscal year 1999 budget request to increased numbers of Assistant U.S. Attorneys, whose hiring we believe will greatly assist the Department in its ongoing mission to enforce the Nation's laws. We are opposed, however, to reaching that policy goal by weakening other critical components within the Department. By terminating 200 attorney positions in the Department's litigating divisions, H.R. 3303 would severely hamper the Department's ability to project specialized litigation expertise where it is needed, to handle new cases involving the initial applications or definitions of new statutes, and to maintain uniform positions before the courts and the citizenry. We view this proposed change as weakening the Department's six litigating divisions and the critical functions they serve, and, therefore, we oppose it.
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    The six divisions are largely composed of litigators who specialize in certain subjects. These specialized practitioners can be dispatched to ''hot spots'' around the country to address similar sets of facts and issues of law, often handling cases in several jurisdictions at once. Thus, the same attorney who is prosecuting or assisting in the prosecution of a complex financial institution fraud case in Michigan can also be working on similar cases in Illinois, Oregon, and elsewhere, thereby ensuring that the lessons learned from one case are brought to bear in the others and that consistent prosecutive policies are applied and followed throughout the Nation. This example is not unique and is replicated daily as the Department deals with an extraordinary range of nationwide law enforcement priorities—from church arsons and child pornography to multi-state organized crime rings and national antitrust conspiracies. Any diminution in the current staffing levels of the litigation divisions would upset our ability to utilize our specialized attorneys effectively to address these practices.

    In addition, attorneys assigned to the litigating divisions are often involved in the initial applications or defenses of new statutes. Laws which have been enacted, often only after a painstaking, arduous process, can be quickly eroded by the mistaken use of the charges they authorize, early government losses narrowing their scope, or inconsistent government representation. To prevent this, the litigating divisions often handle the first wave of cases under new statutes that lead to the formation of important precedents, including constitutional challenges to statutes such as the Antiterrorism and Effective Death Penalty Act, the Illegal Immigration Reform and Immigrant Responsibility Act, and the Religious Freedom Restoration Act. Over time, as precedents are developed and cases under new laws become common, the divisions devolve more and more litigation control and workload to the U.S. Attorneys, while continuing to monitor the development of the law and to share their expertise with Assistant United States Attorneys around the country.
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    The ability to pool and flexibly deploy resources, share information, and develop precedents within our litigating divisions is invaluable. The staffing cuts envisioned by H.R. 3303 would seriously hamper these divisions' effectiveness. The Department looks forward to working with members of the Committee to address the concerns that section 151 is intended to address in a way that is effective and efficient, but that does not hamstring the Department's litigating divisions.


    The authorizing bill we are discussing today will allow us to continue safeguarding the citizenry and our institutions, and it will help the Justice Department and the Nation prepare for the law enforcement challenges of the 21st century. For fiscal year 1999, the President's Budget includes $20.9 billion for the Department of Justice, including $18.4 billion in discretionary appropriations. This is a 4.4 percent increase from last year, and an 87 percent increase from the year the Attorney General first took office. These increases reflect this Congress' commitment to a secure America today, and the President's budget request reflects this Administration's pledge to do all that we can to ensure that our children have a safer tomorrow.


    Our first priority must be to do all that we can to see that crime rates continue to drop nationwide. This effort hinges on a successful partnership between the police and the communities they serve. The cornerstone of the Administration's efforts in this regard is the President's commitment to place 100,000 community policing officers on the streets of America by 2000. Towards this end, the Department of Justice's budget request seeks $1.4 billion for the Community Oriented Policing Services (COPS) program to fund an estimated 16,000 officers in fiscal year 1999—bringing the total to 99,000 funded officers one full year before fulfillment of our pledge to bring 100,000 officers to our Nation's streets. H.R. 3303 does not address the COPS program, but it remains an integral part of this Administration's crime fighting agenda.
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    To sustain our successes of the last several years in fighting crime, we must remain vigilant when it comes to youth violence. The Attorney General has made safety for children one of the priorities of her tenure, and we have started to see results. For the second year in a row, juvenile arrest rates for violent crime have fallen. Arrest rates for juvenile homicides have fallen for a third year in a row. This news is certainly encouraging, but it is no signal for any of us to let down our guard. You don't have to go far from this room to know that youth violence is still far too prevalent in many of our communities. In fact, arrest rates for juvenile violent crime and homicide are still substantially above the levels of the mid-1980's. Gangs are still a threat in our cities, too many children still go unsupervised during the crucial hours between 3 in the afternoon and 8 in the evening, and our hospital emergency rooms continue to witness what happens when kids fall victim to the dangers posed by guns.

    Last year, the President presented Congress with the Administration's Anti-Gang and Youth Violence Strategy. This Committee considered, and the full House passed, its own version of this legislation. Although our proposals differ, they do reflect some common priorities, and we look forward to working with you to enact into law many of these smart solutions to the problems posed by juvenile crime. Consistent with these goals, the Department's fiscal year 1999 budget seeks to focus additional resources on three youth violence grant programs and to restructure several others. We seek nearly $500 million in targeted program enhancements, and we aim to restructure certain programs that will prevent youth violence from occurring in the first place. H.R. 3303 does not address the Office of Justice Programs (OJP), but that Office's work remains a critical part of the Department of Justice's mission. Indeed, a number of the programs I describe later in this statement are administered by OJP.

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Community Prosecutors Program

    We would ask that you authorize $50 million for the establishment of a community prosecutors program. This innovative new concept seeks to increase substantially the number of local prosecutors interacting directly with police officers and community residents. An excellent example of how well the community prosecution concept works is taking place in the District of Columbia. The Fifth District Community Prosecution Section consists of 19 prosecutors solely responsible for handling criminal cases in the Fifth District. These prosecutors handle cases from the moment they come in the door until they are completely resolved through plea, trial, or alternative disposition. Prosecutors establish and maintain open lines of communication with the community, and they have established solid working relationships with other governmental agencies.

    There is strong evidence this concept is working in Washington's Fifth District. In 1997, this District's crime rate saw a 24 percent drop, compared with 18 percent in the rest of the city. A targeted, inter-agency effort brought about a 72 percent reduction in crime in one housing project alone. In addition, an open-air drug market was effectively shut down and 30 people were arrested. With approval of this funding request, you would provide us an opportunity to conduct targeted, efficient tests of this promising and exciting strategy.

Violence Against Women

    To combat the troubling problem of violence against women, we ask that you authorize $271 million. Included in this request are continued legal assistance and research programs, as well as a new $10 million program, Project Safe Start, which has as its goal reducing the impact of family, school and community violence on young children.
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Technology to Combat Crime

    We are seeking your authorization of an additional $12.5 million to further upgrade crime technology—technology such as DNA testing and identification—as well as to upgrade criminal records and history programs. Local law enforcement has told us in no uncertain terms that they need help in applying technology to the investigative function. These funds will be used for simulation modeling, computer forensics, crime mapping, and improved suspect identification technologies to solve crimes.

    With your help, we can build on the successes we have seen over the past few years in fighting youth and violent crime. What is needed is the right amount of resources, a balanced approach—emphasizing tough enforcement and smart crime prevention—to any new juvenile justice legislation, and the ability to build new relationships and strengthen existing ones between prosecutors and the people they serve.


    Mr. Chairman, I would like to turn to our second focus, one that the Attorney General and I believe will be one of the greatest challenges of the next century, one that I look forward to addressing with you and members of the Committee as we together move forward with the authorization process you have begun today. We must deal with the problem of cybercrime before it becomes an epidemic within the United States or a worldwide pandemic.

    Every day, this Nation relies more and more heavily upon its interconnected telecommunications and automated information systems. Whether this takes the form of provision of energy, commercial banking and finance, transportation, or our national defense, the need for secure systems is the same. Reliance on, and the use of, computers and the information superhighway are becoming part of the lives of most Americans. We must together do all that we can to ensure the safety of these critical systems.
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    For fiscal year 1999, we ask that you authorize $64 million in increased funding to expand efforts to protect the Nation's critical infrastructures from cyber-attacks and to combat cybercrime. These additional resources will support 75 new FBI agents and 24 new Assistant U.S. Attorneys to track down and prosecute cyber criminals. The FBI will focus its new resources on the formation of 6 additional Computer Investigations and Infrastructure Threat Assessment squads (CITA) in cities around the country. The initiative includes $10 million in additional funding for the FBI's Computer Investigations and Infrastructure thereat Assessment Center (CITAC)—which is being restructured and renamed the National Infrastructure Protection Center (NIPC)—to expand operations, develop an early warning system, and conduct infrastructure vulnerability assessments.

    We also seek your authorization for $1.55 million in increased resources for the Criminal Division's Computer Crime and Intellectual Property sections (CCIPS). This section of the Criminal Division is a critical partner in the effort to help federal, state and local, and foreign agencies prosecute high-tech crime, as well as create the necessary infrastructure—legal, technical, and operational—to pursue criminals who attack or employ global networks.


    To continue to fight drug trafficking and abuse, we would ask you to authorize the appropriation of $167.25 million in increased resources in Fiscal Year 1999. These new resources will allow the Department to hire more drug enforcement agents and prosecutors, and will permit us to increase drug testing and intervention programs. This is a balanced investment—one that will decrease overall drug use as well as help lessen the violence such drug use brings into our communities.
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    Under this proposal, funding for the Drug Enforcement Administration (DEA) will grow by 4.6 percent to $1.25 billion, including $1.19 billion in discretionary funding, with program enhancements totaling $64 million. These additional resources will support 100 more DEA agents to attack methamphetamine production, trafficking, and abuse; 54 more agents for the Caribbean Corridor Strategy; 95 more agents to intensify efforts against heroin traffickers; 3 more agents to support an on-going classified project; and 5 agents to foster and strengthen foreign cooperative drug investigations against Asian heroin traffickers.

    Our drug initiative will support the hiring of 64 Assistant U.S. Attorneys and 5 Criminal Division attorneys to pursue and prosecute drug traffickers, and to implement our national strategy against methamphetamine.

    In addition, the Administration's request includes a statutory change to give states the flexibility to use their prison grant and Residential Substance Abuse Treatment funds to provide drug testing and treatment to offenders. A recently released report by the National Center on Addiction and Substance Abuse at Columbia University, which draws heavily from national data compiled by the Department's Bureau of Justice Statistics, confirmed that fighting drugs in our prisons and providing comprehensive testing and treatment for prisoners is absolutely critical to breaking the cycle of drugs and crime. This statutory request will allow states to better achieve this worthy policy goal.

    The study found that 80 percent of people serving time in our state and Federal prisons either were high on drugs at the time they committed their crimes, stole property to buy drugs, violated drug or alcohol laws, or have a long history of drug or alcohol abuse. And, parolees who continue to use drugs are likely to commit crimes that will send them back to prison.
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    The findings here are clear and support what the Attorney General and I have long suspected: to break the cycle between drugs and criminal activity, we must first break the drug habits of prisoners. For this reason, drug testing and treatment are sound, appropriate uses of correctional grant funds.

    Our battle against drugs requires a balanced approach and the President's budget seeks to provide just that—through tougher enforcement and better intervention, we can get drug use to fall. With proper follow-through and the cooperation of Congress, we can keep it falling.


    We ask that you authorize $2.72 billion for directly appropriated activities of the Immigration and Naturalization Service. This is a 16.1 percent increase from last year. The Administration's fiscal year 1999 request will strengthen proven, existing programs and implement new measures to guard against illegal immigration and promote legal entry into the United States.

    Landmark immigration legislation enacted in 1996 has challenged the Department to carry out mandated responsibilities with far-reaching impacts. In response to this challenge, the Department has greatly enhanced border management in the Southwestern United States, and has reengineered the naturalization process to accommodate millions of new applicants.

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    Congress has been extremely helpful in providing us with the necessary resources properly to enforce our borders. The INS has nearly doubled its border patrol agent workforce since 1993, and has introduced innovative deterrents and advanced technologies to address illegal immigration at all borders of the United States.

    For fiscal year 1999, the Department's budget request includes $272.5 million in increased funding for ''force-multiplying'' technologies and 1,000 new border patrol agents. Funding will also be dedicated to programs to detain and remove illegal aliens, including criminal aliens; to address the proliferation of alien smuggling by strategically placing INS personnel along major smuggling transportation corridors; and, to ensure the integrity of the naturalization process, immigration fee resources will support increased airport staffing to more quickly inspect passengers, and enhance document and benefit fraud investigations.

    Clearly we have not resolved all of the problems that face this country in deterring illegal entry, nor have we completely resolved the problems to ensure adjudication and naturalization for legally admitted aliens eligible for benefits under the Immigration and Nationality Act. But, as the Department recognized in 1994 when it launched its comprehensive Southwest Border Strategy, the investment necessary would be multi-year and multi-faceted. The budget we ask you to authorize continues the measured, prudent growth required to allow a reengineered Immigration and Naturalization Service to cope with the challenges it will face in the 21st century.


    Mr. Chairman and members of the Committee, allow me to next address the critical concerns faced by Indian country. As crime rates in the rest of the country continue to fall, homicide and violent crime rates on many Indian lands are rising. Law enforcement in Indian country is inadequate and needs immediate attention. Indian lands have only 1.3 police officers per 1,000 citizens. This compares with an average of 2.9 officers per 1,000 citizens in non-Indian areas with similar population densities. And unfortunately, the few jails on Indian lands fall far short of basic standards in such areas as staff and inmate security.
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    The Department's budget for this year proposes increased funds to address some of these concerns. Specifically, we are seeking authorization for $157 million in new and redirected funds as part of a joint $182 million initiative with the Department of Interior. This multi-year initiative is designed to raise the level of Indian country law enforcement to national standards in such areas as the number of officers per capita, the training and equipment of tribal law enforcement officers, and the quality and availability of detention facilities. In fiscal year 1999, we propose that the initiative be funded primarily through anti-crime grants provided directly to Indian jurisdictions.

    Because the Federal government has the responsibility to investigate and prosecute major crimes on most Indian country, this initiative will support 30 additional FBI agents to enhance Indian country investigations and 31 positions to improve victim/witness assistance services in Indian country. Twenty-six (26) Assistant U.S. Attorneys will also be added to target violent crime, gang-related violence, and juvenile crime on Indian lands.

    In addition, within the Office of Justice Programs and the COPS program, our proposed budget includes grant funds that have been targeted and set aside for direct support to Indian country: $10 million of the new drug testing and intervention program; $20 million of the Title V At-Risk Children's program; $52 million of the state correctional grant program; and $54 million of the Community Oriented Policing Services (COPS) program. Our initiative includes an additional $10 million to establish the Indian Tribal Courts program—a new discretionary grant to assist tribal courts that have experienced unparalleled growth in their workload.

    The crisis in law enforcement affecting Indian country demands a Federal response. This initiative is a small, but necessary first step.
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    Despite the best efforts of political and community leaders to promote tolerance and understanding, hate crimes continue to plague the Nation. To combat this scourge, the Department is seeking authorization for the appropriation of $6.5 million in new resources for its Hate Crimes Initiative. This plan includes the formation of local working groups in which Federal, state, and local law enforcement officials, as well as community leaders, meet to address hate crimes in a comprehensive manner. Included within these resources is $3.2 million and 15 positions for the Community Relations Service to respond to increasing demands for its assistance. This critical component of the Department provides services including conciliation efforts associated with heightened racial and ethnic tension throughout the country. The Department will also be redirecting, from 1998 base resources, 40 FBI agents and 10 prosecutors toward hate crime cases.


    We are also seeking authorization for increased funding to defend the United States government more effectively in court. In defensive civil litigation cases, the Department's lawyers represent the United States in its capacity as employer, regulator, administrator of Federal benefits, law enforcer, contractor, and property owner. These attorneys protect not only the fiscal interests of the United States, but also intangible interests in the implementation of lawful government policies and practices. It should be noted that these are not discretionary defensive litigation cases—if the United States is sued, the Department of Justice must defend. The Department's civil defensive litigation caseload is burgeoning. The dollars at stake run into the billions. The Administration's budget therefore seeks $16.6 million for critical program needs to address this rising caseload and to continue our effective defense of the United States government.
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    In addition to bolstering our ability to defend the government, we seek funds in fiscal year 1999 that will build the Nation's critical law enforcement infrastructure. To ensure the health and safety of our law enforcement personnel, the Department's budget request includes $753.5 million in new initiatives and program enhancements to address a wide variety of infrastructure and technology needs. While the Department is making progress, its automation and communications capabilities are still outdated. Allow me to highlight just a few of the items:

Telecommunications Carrier Compliance Fund

    This year the Department again includes in its budget request $100 million in additional funds to reimburse private telecommunications carriers, manufacturers, and support service providers for equipment modifications made to ensure law enforcement's continued ability to conduct court-authorized electronic surveillance. The Attorney General and I believe the FBI, in concert with industry, has now developed an implementation plan that will permit the process to move forward. We cannot afford to delay any longer.

U.S. Marshals

    We would also request that you authorize $32.7 million for U.S. Marshals Service infrastructure improvements. This amount includes $11 million and 82 deputy positions to continue to ensure the safety and security of the judicial family in Federal facilities, as well as the staffing of new courthouses. We have included another $1.6 million to enhance and modernize the Marshals Electronic Surveillance Unit (ESU), a unit that has as its primary mission the provision of electronic surveillance and intercept support. In 1997, ESU's work in 917 cases assisted in the arrest of 486 fugitives. With your help the program enhancement I have described will allow us to do more.
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Immigration and Naturalization Service

    For the Immigration and Naturalization Service, $141 million in infrastructure improvements are requested in fiscal year 1999—including the construction of new Border Patrol facilities and additional detention bedspace to keep pace with the record expansion of the Service over the past several years.

Federal Bureau of Prisons

    Finally, for the Federal Bureau of Prisons, our fiscal year 1999 budget request includes $300 million for full construction of three correctional institutions and partial construction of a fourth—the capacity of which is necessary for the absorption of the District of Columbia sentenced felon population.


    Mr. Chairman, I welcome this Committee's willingness to consider authorizing language for the Department of Justice. The legislation you and Congressman Conyers have introduced is a promising start. We would ask that, for programs authorized in this bill, you approve over $14 billion in appropriations for fiscal year 1999. (Of course, this excludes amounts for the Office of Justice Programs and mandatory appropriations.) That is an impressive sum, but so are the challenges we face. We seek to expand our efforts in fighting juvenile crime; to fight drug trafficking and abuse; to launch a multi-agency initiative to reduce violence on Indian lands; and, to ensure that we stay ahead of the curve in investigating and prosecuting cyber-criminals.
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    The authorization bill we will be discussing over the coming weeks and months will, if enacted, help us address our ongoing challenges and prepare for new ones. It is fitting and appropriate that this Committee is considering reauthorizing the Department of Justice, so that we can more effectively face the law enforcement challenges of the new millennium.

    Mr. Chairman and Mr. Conyers, I thank you and look forward to answering any questions that you or other members of the Committee might have.

    Mr. HYDE. Thank you very much.

    Mr. Scott, have you any questions?

