[Senate Hearing 110-695]
[From the U.S. Government Printing Office]
S. Hrg. 110-695
EXECUTIVE NOMINATIONS: J. PATRICK ROWAN, OF MARYLAND, NOMINEE TO BE AN
ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION; JEFFREY LEIGH
SEDGWICK, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF JUSTICE
PROGRAMS; AND WILLIAM B. CARR, JR., NOMINEE TO BE MEMBER OF THE U.S.
SENTENCING COMMISSION
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HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
JULY 23, 2008
__________
Serial No. J-110-109
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
45-140 PDF WASHINGTON : 2009
----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
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Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Stephanie A. Middleton, Republican Staff Director
Nicholas A. Rossi, Republican Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 149
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 36
STATEMENTS OF NOMINEES
Carr, William B., Jr., Nominee to be a Member of the U.S.
Sentencing Commission.......................................... 73
Questionnaire................................................ 74
Rowan, J. Patrick, of Maryland, Nominee to be an Assistant
Attorney General, National Security Division, Washington, D.C.. 2
Questionnaire................................................ 3
Sedgwick, Jeffrey Leigh, Nominee to be Assistant Attorney
General, Office of Justice Programs, Washington, D.C........... 37
Questionnaire................................................ 38
QUESTIONS AND ANSWERS
Responses of William B. Carr to questions submitted by Senators
Feingold and Kennedy........................................... 118
Responses of J. Patrick Rowan to questions submitted by Senators
Kennedy and Feingold........................................... 126
Responses of Jeffrey Leigh Sedgwick to questions submitted by
Senators Kennedy, Feingold and Coburn.......................... 131
SUBMISSIONS FOR THE RECORD
Warner, Hon. John, a U.S. Senator from the State of Virginia
presenting Jeffrey Leigh Sedgwick Nominee to be Assistant
Attorney General, Office of Justice Programs, Washington, D.C.,
statement...................................................... 154
EXECUTIVE NOMINATIONS: J. PATRICK ROWAN, OF MARYLAND, NOMINEE TO BE AN
ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION; JEFFREY LEIGH
SEDGWICK, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF JUSTICE
PROGRAMS; AND WILLIAM B. CARR, JR., NOMINEE TO BE MEMBER OF THE U.S.
SENTENCING COMMISSION
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WEDNESDAY, JULY 23, 2008
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 2 p.m., in room
SD-226, Dirksen Senate Office Building, Hon. Russell D.
Feingold presiding.
Present: Senators Specter and Brownback.
OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR
FROM THE STATE OF WISCONSIN
Senator Feingold. I call the Committee to order. I want to
welcome everybody to this hearing of the Judiciary Committee on
executive nominations. We have three nominees to consider
today, two nominated to serve as Assistant Attorney General in
the Department of Justice, and one to serve as a Commissioner
on the U.S. Sentencing Commission.
While we do not have a panel to introduce the nominees, the
record will remain open for 1 week for any statements of
introduction that Senators or members of the House wish to
submit.
We do not have a member of the other party here at this
time, but if one comes, of course, I will turn to the Ranking
Member for any comments that he might like to make.
But at this time we will swear in the witnesses. Would you
please stand to be sworn?
[Whereupon, the witnesses were duly sworn.]
Senator Feingold. Thank you. You may be seated.
Our first nominee is John Patrick Rowan, who has been
nominated for the position of Assistant Attorney General for
the National Security Division of the Department of Justice.
Mr. Rowan currently is serving as Acting Assistant Attorney
General. He has worked in the Justice Department since 1991,
first as an Assistant U.S. Attorney, and then in a variety of
capacities at the FBI and main Justice. He is a graduate of
Dartmouth College and the University of Virginia Law School.
Mr. Rowan, congratulations on your nomination, and you may
take this opportunity to introduce any family or friends that
are here with you today, and then make any remarks you want to
make.
STATEMENT OF J. PATRICK ROWAN, OF MARYLAND, NOMINEE TO BE AN
ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION
Mr. Rowan. Thank you, Senator. Thank you and the Committee
for holding this hearing. It is an honor to be before you. I
would also like to thank the President for nominating me, and
the Attorney General for supporting that nomination.
I do have my family with me today and I'd like to introduce
them now. Over here on the end is my wife, Patricia Heffernan,
who is a long-time Department of Justice lawyer herself. She is
an Assistant U.S. Attorney in D.C.
My two daughters, Evangelize and Vivian, who are both five
and a half years old and very pleased to be at their first
hearing
[Laughter.]
Senator Feingold. I am sure.
Mr. Rowan. My father, William J. Rowan, III, is a Circuit
Court judge in Montgomery County, Maryland. Behind in the
second row is my brother William Rowan; in the third row is my
brother Michael Rowan, his spouse Jennifer, and their children,
Molly and Mike. I also am joined here by some colleagues from
the Department of Justice and the National Security Division,
and I am also pleased to have their support here today.
