[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]

COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS FOR
2011

_______________________________________________________________________

HEARINGS

BEFORE A

SUBCOMMITTEE OF THE

COMMITTEE ON APPROPRIATIONS

HOUSE OF REPRESENTATIVES

ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
________

SUBCOMMITTEE ON COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES
ALAN B. MOLLOHAN, West Virginia, Chairman
PATRICK J. KENNEDY, Rhode Island FRANK R. WOLF, Virginia
CHAKA FATTAH, Pennsylvania JOHN ABNEY CULBERSON, Texas
ADAM SCHIFF, California ROBERT B. ADERHOLT, Alabama
MICHAEL HONDA, California JO BONNER, Alabama
C.A. ``DUTCH'' RUPPERSBERGER,
Maryland
JOSE E. SERRANO, New York
PATRICK J. MURPHY, Pennsylvania

PART 6
Page
Department of Justice Fiscal Year 2011 Budget Overview........... 1
Federal Bureau of Investigation Fiscal Year 2011 Budget Overview. 185
Bureau of Alcohol, Tobacco, Firearms and Explosives Fiscal Year
2011 Budget Overview.............................................. 273
Bureau of Prisons Fiscal Year 2011 Budget Overview............... 361
American Federation of Government Employees--Council of Prison
Locals............................................................ 529
Office of Justice Programs Fiscal Year 2011 Budget Overview...... 567
Legal Services Corporation Fiscal Year 2011 Budget Overview...... 653
________
Printed for the use of the Committee on Appropriations

PART 6--COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS
FOR 2011
?

COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS FOR
2011

_______________________________________________________________________

HEARINGS

BEFORE A

SUBCOMMITTEE OF THE

COMMITTEE ON APPROPRIATIONS

HOUSE OF REPRESENTATIVES

ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
________
SUBCOMMITTEE ON COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES
ALAN B. MOLLOHAN, West Virginia, Chairman
PATRICK J. KENNEDY, Rhode Island
CHAKA FATTAH, Pennsylvania
ADAM SCHIFF, California
MICHAEL HONDA, California
C.A. ``DUTCH'' RUPPERSBERGER,
Maryland
JOSE E. SERRANO, New York
PATRICK J. MURPHY, Pennsylvania FRANK R. WOLF, Virginia
JOHN ABNEY CULBERSON, Texas
ROBERT B. ADERHOLT, Alabama
JO BONNER, Alabama

NOTE: Under Committee Rules, Mr. Obey, as Chairman of the Full
Committee, and Mr. Lewis, as Ranking Minority Member of the Full
Committee, are authorized to sit as Members of all Subcommittees.
John Blazey, Dixon Butler, Adrienne Simonson,
Diana Simpson, Darek Newby, and Brad Daniels,
Subcommittee Staff
________
PART 6
Page
Department of Justice Fiscal Year 2011 Budget Overview........... 1
Federal Bureau of Investigation Fiscal Year 2011 Budget Overview. 185
Bureau of Alcohol, Tobacco, Firearms and Explosives Fiscal Year
2011 Budget Overview.............................................. 273
Bureau of Prisons Fiscal Year 2011 Budget Overview............... 361
American Federation of Government Employees--Council of Prison
Locals............................................................ 529
Office of Justice Programs Fiscal Year 2011 Budget Overview...... 567
Legal Services Corporation Fiscal Year 2011 Budget Overview...... 653
________
Printed for the use of the Committee on Appropriations
________
U.S. GOVERNMENT PRINTING OFFICE
56-795 WASHINGTON : 2010

COMMITTEE ON APPROPRIATIONS

DAVID R. OBEY, Wisconsin, Chairman

NORMAN D. DICKS, Washington
ALAN B. MOLLOHAN, West Virginia
MARCY KAPTUR, Ohio
PETER J. VISCLOSKY, Indiana
NITA M. LOWEY, New York
JOSE E. SERRANO, New York
ROSA L. DeLAURO, Connecticut
JAMES P. MORAN, Virginia
JOHN W. OLVER, Massachusetts
ED PASTOR, Arizona
DAVID E. PRICE, North Carolina
CHET EDWARDS, Texas
PATRICK J. KENNEDY, Rhode Island
MAURICE D. HINCHEY, New York
LUCILLE ROYBAL-ALLARD, California
SAM FARR, California
JESSE L. JACKSON, Jr., Illinois
CAROLYN C. KILPATRICK, Michigan
ALLEN BOYD, Florida
CHAKA FATTAH, Pennsylvania
STEVEN R. ROTHMAN, New Jersey
SANFORD D. BISHOP, Jr., Georgia
MARION BERRY, Arkansas
BARBARA LEE, California
ADAM SCHIFF, California
MICHAEL HONDA, California
BETTY McCOLLUM, Minnesota
STEVE ISRAEL, New York
TIM RYAN, Ohio
C.A. ``DUTCH'' RUPPERSBERGER,
Maryland
BEN CHANDLER, Kentucky
DEBBIE WASSERMAN SCHULTZ, Florida
CIRO RODRIGUEZ, Texas
LINCOLN DAVIS, Tennessee
JOHN T. SALAZAR, Colorado
PATRICK J. MURPHY, Pennsylvania JERRY LEWIS, California
C. W. BILL YOUNG, Florida
HAROLD ROGERS, Kentucky
FRANK R. WOLF, Virginia
JACK KINGSTON, Georgia
RODNEY P. FRELINGHUYSEN, New
Jersey
TODD TIAHRT, Kansas
ZACH WAMP, Tennessee
TOM LATHAM, Iowa
ROBERT B. ADERHOLT, Alabama
JO ANN EMERSON, Missouri
KAY GRANGER, Texas
MICHAEL K. SIMPSON, Idaho
JOHN ABNEY CULBERSON, Texas
MARK STEVEN KIRK, Illinois
ANDER CRENSHAW, Florida
DENNIS R. REHBERG, Montana
JOHN R. CARTER, Texas
RODNEY ALEXANDER, Louisiana
KEN CALVERT, California
JO BONNER, Alabama
STEVEN C. LaTOURETTE, Ohio
TOM COLE, Oklahoma

Beverly Pheto, Clerk and Staff Director

(ii)

COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS FOR
2011

----------

Tuesday, March 16, 2010.

DEPARTMENT OF JUSTICE FY2011 BUDGET OVERVIEW

WITNESS

HON. ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES

Opening Statement of Chairman Mollohan

Mr. Mollohan. Mr. Attorney General, welcome to the hearing
this afternoon, and welcome to everyone to this afternoon's
hearing on the Department of Justice and its fiscal year 2011
budget request. Our witness this afternoon is the Honorable
Eric Holder, Attorney General. Thank you for appearing today,
Mr. Attorney General. We appreciate it.
I would like to start off by recognizing just a few of the
numerous positive developments we have seen at the Department
of Justice over the last year. Under your leadership, the
Department has shown a renewed commitment to its criminal
enforcement missions, including international organized crime,
drug trafficking, and civil rights.
You have placed a new emphasis on funding effective state
and local grant programs, including the COPS hiring program,
which saved or created nearly 5,000 jobs through the stimulus
provided by this Committee last year.
We have also seen a new and fairly comprehensive commitment
by the Department of Justice to begin addressing the truly
deplorable law enforcement situation in Indian Country. This
commitment is reflected in your budget request, which has
Indian Country increases almost across the board, and we
certainly welcome that, as we initiated such investments in
this very Committee last year.
Finally, I have been pleased to see that violent crime
rates have continued to decrease over the past two years
despite significant economic distress that seemed likely to
produce the opposite result. To the extent that the Department
of Justice is a national law enforcement leader, you share in
that success along with your state and local partners.
While we enjoy and appreciate the successes, Mr. Attorney
General, the Department also has its share of challenges. One
of the most visible of these challenges is the enormous and
growing workload of white-collar crime cases. Your current load
of mortgage, securities, and government fraud cases covers
billions and billions of dollars of realized losses, and you
have only just started to scratch the surface.
Another looming issue is the burgeoning federal inmate
population, which is increasingly outstripping the capacity of
our prison system.
Perhaps you have had no greater challenge since arriving at
the Department of Justice than working to fulfill the
President's commitment to close the detention facilities at
Guantanamo Bay. The process of closing Guantanamo actually
began under President Bush. He worked to reduce the detainee
population by more than 500 detainees, all without involvement
by the Congress, and without any publicly discernible process
for choosing whom to release and under what terms.
This Administration replaced that ad hoc system with a
formalized, consistent process for reviewing each detainee and
determining the safest, most appropriate disposition for him.
Your system ensures that the Government's military,
intelligence, law enforcement, homeland security, and
diplomatic communities have reviewed each case and come to
agreement on each outcome.
I think having such a system that we can sit here and
discuss today, in a way that we never could have under an ad
hoc process, is an achievement in its own right. While
reasonable people might disagree about some of the specific
outcomes your system produced, I don't think anyone should
dispute that the system itself was well reasoned and had
integrity.
Your process ultimately produced recommendations to bring a
small number of Guantanamo detainees here to the U.S. for
prosecution. Those recommendations have generated an enormous
amount of debate and engendered an entrenched opposition that
would like to limit detainee prosecutions exclusively to the
military commission system.
I support the reformed military commission process and
believe that there are times when a commission may be the only
appropriate forum based on considerations like admissibility of
evidence or the need to protect intelligence sources and
methods. But there are equally valid reasons why an Article III
or civilian court may be just as necessary and just as
appropriate. Article III trials can be significantly shorter,
given their broader authority to accept guilty pleas. Some of
our allies will not cooperate with our prosecution efforts
outside of the civilian system. Some cases present legal or
operational issues that require the accumulated legal
precedents and rules of courtroom procedure that have developed
over hundreds of years in the Article III courts.
These are things that the relatively new military
commission system, no matter how valuable, simply cannot
provide right now.
For these reasons, I think it would be a mistake to
categorically deny you access to the civilian system,
especially in light of its established track record of success
in terrorism prosecutions.
Let us not forget that the Article III system has safely
and effectively tried and convicted hundreds of terrorists.
Today there are more than 300 international or domestic
terrorists incarcerated in civilian prison facilities.
The military commission system, by way of comparison, has
produced three prosecutions, two of which came from guilty
pleas.
I think the results speak for themselves. Officials from
the former administration also support the civilian trial
option and believe that precluding civilian trials out of hand
is a dangerous proposal. The decision about whether to try a
case in a civilian court is best left to the Department of
Justice to determine, void of politics, just as was done in the
previous administration.
I am sure that we will be discussing these issues in detail
throughout the afternoon. There is also a lot of interest on
all sides about the final venue determination for the 9/11
trials, which I understand is still under consideration. We
really can't discuss the merits of the venue until it has been
determined, but I would like to give you an opportunity to
explain to us the underlying criteria that are being used to
make forum and venue determinations for the Article III and
military courts so that we can understand the considerations
and constraints that are involved in that process.
In a moment we will have you provide an oral summary of
your testimony, Mr. Attorney General. Your written statement,
of course, will be made a part of the record.
But before we do that, however, I would like to turn to the
Subcommittee's Ranking Member, Mr. Wolf, for any opening
remarks that he would like to make.

Opening Statement of Mr. Wolf

Mr. Wolf. Thank you, Mr. Chairman. Mr. Attorney General, we
welcome you to Committee, we look forward to your testimony.
Thank you.
Mr. Mollohan. Mr. Attorney General.