    Mr. SCOTT. Thank you, Mr. Chairman.

    Just a few questions, Mr. Holder. Could you tell us what the Department is doing on discrimination in lending?

    Mr. HOLDER. In what area?

    Mr. SCOTT. Lending—mortgages, businesses, business loans, and everything along those lines. The Department is working with the Department of HUD, and if you're not personally familiar with that, I know that the Department has been looking into that. It's a very important area, and I would encourage the Department to continue their hard work in that area.
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    Mr. HOLDER. Yes, it is an area of importance to the Department and one that we are investing a great deal of time in. When I was United States attorney, our office worked on the Chevy Chase case that involved lending discrimination and redlining. It's an area that the Attorney General has devoted a lot of attention to, and it's one that we think is extremely important.

    Mr. SCOTT. Well, I'd encourage you to continue because that's also an area that's extremely important in the area. We're debating the idea of affirmative action and the problems in lending and bonding, some of the problems that minority contractors have which put them at a severe disadvantage when competing.

    Can you give us an idea of what the Department is doing in the area of crime prevention, some of the successful initiatives?

    Mr. HOLDER. Yes. We have tried in our crime-fighting approach to have what we call and what we considered to be a very balanced approach, to do the things that you'd expect prosecutors, people in law enforcement, to do—that is, to enforce the law, to put in jail for appropriate periods of time those people who have broken the law, but to also focus on the things that tend to breed crime, the underlying social conditions, and to focus our prevention efforts there. I don't think that it is mere coincidence that you see the greatest amounts of violent crime in those areas where you see the greatest amounts of social dysfunction, where you see schools that don't work, where you see great amounts of unemployment. We have tried to come up with programs, Weed and Seed among them, to come up with ways in which we can be effective in our prevention efforts.
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    Mr. SCOTT. The COPS program, could you say a word about the COPS program, and particularly, the paperwork that it takes to get one of these grants?

    Mr. HOLDER. Yes, I think that that's really one of the successes in the Department, and certainly in this administration. The COPS program has put about 70,000 police officers on the street to date. We are on target for meeting our goal of 100,000 police officers over the next 2 years, and we also think that one of the reasons for the success of the program is the fact that the application process is such a simple one—not a very long, not a very complicated, cumbersome document that somebody has to go through or that a jurisdiction has to go through in order to get access to the funds in the program, but a document that actually is kind of famous at this point, a one-page document that allows jurisdictions to make those requests in a very simple and straightforward way.

    Mr. SCOTT. And are they supposed to be—have you encouraged them to be community police officers? Is there any requirement that they be community police officers rather than having them do what everybody else is doing?

    Mr. HOLDER. That's certainly the emphasis in the program, to get these additional police officers out on the street and interacting with the community. We believe, and I think the statistics have shown, that community policing is a concept that works. The dramatic drops that we've seen in crime, in violent crime, in particular, I think is at least in part a function of the fact that we have encouraged police officers, not only in the COPS program, but in other areas as well to get out of their cars, to get out of the station houses, and to get on the street and interacting with the citizens.
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    Mr. SCOTT. And is there any research that shows that this helps reduce crime more than the reactionary, wait-for-the-call kind of policing?

    Mr. HOLDER. Yes, I've seen studies that I've read—I can't pull any right now—that indicate that that is an effective way of reducing crime. It certainly has been the experience that we had in the U.S. attorneys' office in Washington, D.C., where we have encouraged the police department over the last couple of years to be nonreactive, to be more proactive, and also to be more community-oriented, and we have seen in Washington finally a drop in crime.

    Mr. SCOTT. Police profiling has been an issue before this committee and nationally, particularly in the Washington metropolitan area. I think people miss the point that the benefit—that the dangers of profiling are dangers to innocent people, people who are stopped merely because of their race, when they haven't done anything wrong. What is the Justice Department doing to protect innocent people from the indignity of police stops merely because of their race?

    Mr. HOLDER. Well, we certainly want police officers to be aggressive, law enforcement people to be aggressive in enforcing the laws. I have particular problems with the notion of profiling, however. I think it's a dangerous, potentially dangerous thing to do. I think police officers, law enforcement people, should investigate crimes and should conduct themselves in a way where they have a basis to do that. Profiling leads to potential for abuses; it also leads to the potential for a loss of community support, which is essential if we are going to be effective in our law enforcement mission.
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    Mr. SCOTT. Can you tell us what you're doing in prisons for drug rehabilitation, since that is part of the underlying cause in crime?

    Mr. HOLDER. The administration has tried to focus resources on taking what, in essence, is a captive population and making drug treatment available to people in prisons. It is not sufficient, we believe, to simply take people with drug habits, incarcerate them for periods of time, then put them back on the streets without offering to them the possibility of drug treatment. You're going to have a lower recidivism rate, and we will have a lower crime rate if we make that available to people in prisons.

    Mr. SCOTT. And what portion of the drug abusers in prison are actually getting rehabilitation, do you know?

    Mr. HOLDER. I don't know those numbers offhand.


    Mr. HYDE. The gentleman's time has expired. We were very late in getting the light on, Mr. Scott.

    Mr. SCOTT. I wanted one more question, Mr. Chairman.

    Mr. HYDE. Go ahead, by all means.

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    Mr. HOLDER. I haven't answered that last question yet.

    Mr. SCOTT. Well, let me ask another one. Environmental protection is extremely important, and I know it takes a lot of time and effort. The bill that we have before us requires 200 U.S. attorneys to be transferred out of the Justice Department and into the U.S. attorneys' office. How will that affect things like environmental protection and consumer protection and other things that you do?

    Mr. HOLDER. Well, we think there is a potential for weakening the effort in the environmental, civil rights, and consumer protection areas. The people who work in main Justice are specialists largely who have specialized expertise in those areas. This is expertise that does not necessarily exist in the field. I have served in both places, both at main Justice and in the field, and there is a great need for the expertise in those areas and in other areas to be maintained, we believe, in the Justice Department. This is critical if we are going to be effective in those and other specialized areas.

    Mr. HYDE. The gentleman's time has expired. The gentleman from North Carolina.

    Mr. COBLE. Thank you, Mr. Chairman. I really don't have a question. Let me make a comment or two.

    Pardon my raspy voice, gentleman. I'm trying to overcome a cold.

    It's good to have you all with us.
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    Mr. Chairman, I think it's been about 18 or 19 years since the Congress approved an authorization bill for the Justice Department. If that is, in fact, true, if for no other reason, this hearing is justified. I believe that the budget for the Justice Department the last 6 years, in the Clinton administration, has increased by 87 percent. Now I realize you all do a lot of good, heavy lifting down there—FBI, INS, U.S. attorneys—but, gentleman, I just don't know whether there's a Federal agency in existence—strike that.

    Let me make this bipartisan. Regardless of whether the administration is a Republican or a Democrat, I don't know whether there's a Federal agency in existence that is really concerned about saving money. Now, first of all, am I right. Has your budget increased 87 percent over the last 6 years?

    Mr. HOLDER. I will defer to Mr. Colgate with regard to that.

    Mr. COLGATE. Well, let me just give you a benchmark. In 1992, our budget was approximately $10.5 billion. In 1998, it's approximately $19.3 billion.

    Mr. COBLE. Now how much in 1992?

    Mr. COLGATE. It was about $10.5 billion, and in 1998, the estimate is about $20 billion.

    Mr. COBLE. About 10.5 to $20 billion?

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    Mr. COLGATE. It's significant—the growth that you have spoken of is correct; the Department's budget has significantly grown on a bipartisan basis.

    Mr. COBLE. And I'm not advocating, Mr. Chairman, shooting the messengers who come up here, but that's, as we say in the rural South, that's a powerful lot of money. And I just believe—take it back down and let these folks know that, by George, we can do better. As I said at the outset, Mr. Chairman, I think, if for no other reason, that's why this hearing may well be thoroughly in order, to examine these details very closely, and see where we're going.

    I have no specific question except for that comment, Mr. Chairman. I yield back my time.

    Mr. HYDE. Thank you. The gentleman from Michigan, Mr. Conyers.

    Mr. CONYERS. Thank you, Mr. Chairman. May I yield to Ms. Lofgren?

    Mr. HYDE. You surely may. You yield to Ms. Lofgren.

    Ms. LOFGREN. Thank you, Mr. Chairman.

    Mr. Holder, as you're aware, the FBI has had a position on encryption technology that is at odds with a bill being pursued by Mr. Goodlatte and myself, and I think really at odds with what the administration has indicated they would support in terms of domestic controls.
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    However, there has been discussion that the Federal government could utilize its purchasing power and influence on the communications infrastructure to achieve domestic control of encryption, even though that is something that the Congress I don't think would approve and something that, frankly, the administration does not support.

    Does the Department of Justice or, to your knowledge, any other government agency, have plans to, through purchasing, to impose a domestic key recovery scheme on the United States?

    Mr. HOLDER. It is not our aim to impose a solution to that very difficult problem. Our hope is that we can work with industry. We represent, obviously, law enforcement interests, and we think that there is a way in which we can come up with a solution that ultimately will be essentially acceptable to both sides.

    I suspect that whatever we come up with is not going to be totally satisfactory to either side. We are not committed to any specific technical solution to the problem, and we want to work on solving that problem with all of the involved parties.

    Ms. LOFGREN. Good. I'd like to ask about the Immigration Service. There is a request for a 10 percent increase over last year for the INS, and unfortunately, my San Jose office has experienced incredible delays. Right now it takes between 540 and 780 days to move from the application for citizenship to the interview, and an additional 12 to 13 months to get sworn in. So it takes over four-and-a-half years from the time a person submits their application to the time that they can actually become a citizen. I think that is unacceptable.
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    I know there have been discussions, and there may be some disagreements between members of the majority party and the minority party on issues about naturalization, but no one thinks it's reasonable to take 6 months just to clerically log-in an application. That's what these delays are about. It's about lack of staff.

    I'm wondering, where the increase being recommended will be applied, and will it have an impact on the outrageous delays that we're experiencing in California?

    Mr. HOLDER. I'll let Mr. Colgate perhaps speak more specifically about where the increases would go, but the problem that you describe is one that we hear. We want to make the INS a place that is more efficient. There have been questions about the integrity of the process that we have worked on as well, but we have not, in that desire to make it a place filled with integrity, lost sight of the fact we have to also make it a more efficient place, and that is at least one of the reasons why we have sought an increase in the money allotted to INS.

    Mr. COLGATE. I just want to echo Mr. Holder's remarks. We are quite concerned on the service aspect of this whole thing, because, as you point out, we are collecting a fee for this service. We believe that——

    Ms. LOFGREN. But in the private sector no one would be a customer, given the kind of service that it's delivered?

    Mr. COLGATE. Yes, and granted, I agree with you; we are concerned about that. This Congress, for fiscal year 1998, provided a $212 million increase in the available fee, so that we could address these workload issues. Our focus has been to introduce integrity in the process. Using automation to introduce integrity in the process provides us also the benefit of improving the service delivery. I'll give you one example—fingerprints.
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    Ms. LOFGREN. When are the fingerprint machines going to be installed?

    Mr. COLGATE. We are in the process right now. We will have by the end of the month our application support centers fully operational, in a functional sense. We are opening 75 centers across the U.S., as well as co-locating operations within——

    Ms. LOFGREN. Since I'm almost out of time——

    Mr. COLGATE. Sure.

    Ms. LOFGREN [continuing]. Could you provide me in writing some information on the fingerprint issue, as well as your detailed plan for reducing the backlog? I know there have been some recent additions of staff in the San Jose office. We have now received permission for local governments to provide, free to the Service, staff to help reduce backlogs, not judgmental staff, but basically clerks and——

    Mr. COLGATE. Right, processing.

    Ms. LOFGREN [continuing]. Data entry people. That was approved over a year ago, and I found out on Friday that the INS is still not accepting the clerks that the county of Santa Clara wants to give them for free. I just can't understand why delay.

    [The information follows:]
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    The 1998 Appropriations Act eliminated INS' Designated Fingerprint Service (DFS) program and required that fingerprints for INS benefits be taken by INS or law enforcement agencies (LEAs). To increase its capability to take fingerprints, INS is opening new off-site facilities, called Application Support Centers (ASCs); expanding its facilities collocated with existing offices; and establishing mobile routes for specially-equipped vans. As necessary, INS is also establishing sole source contracts with registered LEAs to take fingerprints. At the same time, INS is updating its own capabilities through the acquisition of live-scan fingerprint technology. Current plans call for the implementation of these initiatives by October 1, 1998.


    Ms. LOFGREN. Mr. Chairman, if I could indulge you, I would like to give to the gentlemen an article from the legal newspaper about the U.S. attorney's office in the Northern District of California, where nothing is happening, to the point where the criminal courts have had to stop meeting because nothing is being filed. I would like to make that a part of the record.

    Mr. HYDE. You ask unanimous consent that that be made a part of the record, and without objection, so ordered.

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    [The information follows:]



What is your response to the situation in the Northern District of California (NDCA) where it is alleged that the criminal courts are no longer meeting because there is nothing being filed?

    The Magistrates of NDCA requested the United States Attorney, the Federal Public Defender and the United States Marshal consider consolidating the two daily criminal calendars to the morning session. The duty Magistrate wanted to free his or her afternoon calendar in order to devote uninterrupted time to matters such as trials, evidentiary hearings, civil discovery disputes, and settlement conferences. After discussions, the three offices agreed to accede to the Magistrates' request.

    The drop in the district's criminal filings for 1997 is attributable to four factors: (1) the extraordinary loss of large numbers of Assistant United States Attorneys (AUSAs) within a very short period of time to private practice and other unusual circumstances; (2) the large number of complex, multi-defendant cases filed and tried in this district; (3) the necessity of prosecutors to expend more time and attention on a charged case because of large expenditure of Criminal Justice Act funds in the district to defend the case; and (4) the reduction in referrals from federal law enforcement agencies.
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    During 1997, the number of AUSAs assigned to the Criminal Division, Organized Crime and Drug Task Force was approximately 60. Of this number, 8 AUSAs were lost to private practice, 1 permanently transferred to another office, and 5 were unavailable because of longterm family or administrative leave, promotion to management, and a long-term detail. The loss of these 14 Assistants constituted 23% of the office's prosecutors and the district has only recently replaced some of these losses. The 23% losses in prosecution resources compares directly to the 10% drop in case filings (77 cases) between 1996 and 1997 and a 13% drop in case filings (100 cases) between 1995 and 1997.

    Second, the number of case filings could be misleading in that it does not reflect the number of defendants charged or the complexity of the cases. The top two local prosecutorial priorities are drug offenses and white collar crime, both of which include high-tech crimes, securities fraud and computer crimes. Though fewer cases were filed in 1997, the district still charged a substantial number of individual defendants and conspiracy type cases especially drug prosecutions using wiretaps. For the fiscal year ending September 30, 1997, EOUSA reported that the district charged 791 individual defendants. The number of defendants and quality of cases are not reflected in the total case filing count. The Federal Public Defenders for San Francisco and Sacramento substantiate this claim as stated in the attached article.

    Third, the Northern District of California is especially generous in its expenditure of Criminal Justice Act funds for defending a criminal case. Aside from the District of Colorado—and that only because of the Oklahoma City bombing case—the Northern District of California led the nation with the average cost for attorneys fees and investigators of $22,204 per case. The national average is $3,736 per case. With higher Criminal Justice Act expenditures, the prosecutors must spend more time responding to motions, preparing for trial and trying cases as opposed to filing new cases. Again, please refer to the attached article.
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    Fourth, there was a significant decrease in criminal referrals from the federal law enforcement agencies during 1997. The INS, Border Patrol, and U.S. Customs have transferred a number of agents to the Southwest Border. The FBI, DEA, and ATF had an unusual number of agents retire during the year. The office has received assurances from these agencies that their losses will be replaced with recent academy graduates. The FBI, DEA, and U.S. Customs coincidentally rotated their top management positions during the same year, which disrupted the continuity in each agency's investigative programs. Especially hard hit was the FBI where the new special agent in charge proceeded to reorganize his entire of lice down to the squad level. This reorganization took significant time to complete and reduced the number of referrals from the FBI during the year. After completing this reorganization, he announced his retirement.

    Finally, the high morale and esprit de corp within the office should be emphasized. The AUSAs in the office have worked exceedingly hard to make up for the loss of personnel. The number of hours worked by the AUSAs, as reflected by the USA–5 (timekeeping report) for the fourth quarter of 1997, was high at 49.25 hours per AUSA. Of the 94 Districts in the country, this ranks number 32, and is ahead of both the Eastern and Central Districts of California and comparable to large cities such as Boston and Philadelphia. The U.S. Attorney and his managers have made it a point to visit all AUSAs in the office and access their needs during this difficult period. The AUSAs understand the situation and morale in the office is very good.

    Ms. LOFGREN. Thank you.

    Mr. HYDE. The gentleman from Pennsylvania, Mr. Gekas.

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    Mr. GEKAS. Thank you, Mr. Chairman.

    The subcommittee which I chair had a hearing last fall concerning some components of the Justice Department, and one of the questions that I want to ask you with respect to U.S. attorneys—the testimony was to the effect that in a budget request the Justice Department would want to have some 90 new positions—was 95, 96, 94, I can't remember—new funding for 90-some new positions. The question that I asked then and ask now is: In view of the fact that there are ''X'' number of vacancies, is the budgetary request on top of the spots that are now vacant or wouldn't it be more budgetarily wise to fill the vacancies and then see how much new budgetary authority we ought to be seeking?

    Mr. HOLDER. Well, the budgetary request is for new attorneys beyond the vacancies that exist. I was United States attorney for three-and-a-half years, and I'm sure all the U.S. attorneys do the same thing. We took great care in hiring the people who we made assistant United States attorneys, and that's why there could be a vacancy rate that might at first blush seem to be unacceptably high. We have a fair number of, a substantial number of people who apply for these jobs, and we want to make sure that we get only the best people. There's clearly a need, however, for additional United States attorneys, assistant United States attorneys, to do the kinds of things that this committee and the American people want the Justice Department and those of us in the field to do.

    Mr. COLGATE. If I could just give you a statistical reference point——

    Mr. GEKAS. Yes.
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    Mr. COLGATE [continuing]. As of the end of January, we were running in assistant U.S. attorney positions, about 100 vacancies. That's about 2 percent of the total workforce. Given where we are in the fiscal year, and the fact that we're dealing with a workforce of almost 4,800 employees, that is not a very large vacancy rate. We fully believe that we will end the year with all of our attorney positions on-board.

    So, I just want to put it in perspective that we are dealing with a large workforce. It does take time to bring staff on-board. We received 177 new Full-Time Equivalent (FTE) from Congress this year through the bill that was enacted in November. We take the vacancies very seriously, but we think that it is a very manageable situation.