Senator Feingold. We welcome you all. Good to see all the
friends and family.
Mr. Rowan, you may proceed.
Mr. Rowan. Senator, I don't have anything further today
except to express my appreciation for you all holding this
hearing on relatively short notice.
[The biographical information of J. Patrick Rowan follows.]
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Senator Feingold. Thank you, sir. With that, I'm going to
turn to the Ranking Member of the Committee, Senator Specter,
for any introductory remarks he wants to make.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Well, thank you, Mr. Chairman. I am glad
to see these confirmation hearings move forward. We have some
very important positions at issue here, the Assistant Attorney
General of the National Security Division. This is a very
difficult time. There is no doubt we are still subject to
attack from terrorism, and that position is one of enormous
importance. Assistant Attorney General for the Office of
Justice Programs, again, very, very significant.
The Sentencing Commission. I especially want to welcome
Bill Carr here, a Pennsylvanian, and a very distinguished
Pennsylvanian: he is married to my staff director, and that is
a high accolade and a high honor, Stephanie Middleton, who has
had a very distinguished practice in Pennsylvania and has given
up a very lucrative position to come as a matter of public
service.
I do want to say that you all should not be perplexed by
the absence of Senators here. We have, at any moment, as
Senator Feingold will confirm, committee hearings and
subcommittee hearings and floor actions and a variety of duties
which take us in many, many directions. So we do have staff and
we will review the records.
Unless there is some very piercing cross examination by
Senator Feingold, I think you are all in good shape. But you
can never tell, because Senator Feingold is a piercing cross
examiner.
[Laughter.]
I regret that I cannot stay, but I did want to come and
thank you for your willingness to participate in public
service. I am glad we have no lifetime appointments here, so I
think the confirmation process will probably move forward.
Thank you very much, Mr. Chairman.
Senator Feingold. Thank you, sir. I thank the Ranking
Member very much.
We will now return to testimony. Thank you, Mr. Rowan,
again.
Next, we have Jeffrey Leigh Sedgwick, who has been
nominated to be Assistant Attorney General of the Office of
Justice Programs. Mr. Sedgwick currently serves as the Acting
Assistant Attorney General, and also is director of the
Department's Bureau of Justice Statistics. He is a graduate of
Kenyon College and has a Ph.D. from the University of Virginia.
He has taught government and political science at the
University of Virginia, the University of Massachusetts, and
Smith College. I was also interested to note, Mr. Sedgwick has
done a significant amount of work with the State Department in
public diplomacy.
Mr. Sedgwick, welcome, and congratulations. You may now
introduce your family and anyone else here to support you, and
make any remarks you wish.
STATEMENT OF JEFFREY LEIGH SEDGWICK, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, OFFICE OF JUSTICE PROGRAMS
Mr. Sedgwick. Thank you, Mr. Chairman. Unfortunately, no
member of my family is with me today because of work
responsibilities, but I do want to thank a number of my
colleagues from the Office of Justice Programs in the Bureau of
Justice Statistics who are here, and also, I have a number of
our interns in the Bureau of Justice Statistics that are
working with us this summer.
Senator Feingold. Very good. We welcome all of them.
Any other comments you'd like to make, sir?
Mr. Sedgwick. Not at this time, thank you.
[The biographical information of Jeffrey Leigh Sedgwick
follows.]
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Senator Feingold. Thank you for coming.
At this point, I would like to ask unanimous consent that
the statement of the Chairman of the Committee, Senator Leahy,
be introduced in the record, and also the statement of Senator
John Warner on the nomination of Jeffrey Sedgwick, be placed in
the record at this time, without objection.
[No response.]
[The prepared statements of Chairman Leahy and Senator
Warner appear as a submission for the record.]
Senator Feingold. Our final nominee is William B. Carr, who
has been named to the U.S. Sentencing Commission. Mr. Carr
worked as a Federal prosecutor in the Eastern District of
Virginia for over 20 years.
Mr. Carr. Pennsylvania, sir.
Senator Feingold. I was going to say, he said you were
Pennsylvania. I guess the first two had Virginia connections. I
apologize for the error. He is a graduate of Swarthmore College
and Cornell University Law School, and has taught at both
Temple and Wagner Law Schools.
Mr. Carr is now a consultant to the Career Services Office
of Drexel University College of Law in Philadelphia.
Mr. Carr, let me turn it over to you to introduce your
family members, friends, and others, one family member who I
understand is very familiar, as has already been alluded to
here, on the Judiciary Committee.
STATEMENT OF WILLIAM B. CARR, JR., NOMINEE TO BE MEMBER OF THE
U.S. SENTENCING COMMISSION
Mr. Carr. Thank you, Senator. And she just moved from a
chair behind you, to a chair behind me, to following Senator
Specter out that door.
[Laughter.]