Testimony of Attorney General Holder

Mr. Holder. Good afternoon, Chairman Mollohan, Ranking
Member Wolf, and distinguished members of the Subcommittee.
Today it is my privilege to discuss the President's
Department of Justice budget for fiscal year 2011, and to
provide an update on the Justice Department's progress, top
priorities, and future plans.
But first let me thank you for your ongoing support of the
Department's work and your recognition of its essential role in
protecting our Nation's people, as well as our highest
principles.
When I met with this Subcommittee last April, I pledged
that under my leadership the Justice Department would
vigorously pursue a specific and critical set of objectives--
combating terrorism, fighting crime, and enforcing our laws in
a neutral and in a non-partisan way--and reinvigorate the
Department's commitment to integrity, transparency, and
results.
I believe we are on the right path to achieving these
goals. Although unprecedented challenges and new demands have
emerged, our key priorities remain clear, and ensuring the
safety of the American people continues to be our paramount
responsibility.
Over the last year, we have enhanced our national security
programs and capabilities. We have also strengthened efforts to
protect our environment, as well as our most vulnerable
communities. We have reinvigorated our mission to safeguard
civil rights in our workplaces, our housing markets, our voting
booths, as well as our border areas. And as part of our focus
on securing our economy and combating mortgage and financial
fraud, the Department is now spearheading the Financial Fraud
Enforcement Task Force that President Obama launched last year.
The President's budget request of $29 billion demonstrates
a strong commitment to the Justice Department's key priorities.
Now let me assure you that in distributing and using these
funds we will think carefully and we will think strategically
and we will act to ensure accountability as well as
transparency.
As you have seen, the President's budget requests $300
million in program increases to help strengthen national
security and to counter the threat of terrorism. These
resources will enable us to expand on the progress that we have
made in the last year. Due to the vigilance of our law
enforcement and intelligence agencies, we have succeeded in
identifying and averting plots against the Nation, some known
to the public, many not, including one of the most serious
threats since September the 11th of 2001. A few weeks ago
Najibullah Zazi, the mastermind behind a plot to bomb New York
City's subway system, pleaded guilty to three criminal charges.
Four others have also been charged as a result of our
investigation. This attempted attack on our homeland, on our
most populated city, was real, it was in motion, and it would
have been deadly. But because of careful analysis by our
intelligence agents and prompt actions by law enforcement, we
were able to thwart a potential disaster as we have repeatedly
done over the last year.
Just last month, again in New York City, Aafia Siddiqui, a
United States trained Pakistani physicist, was convicted of
attempted murder and armed assault. She had shown a clear
intent to kill Americans, and at the time of her arrest
possessed documents that referred to a ``mass casualty attack''
and listed specific locations, including the Empire State
Building, the Statue of Liberty, and the Brooklyn Bridge.
And last week in Philadelphia, an American citizen was
charged with conspiring to provide material support to
terrorists and to commit murder overseas.
Now these recent cases remind us that terrorists' methods
are evolving, as are the types of individuals involved in
terrorist activities. We face a serious, capable, and
determined enemy in the war that we are fighting. This
underscores why the Justice Department must have the capacity
to respond effectively and to respond quickly, and our actions
over the past year, I believe, provide evidence that we are
making significant advancements in combating these threats.
Now despite this recent progress, however, we cannot become
complacent, and we must not, and we will not, lose focus in our
efforts to bring terrorists to justice.
Now, I realize that there are different views on how best
to approach this work. This is a very legitimate and robust
conversation that we should have about it, but we cannot allow
the politics of fear to drive us apart. Facts, facts, not fear,
must be the basis of all our discussions. Now, more than ever,
the American people deserve this.
Again, we are at war and we must use every instrument in
our power, including the full scope of our military, law
enforcement, intelligence, and diplomatic capabilities to win
this war, but in the pursuit of victory we must not turn our
backs on what has made our Nation an example to all the world.
Today our challenge is not only to remain safe, but also to
be true to our heritage, true to our principles, and true to
our best selves. This is the Justice Department's most urgent
and most essential work.
Once again, I thank you again for supporting us. I look
forward to continue to work with this Subcommittee and also
with Congress, and I would be glad to answer any questions that
you might have.
[The information follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

DISPOSITION OF GUANTANAMO DETAINEES

Mr. Mollohan. Thank you, Mr. Attorney General.
I would like to inform the Subcommittee that Mr. Wolf and I
will take 20 minutes at the beginning of our questioning, and
the rest of the Subcommittee on first round will have 10
minutes. That should get us into a second round, and we will
see what kind of time we have after that. I think that gives
each myself and Mr. Wolf an opportunity to explore questions,
and then for the Subcommittee likewise to have plenty of time
to explore follow-up questions.
So Mr. Attorney General, thank you for your statement.
The President's executive order on the closure of the
detention facilities at Guantanamo Bay required a review of the
status of each detainee in order to determine whether that
detainee should be transferred, prosecuted, or placed in
continuing detention. DOJ was tasked with coordinating that
review. Mr. Attorney General, which other agencies were
involved in making the recommendations and decisions about
which suspects to transfer, which to prosecute, and which to
detain?
Mr. Holder. Well, in addition to the Department of Justice,
the Department of Defense, the Department of State, the
Department of Homeland Security, the Office of the Director of
National Intelligence, as well as the Joint Chiefs of Staff
were involved.
Mr. Mollohan. When those agencies actually sat down to make
decisions, after the process that they went through to arrive
at those decisions, were those votes unanimous?
Mr. Holder. When the principals of those agencies met to
make final determinations with regard to the disposition of the
240 detainees, all of the decisions were unanimous.
Mr. Mollohan. What were the criteria the task force members
used to inform their recommendations?
Mr. Holder. Well, first and foremost, we focused on
national security in deciding if a person could be released and
where that person might be transferred. National security was
always our primary concern. We looked at a person's history,
the person's possibility for future violence, and also had to
take into consideration trying to repatriate certain people,
whether or not they could be transferred to their home
countries out of concern that if they went there they might be
abused. So it was a mix of those factors that led to the
decisions that we made.
Mr. Mollohan. Mr. Attorney General, do the detainees have
access to habeas corpus?
Mr. Holder. Yes, they do.
Mr. Mollohan. All of them?
Mr. Holder. I don't think all have filed habeas petitions
at this point, but they certainly have that right.
Mr. Mollohan. Have some detainees actually filed habeas
corpus petitions?
Mr. Holder. Some have, and some, as a result of their
habeas petitions, have been released.
Mr. Mollohan. In the last administration, this
administration, or both?
Mr. Holder. I believe that is true with regard to the last
administration as well. I don't have specific figures, but the
habeas process has been going on for some time.
Mr. Mollohan. How are you handling those cases?
Mr. Holder. We have a dedicated crew of lawyers headed by
the head of our civil division, Tony West. They have tried
about 50 habeas cases. We have people coming from around the
country, in addition to Washington, D.C.--Justice Department
lawyers and lawyers from other organizations--to help put these
cases together and then to try them before judges here in the
District of Columbia.

DECIDING ON A FORUM FOR PROSECUTIONS

Mr. Mollohan. Mr. Attorney General, deciding between the
military and civilian forums for trial has caused a lot of
consternation in the political community. I know that we have a
history with regard to that through several administrations.
Once the task force that you have just described decided which
individuals would be referred for prosecution, there was a
subsequent process set up to make the charging decisions for
each detainee. This process has been the source of some of the
most vigorous Guantanamo-related debate. There are a
significant number of individuals who are opposed to even the
consideration of holding detainee trials in Article III courts.
These individuals advocate for holding any of these trials in a
military commission.
We have held a number of terrorist trials in Article III
courts, have we not? Through various administrations,
Democratic and Republican?
Mr. Holder. Well, that is true. I mean, your opening
remarks were accurate. There are approximately 300 people or so
who are in our Federal prison system now as a result of their
movement through the Article III system. I believe in the last
administration there were about 150-160 trials or so in the
Article III courts.
Mr. Mollohan. It appears that the Administration may be
openly considering the possibility of moving the 9/11 trials
into a military setting. Is that an indication of a change in
the Administration's overall policy?
Mr. Holder. No, I wouldn't say so. We remain committed to
using all of the tools that we have in trying to win this war,
and that means trying people in Article III courts, and trying
people in military commissions. When I announced my decision to
try Khalid Sheikh Mohammed in an Article III court, on the same
day, and actually during the same announcement, I indicated
that five or six detainees were going to be tried in military
commissions. And so certain cases are more appropriate in
Article III courts, and certain ones in military commissions,
and one of the things that this Administration wants to retain
is the ability to use our discretion to try these detainees in
the appropriate forums.
Mr. Mollohan. Well why should we keep open the option of
civilian Article III prosecution for these terrorist suspects?
Mr. Holder. Well, I think one can look at the history of
what we have had in Article III courts. They are tested. We
have tried a number of these cases in Article III courts; they
are secure. We have tried these cases in a safe manner. We have
the ability to get our secret information through the
Classified Information Protection Act (CIPA). Our allies around
the world support us in bringing these cases in Article III
courts. We have the ability to disrupt and to detain people
through the long sentences that we get out of Article III
courts.
We also have, and I think very significantly, have the
opportunity through the Article III court system to get
cooperation from people who are charged there and who do not
want to face either long sentences or the prospect of serving
significant amounts of time in our super max facilities. We saw
from Zazi, from Headley, from Abdulmutallab, people who cut
deals so that they would have an ability to share information,
intelligence that we wanted so that they could receive some
favorable treatment.
And then I think lastly one of the things that you can
clearly do in an Article III court that you cannot so clearly
do in a military commission is accept a guilty plea in a
capital case.
Mr. Mollohan. It seems to me, looking at it as a lawyer,
that there are a lot of tools in a civilian court that the
court has to manage not only the process of the trial, but also
the decorum of the defendant. That seems to be a real concern,
that defendants in these courts will take the opportunity to
propagandize.
Mr. Holder. That is actually a very good point, Mr.
Chairman, and one I think there is a misperception that somehow
or another if we have a trial in an Article III court this will
become a forum for these defendants to spout their hateful
language, their propaganda. And if one compares the way in
which these defendants are treated in military commissions as
opposed to Article III courts, that is anything but the truth.
In the case that I mentioned before involving Siddiqui, she
was in an Article III court in New York City and she was in her
trial for one day. The judge determined that she was a
disruptive influence, that she was trying to disrupt the
proceedings, and she was removed from that courtroom and
watched her own trial from outside the courtroom.
I think what we have seen, in military commissions
certainly with regard to Khalid Sheikh Mohammed, long speeches
about a whole variety of nonsensical things, but the judges
there I think don't feel as comfortable in removing or clamping
down on a defendant who is trying to do that.
Mr. Mollohan. Who is involved, Mr. Attorney General, in the
process of deciding which detainees will be tried in a civilian
court and which might be tried in a military commission?
Mr. Holder. It is ultimately my decision in consultation
with the Secretary of Defense. We have a protocol that we have
put together and that we use because these are national
security determinations. The President is consulted as well.
But there is, as I said, a protocol that has been worked on and
that the Secretary of Defense and I apply in making
determinations. The decision is ultimately mine, but as I said,
it also involves consultation with the President.
Mr. Mollohan. You may have already touched on this, but I
would like for you to elaborate because I think it is important
for the Committee and it is important for the overall debate.
There must be circumstances where the criteria you use suggests
a military commission would be the best forum. Could you
elaborate on that a little bit? What is going through your
mind? What are the criteria being used as these decisions are
being made, ultimately by you?
Mr. Holder. Well on the same day that I announced the
decision to try Khalid Sheikh Mohammed in an Article III court
in New York, I made the determination that a man named Nashiri
would be tried in a military commission. He is one of the
people responsible for the bombing of the USS Cole. A military
target was involved, the casualties were brave sailors,
military men, and that is one of the distinctions that we made.
There are rules of evidence that exist in the military
commissions that are more favorable towards the acceptance of
hearsay evidence. You have to look at these cases individually,
and on a case-by-case determination, make the decision as to
where the case can be best tried. And it doesn't mean that you
are being unfair, I think, to the defendant, you are simply
looking at the forum that really best suits the particular
facts of each case. And military commissions certainly play a
role with the modifications, the amendments, that were done to
the military commissions a couple of years ago. I think those
are fine places in which these cases can actually be tried.
Mr. Mollohan. What about the question of national security
concerns? Does that enter into these decisions?
Mr. Holder. Yes although I think not to the degree that
some of the critics of my earlier decision have indicated.
Concerns about the leaking of information, the protection of
national security secret sources and methods can be equally
accomplished in Article III courts as they can in military
commissions. In fact, the system that is in place in the
military commissions to protect secrets is actually based on
CIPA, the Act Classified Information Protection, which has been
in effect for an extended period of time in the Article III
system.
Mr. Mollohan. How do you respond to the argument that
holding trials in a civilian court will give detainees that
public forum? You really have already spoken to that, but do
you have anything else to add on that? That has been a really
major criticism. Not only protecting against an outburst, but
also the security aspects of trying in an Article III court.
Mr. Holder. Well I mean, as I said, there are Article III
judges who are familiar with disruptive defendants, not only in
a terrorism context, but in other cases as well. Article III
judges are used to dealing with people like this and know how
to deal with them. And as I said, I look back to that very
recent case that concluded two or three weeks ago in New York.
The defendant there was appropriately treated given the way in
which she conducted herself during her trial.
Mr. Mollohan. What about the concerns of Members of
Congress about disruption to their communities, and even the
safety of the courts holding such trials in local communities?
Can you speak to that?
Mr. Holder. Well, I can understand how people would ask
those questions, and I think my answer to that would be to look
at history and look at the way in which these cases have been
conducted safely, without incident to neighborhoods and
communities that surround the courthouses where these cases
have been held. We tried Mr. Moussaoui in the eastern district
of Virginia just across the river--I think in Mr. Moran's
district or close to Mr. Wolf's district. We have tried cases
of this nature in all parts of our country, always without
incident because of the experience that we have, the training
that our Marshals Service goes through--the work that they do
with their state and local partners to prepare for these
trials. It sometimes involves the closing of streets and
sometimes causes disruptions, but at the end of the day, these
cases have always been held in a safe manner.
Mr. Mollohan. Finally, Attorney General Holder, there is
the concern or the argument made that holding trials in
civilian courts somehow affords detainees too many rights. As a
lawyer, I have always wondered about those arguments, but I
would like very much to hear you speak to that concern.
Mr. Holder. Well, I am really glad you asked me that
question, because that is one that tends to get my blood
boiling. The notion that a defendant in an Article III court is
somehow being treated in an inappropriate, special way, that he
is being coddled is anything but the truth. A person charged
with murder, many of these defendants are, these defendants
charged with murder are treated just like any other murder
defendant would be. The comparison that they are getting more
rights than the average American citizen is not an apt one. The
question is, are they being treated as murderers would be
treated? And the answer to that question is yes. They have the
same rights that a Charles Manson would have, or any other kind
of mass murderer. Those are the comparisons that people should
be making when trying to make the determination about how
terrorists are being treated and not compare them to average
citizens who create no harm, and who have committed no crimes.
Mr. Mollohan. Is it true, and I have heard this argument in
counter to that concern, that defendants in military tribunals,
many of whom are our service personnel, that the rights are
skewed in favor of the defendants in a military commission
environment? Is that correct or incorrect?
Mr. Holder. I am not sure I would say that they are skewed
toward the defendant. I think that one of the things you do
find, though, is that because of the lack of familiarity with
these kinds of cases, there is a greater comfort in the Article
III setting to be more, I don't know if aggressive is the right
word, but to be more strict in interacting with defendants than
you perhaps see in the military commission setting. Which,
again, is not to say that you cannot try successfully and
appropriately these matters in military commissions.