    Mr. GEKAS. All right. If I had my way, I would try to do a budgetary funding by saying, for every two vacancies you fill, we'll give you one new U.S. attorney, pursuant to the request for the additional ones. There's something that doesn't gel if we have these vacancies and, on top of that, leaving them vacant, if they stay vacant—you say they won't, but let's say that they do, and then to throw in funding for 90-some more, we have then 190 vacancies. Because if you can't fill the 100, you're not going to fill the new 96.

    Mr. HOLDER. Well, if you look, for instance, at the U.S. attorney's office in D.C.—I mean, where I was the United States attorney, we had 300 lawyers there, the largest U.S. attorneys' office in the country. Somebody would announce they were leaving; we would do a series of interviews, using our hiring committee. I would interview all the people who we would be considering. We would extend an offer. There are people that have to go through a preliminary background check. So it's not like you can give somebody an offer and they immediately can come onboard. It takes about 6 weeks or so to do their preliminary background check, and there are other delays in the process. I mean, we try to bring people on as quickly as we can. It's in our interest to have as many assistant U.S. attorneys——
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    Mr. GEKAS. I understand.

    Mr. HOLDER [continuing]. On-board as we possibly can. I would think that, as Steve Colgate was indicating, a vacancy rate of 100, when you have that many AUSAs, is actually not that large, it seems to me.

    Mr. GEKAS. Well, it might be helpful to us if you would submit to me, say by July 1st, what progress has been made on the filling of the existing vacancies. That would give me a better picture.

    Mr. COLGATE. We'd be glad to. We can provide this on a monthly basis, of what our authorized levels are——

    Mr. GEKAS. Well, let's make it——

    Mr. COLGATE [continuing]. How many are filled.

    Mr. GEKAS [continuing]. June 15 then.

    Mr. COLGATE. We'd be glad to.

    [The information follows:]

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Question from Rep. Gekas

Please submit to me the progress you have been making on filling existing vacancies

    As of the second pay period of this year, which ended on January 31, 1998, a total of 572 FTE was vacant in the United States Attorneys' offices (USAOs) nationwide. Of these, 100 are attorney FTE. By the end of the year, however, we will have used all attorney FTE and will have 302 unfilled support and student FTE.

    Our current vacancy rate, although reasonable for such a large organization, is somewhat inflated because of a recent Congressional allocation and because of an unexpected attrition rate last year.

    The current vacancy rate is in part attributable to the 177 new FTE that Congress appropriated in late November for Fiscal Year 1998. The 1998 allocation process did not begin until the first of December, therefore, the allocation of the new positions to the districts did not occur until the end of January. Both Congress and the President recognize that filling new positions is a time-consuming process. Accordingly, the President's budget requests and Congressional allocations for new positions are on half-year funding cycles in the first year. We are on track with hiring and filling positions as planned.

    For many years, our average vacancy or float rate was approximately six percent and was offset by additional allocations. Several years ago, however, the number of employees leaving our organization fell drastically. As a result, we had to be much more conservative in our allocations to the field. We successfully used this conservative strategy for several years. However, in this past year, the departure rate unexpectedly increased, contributing to the current vacancy level.
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    Another important factor is that the United States Attorneys' offices continue to have a congressionally mandated FTE ceiling. The rules regarding use of FTE sometimes prevent offices from filling positions where flexibility in FTE use is required.


    The Department is in the process of developing a report on its progress of filling the authorized U.S. Attorney positions. This report will be submitted to the Committee by June 15, 1998, as requested in the Hearing record.

    Mr. GEKAS. All right, one other question quickly, if I may, Mr. Chairman. And that is, in the same hearing, I wasn't sure how this worked out—that the EPA, on the ozone and particulate matter controversy, was supposed to have been consulting with the Justice Department, and the Justice Department defending its position in the litigation that has been fomented; is that correct? Is the Justice Department involved in defending the EPA's regulations, promulgated regulations, on the ozone and particulate issue?

    Mr. HOLDER. Well, I believe that we would be. The Environmental Division would be defending those standards in litigation. The Justice Department is responsible for general representation of agencies in civil litigation, and our Environmental Division would be representing EPA on that one.

    Mr. GEKAS. Well, the thing that confuses us is that the EPA, after we thought that they were consulting with the Justice Department, sent us a letter that said, no, we did not consult with the Justice Department. I'd like to know what that means. Who's representing whom, and who thinks they're not being represented, or who are? Maybe you can send me a memo on that to see what is actually happening.
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    Mr. HOLDER. All right, let me look into that, and we'll provide you with a written response.

    [The information follows:]


    Q. EPA, on the ozone and particulate matter controversy, was supposed to have been consulting with the Justice Department, and the Justice Department defending its position in the litigation that has been fomented; is that correct? Is the Justice Department involved in defending the EPA's regulations, promulgated regulations, on the ozone and particulate issue?

    A. A more comprehensive answer is being prepared under separate cover in response to a letter from Rep. Gekas.

    Mr. GEKAS. I thank the Chair. I yield back the balance of my non-time.

    Mr. MCCOLLUM. [presiding] The gentleman's time has expired.

    Mr. Frank—Mr. Delahunt, you're recognized for 5 minutes.

    Mr. DELAHUNT. Yes, thank you, Mr. Chairman.
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    And I want to welcome Mr. Holder, whose reputation I've been aware of for many years, as a former State prosecutor, and I want to congratulate him on the appointment, and look forward to working with him.

    I want to talk about the Office of Professional Responsibility. And by way of getting to that particular subject, there is a rather disturbing story that appears in The Washington Post, and the headline reads, ''Ex-RNC Chairman Denounces News Leaks.''

    ''Former Republican National Committee Chairman Haley Barbour today denounced news leaks that the Justice Department is deciding whether to indict him.''

    In the body of the story, it goes on, ''Extensive discussions about Barbour's potential liability have taken place inside the task force and at top levels of the Justice Department recently''—and this is my emphasis—''according to senior Department officials. A potential case against Barbour has been outlined by a prosecution team, and the decision as to whether to proceed with an indictment is close to being finalized, the official said.''—presumably, alluding to senior Department officials.

    What I'd like to hear from you and Mr. Colgate is your policy in terms of the investigation of leaks and the improper dissemination of information to the news media, Justice Department policy, whatever sanctions are available, statutes, and what sanctions are part of those statutes, any court rules that you are aware of and sanctions. I also want to be really clear that I understand that this has been a problem that has existed forever, and I'm sure that you in your previous capacity as United States attorney had to deal with it.
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    But I'm interested in the Office of Professional Responsibility, whether you believe that they are not only doing the job, but if you could describe to us the results of those investigations, whether you believe that Congress should have access to the investigative reports of the Office of Professional Responsibility, either for its own review or for release to the public.

    Mr. HOLDER. Well, let me say first that with regard to leaks—I don't want to say that anything that's contained in that article is necessarily accurate. In fact, there are parts of that article and other columns that I've read about the Barbour matter that are wholly inaccurate, I mean just totally inaccurate. So whoever these ''senior officials'' are don't have access to the appropriate information.

    Leaks are reprehensible. They have to be stopped. It doesn't help the Department of Justice to have our investigative strategy—and I'm not talking about the Barbour case, just generally here—our investigative strategy shared with the population as a whole, and also with potential targets. It makes our job more difficult. For those people who are misguided or malevolent or venal, to share that kind of information is reprehensible. It's something that we deplore.

    OPR is primarily responsible for determining the source of these leaks. We have leak investigations underway now.

    Mr. DELAHUNT. In the past 2 years, how many investigations has the OPR initiated, and can you give us an accounting of the results of those investigations?
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    Mr. HOLDER. I don't know how many leak investigations OPR has run in the last couple of years. They are traditionally very difficult ones to resolve. Ultimately, you come down to a question of trying to get a reporter perhaps to reveal——

    Mr. DELAHUNT. Well, let me ask you this: In the course of the existence of the OPR, have any individuals employed by the Department of Justice ever been sanctioned——

    Mr. HOLDER. I do not——

    Mr. DELAHUNT [continuing]. For the dissemination of information outside of the Department?

    Mr. HOLDER. I don't know the answer to that question. We can look and provide you with some written responses in that regard. I don't know the answer to that.

    [The information follows:]


What is the Department's policy regarding the investigation of leaks and the improper dissemination of information to the news media? In particular, what statutory or other prohibitions exist and what sanctions are available?

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    There are several applicable provisions. For grand jury information, improper disclosure is prohibited by Rule 6(e) of the Federal Rules of Criminal Procedure. That rule states, in pertinent part, that attorneys for the government and most others having access to the information ''shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules.'' The rule provides that a knowing violation may be punished as a contempt of court. A contempt of court can be prosecuted under Title 18, United States Code, Section 401, which provides for a penalty of fine or imprisonment within the discretion of the court.

    In addition, under Title 18, United States Code, Section 2232 (b) and (c), it is illegal to give notice of an authorized search or seizure in order to obstruct that process or to give notice of authorized electronic surveillance in order to obstruct that process. The maximum penalty in either case is a fine up to $250,000 or five years in prison, or both.

    A Department of Justice regulation, 28 C.F.R. §50.2, makes it improper for a Department employee to disseminate non-public information about criminal or civil proceedings except within certain limitations specified in the regulation. Alleged violations are investigated by the Office of Professional Responsibility. If that Office determines that a Department employee violated the regulation, the employee will be subject to a sanction imposed by his or her division or component within the Department. Those sanctions include an oral admonishment, a letter of reprimand, suspension without pay, or termination, depending on the facts and circumstances of the violation.

In the course of the existence of the Office of Professional Responsibility, have any individuals employed by the Department of Justice ever been sanctioned for the dissemination of information outside the Department?
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    The Office of Professional Responsibility has conducted numerous leak investigations over the years. Although it was not possible, in most instances, to determine who leaked the information in question, in 18 cases the Department imposed sanctions on Department employees who were found to have disseminated information improperly. In seven other cases, OPR identified the person who disseminated the information as a Department employee, but the person retired or resigned before any sanction could be imposed. In three other cases, OPR determined that the person who disseminated the information was not a Department employee.

    Mr. CONYERS. Well, would the gentleman yield to me?

    Mr. DELAHUNT. I'll yield to——

    Mr. CONYERS. The answer is yes, and I'll provide you some answers in that regard.

    Mr. DELAHUNT. Well, if I could just ask the indulgence of the Chair for another minute—I think it's a real serious problem, and I know that you share that concern, because it really does go to the integrity of not just the Department of Justice, but the confidence that the American people have in the system that it's working. You know, there's a ''dear colleague'' that's circulating this week, and there's a quote here from a former U.S. Attorney General, Robert Jackson, that the ''dear colleague'' cites. And it's, ''The prosecutor has more control over life, liberty, and reputation than any other person in America.''

    The ''dear colleague'' goes on to state, ''Those words come from a 1940 speech by Attorney General Jackson that has tremendous relevance today. We will hope you keep them in mind when considering whether to co-sponsor bipartisan legislation we introduced this week to protect our citizens from misconduct by Federal prosecutors and efforts by the Department of Justice to exempt itself from the same State laws and rules of ethics as all other attorneys in this country.''
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    I would respectfully suggest that there is much work to be done in this particular regard, given the statements, given what appeared in a particular Washington Post story that I read, simply to generate a different level of confidence.

    Mr. HOLDER. Yes. As I said, these are matters that we take very seriously, and OPR is primarily responsible for conducting those investigations. There are a number of sanctions that can be imposed. Obviously, if somebody leaks grand jury information, for instance, that can be punishable as a contempt of court and be an offense for which somebody could be sent to jail. We have the ability also to discipline people, to remove them from the Department.

    Mr. DELAHUNT. It's my own opinion that Congress has an oversight responsibility to review in detail the investigations that are noncriminal in nature into the dissemination of news leaks, to assure the American public that there is a check-and-balance in terms of inappropriate rogue conduct by DOJ personnel.

    Mr. HYDE. [presiding] The gentleman's time has expired. Do you wish to make a response?

    Mr. HOLDER. Just briefly, OPR does issue a public report once a year detailing the work that it has done in the previous year. I would be a little hesitant in making widely available investigative files, even on closed investigations, and that would be a concern that I would have with that proposal.

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    Mr. HYDE. The gentleman from Florida, Mr. Canady.

    Mr. CANADY. Thank you, Mr. Chairman.

    Mr. Holder, we want to thank you again for being with us here today. We appreciate your participation.

    I want to follow up on a point that the gentlelady from California, Ms. Lofgren, made as she was concluding her questioning concerning the situation in the Northern District of California. I've looked at the article she referred to, and based on this article, it appears that there is a problem there. The article makes reference to morale problems in the office. It says, ''Some prosecutors complain that morale is at an all-time low and that a Jimmy Carter malaise has enveloped the workplace, contributing mightily to the slowdown.'' They say, ''The slide began with the well-publicized collapse of Yamaguchi''—the U.S. attorney—''Yamaguchi's nomination for a Federal judgeship in May.'' Yamaguchi, they say, ''all but disappeared after the humiliating decision to withdraw his name, and his absence greatly affected the office.'' Yamaguchi concedes that he, quote, ''crawled into a shell'' after pulling out. He says he's crawled out of his shell since then.

    I don't know what's going on there. I'd just like to see if you have any comments on whether any action has been taken by main Justice to get to the bottom of any problems that may exist here, and if you haven't done that, I'd like some assurance that such action will be forthcoming.

    Mr. HOLDER. I'm not familiar with the newspaper article, but we have constant contact with all of the United States attorneys' offices. We give more attention to offices that are having problems, be they temporary ones or problems that are more enduring. I have spoken with Mike Yamaguchi, who is a good lawyer and I think has been generally a good U.S. Attorney. There have been problems out there, and we've talked about them, but that is a particular office that we are giving particular attention to.
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    Mr. CANADY. Okay, well, I appreciate that.

    Let me go to a related question. If I understood your comments at the outset, you were opposed, and the Department is opposed, to the provision of the bill in section 151 relating to the appointment of additional assistant United States attorneys and the reduction of certain litigation positions at main Justice. Do I understand you correctly?

    Mr. HOLDER. Yes, we're certainly not opposed to the addition of new assistant United States attorneys. We think that the source for those new AUSAs is not really good.

    Mr. CANADY. Okay. Well, I want to explore that and get a better understanding of the Department's position on that. What percentage of the attorneys working for the Department are in the 94 districts as opposed to in main Justice?

    Mr. HOLDER. Well, I'd perhaps let Mr. Colgate answer that question.

    Mr. CANADY. Sure.

    Mr. HOLDER. We have 2,600 total attorneys in the six litigating divisions. There are 4,800 U.S. attorneys and assistant United States attorneys.

    Mr. CANADY. Okay. So you've got more than twice as many in the districts. Do you know what percentage of cases are handled in the districts as opposed to in main Justice, where the primary responsibility for the handling of the case or a matter is located in the districts as opposed to at main Justice?
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    Mr. HOLDER. I don't have any specific figures right at my fingertips, but the vast majority of the litigation that's conducted by the Department of Justice is done by assistant United States attorneys as opposed to people at main Justice.

    Mr. CANADY. Well, how do you make a decision concerning what's going to be conducted by the districts, by the assistant United States attorneys, and what will be conducted out of Washington?

    Mr. HOLDER. There are a whole variety of factors that go into that decision. In political corruption matters, for instance, there may be an instance where a United States attorney has to recuse himself or/and his whole office, in which case main Justice might come in and try that matter. There might be a matter that involves a specialized piece of the law that a particular office is not very familiar with. Therefore, main Justice might come and either help in the prosecution or do the prosecution itself.

    When I was at the Public Integrity Section for 12 years, I very frequently worked with assistant United States attorneys in particular cases in areas where they did not have a lot of expertise in public corruption matters, or actually came in and tried cases ourselves where a United States attorney had recused himself.

    We also give particular attention to the first trials involving new statutes, so that the law is developed in appropriate ways, and there I think, again, main Justice has particular expertise.

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    Mr. CANADY. Could you—and I realize you may not be able to quantify this, but how much of the work of main Justice is involved in helping the districts as opposed to handling cases? Does most of the work relate to helping or is most of the work involved in handling cases where main Justice actually takes the lead and handles the case?

    Mr. HOLDER. It would really depend on the section and on the division. Parts of the Criminal Division, for instance, are really dedicated to giving advice to assistant United States attorneys as they try cases.

    I think that people should not have an impression of the lawyers, though, in main Justice is that they're a bunch of non-trial lawyer pencil-pushers. I mean there are a lot of really good litigators in main Justice who have helped assistant United States attorneys and U.S. attorneys around the country over the years, but, again, the primary responsibility for litigation resides in the field.

    Mr. HYDE. The gentleman's time has expired.

    Mr. CANADY. Thank you.

    Mr. HYDE. The gentleman from Massachusetts, Mr. Meehan.

    Mr. MEEHAN. Thank you, Mr. Chairman.

    Assistant Attorney General Colgate, I understand that the CALEA negotiations between the FBI and telecommunications industry representatives are at a critical stage right now. Either the sides agree on March 20 on a detailed plan for resolving the differences within 50 days or the Attorney General will kick the matter over to the FCC to decide.
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    Can you provide us with an update as to whether any progress has been made in these extremely important negotiations?

    Mr. COLGATE. Yes, I can. We have—as you may be aware of, the Attorney General met with senior executives from the telecommunications industry this last Friday. We embarked on a two-stage process where, within the next 10 days, we're going to try to develop a framework to provide for a comprehensive resolution of the differences on the CALEA issues.

    We had our first meeting on Monday at 1:30 at the headquarters of the USTA Association. It was well attended by industry. We have exchanged papers and plan to get together, I believe either next Tuesday or Wednesday, to try to work out this framework. I think that both parties are approaching this in good faith.

    Mr. MEEHAN. Thank you.

    Mr. Holder, will the Department appeal Judge Sporkin's recent decision to overturn the Navy's attempted discharge of Senior Chief Petty Officer Timothy McVeigh under the ''don't ask, don't tell'' policy in the military?

    Mr. HOLDER. I'm not sure that we have made a decision in that regard. I'd have to check and get you a response.

    [The information follows:]
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Will DOJ appeal decision to overturn the Navy's discharge of Timothy McVeigh under the ''don't ask, don't tell'' policy?

    A protective notice of appeal has been filed. A decision is still pending.

    Mr. MEEHAN. The reason I ask is because I'm a member of the National Security Committee as well, and one of the concerns many of us within the committee had is with the Navy's actions in this matter. I would think that the Department would take into consideration the outrageous conduct of the Navy in this matter in making a determination whether it should be appealed. I spoke out on that committee at the time this policy was enacted, and all of the problems with this policy were foreseeable. So I'm interested in hearing what the Department decides on that.

    Mr. HOLDER. I mean, there are some aspects of that matter that are clearly disturbing, and we would consider the matter in its totality in making an appeal decision.

    Mr. MEEHAN. Thank you. Thank you, Mr. Chairman.

    Mr. GEKAS. [presiding] The time of the gentleman has expired. The Chair recognizes the gentleman from Florida, Mr. McCollum.

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    Mr. MCCOLLUM. Thank you very much.