We have a daughter who recently graduated from college and
is in her second month of being gainfully employed in
Manhattan, so I didn't ask her to come down. But a close friend
of mine from the U.S. Attorney's Office for more than 24 years,
Bucky Mansuy, who is seated behind me, has come down today.
Senator Feingold. Welcome, sir.
Mr. Carr. And I would like to thank Senator Specter for his
support, the President for the nomination, and the Committee
for affording me this hearing.
[The biographical information of William B. Carr Jr.,
follows.]
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Senator Feingold. Thank you, Mr. Carr. Thank you all for
being here.
We'll start with questions for Mr. Carr. Under the current
sentencing system, judges may increase a defendant's sentence
based on conduct for which the defendant was never charged,
conduct for which all charges were dismissed, or even charges
of which the defendant was acquitted.
Applying a preponderance of the evidence standard, the
judge is allowed to increase the sentence by the same amount
that the defendant would have served if convicted by a jury and
proved beyond a reasonable doubt. In effect, the defendant is
sentenced for a crime for which he was never convicted. Now, to
me this policy appears to fly in the face of the principle that
a person is innocent until proven guilty.
What are your thoughts on the practice of acquitted conduct
sentencing, and would you take steps to end this practice, if
confirmed?
Mr. Carr. First, Senator, if I can address how we get to
the situation we're in where all of that conduct gets
considered. When the Sentencing Commission first promulgated
its initial guidelines back in 1987, what they tried to do was
to sort of average out the sentences that were already being
imposed based on the reasons that they were being imposed.
The Sentencing Commission concluded that, with respect to
certain kinds of crimes, sentencing judges had historically
taken into consideration things that had not necessarily been
charged or not necessarily been proved.
Acquitted conduct was the one that, as I tend to say, sort
of flunked the smell test, but passed the logic test, because
since they set up a system where judges would do judicial fact-
finding by a preponderance of the evidence, judges could find
facts that had never been charged, or find by a preponderance
of evidence facts of which a defendant had been convicted at
trial.
I understand why it is controversial, I understand why many
people--judges and practitioners alike--rail against it. One of
the things about taking acquitted conduct off the table, it
could have a curious effect on some charging and pleading
decisions.
A prosecutor thinking about charging five different drug
distributions where the evidence of the first one is simply an
informant, the evidence of the second one is an informant and
some surveillance, and the evidence of the last three is an
undercover agent with tape recordings, might thing, well, I'm
just going to charge to the last three because that way the
defendant doesn't have an opportunity to get acquitted of the
first two.
By the same token, if all five are charged, a defense
attorney might say, well, we'd better go to trial on this one
because we may roll the dice and get the first two thrown out.
So it is not a simple situation, but there's a logic to it that
goes along with the whole logic of preponderance of the
evidence, and even considering other relevant conduct on top of
what's charged.
Senator Feingold. So you would not be inclined to try to
change it. Is that what you're saying?
Mr. Carr. I know that there are various proposals out
there. If confirmed--and I'm not trying to avoid the question,
Senator. If confirmed, I would participate, as I would hope to
participate, with six other sentencing commissioners in
deliberations on the issue, which I have not had the
opportunity to do.
Senator Feingold. Well, thank you. I hope you'll keep as
open a mind as possible. I know you've thought about these
kinds of issues. I think it raises some very serious concerns,
as you acknowledge, so I appreciate your answer.
The U.S. Sentencing Commission has been an outspoken critic
of the unjust and unwarranted disparity in sentences between
crack and powder cocaine offenses. Last November, the
commission adopted an amendment to the sentencing guidelines
that helped mitigate this disparity by reducing the base
offense levels for crack cocaine offenses. The Sentencing
Commission then considered whether to apply this amendment
retroactively.
In making this decision, the commission considered three
factors: the purpose of the amendment, the significance of its
impact, and the feasibility of retroactive application. Based
on these factors, the commission unanimously determined that
the amendment should be applied retroactively.
Do you agree with the commission's decision to apply the
amendment retroactively, and do you think more should be done
to reduce or eliminate the crack/powder disparity?
Mr. Carr. It would be difficult for me to sit here, as one
who did not participate in that decision, and say that when
seven commissioners agreed that it should be retroactive,
including the one who voted against the amendment himself, that
I would be likely not to have joined in that decision. There
were several things that were compelling about the
retroactivity decision.
As I understand the Sentencing Commission's projections,
the average reduction in sentence for those who would be
eligible for a reduction would be 27 months. That reduction
would, on average, be from 152 months to 125 months, so you
would still be talking about people who, on average, were doing
more than 10 years in jail.
In addition to that, when we've gotten to the point from
1995 till now when the commission has, time after time, said we
have to do something about this disparity, and that's through
many commissioners over many different compositions of the
commission, and as I understand it, their most recent proposal
was suggesting that Congress enact something that would result
in a disparity of not greater than 20:1. I believe there are at
least three proposals out there ranging from 1:1 to 20:1. When
there seems to be enough legislative support for that, it would
have been surprising, I think, had they not made that
retroactive.