BUDGET REQUEST FOR HOLDING CIVILIAN TERRORIST TRIALS

Mr. Mollohan. Mr. Attorney General, with regard to choosing
a specific venue for a civilian trial, your budget request
includes $73 million for the first year costs of holding the 9/
11 perpetrators trial in federal court in the Southern District
of New York. Since the time the budget was finalized you have
announced that the final choice of forum is still under
consideration and could theoretically change. If we accept
recent news reports at face value, and you have spoken to this,
in fact, it appears possible that the 9/11 trials will
ultimately be held in a military setting.
When a final determination has been made on a forum for
these trials, will you submit a budget amendment to reflect any
new cost estimates?
Mr. Holder. Yes, we would. The money that we have sought
for the potential trials I think would probably be appropriate
almost regardless of where the trial would be held. If,
however, we end up in a venue where the costs are substantially
less than what is included in our budget, we would come back to
this Committee and seek to amend.
Mr. Mollohan. Another budget we are concerned about is with
regard to prison requirements. Would any such budget amendment
affect your request, which I believe is for $107 million, to
acquire and renovate the prison at Thomson, Illinois? Is your
budget request for the Thomson acquisition and renovation at
all contingent or dependent upon the ultimate disposition of
these terrorist trials and the location of the suspects?
Mr. Holder. No, not at all. Our budget requests money to
acquire two facilities, one in Berlin, New Hampshire, and one
in Thomson, Illinois. The Bureau of Prisons and the Justice
Department have a great interest in acquiring these new
facilities at a cost substantially smaller than we would incur
if we built these new facilities, and our interest in Thomson
exists irrespective of whether or not any detainees from
Guantanamo ever set foot there. That is a place that can be
used as a, I believe, maximum security facility, and one that
the Bureau of Prisons and the Justice Department would like to
acquire regardless of what happens with regard to the detainees
at Guantanamo.
Mr. Mollohan. Finally, Mr. Attorney General, is the
Administration committed to paying for costs that might be
imposed on local communities in any given venue?
Mr. Holder. Yes. I think what I said on the day of the
announcement is that the trials of these matters are not local
trials. On September 11th, though the buildings fell in New
York, although the Pentagon was hit, and although there was a
crash in Pennsylvania, all of this country was impacted, all of
this country was affected, and these are truly national trials.
As a result, it seems to me that there should be a national
responsibility in paying the bills that these trials would
generate. It is unfair that the local communities wherever
these cases might be tried should bear a disproportionate share
for what in essence, as I said, are national crimes.
Mr. Mollohan. Okay, thank you. Mr. Wolf.

TRIALS OF THE 9/11 PERPETRATORS

Mr. Wolf. Thank you, Mr. Chairman. Simon and Garfunkel had
this song, the Boxer, and it says man hears what he wants to
hear and disregards the rest, and to a large degree I think
there is a little bit of that taking place here. Without
debating all of these issues I would like to put in the record
a number of articles and position papers by Andy McCarthy and a
group of other lawyers that really go to the heart of a lot of
the answers that you have actually provided.
The difference of the Khalid Sheikh Mohammed, beheaded
Daniel Pearl, mastermind for the 9/11 3,000 people, Moussaoni
was in Alexandria for four years and there was not the patent
and Trademark office, there was not the hotel, and so the
circumstances are different.
Secondly, the cost for Khalid Sheikh Mohammed in New York,
if he were there for three years, the figures that we have
gotten from New York City and also the briefing, reimbursement
of $206 million a year for the City of New York Police
Department. We have also gotten the briefing in the Marshals
Service for the airplane they were going to buy and the cars
rounding out to about a billion dollars to try him there. So a
little bit of a different kind of thoughts.
The second thing is there are major differences, and the
Administration and my good friend the Chairman talk about the
process. To release six people back to Yemen when you are
mortaring Yemen at that very moment, to Al-Qaeda in the Arabian
Peninsula was really a bad idea. We are getting reports that
one of them may have gone back.
Also the Administration released two Somaliland, and I have
been to Somalia, there is no government there, and so to put
two people back into Somalia and back into Al-Qaeda in the
Arabian Peninsula, the government of Yemen controls basically
the capital of Yemen and not much outside.
So we spoke to the White House, without mentioning names,
one day they say we are pushing ahead, and days later when this
thing blew up they said we are going to stop it.
But there were some problems, and I had a problem, and I
don't want to take too much time of it, but you were going to
release several Guantanamo Bay people, the Uighurs into our
congressional area, whether it be in my district or adjoining,
and your people came up to my office at this time last year,
asked me at a hearing, please don't ask the Attorney General
Holder that question, and out of respect, because I thought
there could be some consultation that you were going to--I
didn't ask the question, because I don't it is appropriate for
members to do a ``got you'' type thing. We never asked that and
then we got calls from several people in the Administration at
the low level saying they are coming to northern Virginia here
and who is coming.
So there has been a pretty strong difference on a lot of
these issues, and so I will just put a number of things in the
record without us debating it.
But I do want the record to show in 1942 in the midst of
World War II German saboteurs arrested in New York and Florida
were arrested by the FBI, but transferred to the military
custody for trial. Franklin Roosevelt rightly treated these
agents as war criminals and not common civilian criminals.
And we are at war, you said that earlier. And I think if
you talk to most of the family members, not every family
member, but if you talk to most of them and you look to a lot
of people they believe that this trial ought to be in a
military court.
Now when will you be making a decision on the Khalid Sheikh
Mohammed issue wherever you are going to make the decision,
when do you expect that to come out?
Mr. Holder. I think that we are weeks away from making that
determination. I don't think we are talking about months. I
think we are probably weeks away.
Mr. Wolf. Okay. On the difference between civilian and
military, the Pentagon as you know very well is a military--it
is the center, the heart beat of the military system in the
United States, and there were military people killed, so you
could have used the same argument with regard to Khalid Sheikh
Mohammed to be tried in a military court as you did in the
other one because there were people wearing the American
uniform and it was the Pentagon where most of our military
generals are.
The other thing is, I sent a letter, and we just have a
hard time getting answers from the Administration. There are
going to be difference of opinions, and I think respectful if
you ask me--if you call me I will try to get you anything I
can. You ask me a question and if I don't have it I am going to
get you the answer, and if I can't tell you I am going to give
you a date when I tell you. And I say publicly, call me and I
will try to cooperate in every way possible. But we can never
get any kind of cooperation. From the Uighur issue we were not
able to get any cooperation.
We got a letter from your department at 11 o'clock last
night. There was nobody in my office at 11 o'clock last night.
That is sort of a got you way to sort of clean the decks before
you come up here, and it is not a very good way.

REINSTITUTING THE 9/11 COMMISSION

I sent a letter back in January asking the Administration
to bring back the 9/11 Commission. Lee Hamilton had expressed
support, I was the author of the Iraq study group, we asked
Secretary Baker and Congressmen Hamilton, they did a great job.
I can't get an answer. Will the Administration bring back the
9/11 Commission to take a look at where we are today, what
recommendations were adopted, what ones were not adopted, and
what ones were not adopted by the Congress that should have
been adopted and then go away after six months? But I have had
the request in since January 12th and I just can't get any
response. Do you have any thought? Will the Administration
bring back the 9/11 Commission per my request? And I think Lee
Hamilton wants that to happen too.
Mr. Holder. Well, I am not familiar with what the decision
might be by the President, but I think one of the things that
strikes me is that the 9/11 Commission did a great job. It
exhausted hearings with a specific set of recommendations. I
think that almost any objective observer can look at that
report, compare those recommendations to where the past
Administration was, where this Administration is, and make a
determination.
Mr. Wolf. Correctly though, but they have the expertise,
and I called Congressman Hamilton and he thought it would be a
good idea to come back to six months. Not the whole 9/11
Commission, but he and the governor of New Jersey to come back
and look and see--because they have the history of what they
said and what was adopted and had whatnot. I think that would
make the country safer. I think it would be a good thing.
So I guess the answer is you are not sure if they are going
to bring it back.
Mr. Holder. Yeah, again, I am not sure from my own
perspective.
Mr. Wolf. Okay. I was just trying to get an answer. If I
can't get an answer.
Secondly we asked that they put together a ``Team B'' made
up of Bruce Hoffman and a group of outstanding people,
bipartisan, outside of government to sort of look at the same
circumstances to sort of see where we are, that what we are
doing today to fight terrorism is everything that we should be
doing. The request was bring in Bruce Hoffman to head up team
B. I can't get an answer. Do you know what? Is there anything
interest in the Administration in responding to bringing back a
team B approach?
Mr. Holder. I have to tell you that again, we have good
people, experienced people who have dedicated their lives to
doing the very things that they are doing in very high-
responsibility positions in the National Security Council in
our Armed Forces, and I have great faith in the decisions that
they make. And I am not sure that outsiders are necessarily
needed.
Mr. Wolf. Well a lot of people think it would be a pretty
good idea.
Thirdly, I asked that the Administration have the TSA
administrator be a set term similar to the director of the FBI,
between five administrators in six years. Any thought about
them doing anything with regard to that?
Mr. Holder. Well one thing I would certainly call on is for
the Senate to confirm a TSA administrator before we start
talking about limiting the terms.
Mr. Wolf. Well you can certainly confirm this gentleman for
the set term. But we have had five in the last six years, and
to bring a continuity I think director Mueller has done a
pretty good job, and that it is been a pretty good system. And
so any thought of doing that?
Mr. Holder. Again, that is not something about which I have
had any conversations with people in the Administration.

THE HIGH VALUE DETAINEE INTERROGATION GROUP

Mr. Wolf. Okay. Lastly, I have asked that the HIG, the high
value interrogation team, be located not where they have gone
which put them away from the National Counter Terrorism Center,
but they be located at the National Counter Terrorism Center.
And I know that comes under you to a certain degree. What is
the thought of the recommendation of made for that? The letter
has been two and a half months there asking that HIG be co-
located at the Counter Terrorism Center so you have the
breaking down of the stove pipes there, they are all together.
What about that?
Mr. Holder. Well, I mean, the HIG is to be housed at the
FBI, and----
Mr. Wolf. No, the HIG is not at the FBI. The HIG is out in
Virginia. They have signed the lease at a building not near the
FBI. I know where the building is. I have asked that the co-
location of the HIG be with the Counter Terrorism Center
directly there with the Counter Terrorism Center so that there
is the exchange of information. That is the whole purpose of
the center, to break down the barriers so FBI and CIA are
talking to one another.
Since this is your responsibility, what about the
recommendation has been made as you co-locate the HIG at the
Counter Terrorism Center?
Mr. Holder. Well, I think the question is not necessarily
physical proximity as much as it is having communication
between the HIG and the variety of governmental entities that
it needs to be in touch with.
Mr. Wolf. Okay. But it is physical proximity, that is the
whole purpose of the Counter Terrorism Center. That is why the
walls were broken down and they put everybody together. That
was the whole purpose of it.
Mr. Holder. Right.
Mr. Wolf. Any way. Okay.
Mr. Holder. But the HIG, by its nature, draws together
people from other agencies, co-locates them, gets them ready to
go out there.
Mr. Wolf. And that is what the Counter Terrorism Center
does, and that is why they are there. Any way the answer to
that is probably not?
Mr. Holder. I think we have co-location. That is what I am
trying to say.
Mr. Wolf. No, they are not. They signed a lease in a
building, which I can tell you about, not near there. And I am
asking that they be located there. You have the DNI there, you
have Leiter there, you have the whole team there, that is where
it makes sense. And everyone that I have talked to off the
record thinks it should be there, and I have made the request
that it be there, and I am just try to go get an answer. Since
it comes under you will you co-locate it and put it there?
Mr. Holder. Well, I will certainly take that recommendation
into consideration. But as I said, the fact is that the HIG is
a multi-agency entity, and the fact of its existence means that
there is co-location, wherever the larger entity is actually
placed.
Mr. Wolf. Okay. That is probably a maybe, I don't know.