    Mr. Holder, Mr. Colgate, I'm curious about a couple of things. One right off the top is one that has a lot of interest in my State, and I gather in several of the larger States, about complaints we've been receiving lately from hospitals who have said that there's been, they think, a very much overaggressive policy with respect to Assistant Attorney Generals attempting to enforce the False Claims Act through letters directed to them, and basically, considering blackmailing them for what would be considered routine mistakes. Rather than go through the prosecution, the cost of litigation, these hospitals are saying that we're winding up seeing our settlements occur, and it's just happening routinely in a lot of places.

    Are you aware of this? And is it a problem? Has it been something the Justice Department's working on?

    Mr. HOLDER. Yes, we have certainly heard complaints. We are very aggressive in attempting to get at all forms of health care fraud. We understand, however, that the power that we wield is enormous, and we want to make sure that in our interaction with hospitals and other health care providers that we do so in appropriate ways. I have gotten copies of some of those letters and we are looking at that whole matter to make sure that assistant United States attorneys, U.S. attorneys, in their interaction with hospitals and raising concerns, are doing so in an appropriate way. It is not our intent to blackmail people by threatening them with treble damages to do things that we think are—that they think inappropriate. We only want to do that which is right. But, again, we are extremely aggressive in dealing with health care fraud.

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    Mr. MCCOLLUM. Well, we want you to be aggressive about it. So I just wanted to know if it was, indeed, on your radar screen.

    I'm also concerned with respect to my jurisdiction over the Crime Subcommittee about a number of the programs there, and there is concern about the local law enforcement block grants and some of the other Office of Justice programs. Does the administration, does the Department of Justice support the block grant, law enforcement local block grant programs at this time?

    Mr. HOLDER. Well, I think we have a general concern about block grants. We think that a more targeted approach to dealing with problems has proven effective over the last 5 years, and we believe that is a way in which we ought to continue our assistance to State and local law enforcement agencies.

    Mr. MCCOLLUM. So you don't favor the block grants the way they've been sent out to the local communities as they're now structured?

    Mr. HOLDER. Well, as I guess I said, again, we think that the more targeted approach with the notion of identifying monies for particular areas in which they might be spent is a more appropriate way of dealing with it.

    Mr. MCCOLLUM. Let me ask you a question about Office of Justice Programs generally. Are you as concerned as I am about the overlapping and the inefficiencies that are in that Department, and if so, could we work together to somehow correct those inefficiencies in the near future?
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    Mr. HOLDER. Yes. Well, I'm not willing to concede that there are necessarily inefficiencies within OJP. However, if you have specific concerns, obviously, we'd want to deal with those.

    We try to monitor on a pretty consistent basis all of the components, all of the divisions, within the Department to make sure that we are efficiently using our resources and that there is not that overlap. If there are particular concerns that you have, however, we'd be more than glad to work with you.

    Mr. MCCOLLUM. Well, it's the type of oversight concern I have. As we go through a reauthorization bill, there seems to me to be a lot of different agencies, subagencies, subdepartments, et cetera, and this is an area of particular concern.

    Let's talk about the COPS program for a minute. The GAO study recently showed us that 49 percent of the COPS money was going to communities of under 10,000 in population and 83 percent going to communities of 50,000 and under in population, and yet most of our major violent crime studies show it's in the larger cities. How can we have the significant impact we want to have with this COPS program if most of the COPS are going to communities of under 50,000, if, indeed, crime is where I think it is, in the larger cities predominantly? How do you see that, Mr. Holder?

    Mr. HOLDER. Well, I certainly think that there are problems that small communities have, and it's not inappropriate for us to extend resources to those communities. I think that one has to look at the question of grants as opposed to dollars. The Crime Act requires that half of COPS dollars go to jurisdictions with populations above 150,000 and half go to jurisdictions with populations below 150,000, and the GAO study indicated that we were, in fact, meeting that requirement. There are a substantially greater number of smaller jurisdictions than there are larger ones, and that's why you have a greater number of grants as opposed to dollars going to smaller jurisdictions.
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    Mr. MCCOLLUM. Well, let me ask you one last question in my short time here. I wrote Director Gonzales regarding the U.S. Marshals Service concerning some allegations of racism in the Marshals Service Southern District of New York. He wrote back in January and informed me that he had previously referred the matter to the Inspector General of the Department to determine many of the allegations that had been previously investigated, and there was no evidence of widespread racism in this matter.

    Have you looked into this yourself? Are you satisfied that that is the case? I'm just concerned to make sure that there is no—that we are not overlooking anything we should be looking at in this situation.

    Mr. HOLDER. Yes, some of those matters have already been examined. However, I did attend a hearing that the Congressional Black Caucus had with regard to racism, the problem of racism in Federal law enforcement, and it is something that I am personally looking into. There are people on my staff who are personally looking into this and trying to gauge both what we heard at that hearing, which involved the people in New York, and also to make sure that we are proactive in ensuring that we do not have problems with race in Federal law enforcement. But it is something that I am personally involved in.

    Mr. MCCOLLUM. Thank you very much, Mr. Holder. Thank you, Mr. Chairman.

    Mr. GEKAS. The time of the gentleman has expired. The Chair recognizes the gentleman from Massachusetts.
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    Mr. FRANK. I want to follow up on the COPS program, because one of the things that concerns me is that communities have gone out and hired police officers. In many cases many of us urge them to do that, some of the cops on the street. And the question is, what's going to happen when this original thing expires? Is it the current assumption under the Balanced Budget Act and other restrictions that, once the first 3 years expire, they're entirely on their own or is there an intention that we would continue Federal funding for these officers?

    Mr. HOLDER. The intent is to follow the COPS program as it was originally designed, so that it would be for a specified number of years, and then the hope would be that those jurisdictions who hired police officers would on their own maintain them, maintain those numbers.

    Mr. FRANK. Well, I think there are a number of things wrong with that balanced budget agreement, and this is one of them. I don't think people fully understand that, and I think that will be a very grave error for us having encouraged people to hire these police officers, and we paid for 3 years of them, and they get to pay the next 20 years of them. I don't think that's a kind of fiscally-responsibly approach. I will be strongly pushing for Federal funding to continue the hiring, but, as I understand it, you're telling me the administration position is, when the 3 years is up, those are then entirely the responsibility financially of the local governments?

    Mr. HOLDER. Yes, under the way the program is presently structured, that would be the case.
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    Mr. FRANK. And you would advocate keeping it that way?

    Mr. HOLDER. Well, I mean, if there are specific proposals that you have, we would be more than glad to look at——

    Mr. FRANK. All right, let me give you one. We keep it up. It's not that hard. We renew it for another 3 years or 6 years. Is that specific enough?

    Mr. HOLDER. That has an appeal to me, but there are people in the administration certainly higher than me and who have other responsibilities, overall budget concerns——

    Mr. FRANK. Right.

    Mr. HOLDER [continuing]. Who have to weigh in as well.

    Mr. FRANK. Well, I appreciate it, and I just want to illustrate, people should understand, those Americans who are concerned that we would then be faced with a situation where we would lose police officers—because I think what would happen would be in many communities they would continue, obviously, the police officers that were hired. It would be breaking faith with those individual men and women to fire them. But other police officers would not be hired who would have otherwise been hired. But I hope the American people will feel secure.

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    They should know that, under the budget we adopted, thanks to America, France and Germany and Belgium and Norway will be safe from any invasion, because we will continue to spend tens of billions of dollars to defend them against an invasion, but we'll be laying off cops in America. And anybody who thinks that's reasonable can stand up for it. My own view is that there are Americans in more danger of assault from criminals than France is in danger of being invaded, but that's, I think, an example of the kind of priority decision we're going to have to make.

    The next question has to do with immigrants. We have been toughening up in some ways the status of people who are in this country and are not citizens. What's the current situation regarding people who are trying to become citizens? I know I have a lot of people in the district I represent who would like to become citizens and they have to wait a very long time. I mean, they've done everything they should do, and there's just a delay in terms of paperwork. Do you have any estimate of what that is and what we could do to speed that up? I can't imagine anybody justifying having people wait 2 and 3 years just to be able to be sworn in or sign the papers, or people who have met all the requirements.

    Mr. HOLDER. The Attorney General and I, as well as Commissioner Meissner, have ongoing concerns about the efficiency of INS in dealing with that problem. We have weekly meetings with the INS Commissioner to talk about that, among other things. It's our hope that, with the budget request that we have made, that we can become more efficient. Mr. Colgate can perhaps share some thoughts on that.

    Mr. COLGATE. The Congress was generous in fiscal year 1998 and provides us with an additional $212 million to make improvements in the system. We believe we have addressed the issues of integrity. Although integrity is not mutually exclusive with service, we believe that the reforms that we have undertaken over the last several months can begin to address the backlog issue.
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    I will say, though, that we are receiving—not only do we have issues as far as the numbers that we're processing, but we have received a record number of incoming new applications. We are very committed to making——

    Mr. FRANK. Well, then we should—would that require more money to process them appropriately? I have to say the situation of people wanting to become citizens and not being able to is a very, very unfortunate one. Are you asking for money, then, to accommodate those new people, so you can process them quickly?

    Mr. COLGATE. It will represent additional fees because this is a fee-for-service program. So it doesn't require additional appropriated dollars. There would be a revenue stream from the additional applicants in the field.

    Mr. FRANK. I understand then the fees will get very high.

    The last question has to do with procedures in the Department. The independent counsel is mandated to follow departmental procedures. I have a question I don't expect you to know the answer right now, but I'd ask you to submit this in writing.

    I believe we had an issue of serious constitutional dimensions when the independent counsel announced that the First Amendment did not protect misrepresentation, which, fortunately for us, we have a separate constitutional provision, the speech-and-debate clause. So our misrepresentations are, fortunately, given that attitude, more solidly protected constitutionally. We have both the First Amendment and the speech-and-debate clause, but members of the general public who don't have the speech-and-debate clause who face the potential of some kind of official action because of what some official thought were misrepresentations, I'd be curious to know if this is Department practice.
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    Could you give me a list of occasions when U.S. attorneys have used the powers of their office, including subpoena powers and grand juries, to look into the problem of people who have engaged in misrepresentations about their office, and have sullied their reputations unfairly? I'd be interested to see how many cases we have of U.S. attorneys doing that. And I wonder, what's the Department's position on U.S. attorneys doing that?

    Mr. HOLDER. Well, I accept your offer to provide a written response to that question.

    [The information follows:]


You inquired about the Department's practices with regard to certain subpoenas and grand jury matters.

    No specific records are maintained by the Department that would enable us to answer this question. However, prior approval of subpoenas to media personnel is required from the Office of Enforcement Operations in the Criminal Division, but such subpoenas could be for a variety of reasons such as being a witness, having possible evidentiary matter or other purposes and would not identify subpoenas specifically for the reasons cited. Even then there are specific limits on the basis of which such a subpoena can be sought if directed to media personnel as opposed to other individuals. (See 28 CFR 50.10)

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    Mr. GEKAS. The time of the gentleman has expired. The Chair recognizes the gentleman from South Carolina, Mr. Inglis.

    Mr. INGLIS. Thank you, Mr. Chairman.

    Mr. Holder, there are over 31,000 video gambling devices in South Carolina at 8,000 locations that take in almost $2 billion a year. I sent a letter to the Department on December 11 last year concerning the Department's efforts to enforce Federal laws relating to the regulation of that activity. I received a reply yesterday at 4:45 p.m. To say I'm disappointed it took 4 months is a little bit of an understatement, but I do appreciate the response. It is late received.

    But I do appreciate, though, the opportunity to come ask you a question today about that response. In particular, I think the Department's letter raises more questions than answers, I think. Here's the point: Evidence seems to indicate the presence of organized crime in the video gambling business in South Carolina. I had an opportunity this last week to meet with Chief Stewart of the South Carolina Law Enforcement Division. He told me of his concerns.

    There's a press report of a Myrtle Beach murder. There's a significant article in the Charleston Post and Courier, that substantiates—really goes through these indictments in Pennsylvania, in California, particularly the Pennsylvania indictments, and tracks the possible relationship between those indictments and activity in South Carolina in the video gambling business.

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    And then, of course, I've had a number of contacts from constituents who tell me stories of turf and territories and terms that sound to me a whole lot like the activities of organized crime. We even have our own U.S. attorney in South Carolina admitting that it appears that there should be reason for concern. But, yet, the U.S. attorney in South Carolina has indicated that he is not pursuing the matter.

    Can you tell me, what priorities does the Department place on investigating the role of organized crime in the video gambling business in South Carolina?

    Mr. HOLDER. As our letter to you indicated—and I apologize for the amount of time that it took to get you that response—as the letter indicated, there are statutory responsibilities that people have who own these machines, registration requirements, and obviously, those are of concern to us. But, more generally, and perhaps more importantly, we are concerned about the possibility that organized crime is using this as a way in which they might gain a foothold in South Carolina or in other places in the country.

    If there are specific examples of organized crime activity, these are things that we would expect would be vigorously investigated and then, where appropriate, prosecuted.

    Mr. INGLIS. Can you tell me what steps the Department has taken or what steps you've directed Mr. Josey to take to get off the dime here, basically? He's indicating to us that it's not a priority.

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    Of course, you know, this comes in the context of him deciding to make a priority the allegations against Ken Starr. The same day that it's reported that he's not pursuing this organized crime link, he is pursuing a political matter involving Ken Starr. So you can see that it gives rise to great concern amongst South Carolinians that, what gives here; when is he going to get off the dime? When is the Department going to get involved in investigating these allegations of organized crime activity? Are there affirmative steps that the Department is taking or?

    Mr. HOLDER. Well, I mean, I would expect that the U.S. attorney would look at his intelligence information and see if, in fact, there's a basis to conclude that organized crime is involved in that area, and then to take appropriate investigative steps as well; to look at the newspaper article. I mean, that was a good source of information for me when I was the United States attorney and was actually the way in which we started a number of investigations. To look at what your investigators, what your FBI agents, are telling you about this particular field, this particular area, and what needs to be done.

    It is something that is of great concern to us. Obviously, we don't want organized crime to be any place in this country, and we certainly don't want to have organized crime use video poker as a means of establishing themselves in areas where they perhaps do not exist now.

    Mr. INGLIS. Well, I wonder if I can get you, since my time is almost up, I wonder if I can get your assurance that the Department can speak to Mr. Josey about doing more than what he is indicating in press reports, which is simply that he's going to monitor the situation? I would hope that, given the fact that this is, according to a number of experts, an absolutely ''ripe plum,'' as one of them put it, for the activity of organized crime, that the Department will use the significant increases in funding we've given over the last couple of years to pursue active investigations and find out whether the mob has entered the video poker business, a $2 billion industry in South—not an industry; I dislike the term ''industry''; I think it's actually a drain on our society, not an industry, but it's a $2 billion business. So any assurance that you can talk to him to get him interested in pursuing this matter or the Department could take some action?
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    Mr. HOLDER. Well, Rene Josey is a good U.S. attorney, and I would expect that he would look at those allegations and would take appropriate steps. I'm sure I'll have an ability elsewhere—I'll be interacting with him at some point, and this is an issue that I can raise with him, but I don't mean to imply by the fact that I will be talking with him about that that I have no confidence in his abilities or no confidence in the way in which he has conducted himself to date. You've raised an issue that has gotten our attention. As I said, I'll speak to Mr. Josey about it, but that should not be viewed in any way as some kind of negative comment or negative view by us in Washington about the job that he has done.

    Mr. HYDE. The gentleman's time has expired. The gentleman from Michigan, Mr. Conyers.

    Mr. CONYERS. Thank you, Chairman Hyde.

    I welcome Mr. Holder. We were at Benning Terrace a few months ago and had a good experience with the cooperative efforts between community leaders and the Department of Justice to reduce the gang activity and let people know that law and order is an appropriate lifestyle here in Washington, D.C. I look forward to continuing to develop that with you.

    I note with sadness that Andy Fois will be leaving. He's a product of this committee, and I know he served the Department as well as he did as attorney here on the Judiciary Committee.

    Mr. HOLDER. If there was some way that you all would pass a law that perhaps would bind him to the Justice Department, we would support that legislation. [Laughter.]
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    Mr. CONYERS. Well, I have a——

    Mr. HYDE. Without objection, so ordered. [Laughter.]

    Mr. HOLDER. I'm sure it will get bipartisan support.

    Mr. CONYERS. Right.

    There are three documents that were just delivered to you. All of them are letters to the distinguished Attorney General to which there has not been a response: February 6, February 25, March 4. Rather than write yet another letter, I'd like to publicly ask you to convey to her that I would like to set up a meeting with her, and maybe we can come to some conclusion about these matters.

    I find it unusual that the Attorney General, who is the only one that has any control over the independent counsel under the statute that we wrote, now chooses to have no contact with members of the Judiciary Committee. This committee has oversight jurisdiction over the Department of Justice, and now we have a wall between the Department of Justice and this committee. I think that is particularly troublesome under the circumstances that we find the independent counsel operating.

    Do you have any problems with the proposition that U.S. attorneys, including the independent counsel, are under the jurisdiction of the Attorney General?

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    Mr. HOLDER. Well, the degree of authority or degree of supervision that the Attorney General has over United States attorneys and an independent counsel is different. The Department—the Attorney General actually has——

    Mr. CONYERS. You're right, let me strike the U.S. attorneys and limit it to the independent counsel.

    Mr. HOLDER. Certainly the Attorney General has the ability to remove an independent counsel for good cause, as is indicated in the statute, and I think on the basis of that portion of the statute, the Attorney General, therefore, has some ongoing supervisory responsibility over an independent counsel.

    Mr. CONYERS. Do you remember the period in which Attorney General Richard Thornburg conducted an investigation because of leaks, which at that time were around a Member of Congress, an African American Member of Congress, who was at that time the highest-ranking House official in our history?

    Mr. HOLDER. Yes, I do remember that, and that's actually one, as I understand, one of the rare instances where I think the source of the leaks was actually identified.

    Mr. CONYERS. Yes. As a matter of fact, Mr. Thornburg was before this committee and he was commended for the swift action that he took to determine the source of the leaks, and then to take action on the information that he disclosed.

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    So we have a problem here that suggests to me that we may have an Attorney General that is quick to recommend independent counsel, but very slow to supervise them. And it's creating greater confusion, not only in the Congress, but among the American people as well.

    And so as these things go in a Democratic society, if you're criticizing Starr, you're anti-Starr; if you're supporting him, you're for him. And I think we in government need to make sure that we don't move along those kinds of lines.

    Now one last question, Chairman Hyde, and I'll conclude. We have never had an independent counsel who felt that he could subpoena individuals for the crime of disclosing misinformation to the press. And if you recall any exceptions to that, I'd certainly like to know about it.

    So what we're trying to do, in an orderly way and without interfering with ongoing investigations, determine whether or not the Attorney General agrees with the feelings of some people that we've got a serious problem with the conduct, the overreaching activities that have been alleged against the independent counsel. Now, I write a letter to the Attorney General, but I don't get a letter of response. What does it mean? I don't think we need to operate in this kind of vacuum, and that's why I'm bringing it to this public level of discourse, so that we can come to some understanding about the problem. It is a serious problem, not likely to go away any time soon.