Senator Feingold. I thank you for your answers, and now I
will go to Mr. Sedgwick. I'd like to ask you about J. Robert
Flores, the administrator at the Office of Juvenile Justice and
Delinquency Prevention, an office within OJP.
Mr. Flores' tenure has been controversial from the
beginning. He is widely viewed by juvenile justice advocates as
having weakened the agency through systematic neglect. Last
month, we learned Mr. Flores bypassed the agency's peer review
process and awarded more than $8 million in grants to low-
scoring applicants that had ties to friends and family of
President Bush.
We also learned the Office of Inspector General is
investigating Mr. Flores for use of government funds for
personal travel and for improper hiring practices. These
matters have been turned over to Federal prosecutors, who have
opened a criminal investigation.
Now, I understand that in criminal proceedings a person is
presumed innocent until proven guilty beyond a reasonable
doubt, but the bar for running an important Federal agency
should probably be higher than just ``not a proven criminal''.
In this case we are not just talking about allegations of
professional misconduct.
The DOJ Inspector General has found enough evidence of
criminal misconduct to refer the matter to prosecutors. The
Office of Juvenile Justice is among the offices under your
supervision. Have you taken any action on this matter since you
have become Acting Assistant Attorney General, and is it your
opinion that Mr. Flores should continue to be in charge of this
office while the criminal investigation continues?
Mr. Sedgwick. Thank you for that question, sir. The events
that are--that you allude to that have been the subject of
recent media reports, oversight hearings, and so on took place
during the 2007 fiscal year when I was the director of the
offices or the Bureau of Justice Statistics and not in the role
of Acting Assistant Attorney General for the Office of Justice
Programs.
Should I be fortunate enough to be confirmed, I can tell
you that my highest priority will be that the process of
awarding grants in the Office of Justice Programs will meet the
highest standards of professionalism, integrity, and
transparency.
Since assuming the position of Acting Assistant Attorney
General in January, I have taken steps, up to and including
personally reviewing and augmenting our peer review policy, to
make sure that the process that we use meets with broad
approval.
Senator Feingold. Do you have authority under your current
position to take action on this matter with regard to Mr.
Flores?
Mr. Sedgwick. That would be a personnel issue that I would
not want to speculate on right now.
Senator Feingold. Your authority is a personnel issue?
Mr. Sedgwick. I--
Senator Feingold. To act on this, in theory?
Mr. Sedgwick.--The question of whether or not I have--I
have not, as an Acting Assistant Attorney General, raised that
question of what my authority is.
Senator Feingold. OK.
Mr. Sedgwick. Since it seemed to me presumptuous to do so
as an Acting Assistant Attorney General, to raise the question
of my personnel authority with regard to a Presidential
appointee within the Office of Justice Programs.
Senator Feingold. I'm not sure I agree with that, given the
fact that you are the acting person in that authority, but I
won't pursue it at this time.
For the first time in 2008, the Office of Justice Programs
used a portion of the Crime Victims Fund for OJPs management
and administrative costs, despite the fact that there is no
express authority in either the authorizing or appropriations
statutes for doing so. The Crime Victims Fund, as you all know,
was created so that fines, forfeitures, and assessments paid by
Federal criminal offenders, not taxpayers, generate the revenue
used for grants to State crime victim compensation programs,
direct victim assistance services, and services to victims of
Federal crimes.
Since you were acting director of OJP for at least a part
of this time, can you explain the justification for using these
funds for management and administrative costs?
Mr. Sedgwick. Yes, I can. There are two legal sources from
which--or two legal authorities under which we can raise the
funds necessary for the administration of programs in the
Office of Justice Programs. They may either be drawn from
legislatively appropriated funds for the purposes of management
and administration or they can be carved out of the program
funds themselves and applied for the administration of those
programs.
Historically, there has been but one legislative
appropriation for management and administrative expenses in the
Office of Justice Programs, and that has historically averaged
right around $42 million. The situation we faced in fiscal year
2008 was that that appropriation amount was cut to $10 million,
which is significantly less than the M&A amount necessary to
keep even the Office of Victims of Crime open for the full
fiscal year administering its programs.
Therefore, we made the decision, since we had but $10
million appropriated--in fact, the management and
administration expenditures authorized by Congress were $127
million--we made the decision to treat all program funds
essentially equally and to carve out of all program funds an
amount, effectively 4.9 percent, for the administration of
programs in OJP. So, all program dollars were treated equally.
As I said, this is really largely the result of, for the
first time, having the legislatively appropriated amount of M&A
reduced below a level that was necessary for the M&A assessment
for OVC, let alone the other program offices in OJP.
Senator Feingold. Thank you, Mr. Sedgwick. I will have some
followup written questions for you on some of these matters,
but thank you for your answers.