JOHN ADAMS PROJECT

John Adams project. Over the weekend, the New York Times
reported that Department of Justice officials refuse to share
CIA concerns in a briefing for the President with regard to the
consequences of the ACLU's John Adams Project which hired
photographers to track down CIA officers, and many who probably
live in my district, and share their photos and personal
information with alleged terrorists at Guantanamo. Is this
report accurate? Were the CIA concerns included in their
briefing to the president? And if not, why?
Mr. Holder. If you are talking about the Washington Times
report----
Mr. Wolf. Well, I am talking about the John Adams Project.
Yes, I am talking about that, but the information whereby that
was not put in there as they requested the CIA.
Mr. Holder. Right. Well the Times article is riddled with
inaccuracies. There is only so much I can say about that
because there is an ongoing investigation into the core of what
was at that Times article.
Mr. Wolf. Okay. I haven't found much of what you have said
today really in response to the legitimate questions that we
are trying to answer. You know in 1998 I came back from Algeria
where 175,000 people were killed, and the bombing took place in
Nairobi and Tanzania, and people from my district died.
I put in the bill to set up the National Commission on
Terrorism, the Bremmer Commission, and the Bush Administration
ignored it and so did the Clinton Administration. We are just
trying to legitimately ask come questions. With everyone I have
asked, there is not a ``yes'' or a ``no'' or ``I will do this
or we will report to you.'' We just can't seem--from the
Uighurs straight onto the Yemen straight onto the Somaliland,
we just can't seem to find out any answers.
And with all due respect, Mr. Attorney General, I don't
think you are served that well when whether it be Republican or
Democrat asking an honest, legitimate, honest, ethical, moral
question not trying to--and I respect you. I am not trying to
create a problem, I am just trying to get to the answer.
You know, 30 people from my district died in the attack on
the Pentagon. Michael Spawn, a CIA employee who was killed, the
first person killed, I went to his funeral out at Arlington
Cemetery. He was from my district. I am just trying to find
out. The pilot of the airplane that went into the Pentagon was
from my district. We are trying to get to work in a bipartisan
way to really do what is best for the country and not in a
``got you'' way, but to make a difference to make the country
safe. But I haven't had any answers, and I can't get an answer
out of your department.
The letter you sent up the other day you said references
this letter, this letter, this letter, this letter, this is the
answer and there is no answer. Let me move on.
Mr. Holder. Well with all due respect, with regard to the
responses that we have sent up there, there are more letters
that you have sent to us, there are fewer responses that we
have sent back, but I think the responses that we have sent
back do, in fact, answer all of the things that are contained
in the letters that you have sent to me.
Mr. Wolf. Well, with respect, I don't think that is
accurate. What I will do is I will put my letters in the record
at this point and your two letters in the record and the
history can make a judge as to whether that is accurate.
[Clerks note.--Letters can be found following QFR
responses.]

DELAYS IN THE IMPLEMENTATION OF THE PRISON RAPE ELIMINATION ACT

Congress unanimously passed, it was my bill, with former
Senator Kennedy, the Prison Rape Elimination Act of 2003 in
recognition of the urgent need to address the crisis of sexual
abuse in U.S. correction facilities.
The National Prison Rape Elimination Commission spent more
than five years holding public hearings and drafting
recommended national standards. The law requires that you issue
a final rule making binding standards by June 23rd of 2010, one
year after the Commission issued its recommendations.
You are not going to make that, and prison rape is a
serious problem, particularly with regard to young people, but
anyone, and I can't understand why you would have not followed
through. We had the commission, we had the recommendation, we
had everything set up. And now what is the status? Will there
be a final ruling or what is the status of that?
And lastly the question that troubles me, the budget
request for fiscal year 2011 includes a $10 million reduction
in prison rape elimination related funding leaving just 5
million for efforts to address sexual violence in detention.
And I think to have a rape of a person who goes to prison is
unacceptable, and Senator Kennedy had that in, and Bobby Scott
and I did, and we expect this to be implemented now to protect
people that are in prison.
Mr. Holder. Well, I mean, I share your concerns about the
sexual mistreatment of people who go to prison. I was a judge,
I sent people to prison, and I would never want to think that
anybody I sent to prison to serve time would have to deal with
the things that that Commission uncovered.
One of the things that I would note is that the Commission
was given two years in order to make its findings; we were
given one year in which to then implement them. We are doing
the best that we can. I have met with the Commission on, I
think, three occasions at this point, I have met with the
chairman of that Commission, Judge Walton. We want to make sure
that we get this right and also follow the dictates of the
statute, which says change this situation, make sure that you
eliminate, to the extent that you can, sexual predator activity
in prisons, but not increase the amount of money that any local
jurisdiction has to spend in order do that.
It is not an easy task, and we will not make that one year
deadline, but we will do this as quickly as we can. And the
fact that we will not make that deadline is not in any way an
indication this is not a problem that we take seriously.
I have experience with this in a way that, you know, others
do not. I have, as I said, sent people to jail, and I know what
happens in our prisons. I know the people who I sent to Lorton
before that facility was closed and what they had to deal with
there, and it weighed on my conscience as a judge, it weighs on
my conscience as Attorney General, and I am determined to try
to do this, but to do it in the right way.
Mr. Wolf. Well, I helped close down Lorton because of that
very, very reason. But you are reducing your budget for fiscal
year 2011 includes a 10 million reduction in the funding for
the program, leaving just 5 million.
So you can say you were a judge and you are interested, but
the reduction sends the wrong message. I mean, you are known by
your budget in essence, and that is sort of the landmark.
Any way, move. Every time, every delay--and if you have
been reading the series of articles that have gone on, prison
rape is a serious problem, and another long delay will mean
more people will face this in prison. And I am disappointed in
the fact that you have reduced the funding for something that
you say you are interested in.
Well the last question.
Mr. Holder. But we have to deal with a deadline that with
all due respect, that I think was artificially short given the
fact that you gave two years to the Commission to do its work
and only one year to the Department to effectuate the findings
of that Commission.
Mr. Wolf. Because the Department drug its heels on this
issue and didn't want to deal with this issue, so we brought
some of the best minds in to look at this to give them adequate
time.
Right now the Department should have enough information to
move ahead. People are being raped in prison every day, every
day. Today by the end of the day someone will be--that will
happen to them, and so to push this off for another year is
unacceptable, and to reduce your funding at the same time.
The last question.
Mr. Holder. I will do what the statute says that we have to
do, we will do it right, but let me just say one thing. The
degree to which we measure seriousness, if you want to say it
is about money, I have to wonder, what was it that drove this
body to say you have the responsibility to make these changes,
to make sure these changes occur, and yet it cannot have a cost
impact.
When I speak to wardens, when I speak to people who run
local jails, when I speak to people who run state facilities,
they look at me and they say, ``Eric, how are we supposed to do
this if we are going to segregate people, build new facilities,
and do training, how are we supposed to do this?'' And that is
what we are trying to work out--ways in which we can follow the
dictates of the statute and do something that is going to be
meaningful, not something that is going to simply be, you know,
a show thing, something that is going to have a measurable
impact.
Mr. Wolf. I know, you know, but we put the legislation in
because we talked to people that it happened to, and it is not
a show thing, it is a real thing, it is a reality thing. And
Senator Kennedy felt strongly about it, Bobby Scott felt
strongly about it, and I feel strongly about it.
Mr. Holder. As do I.
Mr. Wolf. You came up to me last year, you came up and you
said we are working on this and we are going to deal with this.
Another whole year has gone by.
Any way, I have no more question with regard to that issue.
I yield back.
Mr. Holder. Let me just on the record say that I feel as
serious about it as you do, and my comment was only directed at
the fact that you are taking note of a fact that we have
reduced our funding here for that, and I was saying, you know,
Congress in saying that this is something they were serious
about, also said you can't spend money in order to deal with
the problem. That is what the law says.
Mr. Mollohan. Mr. Schiff.
Mr. Schiff. Thank you, Mr. Chairman, and thank you for
being here, Mr. Attorney General.
At the outset I want to tell you how much I appreciate the
job you are doing. I can't imagine a more difficult time to be
Attorney General.
Mr. Holder. Good timing on my part.
Mr. Schiff. Yes. Well having spent six years in the
Department, with the U.S. Attorney's Office in L.A., I have
always had a great appreciation for the hard work being done in
the Department, and I know it has been a rough decade for the
Department, and I think in addition to all the challenges as a
policy matter that you face, you also have the challenge of
turning around morale in a department that had, I think,
suffered during the last administration, and been overly
politicized during the last administration.
I think your immediate predecessor did a good job in trying
to turn that around, and you are doing a great job in
continuing the rebuilding of the Department, and I appreciate
that.

CIVILIAN TERRORISM TRIALS

The issue of how to deal with the detainees, I know, is one
of the most difficult and vexing, and I appreciate the
seriousness and thoughtfulness you have brought to this task. I
think in reviewing case by case, every detainee that is exactly
what we should want to view, and that is exactly what you have
been doing. If there were easy answers to these questions they
would have been decided a long time ago, but these are issues
of first impression legally and things that we haven't been
challenged with really or faced in this context ever.
You can say there have been prior cases like the
prosecution of Nazi saboteurs during World War II, but
comparing World War II to the kind of amorphous, countryless,
stateless terrorism that we face now is I think really such a
different environment. We are really comparing apples to
oranges. And I appreciate your effort to tone down the volume,
to take the politics out of it.
I despair frankly when I see the Justice Department
attacked for the same thing the last administration did in
terms of repatriating detainees when there were no attacks on
the last administration for doing that or attacks on your
department for arresting a suspect or Mirandizing a suspect
like the Christmas day bomber when the shoe bomber was given
exactly the same treatment.
That smacks to me of not a policy-driven search for what is
the best approach, but rather a political process, but you
have, I think, done a great job in staying focused on your
mission.
I don't really understand, I think, some of the hyperbole
that has surrounded the detainee issue in the sense that people
are arguing that we should never try another terrorism case in
the federal courts. The Oklahoma City bombers who blew up a
federal building were tried in a civilian court. The people in
the Justice Department then, as the people in the Justice
Department now, work night and day and weekend and all of the
above trying to bring these people to justice and put them away
or seek the death penalty. That is what they should be doing,
that is what they are doing. They are not out there to coddle
criminals. And I don't think we can adopt a blanket policy of
never trying a terrorist in a civilian court. That would say
that all terrorism cases are the same, and of course they are
not.
So I think what we need to do is really what the Department
is doing, and that is looking at each case and asking what is
the nature of this case, who is the defendant, where do they
come from, what was the goal of the attack, where did the
evidence derive from, what is the public purpose to be served
by trying it in a public civilian forum, a criminal court's
forum, or a military forum? And those are tough decisions to
make, but they can't be made in a vacuum, they can't be made,
frankly, by the Congress trying to decide without the benefit
of knowing where the evidence was deprived or many other
factors about the case.
I mean, I think you have two paradigms. You have the troop
who is arrested in the field, on the field of battle, and the
paradigm there is they get tried in a military forum, if they
get tried at all. They may just get detained as an unlawful
belligerent for the duration of this conflict.
The other paradigm is when you arrest an American citizen
on American soil, and I think that those are sort of the polar
opposites, and even those cases these may not be uniform
treatment. You may decide to try someone arrested on the
battlefield in a courtroom, and you may decide to try an
American in a military setting, but I don't think one size fits
all now, I don't think it ever will. And so I appreciate the
thoughtfulness you are bringing to that challenge.
One thing I think we have to recognize is that there is no
free lunch in leaving GITMO the way it is or trying people in
military commissions. As our military leaders have pointed out,
GITMO has been a terrific recruiting tool for Al-Qaeda, and so
balanced against the criticisms that have been raised about
incarcerating some of the GITMO detainees in the United States
we have to ask what is the cost of recruiting another 100 or a
another 1000 people to Al-Qaeda because we still have a GITMO
that is the subject of recruiting on Al-Qaeda web sites?
So there is no free lunch. These are all going to be hard
decisions, and I appreciate what you are doing.
I am going to raise with you for the moment an important,
but more mundane by comparison, topic and that is DNA.