    Mr. HOLDER. The letters that I've seen are letters that are being considered by the Department. There are, I think we should all understand, motions that are pending before the judge who's supervising the grand jury in this matter, Judge Norma Holloway Johnson. Among the things that the Attorney General will take into consideration in determining whether or not this is an appropriate place for the Justice Department to act is what the judge might do in regard to the motions that are pending.
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    The Justice Department, the Attorney General, clearly has the authority, we believe, to—I'm just speaking generally here, not necessarily about Mr. Starr—but we have the authority under the terms of the statute to ensure that independent counsels act appropriately, and we will use that authority in appropriate circumstances. But, as I said, there are a number of factors that we will take into consideration in deciding what action, if any, the Department should take with regard to the matters that you have raised.

    Mr. CONYERS. Well, I thank you, because we do agree that the ethical guidelines of the U.S. attorneys and the specific provisions of the independent counsel statute do apply in this case. The prohibiting of leaks, for example, Rule 6(e) that applies to all U.S. attorneys, the ethical guidelines that apply to all U.S. Attorneys, including independent counsel, all apply in the instant case; is that not correct?

    Mr. HOLDER. Yes, I mean it would apply to all independent counsel. They operate in that regard as United States attorneys, as assistant United States attorneys.

    Mr. CONYERS. Thank you very much, Mr. Holder. Thank you, Chairman Hyde.

    Mr. HYDE. Thank you. The gentleman from Tennessee, Mr. Bryant.

    Mr. BRYANT. Thank you, Mr. Chairman.
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    Welcome, Mr. Holder. I have great confidence in you and great comfort in knowing that you're in the position you're in, and I appreciate your service.

    Mr. HOLDER. Thank you.

    Mr. BRYANT. You bring to that office the experience of an online U.S. attorney who's been out in the field.

    I would ask you, first of all—and I know you're not prepared to do this, but if you could correspond, send the information concerning the Department's role or view on the subject of veterans' preferences? Again, it's kind of an unusual question, and I'm not sure where it fits in, but it would be in the nature of certainly personnel policies and how those are enforced within DOJ, any memoranda, and so forth. Especially, I'm interested in the Attorney General's opinion of these, and I've just gathered some information from the field, from some folks, about that, and I won't go any further at this point.

    Mr. HOLDER. We can do that, Congressman. We can get you a response.

    Mr. BRYANT. Okay.

    [The information follows:]

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What is the Department's role or view on veterans' preferences with regard to its personnel policies and how are they enforced?

    The Office of Personnel Management is responsible for administering entitlement to veterans' preference in employment under Title 5, and oversees other statutory employment requirements in Title 5 and Title 38. Title 38 governs veteran entitlement to benefits administered by the Department of Veterans Affairs.

    The Department of Justice, as are other federal agencies, is responsible for adjudicating all veterans preference claims except claims for preference based on common law marriage. The Department, in adjudicating preference, uses Chapter 7 of the Guide to Processing Personnel Actions. That guide is used by personnelists to adjudicate preference. In other words, appointing officers (those delegated personnel authority to appoint) make these adjudications according to laws and regulations.

    Additional information can be obtained via the Internet from the Office of Personnel Management Web Site at http://www.opm.gov. After accessing the site, choose the index and then select v, then select the veterans guide for specific and detailed information.

    Mr. BRYANT. In regard to the Vacancies Act, I know John Keeney, and he's a good man. I think he's doing a good job, but I think he's occupied, the lead now, on the criminal side for about 2 to 3 years, and I just wonder how the administration continues to overlook or at least has the rationale to continue to overlook the constitutional provisions of advise and consent that the Senate has in failing to fill that vacancy during the proper procedures using the proper procedures.
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    Mr. HOLDER. Our hope is that we will make an announcement very, very shortly with regard to the Criminal Division spot. We are in the final stages of running all the checks and doing all the necessary vetting of a candidate, and I expect that we would make a public announcement very, very soon in that regard.

    Mr. BRYANT. Thank you.

    Regarding the allocation of U.S. attorneys and assistants, I probably have just a slight disagreement with you on bringing more people from D.C. out into the field, I think that would be appropriate given the numbers and the relative caseloads involved. Personally, I had good experiences with main Justice and the support that we received, particularly from the Civil Rights Division in some cases that we prosecuted, but some of my colleagues felt on occasion there were stumbling blocks, and so forth, that interfered with our relationship, but I would be inclined, and in fact do co-sponsor and support our chairman's bill to make this reallocation.

    In regard to an agreement that apparently has been reached between gun manufacturers and the administration regarding triggerlocks, are you comfortable enough with that agreement to say whether DOJ is satisfied with that, and that perhaps further litigation in terms of the juvenile justice bill would not be necessary in regard to the triggerlock—not the program Triggerlock, but placing the triggerlocks on, the safeguards on the weapons?

    Mr. HOLDER. I'm not familiar enough with the agreement, I think, at this point to answer that question in a way that I would like to, and if you'd allow me to, perhaps I could submit a written response to you.
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    Mr. BRYANT. Okay, would you?

    [The information follows:]

U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC., July 6, 1998.
Hon. HENRY J. HYDE, Chairman,
Committee on the Judiciary,
U.S. House of Representatives,
Washington, DC.

    DEAR MR. CHAIRMAN: I am writing to provide information responsive to a question asked of Deputy Attorney General Eric Holder at the March 11, 1998 hearing before the Committee. Congressman Bryant asked whether the Administration's legislative proposal to require federal firearms licensees to provide child safety locks with each firearm sold is still necessary in light of the agreement of many gun manufacturers to provide these devices voluntarily.

    The provision of child safety locks on firearms is a very important means of reducing accidental and unauthorized use of firearms, especially by children. Last year, President Clinton joined with most of the major American handgun manufacturers as they voluntarily agreed to place child safety locks on their guns. This agreement goes a long way toward saving the lives of children as well as adults. However, to the extent that other manufacturers, or other types of firearms, are not covered by the agreement, we continue to support a legislative requirement for child safety locks so that no child can operate a firearm in this country either by mistake or without permission.
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    I hope this information is helpful to the Committee and I apologize for the delay in our response.


L. Anthony Sutin,
Acting Assistant Attorney General.
    cc: The Honorable John Conyers, Jr.,
Ranking Minority Member.


Triggerlock Question for Congressman Bryant (R–TN)

    Question: ''I would also add—let me just ask you a couple other quick questions, and I'm not familiar with the details of this, but in regard to an agreement that apparently has been reached between gun manufacturers and the administration regarding triggerlocks, are you comfortable enough with that agreement to say whether DOJ is satisfied with that, and that perhaps further litigation (sic) in terms of the juvenile justice bill would not be necessary in regard to the triggerlock—not the program Triggerlock, but placing the triggerlocks on, the safeguards on the weapons?''

    Answer: The provision of child safety locks on firearms is a very important means of reducing accidental and unauthorized use of firearms, especially by children. Last year, President Clinton joined with most of the major American handgun manufacturers as they voluntarily agreed to place child safety locks on their guns. This agreement goes a long way toward saving lives, both children's and adults'. However, to the extent that other manufacturers, or other types of firearms, are not covered by the agreement, we continue to support a legislative requirement for child safety locks so that no child can operate a firearm in this country either by mistake or without permission.
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    Mr. BRYANT. Weed and Seed is a program that I know that probably started out about the time Triggerlock did under President Bush's administration, and I understand that's going well.

    Mr. HOLDER. Yes.

    Mr. BRYANT. And I notice my time is up.

    I want to ask you very quickly, as a last question, if you have an opinion on this—and if you do, what the opinion is, in terms of the appointment of a special prosecutor in the campaign financing probes. Do you have an opinion on that and what it is, whether we need a special prosecutor appointed?

    Mr. HOLDER. Well, as the Attorney General I think has consistently indicated, we're obviously aware of the responsibilities that we have under the statute. She has not been adverse to appointing independent counsels where it is appropriate. As the investigation is proceeding, we are constantly monitoring the information that is developed to see if we have triggered the statute at any point. To date, we have not come across information, evidence, that we feel puts us in that territory. It is, as I said, something that we are mindful of, and as cases are developed, as pleas are taken, as we debrief people, we are very mindful of the obligation that we have under the Ethics in Government Act, and where there is the need for an IC, an independent counsel, we would offer one. We do not feel, however, that at this time we have a statutory obligation to do so.

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    Mr. HYDE. Thank you. The gentleman's time has expired. I'm going to yield myself some time right now because I want to ask this question, and I may not get another opportunity.

    Last year I sponsored a provision in the House that was approved by a vote of 340-to-84, to allow prevailing defendants in a Federal criminal prosecution the opportunity to recover attorneys' fees when the prosecution was vexatious, frivolous, or brought in bad faith. The Department threatened to veto on that provision, and the Department opposed it, but I was certainly confident, now that it has become law, that it would be properly enforced.

    I now have two memoranda from both you and John Keeney, Acting Assistant General for the Criminal Division, to all Department attorneys, and it seems to indicate to me that the Department of Justice may actually be seeking to undermine this law. I would really like your clarification on this issue.

    Let me read to you from the Keeney memorandum. ''As a general proposition, the Department should take the view in litigation, unless and until foreclosed by appellate precedent, that the version of the Hyde amendment ultimately adopted by Congress is designed to compensate only those prevailing parties where the court finds that the government's position was utterly baseless or vindicative.''

    Now the statute says, ''vexatious, frivolous, or in bad faith.'' And I can assure you, if we had meant utterly baseless or vindictive, we would have said that. Malicious prosecution was rejected as a standard. So can you explain to me the disparity of the statute's plain language and the Department's proposed interpretation? Doesn't Mr. Keeney's memorandum contemplate undermining a law that I think the Department has a duty to honor?
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    Mr. HOLDER. Mr. Chairman, we in no way intended to undermine the statute as passed. We believe the language of the statute that talks about ''frivolous, vexatious, or in bad faith'' is consistent with what we have said about utterly baseless and vindictive. We did not mean to imply that a different standard should be applied. It's our intention to carry out the statute as it has been passed by Congress and to abide, obviously, by any authoritative court decision that would be rendered in that regard. But I really want to assure that we did not mean by the use of that different language that we would try to in any way get around the statute as it was intended.

    As I said, we think that the language used by Jack Keeney and by myself is consistent with the statutory language. We perhaps could have been a little more careful.

    Mr. HYDE. Well, yes. ''Utterly baseless or vindictive''—you can bring a frivolous suit; you can bring a suit that's in bad faith, but it may not be vindictive; it might just mean you're a mean SOB and you're going to sue somebody. Really, I just—I've never taught law, but I should think the language of the statute ought to be enough and not somebody's interpretation, which is, in my judgment a different standard.

    I would hope, if you issue further memoranda, you might use the words of the statute because ''vexatious, frivolous, or in bad faith'' has a meaning; it is in other statutes, and ''utterly baseless,'' what's the difference between ''baseless'' and ''utterly baseless?'' Maybe 10 percent? I don't know, but I just think that's wrong and I hope you would correct it.

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    Mr. HOLDER. Okay.

    Mr. HYDE. Thank you.

    And now, Mr. Berman, do you wish to inquire?

    Mr. BERMAN. Yes, Mr. Chairman.

    Mr. HYDE. Very well, Mr. Berman.

    Mr. BERMAN. Thank you very much, Mr. Chairman.

    I think there's been a great deal of discussion, I'm told, before I got here about the COPS program, to help local law enforcement. I think the program has been a tremendous success. I'm very nervous about what happens when it ends. I know all the old arguments, such as, it's a program that was limited in years, and now people want to extend it and expand it. Those arguments have less meaning to me than what's happening in the field. All the different programs which exist for both, the equipment and technology, as well as the actual Cops-on-the-Beat Program, have been a great success, and it's been partially responsible for things turning around, at least in my area of the country.

    The program that's called the State Criminal Alien Assistance Program established a principle that there was a Federal obligation to pick up the cost of State and local governments for the incarceration of illegal criminal aliens. These are people who came here as a result of our inability to enforce our immigration policies. We've been moving closer and closer toward full funding. It appears initially that the budget this year is a reduction in that program. Am I understanding it correctly? And if so, why? I think it's an important principle. I think it beats going the other way. I have concerns about that.
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    Thank you.

    Mr. COLGATE. Let me address that. For the SCAAP program, the Administration requested, in fiscal year 1998, my recollection is, $500 million. Congress enacted $580 million. In fiscal year 1999, the President's budget requested the same level of funding, $500 million, that the administration had requested the previous year. We believe that the $500 million is a supportable figure. We believe that we are making significant enforcement investments along the Southwest border, and on the balance, when you're taking a look at the total equation of what discretionary funding is available, we're supporting, again, the $500 million request.

    Mr. BERMAN. Is that because you believe that will cover the cost, due to more effective enforcement policies, that that will cover the cost of the incarceration of people who came here illegally or is that just a way you decided to slice up a finite, limited pie?

    Mr. COLGATE. I think a notion of how we allocate these discretionary resources, is the overarching concern.

    Mr. BERMAN. Thank you, Mr. Chairman.

    Mr. HYDE. I thank the gentleman. Mr. Barr, Mr. Buyer doesn't mind—we'll go to Mr. Barr. He's been waiting longer.

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    Mr. BARR. Thank you, Mr. Chairman.

    Mr. HYDE. All right.

    Mr. BARR. Mr. Holder, does the Department of Justice remain firmly and unalterably opposed to any efforts to legalize any schedule controlled substances, including so-called medicinal use?

    Mr. HOLDER. Yes, that has been the position of the Department, consistently, yes. Yes.

    Mr. BARR. Okay. The reason I ask that, of course, is because it is something that we hear about, and there are funds that are requested in O&DCP for studying that issue. So I just wanted to make absolutely certain that the Department's position has not changed.

    Mr. HOLDER. Well, the Department's position has been, with regard to the medical use of marijuana, for instance, that studies need to be done before an informed decision could be made in that regard. But pending those studies and pending some kind of scientific analysis, we are opposed to the legalization of any of those drugs.

    Mr. BARR. Well, I appreciate that. It still worries me a little bit that, on the one hand, we're saying we're opposed to any legalization, legalized use of drugs, yet we're willing to spend taxpayer money to study it. It seems a little bit obfuscatory there, but I do appreciate the fact that it remains the firm position of the Department of Justice to oppose efforts to legalize controlled substances. I appreciate that.
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    Mr. HOLDER. I think it just seems to us that the studies that Mr. McCaffrey talks about just kind of make sense; it's a logical thing to do, to see if there's a scientific basis for a lot of the claims that are made. I, frankly, don't think that there are, but——

    Mr. BARR. I don't either, and I prefer to see the proponents of those pay for the studies, not the taxpayers of this country. That's my concern.

    One thing, Mr. Holder, that I hear from particularly, but not exclusively, from my area, the Northern District of Georgia, is that our effort to rid at least those communities—and I suspect that this is probably a concern shared perhaps by DEA and other parts of the country and other districts as well—that our efforts to rid those communities of controlled substances is being thwarted because of our immigration policies and our lack of effective enforcement at the district and local level of our laws against illegal immigration. I am finding, for example, based on what I hear directly from agents in the field, and supervisory agents as well, that there is a tremendous growth in particularly Mexican and Hispanic efforts to traffic locally in the Atlanta area, in the north Georgia area, in controlled substances, and that they're seeing a tremendous increase in the number of illegal aliens, particularly Hispanics, in those areas actively involved in what seem to be organized efforts.

    The Immigration Service, despite the fact that they want to help out, they simply don't have the resources, and our agents our finding, our drug enforcement agencies are finding, that INS just is not able to help them. And this to me is particularly disturbing because in the 1996 immigration reform law many additional—not just dozens, but hundreds of—full-time investigators were authorized, but the Department of Justice is requesting only a small percentage of those. Large amounts of money were also authorized in 1996 to pay the cost of removing illegal aliens. It's that backlog that's causing a lot of the problem, apparently, locally, but the Department of Justice has, here again, requested only a small percentage of the money that Congress has authorized for that.
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    Why is not the Department of Justice, through INS, placing a higher priority in using the resources, requesting the resources that we've authorized to address this problem? Apparently, it's really becoming a burden at the local level.

    Mr. HOLDER. Well, one of the primary responsibilities that INS has—and it's kind of changed, I guess, over the years—is it has become in some ways almost primarily a law enforcement agency, and the things that you talk about are priorities for the DEA, obviously, and for INS as well.

    With regard to the request that we have made, I will defer to Mr. Colgate.

    Mr. COLGATE. We are concerned on this notion of balance, that we have been very much involved in the build-up along the Southwest border for the Border Patrol—over 1,000 a year for the last several years and 1,000 more Border Patrol in 1999.

    We are concerned on this notion of getting out of balance, of not having sufficient resources for such things as worksite enforcements, such things as removals, such things as——

    Mr. BARR. Well, why has the Department not been requesting that these positions and the monies that Congress has already authorized be filled, if you share that concern? And we're not talking about taking anything away from the border effort at all. Congress recognized that we need to have that balance, but the Department of Justice has not taken advantage of it.
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    Mr. COLGATE. Let me just speak to removals. In fiscal year 1998, we requested $95.5 million for this initiative. There was only $72.1 million appropriated for removals.

    In the area of investigations, we requested 121 positions and $13.5 million, and this was reduced to 54 positions and $6 million. So we do believe that there needs to be balance, and we want to work with the Committee to ensure——

    Mr. BARR. I guess we could argue over the figures. My figures are different from yours, but——

    Mr. HYDE. The gentleman's time has expired. I guess we're going to have to return. I regret that, but we have a vote on. So if the witnesses will stand by, we'll return as swiftly as we can to try to finish up. Thank you.

    The committee stands in recess until immediately after the vote.


    Mr. HYDE. The committee will come to order.

    The gentleman from Indiana, Mr. Buyer.

    Mr. BUYER. Thank you, Mr. Chairman. I know that you've got an appointment, and everybody's got places we have to go. So I'll try to make this quick.
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    Mr. Holder, I came because I wanted to ask you some questions with regard to something I just recently read in the paper about one Congressman having to file a civil suit against another Congressman, and it concerned me. This was the case when you were the U.S. attorney here, and it dealt with allegations against Mr. McDermott. You prosecuted a couple in Florida who did a plea agreement. There are allegations in there that Mr. McDermott may have taken this tape and delivered it to someone; other Members and/or their staffers could have been involved in it. It took 9 months before a grand jury was empaneled. There is only a 2-year statute of limitations, and I just figured DOJ was doing their job, and then all of a sudden I happened to pick up a paper in Indiana and read about that one Member of Congress filed a civil suit against another Member, and that stunned me. If you could bring me up to date what's going on in this case, I'd appreciate it.

    Mr. HOLDER. Well, I'm not sure there's an awful lot I can talk about there. I think that at least part of that matter is still pending, and that being the case, there's not an awful lot that I could talk about.

    Mr. BUYER. Is there a grand jury still empaneled for this case?