Mr. Rowan, let me turn to you. You have worked at the FBI
or Main Justice since 2002. Were you read into the President's
Terrorist Surveillance Program prior to when it became public
in December of 2005?
Mr. Rowan. Yes, I was, Senator.
Senator Feingold. OK. Did you ever express concern about
the legality or constitutionality of that program in any
internal deliberations within the FBI or the Department of
Justice?
Mr. Rowan. Senator, I was not at any point asked to express
an opinion about the sort of legal underpinnings. My focus,
when I was read in, which is actually when I was in the
Criminal Division of the Department of Justice and after--so
this was after I'd been at FBI, my focus was trying to
determine how to deal with the issue of our criminal discovery
obligations in connection with prosecutions and the potential
that there may be intelligence information out there.
That work began shortly before the program was made public
in December, 2005, and continued in a much more visible way
after December of 2005. So again, I was aware of the program
because we were trying to determine, how can we ensure that we
are maintaining--that we're meeting any obligations we might
have.
Senator Feingold. I understand that you were not asked
about your opinion on the legality or the constitutionality. I
also understand you did not offer it. But do you recall having
an opinion, yourself, about the legality or constitutionality
of the TSP program?
Mr. Rowan. Senator, as I sit here today, recall--I recall
certainly forming a general conclusion that it was a highly
complex area, that the analysis was complicated. I cannot
recall forming a bottom-line conclusion about the legality or
not of the program or the--sort of any element of the legal
opinions underpinning it. I certainly was aware of some of the
issues, but I was focused on trying to make sure that I met the
responsibilities that I understood myself to have.
Senator Feingold. Would it be fair--and you can just say no
if you don't think it is--to say that you perhaps saw it as a
close call?
Mr. Rowan. It's--you know, when I--when I--when I sit here
now, Senator, and think about the legal foundation for the
program, I--I am primarily focused on what I have reviewed in
the context of the white paper. I think that there are some
complicated issues there. I do think that the idea that things
like signals intelligence collection are an instrumental part
of war efforts and that, therefore, the authorization for the
use of military force was a piece of legislation that one could
look to in determining whether or not the sort of means
provisions had been met.
I recall, particularly, that area, finding that to be a
rather solid analysis. But it's a complicated area of the law,
I certainly concede that.
Senator Feingold. Well, I am asking because the White House
and I both agree it's not a close call; we just come to
completely opposite conclusions. So I'm trying to find people
who might have seen it as somewhere in between. But thank you
for those answers.
You have a long history as a Federal prosecutor and have
been involved in a number of successful terrorism prosecutions
that have been brought by the Department of Justice. Do you
believe that the criminal justice system can be an effective
tool in the U.S. Government's fight against terrorists?
Mr. Rowan. I do, Senator. I believe that there--there--it
is certainly the case that one size may not fit all. I think
that there are appropriate, different approaches given the
circumstances, but I think one critical component is now, has
been, and always will be the criminal justice system.
I'm very proud of the work that I've done to prosecute
international terrorism cases, proud of the folks in my
division in U.S. Attorney's Offices around the country that
have actually been in court on those cases, and I think that
they're an extremely important part of how we address the
problem of international terrorism.
Senator Feingold. As you know, there was a lot of
controversy surrounding the PATRIOT Act when it passed in 2001,
and in my view it flew through Congress too quickly and without
time for calm consideration. Four years later when Congress
took up the reauthorization of the PATRIOT Act, I was
disappointed that the administration pursued a confrontational
and highly political approach to that legislation, refusing to
agree to some quite modest and reasonable changes proposed by
both Republicans and Democrats.
In retrospect, do you think that the consideration of both
the original PATRIOT Act and the reauthorization legislation
was overly politicized, and do you think that additional
reasonable checks and balances could have been built into that
legislation to protect against abuse, while still ensuring that
the government has the authorities it needs?
Mr. Rowan. Senator, I appreciate that those are extremely
significant pieces of legislation that were in the first
PATRIOT Act, of course, moved through Congress quickly, and
that there were issues that arose that may not have been
anticipated until after the fact. But I--to the extent that
you're asking if I believe that the PATRIOT Act reauthorization
was overly politicized in a way that caused us as a country to
end up with a statute that didn't strike the right balance, I
would disagree with that.
I should note a point of personal bias, that the National
Security Division was actually created by the PATRIOT Act
reauthorization and my position that I'm up for confirmation on
was actually created by that legislation, so I certainly can't
be too against it.
Senator Feingold. I confess to bias, as the only Senator to
vote against the bill, so there we have it.
Anyway, let's turn to Senator Brownback.
Senator Brownback. I've been in those categories, being the
only one to vote that way.
Gentlemen, thank you for being here. I want to thank the
Chairman for holding the hearing and moving forward, and
hopefully these nominations will move forward quickly.