DNA ANALYSIS BACKLOG

When we last had a chance to talk during your testimony
your goal was to eliminate the backlog by this summer, and I
would be interested to know how that is coming, whether we are
still on track. You were bringing on new technologies to try to
collect and upload into CODIS these samples and do it much
quicker. So I want to ask you where we were on that? I think
last year 38 of the 39 positions were filled, and I would be
interested to know if those are filled and whether further
staff increases are necessary to get to that goal of a zero
backlog.
The other related question I wanted to ask is about the
technical review of DNA evidence. There are hundreds of
jurisdictions obviously around the country dealing with
backlogs of DNA profiles. In Los Angeles, LAPD and the
sheriff's department have backlogs of over 7,000 sexual assault
kits. Both county and city have outsourced those kits to
private labs that have the staff and equipment to handle that
huge number in that amount of time. This has been partly
successful in reducing or eliminating some of these backlogs,
but there is a substantial question about whether there is a
lot of waste in the effort.
And by that I mean last year I got half a million in
funding with the help of the Chairman so that we could work on
the LAPD backlog. They used it to hire people to do overtime,
lab technicians to do technical review. Now these forensic
scientists weren't testing the evidence themselves, what they
were doing was simply checking the work of other highly-trained
scientists at the private labs, a step that FBI requires before
these samples can be uploaded into CODIS. So you have the
samples that may be cleaned up in the backlog, but before they
can be uploaded into CODIS, if the sample is tested by a
private lab, it has to be retested in a government lab.
According to the director there though, there wasn't a single
error found in a technical review that would have resulted in
any correct data going into CODIS.
So the question that we have been looking into is, is this
requirement of 100 percent review really desirable? Because it
is responsible for a big chunk of delay and a big expense, and
if it is not going to improve the quality, of what goes into
CODIS, then you have got to ask why are we doing it? And even
if there was a problem and a sample got incorrectly loaded into
CODIS, you can have a requirement that before, let us say,
there is a match made, before that is used in any way, if the
sample is done by a private lab then there has to be the
technical review.
So if you could address those two subjects, where we are in
the backlog and whether you are amenable to removing that
requirement, of technical review, that would be great.
Mr. Holder. Yeah, I think first with regard to the second
thing that you raised, that we do need to find ways in which we
can make this process as efficient as we can without giving up
what the real value of the tool is, and that is the near
scientific certainty of it. I think your suggestion is actually
an interesting one about the possibility of dealing with those
samples that come from private labs on which we get a hit and
then retesting perhaps only those. That I think is an
interesting idea that ought to be considered.
Just kind of looking at the statistical information here,
between 2004 and 2009 the Department has provided to the states
and units of local government about $300 million to perform DNA
analysis requested for about 135,000 backlog forensic cases and
to build DNA laboratory capacity, $53.8 million to eliminate
existing backlog of DNA database samples, although 1.6 million
DNA database samples have been analyzed, resulting in more than
15,000 CODIS hits. We have for fiscal year 2011 a $150 million
DNA initiative to try to deal with the backlog and also deal
with ways in which we can wring out from these very, very
promising technology efficiencies.
I think people often times think of DNA as only the thing
that springs people who were unjustly accused of a crime, and
it certainly has had that impact, but it is also a very, very
important law enforcement tool that convicts people who have
committed very, very serious crimes, and so it is something
that I think has to be at the center of what I have come to
call an evidence-based approach to criminal justice, and we
have to do it in the right way, in an efficient way, but this
is a good place for us to spend our money.
Mr. Schiff. Do you know, Mr. Attorney General, if you don't
I would love it if you could follow up though, are you on track
to eliminate the backlog by the summer of this year? That was
the goal last year. How is that coming, and if we are not on
track what do we need to do to get on track?
Mr. Holder. Okay. I do not know if we will have the backlog
eliminated by this summer, but what I will do is get back to
you at the conclusion of the hearing and give you a sense of
where we stand if not by the end of this summer, a sense of
when it is we think we will have that backlog eliminated.
[The information follows:]
status of eliminating the backlog of dna database
The FBI is on track to eliminate the DNA backlog associated with
Federal Convicted Offender Program by September 2010.

Mr. Schiff. Thank you. And I also want to express our
gratitude in California and the other border states for the
SCAAP funding in the budget. It has been zeroed out by the last
administration, you put in in excess of 300 million into the
program, we of course would like and will push for more, but we
are glad to see that program reappear in the Administration's
budget.
Thank you, Mr. Chairman, I yield back.
Mr. Mollohan. Mr. Culberson.

RIGHTS AFFORDED TO DEFENDANTS IN CIVILIAN TRIALS

Mr. Culberson. Thank you, Mr. Chairman, and thank you, Mr.
Attorney General, for appearing before us.
In response a moment ago to a question from the Chairman
you said that terrorists have the same rights as Charles
Manson, correct?
Mr. Holder. I said that murderers have the same rights as
Charles Manson, and if these people are charged with murder, in
essence, those are the kinds of rights that they would get.
Mr. Culberson. And terrorists who have murdered U.S.
citizens and the approach of your Department of Justice is they
have the same rights as Charles Manson.
Mr. Holder. In a sense that a murderer has the right to go
before a jury, get the acts that he is charged with proven
beyond a reasonable doubt, yes.
Mr. Culberson. So therefore Osama Bin Laden in your opinion
has the same rights as Charles Manson?
Mr. Holder. In some ways, I think they are comparable
people.
Mr. Culberson. That is incredible. This is where the
disconnect between this Administration and your mind set is so
completely opposite that of where the vast majority of the
American people are, where my constituents and I just have deep
seeded a profound philosophical difference with the Obama
Administration, the Department of Justice, the leadership of
this Congress.
This is war. In a time of war we as a Nation have never
given constitutional rights to foreign national, enemy soldiers
certainly captures overseas.
And Senator Lindsey Graham asked you this question, and I
know you have had time to think about it, at the time he asked
the question you couldn't provide him with an example. Could
you provide us with an example of when in time of war the
United States has ever granted a foreign national captured on a
foreign battlefield U.S. constitutional rights? Has that ever
happened?
Mr. Holder. You are dealing with a situation that is
different from anything that we have ever before. Different
from anything that we have ever before. We try to analogize
this to wars where there were people in uniform, where you had
signing ceremonies that ended declarations on battleships in
Tokyo Harbor. This is not the kind of war that we are facing.
And though we tried to analogize the tools and analogize the
rules, they don't necessarily apply the same way.
Mr. Culberson. Uh-huh.
Mr. Holder. What Osama Bin Laden is responsible for are
both, as I said, and I have consistently said, both acts of war
and also criminal acts. And when I was referring to the Charles
Manson analogy, that was just to talk about the rights that he
had within a courtroom.
Mr. Culberson. Uh-huh.
Mr. Holder. I understand that we are at war with Al-Qaeda,
and that is why we have 30,000 additional troops in
Afghanistan.
Mr. Culberson. Right.
Mr. Holder. And why we have taken all kinds of other
measures, some of which I can't talk about, in Pakistan. We are
not fighting this from a law enforcement preventative mode, we
are using law enforcement as one of the tools, but we are also
using military means to defeat this enemy.
Mr. Culberson. Which is why you support the Second Circuit
Court's decision in Padilla that the President lacks the
authority to detain a U.S. citizen as an enemy combatant on
U.S. soil.
Mr. Holder. That is not clear at this point that the United
States has the ability to, as the President tried to do in that
case, hold incommunicado and without a lawyer an American
citizen on American soil. What that brief said was that there
are other tools that the Executive Branch has, and that it
should make use of, in order to effectuate the neutralization
and the incapacitation of that person as opposed to simply
locking them away and not giving them a lawyer.
Mr. Culberson. Right.
Mr. Holder. Again, we are talking about American citizens
on American soil.
Mr. Culberson. Right. But the key is you said the President
has other tools. The President is the Commander in Chief, and
this is where the profound disconnect comes between where
America is and where you are in this Administration and where
this leadership of the Congress is.
Mr. Holder. I would disagree with the characterization that
there is a split between America and the leadership of this
Administration.
Mr. Culberson. There really is, because you saw it I think
in the Massachusetts election, this was one of the key issues
in the election of Scott Brown, is even the voters of
Massachusetts, as liberal and different in their philosophical
views as they are from my constituents in Texas, even the
voters in Massachusetts understand that Osama Bin Laden does
not have the same rights as Charles Manson as you have just
stated.
Mr. Holder. I said that they only have the same rights
within a courtroom.
Mr. Culberson. Right. Well granting Osama Bin Laden the
right to appear in a U.S. courtroom you are clothing Osama bin
Laden with the protections of the U.S. Constitution. That is
unavoidable, and something that you have skipped right past.
Mr. Holder. Let us deal with reality here.
Mr. Culberson. And it is giving constitutional rights to
enemy soldiers that is the profound problem, sir.
Mr. Holder. We are talking about a hypothetical that will
never occur. The reality is that we will be reading Miranda
rights to the corpse of Osama Bin Laden. He will never appear
in an American courtroom. That is a reality. That is a reality.
Mr. Culberson. But it is clearly your position and the
position of this Administration that you believe on a case by
case basis, and your tendency would be to grant constitutional
rights to enemy soldiers captured on foreign battlefields. Has
that ever been done before in U.S. history at a time of war?
Mr. Holder. Well, I assume that you are a supporter of
military commissions, is that correct?
Mr. Culberson. Absolutely. In a time of war, yes, sir, I
support what the U.S. Supreme Court affirmed when those German
terrorists were captured, as Mr. Wolf said, on U.S. soil, they
were lead off on the beaches of Florida and Long Island----
Mr. Holder. And yet even in those military commissions
those people are given constitutional rights, are they not?
Mr. Culberson. Well they are in a military commission not
clothed with all of the protections of the U.S. Constitution,
they are treated by the military as enemy combatants captured
at time of war. And the question is----
Mr. Holder. But they are not put up against a wall and
shot. They have the ability to confront those who accuse them.
They have the right to lawyers. They have many of the same
constitutional rights.
Mr. Culberson. Severely restricted rights, and the military
tribunal is the problem. We are at war, and you don't seem to
recognize that we are at war just as though we were at war with
the Germans in World War II, but the people who we're fighting
are such cowards they clothed themselves as women and hide
behind children and hide in mosques as they did in the Gaza
Strip, as they do in attacking us, and it is the President's
responsibility as Commander-in-Chief to protect the country,
and the President has granted great discretion by the U.S.
Supreme Court and as Commander-in-Chief deciding when and where
to try these people.
It was President Roosevelt's decision that the German
terrorists be tried in a military tribunal and not given the
full protection of the Constitution. It was President Bush's
decision that foreign nationals captured in foreign
battlefields not be tired in civilian court and given the full
protection of the Constitution, because we are at war. And time
lost in interrogating these people means lives lost. And it is
one of the principal reasons actually when you looked at why
Scott Brown won his race it is not only because the people of
Massachusetts opposed the President's healthcare plan, but
because this Administration consistently, and here once again
today we now learn that you think Osama Bin Laden should be
given the same rights as Charles Manson in a court of law, and
that is just not acceptable to the people that I represent, to
the people of America, and it represents a just profoundly
different approach that has never been done before in the
history of the country.
Mr. Holder. What we have said and what I have said is that
on a case by case basis you make the determination of where you
can bring the strongest case. Where will I have the greatest
chance of success? There are things that you can do in Article
III courts that you cannot do in military commissions. You
cannot have, for instance, cooperation agreements. That does
not exist in a military commission. We have the ability to
incarcerate people for extended periods of time.
Mr. Culberson. Right.
Mr. Holder. And one only has to look at what has happened
through the use of the Article III courts over the course of
the past year to see the plots that we have broken up and the
intelligence that we have gathered, which has allowed our
military to be more effective in the field.
Mr. Culberson. Yes, sir.
Mr. Holder. And that cannot be denied. That cannot be
denied. It is where facts run into everything that you are
saying. Facts.
Mr. Culberson. Well forgive me, my time is limited and your
perspective--I respect your opinion, but it is one that I
profoundly disagree with, and my constituents and the Nation I
think overwhelming would disagree with you that enemy soldiers
captured in time of war, particularly on foreign battlefields
are not going to be--should not be given the protection of the
U.S. Constitution, that they should be tried as enemy soldiers
in military tribunals. That has been the history in this
country, and the goal is to protect the people of the United
States. And you know, your focus has been on when and where and
what rights they should be given.
If I could, I know my time is----
Mr. Holder. No, my focus is on how they are incapacitated,
how they are disrupted, how they are punished, how they are
held accountable. That is my focus. How do we bring these
people to justice. Do I use Article III courts or do I use a
military commission? I have used both in determinations that I
have made. We are not afraid to use military commissions.