    Mr. HOLDER. I'd be really hesitant to share any information about an ongoing matter, and I have not really been in touch with people in my old office about that matter since I've left. So I'm not sure I'd be in a position to share factual information in any case.

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    Mr. BUYER. As I understand, when the speech-and-debate clause was cited, obviously, the prosecution would have to present their side of this case. Would you know what the United States position was on the speech-and-debate clause with regard to one Member and another Member of Congress?

    Mr. HOLDER. I do not know, but I can certainly look into that, and to the extent that I can, I'd share the information with you in that regard.

    Mr. BUYER. One thing that did concern me when I came back, and then I asked a couple of individuals with regard to the case, was that I guess when Mr. Boehner or his office would ask questions of the Department of Justice regarding the status of the case, that Congressional Affairs would come to Mr. Boehner, and I find that rather peculiar. I mean, if I was a victim of a particular crime, and someone was prosecuting it in the Federal sector, I would want to speak to whomever will deal directly with me. If I'm a private citizen back in Indiana, someone from Congressional Affairs isn't going to come see me, and it begins to leave the impression that DOJ is handling the case more as a political question. So I think that really concerns me. So I'd appreciate your comment.

    Mr. HOLDER. Yes. I mean, that certainly would not be our intent. I mean, I think that what would happen there, perhaps instinctively, reflexively, would be that a request for information from a Member of Congress would be dealt with as we normally deal with them, through our Office of Legislative Affairs. That would not mean, however, that it was an indication that we considered it a political matter.

    We, frankly, try to keep—try to funnel all of our contacts with the Hill through OLA. They have the experience, the contacts. They know ways in which to communicate and how to communicate it, but, frankly, prosecutors generally do not. But that's not an indication that it would be something we take less seriously or we view as a political matter.
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    Mr. BUYER. I think the other thing of concern to perhaps Mr. Boehner and others is that, when the FBI was first involved in the case, they were given a complete list of individuals of whom they believed also had knowledge of the case, and that some of these individuals have not even been interviewed by the FBI. So that begins to leave open all the suspicions about whether this is being viewed strictly as a political matter.

    Would you know whether or not there's still an ongoing FBI investigation in that case?

    Mr. HOLDER. Again, I wouldn't want to talk too much about an ongoing matter, and again, I don't really have any factual information, as I said, not having been in the office now for—I don't know—6 or 7 months. But it is not viewed, it was not viewed, as a political matter, as something that was not to be taken seriously. It was something that we investigated, looked at, as a potential criminal case——

    Mr. BUYER. I suppose what greatly concerns me, and why I've raised it to your level for this discussion, is for two things. It deals also with the perception. We don't want Members of Congress to believe that the speech-and-debate clause protects them, even that if somebody commits some kind of an act, and they say, well, this was because of speech, because I can violate this law because it's so important to get this into the public vein of their knowledge—I mean, Members of Congress can't pick and choose when the law applies to them.

    Mr. HYDE. Will the gentleman yield?
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    Mr. BUYER. Yes, to the chairman.

    Mr. HYDE. Would the gentleman consider asking Mr. Fois, who is here, who might have more knowledge than Mr. Holder does?

    Mr. BUYER. That would be fine, Mr. Chairman.

    Mr. FOIS. Thank you, Mr. Chairman.

    I can't speak to the Department's position on the speech-and-debate clause vis-a-vis the Boehner case, but I can address the question of why it was representatives from my office who dealt with Members interested in this.

    First is that, as the Deputy Attorney General says, that is the regular procedure, to funnel these—as many matters regarding congressional relations with the Department through my office. But, also, my office provides a buffer between Members of Congress and these sorts of pending investigatory matters, and the decisionmakers and investigators, so that both sides can be assured that there isn't any appearance of any kind of improper influence one way or the other. So that's generally why we handle those sorts of things.

    Mr. BUYER. Well, I had to ask the question why, Mr. Chairman, would one Member actually file a civil suit against another Member, and also dealt with the Department of Justice would no longer return the phone calls of Mr. Boehner's office, nor respond to his letters. Now that's pretty stunning. So it feeds into this vein of, is this being viewed as the political question. So I want to share that directly to you.
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    And the other thing is in public perception. Here you have a couple in Florida that are immediately prosecuted, and they plea bargain; their case is resolved. Yet, we have this appearance of some Member of Congress that can continue—and it's very concerning. So I want to bring it to your level, that it's something that we know about. It's now of question to Members because we're talking about it, and I am really deeply disappointed that a Member would file a civil suit against another Member, and part of that precipitous was the fact that the Department of Justice would no longer correspond with Mr. Boehner's office.

    Do you have a response to that? And then I would conclude, Mr. Chairman.

    Mr. FOIS. Of course. Certainly, if Mr. Boehner feels that he's made contacts that haven't been responded to, I'll look into that and apologize for it in advance. Anything that I'm aware of, we have responded to. I'd be happy to speak to him directly, if you pass on to him that if he calls me personally, I will make sure that he gets a response.

    Mr. BUYER. Would you provide that digest to the committee?

    Mr. FOIS. Yes.

    Mr. BUYER. Thank you.

    [The information follows:]

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U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC., March 17, 1998.
Committee on the Judiciary,
U.S. House of Representatives,
Washington, DC.

    DEAR CONGRESSMAN BUYER: This letter will supplement the information provided to you by Deputy Attorney General Eric holder and myself at the DOJ authorization hearing on March 11, 1998, before the Judiciary Committee. At that time, you asked about the Department's interactions with Congressman Boehner regarding the investigation into the interception and disclosure of a conference call in which he participated. You asked me to provide you with a digest of our contacts with Congressman Boehner and his office.

    Department records reflect that we have responded to every letter from Congressman Boehner on this matter. Congressman Boehner wrote to inquire about the status of the matter on March 21, 1997, and we responded on April 10, 1997, in a manner consistent with long-established procedures and policies. A copy of our response is enclosed.

    Congressman Boehner wrote again on April 11, 1997, expressing concern that we had not been able to provide him with detailed information about the investigation because it was a pending matter. in response, a member of the staff of the Office of Legislative Affairs telephoned Marc Lampkin, an attorney on congressman Boehner's staff, on April 18, 1997, and suggested that representatives from the Department meet with the Congressman. This meeting was held on April 23, 1997, and attended by Kevin DiGregory, Deputy Assistant Attorney General in the Criminal Division; Joyce Petters, a career OLA attorney; Congressman Boehner; Marc Lampkin and Barry Jackson, congressman Boehner's Chief of Staff. At that time, the Congressman was advised by DAAG DiGregory that the matter was still pending but that criminal informations were being filed that afternoon on the Martins, the individuals who had intercepted the cell phone call. Later that afternoon on April 23, 1997, OLA faxed copies of the criminal informations, the indictments and the plea agreements concerning the Martins to Mr. Lampkin.
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    On or about September 24, 1997, Mr. Lampkin called Mrs. Peters to see if there were any further developments. She checked with Mr. DiGregory who advised that the matter was still pending. Mr. Lampkin was immediately informed and he advised Ms. Peters that Congressman Boehner planned to send another inquiry. This letter was received on September 24, 1997. A copy of our November 4, 1997 response is enclosed.

    Our records reflect no outstanding correspondence nor are we aware of any telephone calls made to Department officials that have not been returned. We have handled this matter according to standard procedures and have tried to be as responsive to the Congressman as possible within the constraints necessitated by a pending criminal investigation.

    I hope that you find this information helpful. Please do not hesitate to call upon me or this office if we can be of further assistance on this or any other matter.


Andrew Fois,
Assistant Attorney General.
    cc: Chairman Hyde
Congressman Conyers


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U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC., April 10, 1997.
U.S. House of Representatives,
Washington, DC.

    DEAR CONGRESSMAN BOEHNER: I am writing in response to your letter to the Attorney General inquiring about the status of a criminal investigation into the allegedly illegal interception and disclosure of a December 21, 1996, conference call in which you participated.

    At the outset, let me assure you that this matter is being handled by career investigators and prosecutors who have served with distinction through both Republican and Democratic administrations. The FBI has assigned a veteran case agent who has skillfully handled a number of sensitive investigations, and he has received support from other FBI agents. The prosecutors overseeing the investigation are career attorneys from the Computer Crime and Intellectual Property Section, the entity in the Criminal Division responsible for prosecutions of violations of the wiretap statute (18 U.S.C. §2510 et seq.).

    The investigators and prosecutors have pursued this matter diligently. They have handled and will continue to handle it both with the appropriate regard for the seriousness of the alleged violations and with the appropriate disregard for the political affiliation of the targets or the victims. Their recommendations will be reviewed in this case, as they are in every serious case, by Department officials whose job it is to enforce the criminal laws in a fair and evenhanded manner.

    You therefore need not be concerned that the investigation is not being pursued vigorously or is tainted by partisan concerns. However, it would be inappropriate to provide the detailed status report that you have requested. The Justice Department is bound by the Federal Rules of Criminal Procedure and by longstanding policy to treat its investigative and prosecutive activity as confidential information. Thus, we routinely decline to provide information about the timing, conduct or progress of grand jury investigations. We recognize that, at times, this process is frustrating for the victims of crime. Nevertheless, our experience teaches us that maintaining the confidentiality of investigations is the best method for protecting the interests of the victims of a crime, the people being investigated, and the general public.
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    Please do not hesitate to contact us again if we can be of any further assistance.


Andrew Fois,
Assistant Attorney General.

U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC., November 4, 1997.
U.S. House of Representatives,
Washington, DC.

    DEAR CONGRESSMAN BOEHNER: This responds to your letter of September 24, 1997, concerning the criminal investigation into the interception of the telephone conference call in which you were a participant.

    As you know, two defendants have already pled guilty to the interception of the telephone call and have been sentenced. As Deputy Assistant Attorney General Kevin V. Di Gregory of the Criminal Division advised you when he met with you earlier this year, this matter continues to be under active investigation. Please be assured that this investigation is proceeding in a thorough, disciplined, and diligent fashion and that the investigative and prosecutorial resources assigned to this matter are both adequate and appropriate.
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    Although our investigation has made progress, we cannot predict when it will be complete. Even investigations that appear to be straightforward from the outside may involve complex issues that take time to resolve. The timetable for resolution is often not solely within our control.

    You also express concerns about ''leaks'' that have appeared in news accounts about the case. We are unaware of information that has appeared in the media that was even generally attributed to law enforcement officials. If you have specific evidence of unauthorized disclosures by law enforcement officials, we would appreciate your sharing it with us.

    We will continue to keep you advised concerning the investigation as the law and longstanding Departmental policy permit. Please do not hesitate to contact us if we can assist you on this or any other matter.


Andrew Fois,
Assistant Attorney General.

    Mr. BUYER. Thank you, Mr. Chairman.

    Mr. HYDE. The gentleman from Georgia has requested an additional minute. Without objection.
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    Mr. BARR. Thank you, Mr. Chairman.

    If I could, Mr. Holder, just to wrap up our previous discussion with regard to immigration, the 1996 immigration reform law authorized the INS to add 300 full-time active-duty investigators in fiscal year 1999 to investigate alien smuggling and illegal employment practices. However, the Department of Justice has requested only 103 agents and 21 support positions for anti-smuggling and no new positions at all for workplace enforcement.

    Also, according to the law, the 1996 immigration reform law authorized an additional $150 million for fiscal year 1999 to pay the cost of removing illegal aliens. Yet, the Department has requested only $31 million for the institutional removal program which is a crucially important program designed for removing incarcerated criminal aliens, and another $4.5 million to track down illegal aliens with final removal orders.

    Now I know that sometimes when the Department, as any department, when they request certain monies or positions, they don't get everything, but why in heaven's name, if the Department agrees that we are seeing a serious problem with illegal aliens involved in drug trafficking and drug usage in our communities, and we recognize, as the Department did in requesting these fiscal year 1999 authorizations in the 1996 immigration reform bill—why in heaven's name isn't the Department requesting everything Congress authorized? Why come up here and request less than that, and then try and impress us with the fact that that's been cut back? Why isn't the Department requesting that these authorization levels be met?

    Because, I'll tell you, it may sound fine statistically, and you all can pat yourselves on the back, but the fact of the matter is in the communities apparently there is a serious problem, and INS is not able to meet the threat directly or to provide the support to DEA that DEA apparently desperately needs to fight the illegal drug trafficking in these areas, in these communities?
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    Mr. HOLDER. Well, I mean, the problem that you describe is a serious one, and one that we take seriously. The dealing of drugs in our communities by people not from this country is of great concern to us. I mean, we have a problem in dealing with the cartels from Mexico and their desire to handle their drugs in this Nation. We take that very, very seriously.

    I will defer to Mr. Colgate with regard to the numbers.

    Mr. BARR. I don't want to get bogged down in specific numbers, but why, if the Department agrees that this is important, and we need to do something about it, why is not the Department requesting the full authorizations?

    Mr. HOLDER. I think it's a matter of balance. I mean, first, let me address worksite enforcement. We had requested funding for worksite enforcement in both fiscal years 1997 and 1998, and we didn't get any funding for it. So when we were trying to put together a 1999 package, we believed that, given the reception that we had received before the Appropriations Committees, that we would focus on the areas that we thought that we were able to get through the process, and we've had difficulty convincing folks that worksite enforcement is an integral part of this initiative.

    We've tried to provide balance in this, and I sort of look at the Immigration Service as we're drinking out of a fire hose. I mean, the Congress, very generously, has provided significant resources. In 1993, INS was about $1.5 billion; in 1998, we're dealing with $3.6 billion. It's a significant increase.
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    We've been focusing on the Southwest border, but we agree that we need to ensure balance in this initiative, and we are concerned about interior enforcement efforts.

    Mr. BARR. I would urge though, respectfully, because I certainly don't want to do your all's job, but to talk directly, Mr. Holder, talk directly perhaps with some of your district INS directors, unless they'd be scared to tell you what we're hearing—they're not getting the new positions; they're not getting the support that they need, and they're sort of scratching their head, because then the local officials come to them and say, why can't you help us with illegal aliens committing crimes in our communities? Then DEA comes to them and says, help us out.

    Mr. HYDE. The gentleman's time has expired.

    The Chair is going to have to leave. I'm going to turn the gavel over to Mr. Inglis. We have three more questioners, and we will appreciate—we have appreciated and do appreciate—your patience. We would suggest that we will send further questions to you in writing for your more leisurely consideration, but there are more questions that didn't get asked today.

    Mr. HYDE. And Mr. Inglis will take over, and we'll just take the three of you, no more questioners, and let you go, again, with our thanks.

    Mr. HOLDER. All right, thank you, Mr. Chairman, and we will respond in a not-too-leisurely fashion.
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    Mr. HYDE. Good.

    Mr. INGLIS. [presiding] The gentleman from Virginia is recognized.

    Mr. GOODLATTE. Thank you, Mr. Chairman.

    Mr. Holder, a number of folks here today have asked you to respond in writing to various questions. What would you consider to be a reasonable amount of time to respond to those requests?

    Mr. HOLDER. It's really hard to tell.

    Mr. GOODLATTE. Would it be 24 hours or 48 hours or a week? What would be a reasonable amount of time to respond to questions?

    Mr. HOLDER. I wouldn't want to say 24 or 48 hours; that's for sure. It's really kind of hard to tell. It depends on the nature of the question, how much research we have to do. Some things we can probably answer just by touching base here in Washington; other questions might involve us reaching out and touching components that are situated around the country, and so it really just depends on the nature of the request.

    Mr. GOODLATTE. But it might vary for different requests—for example, if you've gotten a series of questions, you might respond to some quickly and take a little more time to respond to others?
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    Mr. HOLDER. Yes, that's entirely possible.

    Mr. GOODLATTE. Would you find it surprising that of the numerous questions I asked of the Attorney General when she was here on October 15, not one of them has been responded to in 5 months?

    Mr. HOLDER. It's my understanding that some of those questions have been responded to, that there are some that are still outstanding, and we need to get on those responses.

    Mr. GOODLATTE. Well, Mr. Holder, the chairman, Mr. Hyde, and I propounded a series of written questions after that hearing. They were submitted to the Department on December 15, and it's now been nearly 3 months, and not one of my questions has been answered. And some of them are pretty mundane, routine things. Let me give you some examples.

    When the Attorney General appeared before the committee, I asked her about the Department's implementation of the Anti-Counterfeiting Consumer Protection Act legislation that I authored in the last Congress that was signed into law by President Clinton in that Congress. One of the provisions of the act required the Attorney General's office to obtain and compile from each U.S. attorney's office statistical information relating to the number of counterfeiting prosecutions brought by each such office and to furnish this information to Congress. I followed up on my questions that day by submitting a series of written questions, along with several other questions from my colleagues on the Judiciary Committee, to the Attorney General, on December 16, 1997. I still don't have a response at this late time.
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    And, first of all, the office is not in compliance with the law in having failed to file that report in a timely fashion. So I'll ask you again what I asked her, and that is, when can we expect to be furnished with a copy of your annual report containing the information required under the act?

    Mr. HOLDER. I've heard you. Let me go back to the Department and see where we stand with regard to those responses, and I will——

    Mr. GOODLATTE. How long will it take you to answer that question, which is: What the status of the previous questions are?

    Mr. HOLDER. Well, I think that in terms of answering you the status, I can do that relatively quickly, but let me get back to the Department, talk to the people who have the responsibility for formulating those responses, and try to get you both a status check and also the substantive answers as quickly as we can.

    [The information follows:]


    1. When can we expect to be furnished a copy of your annual report containing all the information required under the Act?

    The report will be distributed on March 31, 1998. For your information, a copy of the section dealing with criminal prosecution of intellectual property rights is attached.
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    2. What policies are currently in place to insure that intellectual property cases are vigilantly pursued by our United States Attorneys?

    It is the Department's policy and practice that provable violations of all Federal criminal laws, including intellectual property laws, are subject to prosecution in accordance with the guidelines set forth in The Principles of Federal Prosecution. Specifically, the Department encourages and facilitates prosecution of intellectual property crimes in a variety of ways.

    The Computer Crime and Intellectual Property (IP) Section of the Criminal Division actively provides support to United States Attorneys' of rices at all stages of IP prosecution, from search warrants to jury instructions. The Section publishes a manual entitled, ''Federal Prosecution of Violations of Intellectual Property Rights'' (1st edition, May 1997). The manual, which was circulated throughout the Department, to all United States Attorneys, and to several external agencies, details the laws and procedures related to prosecution of copyright piracy, trademark counterfeiting, and theft of trade secrets. The manual provides guidance in these complicated areas of law in an effort to promote prosecution of violations. A supplement containing information on the latest legislative changes (the ''No Electronic Theft'' [NET] Act) and case law is being prepared. In the interim, the Section circulated a memorandum to the Computer and Telecommunications Coordinators (CTC)—the persons who have primary prosecution responsibilities in intellectual property cases in each United States Attorney's office—analyzing the recent legislative changes. The CTCs also receive instruction on intellectual property prosecution at seminars conducted by the Section. The Computer Crime and IP Section also maintains a web site accessible to all Department personnel, including U.S. Attorneys, as well as the public, with current law and advice on this area of enforcement.
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    3. Is there any basis under which a U.S. Attorney can, as a matter of policy, simply decline to prosecute any intellectual property case referred to his or her office?