I don't know whose daughters those twins are back there,
but they're beautiful. Bring them to every hearing you have, is
my suggestion.
[Laughter.]
Mr. Rowan. They'll be available for rent, Senator.
[Laughter.]
Senator Brownback. OK. Are they twins?
Mr. Rowan. They're mine, Senator. Vivian and Evangelize.
Senator Brownback. Hi, girls.
I've looked through and I'm pleased to see you're up,
pleased to see you moving forward. I want to draw one item to
your attention, if I could, that's been a personal issue of
mine, so this is a personal project that we've been pushing
for. It's on the Second Chance Act. There is a bipartisan bill
coming through here to try to reduce the recidivism rate of
people going into prison. We got it passed, signed into law by
the President, and it will be implemented by this
administration.
I think actually some of the programs may come through the
Office of Justice Programs, less impact on the U.S. Sentencing
Commission. But it's my hope that this will be actively pursued
by the administration as a way of being able to try to reduce
these recidivism rates that we have across the country, because
right now if you go under our present system, the numbers I've
seen, two- thirds of the time you're going to go back once you
get out.
So, something's not quite working right when they're in to
try to help people either develop the life skills, or the
abilities, or the mental fortitude of the soul to be able to
stop this sort of criminal activity. This is an effort that
we've got to, I think, really address and address in a very
wholehearted fashion to say we're going to try to address this
person's needs and try to structure and get an environment and
an atmosphere that can stop this gate from going around and
around.
As I look at the numbers, I think we've got about 600,000
people getting out of prison a year. If you've got two-thirds
of them going back, it seems like a really effective way to
deal with part of our crime problem would say, well, we're
going to get that number down, we're going to cut that number
in half. I hope you'll look aggressively at implementing that.
I don't know about Mr. Sedgwick. I think this would be
something--I don't know if you've had a chance to look at this
or think about it any at all, or even you, Mr. Carr. But if you
had any thoughts on it, I would appreciate it.
Mr. Sedgwick. We have--actually have looked at this issue
quite extensively and in the Bureau of Justice Statistics we
have just created a new Reentry and Recidivism Unit within the
Bureau of Justice Statistics to focus attention on precisely
this question. But, clearly, I share your concern on this issue
and look forward, if I'm fortunate enough to be concerned--to
be confirmed, to working with you and others in the Senate that
are concerned about this issue to see what we can do to put
together a robust agenda of studies to determine what is the
most effective way to reduce recidivism rates post-release and
to enhance the successful reentry of persons that are being
released from confinement into society and make sure that's a
smooth and successful transition. I look forward to working
with you on that.
Mr. Carr. Good afternoon, Senator. Actually, although I
could not attend it--I was on Federal jury duty those 2 days
last week--the Sentencing Commission actually had a
comprehensive 2-day symposium on Alternatives to Incarceration
and Reentry Programs. I think it's something that the
Sentencing Commission is going to be getting more involved in
going forward. They were addressing both Federal and State
systems, and ways to evaluate their success.
In my own district, in the Eastern District of
Pennsylvania, something that has not been funded, except I
think there's one former U.S. Attorney who is paid under $75 an
hour, the U.S. Attorney's Office went to the Probation
Department and the District Court and, as you may know, there's
an epidemic of violent crime in Philadelphia and they've got a
new pilot program where there is a repeat offender index, which
is something that the Probation Office figures out for everyone
who's in jail.
For a certain score on that scoring system, there's a 58
percent rate of being revoked and sent back to jail for those
who are released from Federal prison and are residents of
Philadelphia. They started a program 10 months ago where people
who have that score and are in that category are offered the
opportunity to enter this program, and the court has supplied
the work of two magistrates, the U.S. Attorney's Office has
supplied the work of two Assistant U.S. Attorneys, and the
Probation Department has--and the Defender's Office have each
provided two, and these offenders--and I think there are three
dozen of them now--meet every 2 weeks in a group with their
families, with the magistrates, with the people from the U.S.
Attorney's Office, Probation Department, and Defender's Office,
and those people are all active in getting local agencies
involved, getting funding for training.
They've got the Community College of Philadelphia admitting
these people to classes and waiving admission fees. And while
it's certainly a low number of people and a short period of
time, in 10 months no one has faced a revocation hearing. I
think there are experiments like that going on in State courts
and Federal courts around the country, which, if I'm fortunate
enough to be confirmed, I would love to work on with the
Sentencing Commission to figure out how we can reduce
recidivism, since, as you say, I think there are about 650,000
prisoners being released every year.
Senator Brownback. I hope you can. One of the things that I
did--have done a couple of times, is spend a night in prison,
of my own volition. I've not been charged or convicted on
anything, just to be clear for the record here. But it was
really helpful. It's one thing to read about these things, it's
another thing to sit there and smell it, and feel it, and be in
the middle of it. I'd recommend, if you're approved--and I'm
certain the Majority would appreciate your spending time in
jail. I'm kidding here. That was unsolicited and unfair, so I'm
kidding with that. But I think it would be real helpful,
actually, to get kind of that feel for it and it may be useful.