PROTECTION OF NATIONAL SECURITY INFORMATION IN CIVILIAN TRIALS

Mr. Culberson. If I could, because my time is limited,
forgive me for interrupting, but a specific example, the Ahmed
Ghailani case, he is being tried in New York. The Obama
administration made the decision to try him as a foreign
national in Pakistan, for the 1998 east Africa bombings. You
made the decision to try him in civilian court. The first thing
he did was file a motion to dismiss on the grounds that he was
denied a speedy trial. And on February 24th the District Court
ordered the Department to turn over all documents relating to
his detention at Guantanamo that would allow the defense to
determine whether his detention or his delay in going to trial
was actually based on national security grounds.
And Mr. Chairman, the worry is that of course this
information the Department turns over to him, any of that
information they give to this guy's lawyer is going to be
scanned and broadcast on the Internet in a nanosecond. Of
course it is. It is going to be broadcast in a nanosecond to
our enemies overseas. So you have handed our enemies at time of
war a powerful tool, very powerful information to use against
our men and women in uniform, and that is one of the main
concerns.
Mr. Holder. All right. Now let us have a couple of facts
here. There is a statute, the CIPA statute, that would prevent
the dissemination of the information that you are talking
about.
Mr. Culberson. You can withhold things on national security
grounds.
Mr. Holder. Lawyers have to be cleared, they have to have
security clearances. There are all kinds of measures that are
put in place.
With regard to Mr. Ghailani, he is the last of the people
charged in that. The other people who were charged with that
crime were charged by the Bush Administration, where? In
civilian court.
Mr. Culberson. But in this case you made the decision to
try them in civilian court, he is captured overseas, he is a
foreign national, and the District Court has ordered you to
turn over any documents that would allow the defense to
determine whether he was denied a speedy trial based on
national security grounds, and it is a fact those things can
and will be scanned, and can and will be provided to our
enemies overseas.
Mr. Holder. That is not a fact. That is speculation on your
part that runs head-on into another bothersome thing called a
statute, the CIPA statute, another fact.
Mr. Culberson. But it is the concern that we have.
Mr. Mollohan. Mr. Culberson, you are going to have to----
Mr. Culberson. And I appreciate it.
Mr. Mollohan. I don't want to cut you off because I don't
want to sound like----
Mr. Culberson. I have gone long.
Mr. Mollohan. Excuse me.
Mr. Culberson. Sorry.
Mr. Mollohan. Thank you. It is one thing to interrupt the
witness, and another thing to interrupt me. You will have
another round.
Mr. Culberson. Thank you.
Mr. Mollohan. But you have gone over your time. I don't
want to appear like we are cutting this off.
Mr. Culberson. Thank you, sir.
Mr. Mollohan. But you will have another round.
Mr. Culberson. Thank you.
Mr. Mollohan. Mr. Fattah.
Mr. Fattah. Thank you, Mr. Chairman.

USE OF THE CIVILIAN TRIAL SYSTEM TO REINFORCE THE RULE OF LAW

Mr. Attorney General, let me welcome you to the Committee,
and rather than kind of go back over some of the territory that
has already been over, let me just try to see if we can
resurrect some of the context of all this.
Now President Reagan and President Bush, the first Bush,
they criticized on behalf of our country China for instance for
locking people up, not having trial, secret charges, secret
evidence, they said that this was not appropriate in a
civilized world. And Newt Gingrich was before the Congress and
I asked him post 9/11, you know, what is the rule of law? You
know, because you hear my colleagues, they are basically saying
look, if you grab somebody, you kind of think they are a
problem, put them in a place over in Guantanamo and that is it,
let us throw the key away. And the question really becomes is
how does our Nation, how should we behave in the context of
trying to promote to the rest of the world the rule of law?
Would it be impossible for a president of the United States, a
Ronald Reagan, a George Bush, to criticize China in the same
context today given the activities over the last eight years?
Mr. Holder. I wouldn't equate what the prior administration
has done with--certainly what we know about what the Chinese
have done, and yet I think back to my confirmation hearing and
what Senator Graham said, and I think it is profound. He said
that what we decide to do in dealing with these terrorists says
more about us than it does about them. And we have a great
tradition, and we have great systems that have been shown to
work. People look at the United States and our legal system,
and it is held out as the gold standard. I have great faith in
the abilities of our judges, the people who serve as jurors,
the people who are responsible for the protection of people who
are involved in trials, to handle these matters in a way that
we always have.
Mr. Fattah. Well, I do too, and I have said this before,
you know, in terms of this manner of whether someone should
have a trial in New York City who killed 3,000 people almost on
9/11. You know, if someone had killed so many Philadelphians we
would want--we would expect that there would be an opportunity
for justice to be done, and for the community there to be able
to participate in a trial and for the families to be, you know,
now so----
Mr. Holder. If I could just interrupt. There actually is a
federal statute that says that the trial has to be held in the
place where the murders occurred in a capital case.
Mr. Fattah. If he could live long enough to get to trial in
Philadelphia we would expect for him to come to trial in
Philadelphia.
So the idea that we can take 18, 19 year old kids, drop
them on some mountain in Afghanistan in the middle of the dark,
is that we are too cowardly to have a trial with all the
protections that are afforded. You know, we have the military,
we got the police. We can't put somebody on trial. I mean
unless they are Superman or something.
I think it doesn't befit a great Nation to hesitate or
equivocate on the question of, you know, following our own laws
and the impulse to justice.
So in this selective amnesia of my colleagues, you know, we
saw the past Attorney General of the Justice Department
prosecute a CIA employee for harming a prisoner who was
suspected of terrorism. There was no complaints, there was no
suggestions that this was hurting the morale of the CIA. You
come along you say you want to review these cases. You haven't
put anyone on trial, you haven't charged anyone at the CIA,
except you have been attacked.
This Administration, as you point out, following the same--
in the same case, trying the last perpetrator in a civilian
court, they didn't criticize the others who have been tried in
civilian court by the Bush Administration, so it is all
politics, and it is such unfortunate that we have American
citizens who have lost their lives, we have young men and women
who are risking their lives, and that here in the Congress we
can't rise above our own politics. It is unfortunate, and it is
an unfortunate day, but we still have to persist.
And I think that I would just want to say to you as you go
forward that this Committee, and I know that the Chairman, we
want to be as helpful as we can in terms of making sure you
have the resources. We had a young presidency, and in that
young presidency of George Bush the second go around we had an
attack. Thousands of Americans died. What the minority party
did was we united with the majority and we worked together to
protect the country.
Now we got a young presidency. We have a failed attack on
Christmas day, and what does the minority party do? They attack
the President and they attack this Administration. It is a
reversal of responsibility, and I would just hope that my
colleagues at some point would be able to put their petty
politics aside and be able to work in the best interest of our
country.
Thank you.
Mr. Mollohan. Mr. Honda.
Mr. Honda. Thank you, Mr. Chairman, and welcome.
Before I start I just want to thank you for your service to
this country, and certainly as a third generation Japanese
American who went through internment, and this country set
aside our Constitution. I place my confidence in your ability
to fulfill the laws of this country, and so for I am very
appreciative for your service.

2010 CENSUS

You know, the census is one of our most important civic
responsibilities, it is under way now, and historically some
population groups are more reluctant to respond because they
are fearful that government agencies other than the U.S. Census
Bureau will have access to their personal responses, and might
use that information to take legal action against them.
Now the 2010 census is the first post September 11th
enumeration. I, and several of my colleagues recently asked the
Justice Department to analyze the strict census confidentiality
provisions in light of the newer Patriot Act provisions, which
allow the Federal Government to seek information and gather
data about individuals suspected of terrorist activity, and we
appreciate your recent response to our letter. Would you
confirm my understanding of your analysis?
This is what I understand. It says no data sharing or data
seeking provisions of the Patriot Act supercede provisions of
the Census Act that prohibit the Census Bureau from sharing any
personally indentifiable information with any other government
agency or court of law. Is that a correct analysis and
determination?
Mr. Holder. I was going to say yes, but I wanted to make
sure, so I checked with all of my colleagues back here, and
that in fact is correct, yes.
Mr. Honda. I do that with my staff too, thank you.
Because I think that when we tell our communities,
especially the recent arrivals and those who are citizens
awaiting, those who are new citizens, we want them to feel
confident that when the knock on the door is there and we do
the outreach and spend all this money and effort to fulfill the
constitutional mandate of counting everybody who is here, we
want them to feel confident as I do that their information will
be used only in the way to provide information so that we can
come up with all kinds of programs that will benefit the people
of this country, so I appreciate that input.

RESOURCES FOR INDIAN COUNTRY

The increased resources the Administration continued to
request for Indian country law enforcement programs and
initiatives through the Department of Justice in this 2011
budget request. The Administration has proposed a new bill
language for 7 percent tribal set aside funding within state
and local law enforcement assistance and other DOJ accounts.
This 7 percent tribal set aside language would replace
traditional language that has been carried out in recent years
that specified particular funding amounts for the various
Indian country law enforcement programs such as tribal courts,
detention facilities, and Indian youth.
What assurances does the Subcommittee have that these key
core component programs serving Indian country will continue to
receive an adequate base level of funding in 2011?
Mr. Holder. Well, I think that one of the things we want to
do is to work with the people in the tribal lands to make sure
that the money is spent in appropriate ways. We will use our
Inspector General, and the other mechanisms that we have, to
ensure that money is being spent programmatically in the way
intended by Congress and consistent with what the
Administration's goals are.
I attended a listening conference in Minnesota, I guess
late last year, to try to, as we were developing the budget,
listen to the people who live on those lands. What are their
needs? And I think we have tried to identify those needs in the
budget, come up with a certain amount of flexibility, but also
a certain amount of rigidity at the same time so that the needs
that they identified, and we see, are met. And so I think that
we have struck a right balance here.
Mr. Honda. Has there been any discussion during that time
or the perception that Indian country laws based upon culture
and history traditions may be different if it were
administered--well, are there any Indian country courts that
are able to have the same kind of support from us and be able
to administer the laws that they have traditionally on their
own lands, and is there a difference in friction in that area,
and is there any work being done to sort of address those
differences?
Mr. Holder. Well, I think we are trying to be sensitive to
the cultural differences that exist, while at the same time
trying to, in terms of all the law enforcement instruments that
we see there, support them in such a way that they are
effective by 21st Century standards. Again, being sensitive to
those cultural differences, but ultimately just making them
effective.
If one looks at the crime rates in Indian Country, if you
see what a young girl born in Indian Country, who lives her
life there, can expect in terms of sexual abuse and sexual
violence, it is really breathtaking. What we have tried to do
is come up with ways in which we are supportive of enforcement
efforts, supportive of prevention efforts, while at the same
time being sensitive to the cultural differences that I think
you are right to point out.
Mr. Honda. Given that distinction and that kind of case, in
terms of the civil rights that we have and the kinds of access
to health and things like that or education, would the reverse
be applicable to Indian country? If there is a lack of that,
and there is an expectation that somehow we are partners
through this treaty that we have, and the context of their
sovereignty? Do civil rights laws apply in that case in Indian
country from the perspective of our own laws? I am not sure if
that makes sense, but you know.
Mr. Holder. No, I think I understand what you are saying,
and I would have to check on that and see exactly what the
applicability is of our laws. I think they only reach so far. I
think that the monies--but I would want to make sure that this
is accurate--the monies that we give are to support the laws
that they have and that they have to enforce. Not all of our
laws, as I understand it, are necessarily applicable on tribal
lands, but that is something I should check into and get back
to you with a more definitive answer.
[The information follows:]

Are Civil Rights Laws Applicable on Tribal Lands

As the Supreme Court observed in Nevada v. Hicks, 533 U.S. 353, 383
(2001), ``it has been understood for more than a century that the Bill
of Rights and the Fourteenth Amendment do not of their own force apply
to Indian tribes.'' However, because of the unique status of tribes
under federal laws, the actions of Indian tribal governments are
limited by most of the provisions of the Bill of Rights through the
Indian Civil Rights Act, 25 U.S.C. 1301-03.