    In most cases, the U.S. Attorney has discretion to decline any criminal case for reasons set forth in The Principles of Federal Prosection; the only exceptions being a limited number of Civil Rights violations. For example, a U.S. Attorney may decline prosecution in cases where there is a lack of necessary evidence or there is simultaneous prosecution in the state system. In addition, U.S. Attorneys' offices may have office-specific guidelines in one or more areas which are based on The Principles of Federal Prosecution as well as on national directives or initiatives of the Department of Justice.


    Mr. GOODLATTE. What is the Department's policy in general regarding counterfeiting cases? I have the impression that it's a multi-billion concern to businesses throughout this country. It's a consumer safety concern. It's a fraud concern in many instances, and yet there seems to be very little, if any, action taken by any of the U.S. attorneys' offices with regard to counterfeiting. Have they been instructed that this is a low-priority issue? Have they been told to put this down on the list of things they should be spending their time on?

    Mr. HOLDER. No, not at all. In fact, we work very closely with the Secret Service with regard to these cases. I know in my own experience as United States attorney here in Washington, in those instances where those matters were brought to our attention, we handled them, I thought, in an expeditious way. I mean, at least in Washington, these were matters that were—and I think it's true around the country—these were matters that you don't see all the time. These cases are actually more interesting for our prosecutors than kind of the run-of-the-mill cases that they handle. So that these are not matters that we do not give priority to.
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    Mr. GOODLATTE. Well, there seems to be a concern on the part of many that that's not being given much attention. Is there any basis for a U.S. attorney, as a matter of policy, to simply decline to prosecute any counterfeiting case referred to his or her office?

    Mr. HOLDER. No, I can't see a policy reason to have a blanket rule like that. There may be district rules with regard to the size of a particular case. I'm not just talking about a counterfeiting case. There are guidelines that various districts have, so that there is an efficient use of prosecutorial resources, but a blanket policy to simply not do counterfeiting cases would not be something—I'd be very surprised if any U.S. attorney's office had a policy like that.

    Mr. GOODLATTE. Thank you.

    Mr. Chairman, I would ask unanimous consent for 2 additional minutes to pursue another question, if I may.

    Mr. INGLIS. Without objection.

    Mr. GOODLATTE. Thank you, Mr. Chairman.

    I think Mr. McCollum asked you some questions regarding the efforts to prosecute hospitals under the False Claims Act. And you indicated that you were aggressively pursuing those. Is it your standard procedure in dealing with a hospital that has to deal with essentially hundreds of thousands of claims each year to send them a demand letter from the local U.S. attorney alleging improper billing and accusing the hospital of defrauding the government, and giving the hospital 10 to 14 days to sign a settlement agreement?
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    Mr. HOLDER. It would not be our policy to do that in a case where that kind of letter was not appropriate. I mean, the Attorney General met very recently with representatives of the American Hospital Association to talk about this issue. Again, we are aggressive in seeking out, in trying to put an end to health care fraud.

    Mr. GOODLATTE. And well you should, but my impression is that when hospitals have, for example, made billing errors—and maybe they're fraudulent and maybe they aren't, but if they come forward with information indicating that there have been billing errors made in favor of Medicare or Medicaid, they're not given the opportunity to show how those should be offset. They're simply told, if we prove a $10 lab fee was misbilled, you can be subject to treble damages or $30, plus a $10,000 penalty for doing that. So for a $10 lab test, they're being told they may face a $10,030 fine—right off the bat; that's the attitude they're being confronted with, and the indications we have are that, of the 5,000 or so non-Federal hospitals in the country, the Department is considering pursuing these claims against 4,700 of them. Are you suggesting that 95 percent of the hospitals in this country are actively engaged in willful violation of the False Claims Act?

    Mr. HOLDER. No, that's not our—that's not my position at all. It's not our intention to go after institutions that make clerical errors, clerical mistakes. We are intent on getting at those people, those institutions, that are engaged in fraud. I'd be very, very surprised if any assistant United States attorney, U.S. attorney's office, said to hospital, ''You've made a $10 error here, and therefore, you're liable for the kinds of penalties that you just indicated.''

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    We have a whole bunch of things that we are responsible for, and we want to use our resources wisely. We would not deal in that way with cases that small.

    Mr. GOODLATTE. Have you looked at the letters that have been sent to some of the hospitals by the Department that indicate that a number of billing errors have been found, and threatening them with multi-million dollar claims against them?

    Mr. HOLDER. I have seen copies—I've actually asked to get copies of these letters; I've heard a lot about them. I just wanted to see what they looked like, and I've had a chance to review at least a few of them. In the letters that I have seen so far, I mean, there's nothing on the letter, the face of the letters themselves, that disturbs me, but, I mean, obviously, that's only part of the examination that you'd have to do. You'd have to understand the underlying facts and circumstances in which the letter was sent.

    Mr. GOODLATTE. If my office were to provide you with copies of some of those letters, would you be interested in seeing what the relative allegations are relative to what is being demanded of the hospitals, and then look into that further, if we were to do that?

    Mr. HOLDER. Sure. I mean, if there are instances where we have not acted in a way that we would consider appropriate, that we have made a mistake in an assistant United States attorney's office dealing with a particular hospital, obviously, we'd like that brought to our attention, so that we can make sure that we don't make those kinds of mistakes in the future.

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    Mr. GOODLATTE. Is there any kind of a de minimis threshold, a percentage of errors, for example, that below that you just assume that there's going to be a certain percentage of billing errors made in a hospital that bills, files hundreds of thousands of claims in a particular year? Or do they simply receive a report of some billing errors and go after them, regardless of the fact that there may also be countervailing claims that offset—in other words, errors made in favor of the government?

    Mr. HOLDER. No, I think we have to—we do them on a case-by-case basis. I'm not sure that it would be appropriate to come up with a simple percentage task. You'd have to look at the volume of business that a hospital does. I mean, there are large hospitals, obviously, smaller hospitals, and look at the totality of circumstances in trying to decide whether or not an enforcement action is appropriate.

    Mr. GOODLATTE. And is anything being done in your office to coordinate amongst the various U.S. attorneys' offices to provide some kind of consistency in attempting to enforce the False Claims Act? Obviously, it looks like there's a top-down approach to encourage looking into this area, and no one here is opposed to looking after fraudulent filing of claims, but if there is inconsistency amongst the U.S. attorneys' offices in terms of how aggressively they're pursuing people who do not have significant claims, it would be, it seems to me, wise to get a handle on those offices.

    Mr. HOLDER. Yes, actually, there is a person on my staff who is responsible for health care fraud matters, and he is looking into this. In addition to that, the Attorney General's Advisory Committee has a health care fraud subcommittee, and we work with them in looking at these matters. And this is something that has been brought to our attention, and it is something that we are examining.
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    Mr. GOODLATTE. Thank you, Mr. Chairman. Thank you, Mr. Holder.

    Mr. INGLIS. The gentleman's time has expired.

    With the indulgence of other members, the Chair would ask unanimous consent for 2 more minutes of additional questions. It may be the same kind of 2-minute reckoning as Mr. Goodlatte just had there, but I won't hold you up too much longer.

    Mr. HOLDER. Well, that's fine.

    Mr. INGLIS. First of all, I would like to follow up with what Mr. Goodlatte was talking about and indicate to you that the indication that I get from South Carolina hospitals is very similar to what Mr. Goodlatte was just inquiring about. That is, that this is a routine approach. It's not selectively applied to—unless we assume that every hospital is engaged in a pattern of fraud, it seems to be that the standard approach is to send them the demand letter, incur tremendous costs, then, about the audit. I would share Mr. Goodlatte's concern. But, anyway, just echoing that.

    Just briefly, Mr. Holder, because I know you have other things to do, and I don't want to hold you too much longer—you indicated earlier that press reports are a good place to get leads on investigations, and of course they are, particularly I've got a story here in The Charleston Post and Courier recently headlined, ''Crime Ring Linked to Video Poker''—back to that subject. Of course, in here you've got a couple of interesting quotes. One is from William Edington, director of the Institute of the Study of Gambling and Commercial Gaming in Reno, Nevada. He says there is no reason that organized crime wouldn't come to South Carolina. Quote, ''If I was running illegal machines in Pittsburgh, and I knew I could come to South Carolina without a tax, 'Why not,' he said.'' Continuing the quote, ''That's effectively a tax-free environment without a background check.''
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    And, of course, there's another story in The Charlotte Observer, actually, where William Thompson, a professor at the University of Las Vegas, Nevada, writes, ''South Carolina provides an absolutely ripe plum for organized crime.''

    Now back to your earlier comment, based on and in light of those two quotes, this is a quote from our U.S. attorney in South Carolina on the matter. Well, reading the article, ''The U.S. Attorney, J. Rene Josey, the top Federal law enforcement officer in South Carolina, said he has heard reports of organized crime activity in the State's video gambling industry.'' '''I'm aware that some members of law enforcement have expressed that concern,' Josey said. 'I am monitoring their concern.'''

    Is that a sufficient response?

    Mr. HOLDER. Well, I mean, it's—as I said, Rene Josey is a good U.S. attorney. I don't know exactly what monitoring means. Monitoring can mean a whole bunch of things. It could be an appropriate response to the allegations that were raised in those articles. I mean, I'm pretty confident that Rene Josey has looked at, in the way that we would expect all U.S. attorneys to look at, the situation and then to deploy his investigative resources in an appropriate way. As I said, I'm going to talk to him and see, get some more information about this, but, again, I want to emphasize that does not mean that I am concerned about the way in which he has conducted himself or his office in connection with video game poker.

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    Mr. INGLIS. Well, just realizing you've got other things to do, I'd just say that I am very concerned, and if we've got this kind of information about links to organized crime in this nearly $2 billion activity in South Carolina, and our U.S. attorney is saying that he's simply going to monitor it, when in fact if there are violations of the Johnson Act, where the sanction is the seizure of those machines—so to simply monitor isn't quite enough, in my opinion. It seems to me that we should be taking aggressive enforcement action and seizing machines, if that's the case.

    Mr. HOLDER. Well, monitoring can mean a variety of things, and it could be simply the prelude to the kind of aggressive action that you think ought to occur. There has to be, obviously, a basis for an enforcement activity, and monitoring is, I would think, the first way in which you would—the first step in that process.

    Mr. INGLIS. Well, thank you for your answers. No further questions. Thank you, Mr. Holder and Mr. Colgate, for your time.

    Mr. HOLDER. Okay, thank you.

    Mr. COLGATE. Thank you.

    Mr. INGLIS. This meeting is adjourned.

    [Whereupon, at 12:42 p.m., the committee adjourned.]

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Material Submitted for the Hearing


    Mr. Chairman and members, I would like to begin by thanking you for giving me the opportunity to speak about the Nation's most important enforcement body. The Offices of Civil Rights, the Community Relations Service, the FBI, the Federal Prison System, the INS, the Juvenile Justice Programs, and the Violence Against Women Programs impact the lives of millions in this Nation. Thus, the level at which we authorize these different programs within the Department of Justice is a bold statement of our commitment to Justice for All.

    After reviewing the proposed authorizing language, I feel compelled to state the following. The Justice Department lacks credibility if it does not have the funding to adequately carry out its duties. Those duties include protecting our Nation from crime, discrimination, and yes—governmental abuse. In addition, there is an equal, if not a greater need for cost effective, compelling programs aimed at prevention and deterrence. And so, while I note the proposed increased funding for the Department, I must voice my concern about the lack of support for individual Justice programs aimed at advancing the quality of life for the entire Nation.

    The proposal to authorize $20 billion for the Justice Department seem to disproportionately favor punitive programs within an agency. Examples of this disparity can be found in the following.

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    First, the Federal Prison System is to receive $4.5 billion for fiscal year 99, $4.7 billion for fiscal year 00, and $4.9 billion for fiscal year 01. Much of this appropriation will go to further build prisons to incarcerate this Nation's African American and Latino youths. There is no planned increased expenditure for Juvenile Justice Programs, Community Policing, or Drug Intervention programs. If my constituents were to look at this bill, they would be convinced that the Justice Department is more interested in jailing them than protecting their rights. Where are the funds to alleviate the desperate conditions the working poor, those interested in kicking the drug habit, and those who wish to have a community free of racist police officers?

    The funding for the prison system is the result of a perverse law—the application of the Crack-Cocaine Penalty Sentencing. Moreover, at a time when many city mayors are hailing historic drops in crime statistics, we still continue to fund—at increasing levels—the construction and maintenance of more prisons for the incarceration of young African American men.

    As the Chair of the Congressional Black Caucus (CBC), I feel compelled to raise an issue not addressed by the Deputy Attorney General. At a CBC Hearing last November on ''Employment Discrimination in Federal Law Enforcement'', I was disappointed to hear of numerous allegations of discrimination by the very department that has sworn to uphold and enforce the laws. What was more aggravating was the pale responses I received from the Justice Department about the allegations of discrimination. We must authorize funding to stop all forms of discrimination—wherever it originates.

    Third, the proposal to authorize to INS $2.7 billion for fiscal year 1999, $2.8 billion in fiscal year 00, and nearly $3 billion for fiscal year 01 also raises some concerns. This money is earmarked to expand and expedite deportation proceedings. However, this bill is lopsided in favor of deportation as opposed to improvement of the naturalization process.
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    While I applaud the proposed increased authorization for the Violence Against Women Program, the Community Relations Services, and the Rural Domestic Violence and Child Abuse Enforcement Assistance Program, it is not enough. When we look at those figures in comparison to the proposed sum for the Federal Prison System or the deportation efforts, one is poised to ask: Where are our priorities?

    It is my belief that the Department of Justice needs to rededicate itself to enforcing laws that will improve the lives of our people without subjecting our most vulnerable population to the permanent confinement of a jail cell. Let us bolster the Justice Department's enforcement by considering how funds can be authorized for preventative and anti-discrimination programs. Thank you Mr. Chairman.


U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC., July 30, 1998.
Hon. HENRY J. HYDE, Chairman,
Committee on the Judiciary,
U.S. House of Representatives,
Washington, DC.

    DEAR MR. CHAIRMAN, Please find enclosed answers to additional follow-up questions from the House Judiciary Committee's hearing on the Department of Justice Reauthorization. Answers are included that respond to questions from Chairman Hyde, Rep. McCollum and Rep. Rogan. I apologize for the delay in this response.
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    If you have any questions, please do not hesitate to contact me.


L. Anthony Sutin,
Acting Assistant Attorney General.

    cc: Hon. John Conyers, Jr.,
Ranking Minority Member.

Hon. Bill McCollum.
Hon. James E. Rogan.



    Q: With respect to the McDonnell Douglas decision, will the Department seek certiorari to the Supreme Court? If not, does the Department contend that the regulation remains viable in other circuits?

  A: The Eighth Circuit denied the Department's request for rehearing en banc of the McDonnell Douglas decision on April 8, 1998. The Department asked for a 30day extension of its time to file a petition for certiorari to the Supreme Court, and that extension runs on August 6, 1998. The decision whether to seek certiorari in the McDonnell Douglas case currently is under consideration within the Department. We believe that the panel's decision holding that the Attorney General was not authorized to issue the regulation was incorrect. Furthermore, the Attorney General's regulation remains in effect outside the Eighth Circuit.
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    Q: Is it the Department's position that it may preempt any state or federal court ethical rule by promulgating a regulation?

  A: Other than the narrow circumstance when a state ethics rule conflicts with federal law, we believe that Department attorneys are subject to and do comply with state ethics rules. Indeed, in certain situations, Department attorneys are faced with the heavy burden of complying with various ethics rules in numerous jurisdictions because federal law enforcement, by its nature, crosses state boundaries.

  The question of contacts with represented parties—which is critical to the Department's law enforcement efforts—is the only area in which the Department has enacted a regulation. The Attorney General is responsible for enforcing federal law, which includes establishing appropriate rules governing the Department's law enforcement efforts. We believe that, in most cases, the Department's regulation works win, rather than preempts or supersedes, state ethics rules. Under most state ethics rules, a contact with a represented party is permissible if ''authorized by law.'' The Department's regulation simply provides legal authorization for particular contacts in the law enforcement context and thus fits within existing state ethics rules. Under the Supremacy Clause, however, where a state law conflicts with federal regulation, the federal regulation supersedes the state law.

  Of course, the Department recognizes the inherent power of the federal courts to discipline lawyers who practice before them.

    Q: The Department regulates the professional conduct of its attorneys through the Office of Professional Responsibility (OPR). Although Department lawyers are also regulated by the states where they are admitted to practice law, the Department's self regulation has been criticized because of the appearance of a conflict of interest. One proposed solution would be to create a federal bar under the supervision of the federal judiciary to regulate all attorneys who work for the federal government. Attorneys for the government would join the bar as a condition of their employment and be subject to its rules. Please comment on the merits of a federal bar as a way to regulate the professional conduct of government attorneys.
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  A: Although I am not aware of the details of the proposal for a federal bar, I have a number of reactions. First, I disagree with the criticism of OPR, which has a sterling record of conducting investigations and uncovering misconduct; in particular, this Attorney General has an extremely strong record of demanding ethical conduct by our lawyers. Second, before we could offer a view on the proposal for a federal bar, it would be important to know how it would interact with state ethics rules and federal regulations, including the Department's; what its substantive provisions would be; and how it would operate. We would review such a proposal with great care because we believe that the Department's ethics system works well. Under any proposal, the Department must be able to use legitimate law enforcement techniques and must retain authority to discipline its own attorneys when they violate the Department's own guidelines.



State and Local Assistance

  Q1. The Conference Report accompanying the Department of Justice fiscal year 98 appropriations bill noted that, ''1995 funding for grant program will have grown by 213 percent, from $1.1 billion to over 33.4 billion,'' and further cited its concern regarding the possibility of duplication and overlap among the various OJP divisions. Please describe how the Department leadership and, in particular, OJP's leadership has sought to address matters relating to duplication and overall in these grant programs.

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    A1. The current leadership of the Office of Justice Programs (including its bureau and office directors), with the strong, personal support of and interest by the Attorney General and her leadership team, has put considerable energy during their tenures into improving coordination among OJP's components. The attention given to collaboration has been greater than at any time since the passage of OJP's statute in 1984.

    Two specific factors create obstacles to coordination. First, the statutes creating the five OJP bureaus, as well as those creating the newer 1994 Crime Act programs, themselves contain substantial duplication of issue and program coverage. Second, the issue of overlap in mission and function is a reflection of the fundamental difficulty of program integration when OJP's statutes place final grant authority in five separate bureaus.

    Nonetheless, within the limits of statutory restrictions noted above, substantial progress has been made in coordinating and collaborating on areas of mutual concern. These are discussed in more detail in the next answer.