One other thing I want to suggest to you. We're just
looking at a way of doing this. I don't know how to do it, but
just to try to start some sort of formalized offering of a
reconciliation process between victims and perpetrators. You've
seen this be quite successful in some of these Third World
countries that have had just massive problems. I'm thinking
particularly of South Africa, Rwanda. They're starting in some
other places, where they have a Truth and Reconciliation
Commission.
We have these horrific incidences that happened, but then
you're trying to put a culture back together. I'm not
suggesting that here and I'm not suggesting anything be
required, but if there was a process where the victim and
perpetrator could voluntarily access some sort of
reconciliation process, I've been impressed at what I've seen
other places do.
I was in Rwanda, along with Senator Durbin, a couple of
years ago, now. It had been 11, 12 years ago, prior to when we
were there, that they had gone through the genocide, 800,000
people killed in about a 6-week time period in a relatively
small, intensely populated country. I was impressed that they
were even functioning after that period of time. If you just
think of the level of violence there, the level of retribution
that people desired in that situation, and yet they had gone
through this very aggressive process of trying to get the place
to function again. And it's certainly not perfect, but I was
impressed at how far they've come.
I thought, that's something--we should see if there's a way
to allow it on a voluntary basis. Our office would be willing
to work with either of you, if you're interested in it. It's
something we're going to try to pursue and see if there are
things that we can develop on that, because we need both people
not going back to jails often, and we need some form of a
reconciliation so we can move forward as a society.
Mr. Chairman, thank you very much. That is all my
questions.
Senator Feingold. Thank you, Senator Brownback.
Back to Mr. Rowan. You were at the FBI General Counsel's
Office for much of 2003. Were you surprised by the reports
issued by the Department of Justice Inspector General
documenting widespread problems with the use of national
security letters from 2003 to 2006, after those authorities had
been dramatically expanded in the PATRIOT Act?
Mr. Rowan. I was, Senator. I certainly was aware, from my
time at the FBI, that national security letters were a critical
tool in widespread use. My limited sort of opportunity to see
in a detailed way what sort of processes were followed, I was
of the view that people were being very careful in the use of
national security letters at the sort of headquarters level
that I saw these things, and I was surprised at the issues that
the IG uncovered.
As you know, we in the National Security Division have
begun a set of national security reviews, where we go out to
field offices around the country, working with FBI OGC, to
review case files, look at the predication for NSLs, among
other things, make sure that the law is being followed.
Senator Feingold. This relates to our discussion of the
PATRIOT Act, because I actually received a call from the
Director of the FBI apologizing that this report was coming
out. This was after having had a former Attorney General refer
to those of us who had questions about the way the PATRIOT Act
was drafted as having seen the ``phantoms of lost liberty'',
when in fact it was the statute itself that was insufficient in
some cases.
It was not just that there was misconduct or inappropriate
use. We could have drafted the language about the NSLs more
tightly to give more clear guidance. I think that is an
important part of the story in terms of our role here, as well
as your role in the Executive Branch.
Mr. Rowan, I understand the National Security Division is
providing support to the Office of Military Commissions, which
is the Pentagon office with primary responsibility for
prosecuting the detainees at Guantanamo Bay who have been
charged with war crimes. What role are Justice Department
officials playing in those prosecutions?
Mr. Rowan. The department is supporting the prosecutions
through providing prosecutors--and they have a few paralegals
as well, I think--to work on commissions' cases. Obviously the
FBI is also providing assistance by way of making agents
available who are potential witnesses and things like that,
helping put cases together the way we would put a case together
in a Federal prosecutor's office.
So the National Security Division is sort of the
headquarters component within the Department of Justice that
has gone out and tried to recruit Federal prosecutors who are
willing to work on commissions' matters, give up their work in
their home district and come work on detail.
So we have approximately 12 or 14 prosecutors working on
those matters, sort of teaming up with DoD personnel on the
cases. Obviously the responsibility, the ultimate authority for
charging decisions and strategic decisions all that, lies with
the Office of Military Commissions and the Office of the Chief
Prosecutor there.
Senator Feingold. Do you believe that evidence obtained
through coercive interrogation techniques should be offered in
these trials?
Mr. Rowan. I think that we obviously have to be very
careful, very judicious in the decisions we make about what
evidence we offer for admission, statements taken from
detainess. The Military Commissions Act obviously lays out a
standard and we need to, needless to say, comply with that
standard.
We need to develop--because the military commissions are
not a set of proceedings with a long history, we need to sort
of continue to develop our credibility going in front of the
military judges on those issues, so we have to be careful not
only to be asking for the admission of statements in a way
that's consistent with the law, but we need to do--to make very
careful decisions to ensure that everybody understands that we
are being very reasonable and very judicious in what we offer.