Mr. Honda. Okay, I appreciate that.

IMMIGRATION CASE REVIEWS

In the area of the Executive Office for Immigration Review
in citing the complexities of immigration cases such as
unmanageable dockets, unrealistic case completion deadlines. On
average, immigration judges have probably less time than before
to dispose of a case despite their merging in case laws. What
steps have your office taken to ensure that judges and the
Board of Immigration Appeals members can manage their case
loads, and then reduce the heavy load on the circuit courts and
ensure that immigration cases receive adequate attention in
administrative courts? What concrete actions have been taken to
ensure that immigration judges have the tools and resources to
uniquely adjudicate these cases?
Mr. Holder. One of the things that we are doing is hiring
more judges to have more people to hear these cases. We are
looking at adding, using $11 million that would include 125
positions and 31 attorneys, 21 immigration judge teams and 10
Board of Immigration Appeals attorneys. We want to have more
people doing this work, and at the same time, we want to
increase the training that we give to these people.
I think we have made some substantial progress when it
comes to what our immigration judges are doing. I had a meeting
just yesterday, maybe the day before yesterday, with a group of
Article III judges who review these cases. They said they
thought over the last couple of years that they had seen a
noticeable, positive change in the work product that is coming
out of immigration judges, the trial judges.
Mr. Honda. Okay. How much time do I have?
Mr. Mollohan. Well you should ask. Go ahead and ask one
more question.
Mr. Honda. Let me pursue this.
Mr. Mollohan. One more question, please.

FIREARMS TRAFFICKING AND RELATED VIOLENCE

Mr. Honda. yeah, okay, thank you. Just recently, I read
that there has been some pretty horrific and gruesome stories
of assassinations or murders in, I believe it is in Juarez,
committed by gunmen associated with drug cartels, and the
murders were of our staffs from the American Consulate Office.
I know that in past meetings, the ATF has reported that the
U.S. is overwhelming is the source of guns used by these gun
traffickers and their acts.
In the 2009 ARRA we allotted $10 million in funding for the
ATF Project Gun Runner. The initiative was designed to disrupt
illegal gun trafficking operations through Mexico, especially
along the southwest boarder.
Do you believe that this act, the Recovery Act funding,
along with any other additional funds that the ATF is spending
to confront this trafficking to Mexico, is sufficient to take
on the problem of illegal gun trafficking?
And I guess just let me piggyback another question on top
of that. The issue of gun shows, does that still continue to be
the main source of arms that show up on the other side of the
border?
Mr. Holder. Well, I think we have to use all the tools that
we can to stop the flow of guns from the United States into
Mexico. Gun Runner, I think, has been a successful program. We
have tracing programs that we use with our Mexican counterparts
in a very valiant effort to fight these cartels.
ATF has appropriately used projects to go to gun shows
where guns are being sold improperly, and it has been effective
in that regard as well.
The concern, though, is that we really have to understand
that there is indeed a problem. If I speak to my Mexican
counterparts, and if I look at the weapons that are seized down
there, way too many of them come from the United States. If
Mexico is ultimately to be successful in this war that they are
fighting, that will benefit this Nation as well, I think that
we have to do all that we can to increase our efforts to stop
the flow of guns from the United States to Mexico.
There are things that we need to do in Mexico. I think we
need to have more of our people there working with their
Mexican counterparts, from ATF, DEA, and the DHS agencies as
well. I think we also have to be honest with ourselves that we
are allowing, through straw purchases and other illegal things,
the acquisition of guns that then ultimately go to Mexico.
Mr. Honda. Should there have been intelligence regarding
these want to be drug cartels who want to attain the leadership
on the other side? Should there have been intelligence that
should have been shared with our folks that their lives are in
danger, or were in danger? And if the intelligence should have
been there that wasn't passed on was it passed on, and is this
the other area that we need to strengthen as to create a better
intelligence process so that we can defend, or at least
protect, our members of our organizations and our government on
the other side?
Mr. Holder. Well we certainly have to make sure that we
have a good information flow between the United States and
Mexico, a good intelligence flow. One of the things that we
have to assure ourselves though is that the people with whom we
are sharing this information are appropriate to receive it, and
that is why we have pushed Mexico to come up with what we call
vetted units, people who we can trust and who we can share
information with.
I will say this, you know, there is an investigation that
is ongoing now by the FBI and by the DEA into the very tragic
shootings that occurred over the last few days, and as a result
of a variety of means that we have, we are developing a better
understanding of exactly what happened there. And I would not
place, at least at this point, I would not have any concern
that information was not shared with us by our Mexican
counterparts as being a cause of what happened there. As I
said, the DEA and the FBI I think are doing a good job in the
relatively short period of time they have had to investigate
it. We are starting to get a picture of what happened.
Mr. Honda. Thank you, Mr. Chairman.

BALANCING SECURITY AND JUSTICE IN TERRORISM TRIALS

Mr. Mollohan. All right, Mr. Attorney General, there has
been a discussion in some parts of the hearing which has raised
questions about the balance between security and the
guaranteeing of rights as meted out under the Constitution in
various situations, including military courts and Article III
courts.
I would simply note that if this is about rights it is also
about responsibilities and both are constitutionally based. And
to the extent that the authority that is vested with the power
to implement policy in the country pursuant to constitutional
principals is true to constitutional principals, then we are a
better Nation. To the extent that we don't do or try to do that
as well as we could or as we should, then we need to step back
and regroup and address the shortcomings and then move forward.
I really commend the Administration for doing that, and
doing it in a way that is very sensitive to the national
security concerns that were obviously paramount in the last
administration. I think that is to your credit.
I also think it is to your credit that in stepping back you
have embraced process in order to assure our faithful
fulfillment of our responsibilities and adherence to
constitutional principals. I think you certainly have done that
in the review of the detainees at Guantanamo. I think that is
commendable. The defining distinction between the way these
detainees were initially handled and the way that this
Administration has handled them has to do with process and
bringing criteria to the table and really being sensitive to
that. Frankly, that is a statement not to be insensitive to the
national security concerns that the last administration was
faced and preoccupied with. But it is to your credit that in
pursuing those same national security goals, you backed up and
did it with a greater sensitivity to those rights that are
constitutionally based and which really define us as a Nation.
Recognizing that you also have responsibilities and you are the
power, you are exercising those responsibilities to achieve
national security purposes and, at the same time, being
sensitive to the principals that define us as a Nation.
There are a of issues that were raised, but I would like to
quickly address two points that were principally raised by Mr.
Culberson. With respect to the Ghailani case, can you elaborate
on the statutory and other protections that will guide you with
regard to what information and how much information is shared,
and how that information will be safeguarded in the course of
that proceeding?
Mr. Holder. If the prosecutors in that case make the
determination, in consultation with the Intelligence Community,
that information should not be shared, should not get out of
the confines of the courtroom, there are mechanisms in place,
principally the CIPA statute, that allow for that to occur.
That is something that is fairly routine in terrorism cases
where a motion is made. A judge looks at the motion, there are
lawyers from the other side who have gone through the security
clearance process, and the information is contained within the
courtroom. We have judges, particularly in New York and other
places where these cases have been tried, who are familiar with
the very legitimate concerns that Mr. Culberson raised, but who
handle those concerns, I think, in an appropriate way, using
the tools that Congress has given them, chiefly the CIPA
statute.

RIGHTS OF DETAINEES IN CIVILIAN TRIALS, CONTINUED

Mr. Mollohan. There were some fairly complicated
constitutional issues alluded to and questions asked that I
think were inviting serious answers. The one issue that I would
like to hear you speak to, with time to do it, is this
comparison with Manson, who obviously was a murderer. I think
it is important for you to characterize your point, rather than
your point to be characterized, so I would like to give you an
opportunity to characterize your opinion and to elaborate on
the points you were making.
Mr. Holder. Yes, the point I was making was that I
frequently hear the notion that these terrorists are getting
rights that the average American would not get, and I think
that runs head-on into the fact that, to the extent that we
decide to bring terrorists charged with criminal acts into the
criminal justice system, they are not treated as average
Americans, they are treated as murderers. They are treated in
the way that their crimes would have them be treated.
I used the Charles Manson example only because I was
thinking of a mass murderer and thinking that, with regard to
some of the people who might be brought into the Article III
courts, they also would be mass murderers, and so they would
get, he used the word protections. I don't think that
necessarily conveys what I am trying to say. They would be
treated in the same way, which doesn't mean that they are going
to be coddled and doesn't mean that they are going to get
treated with kid gloves. They would be imprisoned before trial.
They would be in holding cells that are, if you look at the
detention facility in New York, extremely small. They are
drafty. They are not pleasant. It is not, for these people who
are brought into the Article III system and who are charged
with these serious offenses, it is not at all a pleasant
experience, and that is what I was trying to convey.
The comparison is not between the average American and
these terrorists. The comparison is between those people who
have committed the most heinous acts and who are charged in our
Article III courts, that is the comparison that I think is more
apt.
Again, what I have consistently said is that not everybody
who we determine should be tried will be brought into Article
III courts. Some will be tried in military commissions. I have
already made that determination. The comparison I am making is
only those of Article III courts, as opposed to other criminals
brought in Article III courts.
Mr. Mollohan. And I know that was extrapolated, if you
will, to the mastermind of one of the most heinous crimes
committed on the domestic shores of the country. I just felt it
would be useful for you to note that that was not your
comparison or your analogy and that the facts that would evolve
there would be totally dependent on the circumstances. I know
the law is very good about looking at the case, deciding things
on a case by case basis, and understanding how constitutional
principles are applied. Again, one measure of the country is
the extent to which it honors those principles to which we
affirm.
Mr. Wolf.

GUANTANAMO AS A RECRUITING TOOL

Mr. Wolf. Thank you, Mr. Chairman.
I want to just deal with a couple issues that came up from
my colleagues on the other side. One to say that Guantanamo is
a recruitment tool. It may be in the eyes of some people, and I
think there are good people on both sides of the issue, but
before that time there was the USS Cole before Guantanamo Bay,
because of Guantanamo there is Khobar Towers, before that there
was the embassy bombing in Tanzania, before there was the
embassy bombing in Kenya where somebody from my congressional
district died. There was the 1993 attack on the World Trade
Center, and there was 9/11. And I think to say that it is a
tremendous recruitment tool is almost like saying well if we
just shut it down or Osama Bin Laden will say, you know, I
really appreciate what they have done so we are going to kind
of move off and get into another occupation. There are people
who want to kill us and do things, so I think it may or may not
be, and there are good people on both sides, but I don't think
it is accurate to say that--I think it is overstated to say
that it is the recruitment tool and we just shut it down.
Mr. Holder. Well, I wouldn't say it is the only recruitment
tool, but I would certainly say that when you can have John
McCain, President Bush----
Mr. Wolf. Sure, I don't differ. I am just saying, but there
has been such a emphasis that it is a major, and I don't think
it is. There is differences of a----
Mr. Holder. It is certainly a recruiting tool. I wouldn't
say it is the major recruiting tool, but it is a tool that we
can take out the hands of those who are trying to recruit
people to fight us.
And as I said, you look at those people and you say, ``let
us close Guantanamo'', Senator McCain, President Bush, Colin
Powell all said Guantanamo should be closed.
Mr. Wolf. All good people too.
Mr. Holder. Yes.

INTERROGATION OF ABDULMUTALLAB

Mr. Wolf. Yeah. Secondly, to go to the other point. On the
Christmas day bomber there were differences there though. I
mean the gentleman was interviewed for 50 minutes. The DNI said
at the hearing, and I watched the hearing, that he was never
consulted. I assume it was your decision, I think was on the
record that you make the decision. The DNI said he was not----
Mr. Holder. Well, I made the decision to do what?
Mr. Wolf. Excuse me. Then Leiter said he was not informed.
Secretary Napolitano said she was not informed. So it isn't
just--there were some interesting things here that people were
concerned about, and I don't think you had the HIG team on
board in Detroit at that time with regard to the interview, so
that is the second thing I just wanted to clear.
Thirdly----
Mr. Holder. Well, with regard to that, the determination as
to whether or not to Mirandize Abdulmutallab on the 25th, that
was made by the people who were on the scene. I don't think it
is fair to say this was not the first team. I mean the FBI
agents who were there, one was an Iran Iraq expert, one was an
explosives expert. Good people, trained. And I think that as we
look at this whole question of how we codify this, how we
arrange this, the one thing I think we should all try to agree
on is that we don't handcuff the people who are trained at
these kinds of things, these FBI agents, these DHS agents, and
DEA agents, so that when they are there and trying to make
these on the scene determinations, they don't have to worry
about what is Washington going to think about my----
Mr. Wolf. Sure, no, I understand that, but that gets back
to my original. The HIG team was not really involved. And
secondly, by having the HIG team out there----
Mr. Holder. Oh, I am sorry, you are saying HIG team. I
thought you said A team. I am sorry.
Mr. Wolf. No, the HIG team. Thirdly, it was Christmas day,
and it is nothing wrong with people wanting to be off on
Christmas day. If you looked at the interview on 60 Minutes the
FBI agent Piro, his identification and understanding of the
head of Saddam, he met with him, he understood, he understood
culture. It probably would have been better to bring in your
top person who understands Nigerian culture, the top person who
understands, and maybe they were out on vacation or with their
family. That is not bad, I am not criticizing that, but that
was my point is, it was Christmas day, a spur of the moment,
and you do have some very good people in the Justice Department
and very good people in the FBI who had been there and perhaps
somebody from the FBI it could have been a little different,
and that was the point I wanted to make.
Mr. Holder. I don't necessarily disagree with you. I think
the operation on the 25th was done well. I think it was done
even better post December 25th in the interaction that we had
with Abdulmutllab, but I think there are things that we can
learn from December the 25th, and we need to make sure that we
do it better every time.