  Q2. If there has been overlap, what has the Department done to solve the problem?

    A2. OJP has made considerable strides during this Administration in insuring greater coordination of the work of its bureaus toward implementing a comprehensive strategy for federal criminal justice assistance. The following are some of the specific steps taken within OJP to reduce and prevent overlap, reduce fragmentation, and develop coordinated strategies.

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 Development of Shared Mission and Program Direction. Early in the Administration the Assistant Attorney General (AAG) convened several day-long meetings with the bureau directors to develop an overall mission statement and goals and objectives for the agency. Since then, they have held periodic meetings to discuss emerging issues and how these issues could be addressed as an agency. Coordination with other DOJ components, such as the Criminal Division, COPS, and U.S. Attorneys is also encouraged. The process of the OJP management team developing tools such' GPRA goals and MBO targets has furthered the development of shared mission and program direction.

 Coordinating Efforts. Over last several years, the on AAG has established on working groups on a number of topics. These working groups have involved regularly scheduled meetings at the staff level from all relevant offices and bureaus to share information about what programs and activities exist and to coordinate future efforts. Separate working groups exist on many topics, including: family violence, corrections, drugs and crime, gangs, and sex offender management. Also, staff from the different offices and bureaus funding community-based initiatives (such as OJP's Weed and Seed, BJA's Comprehensive Communities, and OJJDP's SafeFutures, meeting to share information and collaborate on leveraging resources, including technical assistance.

 Coordinated Planning/Joint Publication of Program Plans. Along with reaching out to field practitioners, OJP and its bureaus develop their annual discretionary grant programs after considering input from one another and reviewing final draft plans. Since fiscal year 1995, this process has culminated with the publication of a single volume of all OJP bureau and office discretionary grant programs. This had not occurred before. (The feedback from the field about the jointly published plans has been overwhelmingly positive.)

 Providing Information to the Field. OJP components now routinely share information with the field through joint publications and national-level conferences. In addition to ones ''Annual Report'' and ''Resource Guide,'' specialized joint publications have been issued on varied topics, such as partnerships in Indian Country, public safety in rural America, drugs and crime, and family violence. Cross agency participation in both large national conferences and smaller meetings in the field is encouraged. Other avenues for providing information easily include maintaining a single toll-free number for information regarding grants and the creation of linked Web sites.
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 Combining Program Funding and Technical Assistance Resources. OJP offices and bureaus now routinely jointly fund programs of mutual interest in cross-over areas such as prevention, domestic violence, courts, law enforcement, or to provide joint technical assistance to jurisdictions facing different types of criminal justice programs. For example, in fiscal year 1996 for the first time, all the bureaus announced a joint solicitation to address child abuse. Previously, each of the bureaus had separately initiated programs.

 Combined Efforts for Effective Outreach. Over the past five years, OJP and the bureaus—as a unit—have actively solicited the input of criminal justice practitioners and constituent groups concerning emerging issues and the development of appropriate responses. The OJP bureaus and offices have held joint focus groups on process, as well as on specific issues, such as community prosecution, managing sex offenders in the community, and victims issues.

  Q3. What other actions could be taken to further eliminate duplication and its related inefficiencies?

    A3. Several options could be pursued to address the overlap and duplication issues identified above.

    Option One: Additional coordination efforts could continue along the lines taken thus far. For example, these might include the creation of additional topical staff working groups; additional jointly funded program and collaborative technical assistance initiatives; and continued joint funding of conferences and publications. Also, additional strategic planning could be undertaken, as well as extra efforts to coordinate OJP-wide submissions, such as the annual budget proposal.
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    Option Two: The status governing OJP's entities could be amended to provide that overall grant-making authority reside in the Attorney General. No other statute creating a grant-making agency within the Executive Branch vests final grant authority in an individual below the Secretary level. Indeed, the 1994 Crime Act embraced the approach of placing grant-making authority for each of the dozens of new DOJ funding programs in the Attorney General. She then delegated that authority to the OJP Assistant Attorney General (except for the COPS program). The Assistant Attorney General, in turn, delegated the operation of some of the programs to the bureaus (e.g. SCAAP) and in other areas (e.g., corrections, drugs courts and violence against women), operated the programs out of offices reporting directly to the AAG.

    This option would have the benefit of advancing a cohesive approach to resource allocation. It would provide a central point of authority within OJP with whom Congress could deal—and hold accountable—for reaching set goals. Careful consideration would need to be given to insuring the independence of statistics, research, and evaluation functions.

    It should be recognized, however, that under this option, given the current multi-component structure of OJP, consolidation of authority for the many grant programs in a single decision-maker is still no guarantee that coordination and voidance of overlap will automatically occur. Having more than 50 separate funding streams into the agency and the overlap in statutory missions of the OJP bureaus and offices would still make coordination a challenge.

    Option Three: A new integrated federal criminal justice assistance program for state and local governments could be authorized. If the current structure was overhauled to create an integrated program, such an agency could programmatically focus its efforts following one vision of goals and priorities. A management structure of this kind could target resources aggressively at identified priority areas like youth crime, gangs, drugs, and family violence, and also perhaps achieve administrative efficiencies (such as reduced staffing) because of elimination of duplication.
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    If such a step were taken, many issues would need to be addressed. These include (but are not limited to): appropriate structure; ensuring independence for statistics, evaluation and research; structural change that yields desired results while retaining effective and important features of existing programs; and the appropriate mix of block grants, discretionary grants, technical assistance, research, evaluation, and statistics programs. Further, OJP's state and local ''customers'' should be consulted.



Affirmative Action

  1. When the administration joined the California Proposition 209 litigation, California Governor Pete Wilson responded that the Clinton Administration ''now has the dubious distinction of being the first administration since the enactment of the Civil Rights Act of 1964 to contend that a law prohibiting all race and gender-based discrimination is itself unconstitutional.'' Does the Department's interpretation of the Equal Protection Clause include prohibiting efforts to eliminate preferences?

    ANSWER: State and local governments can adopt or eliminate race- or gender-conscious programs so long as they act in accordance with the law.

  2. Does the Department agree with the reasoning of the Ninth Circuit panel that individuals do not have ''a constitutional right to preferential treatment solely on the basis of their race and gender?
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    ANSWER: The Department agrees that race-conscious measures may be employed by government only when they are narrowly tailored to accomplish a compelling interest, as the Supreme Court has held. Similarly, gender-conscious actions must satisfy the appropriate level of constitutional scrutiny.

  3. Does the Department believe that legislative bodies can revoke previously-enacted race and gender preferences without violating any constitutional rights?

    ANSWER: State and local governments can decide whether affirmative action is appropriate as a matter of policy and can act in a lawful manner to repeal race- and gender-conscious measures where they are not required by law.


U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC., September 1, 1998.
Hon. HENRY J. HYDE, Chairman,
Committee on the Judiciary,
U.S. House of Representatives,
Washington, DC.

    DEAR MR. CHAIRMAN: Please find enclosed answers to additional follow-up questions from the House Judiciary Committee's hearing on the Department of Justice Reauthorization. Answers are included that respond to questions from Rep. Meehan. I apologize for the delay in this response.
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    If you have any questions, please do not hesitate to contact me.


L. Anthony Sutin,
Acting Assistant Attorney General.

    cc: Hon. John Conyers, Jr.,
Ranking Minority Member.

Hon. Marty Meehan.



    1. To what extent do you attribute the striking increase in consumer bankruptcy filings over the past few years?

    We have not done an independent study of this matter. As you know, various other reports have attributed the increase to a variety of causes, including high levels of consumer credit card debt and a relaxation in some parts of the country of the stigma of being a debtor. Unfortunately, we currently lack the data to provide a clearer picture of what is driving the increase.
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    2. You note in your written testimony that U.S. Trustees bring motions under Section 707(b) of the Bankruptcy Code to dismiss bankruptcy filings where the debtor had the ability to repay his or her creditors. Do you believe that additional federal legislation is necessary to help to spur U.S. Trustees to weed out all cases where a debtor has the ability to repay a substantial portion of his or her debts?

    As we indicated, we are active in filing motions under Section 707(b) where there evidence of ''substantial abuse.'' We are currently studying the question whether additional federal legislation is necessary, working together with other Department of Justice components and Federal agencies.

    3. Obviously, the successful functioning of the bankruptcy system rests on whether debtors fully disclose the extent of their income, assets and financial transactions. Is less-than-full disclosure or outright fraud by debtors a considerable problem in today's bankruptcy system? And would the adoption of legislative initiatives to restrict eligibility for Chapter 7 relief lead to increased fraud or non-disclosure on the part of debtors?

    We believe that less-than-full disclosure and outright fraud are problems in today's bankruptcy system. As indicated above, we are studying with other Federal agencies the question whether additional federal legislation is necessary to address this problem.


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    Anti-crime strategies are more difficult to implement on Indian reservations than in a defined urban environment. Due to the limited federal funding of tribal courts in the past, none of the nine Indian reservations in South Dakota have tribal court probation officers. As a result, there are no local probation officers who can ride with the tribal police to participate in a project like operation Night–Light probation monitoring. The primary success of operation Night–Light has been the result of the cooperation between probation and the police. Many of the Indian communities in South Dakota are in areas of high unemployment and high poverty. These communities do not have the financial resources to implement community-coordinated after-school educational, vocational and recreational opportunities. As grants become available in these areas, my office has been notifying the tribes of grant opportunities.

    The Boston anti-crime model has been highly successful in an urban environment. With additional financial resources to build the infrastructure for a juvenile tribal court system, including probation officers and placement alternatives, combined with resources for after-school opportunities, I believe this model would also be effective in reducing juvenile crime in Indian country.



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Question 1:

    I know that U.S. Attorneys and task forces in which they are integrally involved have been spearheading efforts to combat hate crimes in our communities, particularly following the President's Hate Crimes summit late last year.

    I also understand that representatives from each of the U.S. Attorneys' offices were in Washington last Wednesday to attend a day-long conference on hate crimes with Attorney General Reno and Acting Assistant Attorney General for Civil Rights Bill Lann Lee.

    Can you elaborate on the matters discussed at the conference, the progress made and challenges faced thus far on the front lines of fighting hate crime, and the need—if any—for additional federal legislation to strengthen your hand in this fight?


    In support of the Department of Justice Hate Crime Initiative, the Department sponsored a hate crimes conference on February 18, 1998, for more than 200 law enforcement representatives from the U.S. Attorneys' offices, the Federal Bureau of Investigation, and the Bureau of Alcohol, Tobacco and Firearms. Presentations and panel discussions concentrated on hate crime task force development, legal and legislative overviews, and community resources for addressing the problem of hate crimes.

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    The centerpiece of the Department's Hate Crime Initiative is the formation of local hate crime working groups in each federal judicial district to be spearheaded or joined by each United States Attorney's office. The working groups will consist of federal, state, and local law enforcement, as well as community leaders and educators. Major issues discussed at the conference centered around the formation of local working groups, community outreach, data collection and analysis, the problem of under reporting by victims and law enforcement agencies, prosecution and enforcement, legislative initiatives, and current hate crime law.

    At present, United States Attorneys are organizing working groups throughout the country to discuss hate crimes and ways to combat them. Several United States Attorneys' offices have already conducted conferences and hosted working group meetings to address enforcement issues relating to hate crimes.

    Regarding the prosecution of hate crimes, current federal hate crimes laws are inadequate in two significant respects. First, they provide no protection to victims of hate crimes committed on the basis of sexual orientation, gender, or disability. Second, even for categories of hate crimes that are covered by current federal law—those bias crimes committed on the basis of race, color, religion, or national origin—the principal federal hate crimes statute requires proof not only of the defendant's prohibited bias motive, but also of the victim's participation at the time of the crime in one of a limited number of ''federally protected activities.'' Together, these two aspects of the current statutory scheme greatly limit the ability of federal law enforcement to step in and fight hate crimes where state and local law enforcement officials are either unable or unwilling to do so in the first instance. The amendments to 18 U.S.C. §245 introduced in November 1997 by Senators Kennedy and Specter would address these problems while still respecting the proper balances in our constitutional system.
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Question 2:

    Can you point to some examples where the input of U.S. Attorneys—perhaps conveyed through your office—has had a tangible impact on the policy initiatives of Main Justice?


    In recent years, United States Attorneys, through the Attorney General's Advisory Committee and the Executive Office for United States Attorneys, have had a tangible impact on a number of significant Department of Justice policy initiatives. Some of the issues presented in those initiatives have included:

 Contact with represented persons and the proposed Model Rule 4.2 (governing contacts with represented persons) that the Department negotiated with the Conference of State Supreme Court Chief Justices;

 Rule 16 of the Federal Rules of Criminal Procedure and attempts to change the discovery rules applicable ire federal criminal prosecutions;

 Proposed changes to the federal civil and criminal rules governing voir dire;

 The Department's Giglio policy, which established procedural requirements for obtaining and disclosing impeachment information on federal agent witnesses;
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 The development and revision of the Principles of Federal Prosecution, which provide guidelines for the conduct of federal criminal investigations and prosecutions;

 Drug interdiction and immigration issues presented by the Department's Southwest Border Initiative, which focuses on a coordinated response along the Southwest border to address drug trafficking immigration violations in that area;

 Issues of concern to Native Americans, particularly those involving violent and juvenile crime and gambling on Indian reservations;

 In the wake of recent domestic terrorist attacks and other violent acts targeting public institutions and facilities, the development and implementation of crisis response plans for the 94 United States Attorneys' offices, and coordination with the Federal Bureau of Investigation concerning its crisis response plans;

 Community crime prevention and improvement programs such as Weed and Seed, COPS, and D.A.R.E. that have moved United States Attorneys into a leadership role in partnerships with local officials, agencies, and organizations to make the streets safer for citizens and enhance their quality of life;

 Development and implementation of Alternative Dispute Resolution initiatives and education. This was of particular importance because of the burden on our available resources for civil defensive litigation;

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 Development of the 911 compliance initiative to increase 911 operators' conformity with requirements of the Americans With Disabilities Act;

 Review of the Department's Pro Bono Policy and expansion of it to allow greater pro bono opportunities for Department of Justice attorneys.

    In many of these and numerous other areas, the AGAC has played a pivotal role in articulating the concerns and positions of the United States Attorneys. The AGAC, through its various working groups and subcommittees, gathers information, and examines issues. The AGAC presents issues important to the United States Attorneys to the Attorney General for her consideration, along with a thoughtful and thorough analysis and recommendation for proposed action.

Question 3:

    Which the more significant obstacle that U.S. Attorneys' offices face in combating child pornography and predatory behavior associated with the Internet and computer on-line services: insufficient personnel and support resources or an inadequate federal statutory scheme for offenses and penalties?

    With respect to resource needs, for fiscal year 1999, the U.S. Attorneys requested 36 positions, 18 FTE, and $3,630,000 to address computer crimes, including electronic transmission and receipt of child pornography. The use of national on-line computer services and the Internet presents unprecedented opportunities for the wide distribution of child pornography and for the exploitation of children who use the Internet. The increasing proliferation and sophistication of national and international computer crime, including trafficking in child pornography, will require government agencies to devote more resources to the investigation and prosecution of these crimes. For example, the Federal Bureau of Investigation, which has three National Computer Crime Squads in major high tech regions, has requested resources to establish two additional squads. Any increase in investigative resources will require a commensurate increase in prosecution resources from United States Attorneys' offices. These types of cases put tremendous demands on our available technical resources.
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    The Department supports some of the pending legislative proposals in the child pornography area. We will provide our specific comments as those proposals are considered and will be happy to work with the Congress to strengthen the law in this area.

Question 4:

    Do you know how long it takes for a typical U.S. Attorney's office to dispense with a typical employment discrimination case?


    Employment discrimination cases generally take between six months and two years to resolve. Many factors account for the time variances, including: the nature of the claims; the number of witnesses; the nature of the damages claimed; the nature and length of the underlying administrative process and resulting administrative record; the manner in which opposing counsel conducts discovery; and the court's calendar.

    Employment discrimination cases subject to the Civil Rights Act amendments of 1991 permitting jury trials and compensatory damages clearly take longer to conclude than they would have prior to the amendments. The nature and amount of discovery, as well as the sheer length of case presentation, is significantly increased as a result of these changes to the law. The availability of compensatory damages has made it more difficult and time-consuming to settle these cases, and fewer cases are being resolved by summary judgment. In addition, the increased volume of these cases in United States Attorneys' offices sometimes impedes their prompt resolution. Since the passage of the 1991 amendments, employment discrimination filings have increased 59 percent (from 1,059 complaints in 1991 to 1,684 complaints in 1997).
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Question 4A:

    Why would the provision of greater civil defense resources result in an increase in the number of jury trials resolved in favor of the U.S. in employment discrimination cases?


    Additional civil defensive resources will allow for more complete and thorough preparation of cases that result in jury trials, thereby increasing the likelihood that verdicts will be rendered more favorably to the United States. However, the goal of the United States is not just to win jury trials in employment discrimination cases. The government is primarily concerned with determining the merit of claims of unlawful discrimination in the government workplace, resolving valid claims fairly, and discouraging the filing of fraudulent discrimination claims. Additional civil defensive resources will, of course, enhance our ability to meet these goals and to reach a satisfactory resolution of these cases prior to trial. Specifically, having more attorneys available to handle the non-discretionary civil defensive caseload in the United States Attorneys' offices would allow more time for analyzing discovery and administrative materials, investigating the facts of the case, preparing stronger dispositive motions, and negotiating complicated settlement issues.


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H.R. 3303


MARCH 11, 1998

Serial No. 83

Printed for the use of the Committee on the Judiciary

For sale by the U.S. Government Printing Office
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Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

HENRY J. HYDE, Illinois, Chairman
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
BOB INGLIS, South Carolina
ED BRYANT, Tennessee
BOB BARR, Georgia
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina

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JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts

THOMAS E. MOONEY, SR., Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director


    March 11, 1998

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    Hyde, Hon. Henry J., a Representative in Congress from the State of Illinois, and Chairman, Committee on the Judiciary


    Holder, Eric H., Jr., Deputy Attorney General, U.S. Department of Justice


Holder, Eric H., Jr., Deputy Attorney General, U.S. Department of Justice:
Additional information
Article entitled ''Crime Ring Linked To Video Poker'' referred to by Mr. Inglis
Department of Justice response to the comments of Ms. Lofgren regarding the reduction in the number of criminal cases brought by the United States Attorney's Office for the northern district of California in 1997
Department of Justice response to the question posed by Mr. Bryant
Department of Justice response to the question posed by Mr. Buyer
Department of Justice response to the question posed by Mr. Delahunt
Department of Justice response to the question posed by Mr. Frank
Department of Justice response to the question posed by Mr. Gekas
Department of Justice response to the question posed by Mr. Goodlatte
Department of Justice response to the question posed by Mr. Meehan
Department of Justice response to the question posed by Ms. Lofgren
Letter dated July 6, 1998, to Hon. Henry J. Hyde from L. Anthony Sutton, Acting assistant Attorney General
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Prepared statement


    Material submitted for the hearing