Senator Feingold. But does it trouble you at all that
coercive interrogation techniques could be used to obtain
evidence and that that information would be used at trial?
Mr. Rowan. I think it--it really depends on the degree of
coercion. I think that there's a lot of activity that, you
know--the end of the spectrum is, anybody who's in detention
might assert that there's an element of coercion about the very
fact that they're in detention, whether it's the police
department, station house down the street or in a camp in
Afghanistan to the other end of the spectrum.
And--and I think--so I--I think we just--we need to be very
careful because we obviously have not only a statutory standard
to meet, but we have a lot of people in this country and around
the world who are watching closely to make sure that we are
behaving in a responsible way and we need to make all the
decisions we make about the evidence in light of that concern.
Senator Feingold. If confirmed, you'll be responsible for
overseeing implementation of the new FISA Amendments Act. As
you know, I, and many others in Congress, have grave concerns
about that legislation. It is critically important that this
committee and the Intelligence Committee be kept up to date on
what steps the executive branch is taking to implement this new
law. What is your view of congressional oversight in making
sure a statute like FISA works as is intended?
Mr. Rowan. Senator, I think that congressional oversight
is--is going to be an extremely important part of the way we
implement this statute. Obviously there are built into the
statute a number of means by which we can alert the Congress
how it's being implemented. We in the National Security
Division are going to be at the center of the effort, not only
to draft the appropriate targeting and minimization procedures,
but also to do the assessments.
There's like 6-month assessments required under the
statute, and those assessments are to determine whether or not
the targeting and minimization procedures are being followed.
Those assessments will, of course, be made available to the
Judiciary and Intelligence Committees, and that's sort of one
piece, the most obvious piece, that's right there in Section
702.
I would also note that with respect to the Protect America
Act, the National Security Division of the Department of
Justice did a great deal of work by way of trying to inform the
Congress about what was going on with the way that was
implemented. I think there was a total of sort of 37
assessments done by the National Security Division, working
with the DNI and the NSA, to ensure that that was being
implemented properly, and the results of those assessments were
briefed up here on the Hill.
We are very aware of the congressional concern over the
statute, the new procedures that we'll all be working under for
the first time, not to mention the fact that there is, of
course, a sunset which, while it seems like a long way away
right now, will be on us before we know it. So we are fully
aware and--and understand that the Congress expects to hear how
this is working in great detail, and we are looking forward to
making those reports.
Senator Feingold. What in your background can you point to
that will give us confidence that you will treat these
committees as a partner in your work rather than an annoyance,
that you will answer our questions, consult with us, and keep
us informed of the things we need to know?
Mr. Rowan. Senator, you know, I was a prosecutor doing
ordinary criminal cases--murder cases, drug cases, the whole
gamut--for a long time. In that, you learn very quickly that
your credibility is extremely important. You don't go into
court and--in front of a judge or a jury and promise things
that you aren't going to comply with. You don't get it wrong.
You ensure that every time you do something, you're building
your credibility because you're going to make--you're going to
ask that jury or that judge to make important and significant
decisions at the end of the proceeding.
That's, I think, the way we need to approach our work here.
I'm used to that. It's a little bit different because we're now
not marching off to court to convince a judge or a jury. Here
we're coming up to the Congress to convince the Congress that
the authorities that we've been provided are being used
responsibly. But that's the first thing I sort of think about
when I think about the importance of--of oversight and of
maintaining a close communication with the Congress.
Senator Feingold. Senator Brownback will probably consider
this a partisan remark, but I wish more people who had come
before us in the last few years had taken that attitude about
working with this committee. I look forward to your taking that
approach.
Senator Brownback?
Senator Brownback. I have no additional questions.
Senator Feingold. Well, I want to thank all the nominees
for their time today. Written questions for the nominees should
be submitted by the close of business 1 week from today.
Let me close by addressing a few comments specifically to
Mr. Rowan. You have an important responsibility as only the
second person to be nominated to the position of Acting
Assistant Attorney General for the 2-year-old National Security
Division. The new division has an important goal, to bring the
disparate parts of the department that deal with intelligence
and national security together under a single chain of command,
thereby minimizing turf battles and allowing the department to
more efficiently carry out its work to fight and prevent
terrorism and espionage.
But another important responsibility of the position to
which you have been nominated is to be responsive to Congress,
regardless of the fact that there is not much time remaining in
this administration. During Mr. Gonzales' time as Attorney
General, a serious rift developed between the department and
Congress. Even with his departure, we frequently still do not
get the answers we need in a timely manner. So, I hope you'll
take that role seriously as well. Protecting Americans from
terrorism is our number-one priority in Congress, as it is in
the department, and this committee wants to be helpful to you
in your work.
The hearing is adjourned.
[Whereupon, at 2:46 p.m. the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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