POTENTIAL TRIAL OF OSAMA BIN LADEN

Mr. Wolf. Sure. Thirdly, because I get to two last
questions. On the Bin Laden question that my colleague asked,
Mr. Culberson, you sort of dismissed it, you sort of brushed it
aside, kind of a bump and run and move off. The reality is you
may very well catch him and he very well may be alive and----
Mr. Holder. I don't expect that.
Mr. Wolf. Well, you know, we don't know. We don't know a
lot of things. Sometimes we don't know what we don't know. But
if you do catch him, and I think the concern is that you may
very well be setting a precedent with Khalid Sheikh Mohammed
case, beheading Daniel Pearl, killing 3,000 people, the
precedent that you are setting there that if you should capture
Osama Bin Laden alive, you may very well be setting a
precedent.
So my question to you is, if you catch Osama Bin Laden will
it go to an Article III court or will it go to a miliary court?
Mr. Holder. I am not trying to dodge this, but I just don't
think that the possibility of catching him alive----
Mr. Wolf. Well but we can't----
Mr. Holder. It is infinitesimal. Either he will be killed
by us or he will be killed by his own people so that he is not
captured by us. We know that.
Mr. Wolf. But Attorney General, that was not a trick
question. Sincerely, what if we do though catch him alive? That
is the question.
Mr. Holder. And what I am saying is that--and maybe I was
being a little flip with Mr. Culberson--you know, reading
Miranda rights to his corpse, because I think that is what we
are going to be dealing with. He is not going to be alive.
Mr. Wolf. Well but the question was what if he is alive?
And I think the gentlemen raised a legitimate case. You know,
from my perspective our government is setting a precedent with
Khalid Sheikh Mohammed in a civilian court in New York City and
I think that is the real danger.

PROSECUTIONS OF HUMAN RIGHTS VIOLATORS

Two other questions I wanted to ask you. The Intelligence
Reform and Terrorist and Prevention Act of 2004 expanded to OSI
jurisdictions beyond Nazi era cases. We had hearings when I was
the chairman of this Committee. Since that change, how many
human rights violators have you successfully prosecuted or
removed from the country?
I am continually seeing, I saw the fellow interviewed the
other day from Somalia. We are finding all these bad people are
showing up in the country, people who have been involved in a
genocide in Rwanda where 600, 700,000 people who had been
killed. We are finding, you know, Charles Taylor's son came in,
Chuckie Taylor, fortunately the Administration did get him.
But can you tell us, and maybe this is not the place, can
you commit that you are aggressively looking and how many have
you prosecuted? But could you have somebody come by and give me
the real information and an inventory of all these people who
have been involved in genocide and crimes against humanity that
are now living in the United States, you know where they are,
that you are aggressively going after them to at least deport
them?
Mr. Holder. Yes, I can arrange a briefing so that I can
share with you what the exact numbers are, because I don't know
them. But one of the things that we need is Congressional
support for this, I believe.
Mr. Wolf. What support do you need?
Mr. Holder. To merge the Office of Special Investigations
with its counterpart that is responsible for the prosecutions
of people like Chuckie Taylor. Because we think that if we put
those two groups together in our Criminal Division that we can
be more effective at getting at the very people that you are--
--
Mr. Wolf. I will offer that as a motion at the mark up and
just tell the gentleman from West Virginia, I will offer that
as a motion, if your people can come up and give me the
language, then I will see if I can get that passed, and I will
also introduce a bill that in case the Judiciary Committee
doesn't, I can look for another vehicle too, because I think we
have an obligation to those people who have been persecuted,
who have gone through this, to have these people that they then
see living in the United States to be prosecuted and deported.
Mr. Holder. And I agree with you, Mr. Wolf. And to the
extent that we can work together on that, I would appreciate
it.
Mr. Wolf. That would be good. A good thing to work together
on that would be good.

DELAYS IN IMPLEMENTATION OF THE PRISON RAPE ELIMINATION ACT, CONTINUED

The last thing is I want to go back to the prison rape.
This is an issue I care deeply about. My office talked to
somebody who was involved in a prison rape and connected to the
Justice Department. When Senator Kennedy and Bobby Scott and I
put this in we wanted this thing passed. I can send you and I
will send you, and I would ask you on the record if you will
promise you are going to read them.
Mr. Holder. Okay.
Mr. Wolf. Some of the cases of some of these people that
have been raped. Some are very young too. And we sent a letter
back in July of this year. Senator Kennedy, Congressman Scott,
and myself. What you are doing is duplicating everything the
Commission has done. You are going out on the contract now to
look at everything. And just because some prison wardens don't
like this, or the Bureau of Prisons may not like it, the longer
you delay the more people are going to be raped, period. And
now what you are telling us is that this will not be in place
until 2011 and maybe 2012. That is unacceptable. And I don't
know why you did it. I don't know the operation of the
Department. This was looked at carefully, and I think to reduce
the funding for it too sends me a message that the Justice
Department, whoever is putting your budget together really
doesn't care.
I want a commitment you are going to expedite this, move
this thing through knowing that each and every day that you
don't do it someone in some prison, maybe a state prison, maybe
a jail, maybe a federal prison is going to be raped. And so
what I want to do is we want to pass this thing, we want to
move this thing, we want to get it out and get it up and
running, and 2011, it will be year and a half to two years
late.
So what can you tell me that you are going to kind of do
away with this contracting thing out and do what the Commission
says or do something to make this thing happen fast?
Mr. Holder. Well, in terms of just funding, and that is
what I was looking at here, we have total funding of over $16
million available to us in 2010, $5 million in 2011, plus our
current funds are really sufficient to finish the survey
process and to provide implementation and help to our state and
local partners. So we think that with the money that we have,
we are capable of doing the job that you want done and a job
that I want to have done. We don't want to do this in a
slipshod way, we want to effect substantive real change so that
the horrors that are too often visited upon people in our
prisons are eliminated.
I look forward to working with you on that. I mean, we are
on exactly the same page on that one. This is something that I
think needs to be done not tomorrow, but yesterday. And to the
extent that we are not being as efficient, not being as
aggressive as we need to be, it is good for you to bring that
to my attention.
But I can tell you, I am sincere in my desire to make sure
that we get this done as quickly as we can. I think we have
sufficient funds to do it. I think the process that we have
laid out will make sure that the changes that we implement will
be ones that will have a substantive impact. It will not simply
be things that you see on paper but don't affect the lives of
people in prisons. That is my goal.
Mr. Wolf. I think it is fair to say most members of the
Commission don't agree with you, and I think you knew the
chairman of the Commission, Reggie Walton.
So with that, Mr. Chairman, I yield back.
Mr. Mollohan. Mr. Schiff.
Mr. Schiff. Thank you, Mr. Chairman.

GUANTANAMO AS A RECRUITMENT TOOL, CONTINUED

I just want to quickly address a couple of the comments
that were made about Guantanamo. In addition to Colin Powell
and President Bush advocating for the closure of Guantanamo,
the assessment of military commanders within DoD is that
closing Guantanamo is a national security imperative in the war
against Al-Qaeda. That is according to John Brennan, the
Assistant to the President for Homeland Security and
Counterterrorism. Secretary Gates, Admiral Mullen, and General
Petraeus have all stated that closing Guantanamo will help our
troops by eliminating a potent recruiting tool.
My colleague, I think, sets up a straw man argument that
because many of us, including the Defense Secretary, believe
that GITMO is a recruiting tool, that we are somehow arguing if
you close Guantanamo it will end the war on terrorism. Of
course no one has ever made that claim. But I have yet to hear
the advocates of keeping Guantanamo open, acknowledge any merit
to the propaganda tool it has served for Al-Qaeda and the
downside of keeping that open.

PAST PROVISION OF MIRANDA WARNINGS TO TERRORIST SUSPECTS

I also, again in terms of the criticism regarding the
arrest and Miranda advisement of Abdulmutallab, I think that
argument would have a lot more policy weight and a lot less
political overtone if these same folks who are attacking this
Administration now, had leveled any criticism of Attorney
General Ashcroft when the shoe bomber was arrested, which
coincidentally was also a December almost Christmas day, I
think December 21st, effort to blow up an aircraft, and he was
advised of his Miranda rights within the first five minutes,
and was advised a total of four times within 48 hours. And I
don't remember hearing a peep of criticism of the Bush Justice
Department at that time.
So again, you know, I think we ought to try to keep the
politics out of this and not be selective in our criticism.

MEXICAN FIREARMS TRAFFICKING

Let me turn to another subject though, and that was one
raised by my colleague, Mr. Honda, and that is the spiraling of
violence in Mexico. I had a chance to sit down with your
counterpart, the Mexican attorney general two months ago who
talked about the mutually destructive trade between our
countries with narcotics flowing north and weapons flowing
south, and in particular just the prevalence of American
weapons being imported into Mexico, sold through straw
purchases or acquired at gun shows or through whatever
mechanism.
And I wanted to ask you how we can do more to stem that
flow of weapons into Mexico. You know, we were devastated to
see the loss of our consulate official and his wife, in some
horrific violence, and of course thousands of Mexican citizens
are dying every year in what looks increasingly like Columbia
used to look.
So I would be interested to know whether you think there
are any legal changes that are necessary to crack down on this
high volume of trafficking of weapons into Mexico. You know,
one disparity, for example, is you are required to disclose I
guess if someone buys five or more handguns a month, but if
they come and they buy five or more assault weapons you are not
required to disclose it, and so you don't have those law
enforcement kind of leads. As we recall in the Excalibur case
some of the efforts to crack down on even high volume sales to
straw purchasers are problematic. And you know, one of the
issues too may be do we have the resources and the priority
among the U.S. Attorney offices to go after even the straw
purchasers in a way that will let us climb the chain much as
sometimes you have to go after the drug runners to go after the
cartel leaders.
So if you could share your thoughts on how we can
contribute to the effort in Mexico by stopping the flow of
weapons into Mexico.
Mr. Holder. Well, I think one of the things that we need to
do is to make sure that we have an ability from our Mexican
counterparts to look at really basic things, such as the serial
numbers on guns that are found in Mexico, so that we can trace
them and find where they are being sold. What our history tells
us is that a relatively small number of gun stores supply a
disproportionate number of guns that are used in violent
crimes, both in the United States and certainly in Mexico. We
focus our attention, using our ATF and state and local
counterparts, on those places where there is evidence and a
predicate to believe that they are engaged in the sale of
weapons that end up in Mexico through straw purchases or
illegal sales to people with felony records. We follow the
evidence back to those places that are the sources of these
guns. I think one of the ways in which we can do that is by
having a good interaction with our Mexican counterparts and by
looking at the weapons that are seized. We have warehouses of
these things, and they need to be preserved at least long
enough for American law enforcement to get there and to obtain
serial numbers and then try to trace those serial numbers.
Mr. Schiff. Do we need to look at some of the sentencing
provisions as well? I was informed at a meeting with some of
your colleagues and ATF and was informed about a recent case
where someone was convicted of gun running into Mexico, I think
1,000 weapons were involved, and the sentence was 30 some odd
months. That seems like an awfully light sentence for someone
that is illegally exporting into Mexico 1,000 weapons, you
know, and we may see several killings as a result of those guns
being illegally trafficked in the countries. Do we need to look
at whether we have sufficient sentencing deterrents in place?
Mr. Holder. I am not familiar with that case, but I think
that is a very legitimate question that we should ask and look
not only at that case, but at a larger number of cases to see
who is it that is getting convicted of gun running to Mexico
and what kinds of sentences they are getting. If they seem to
be low, is it because the penalties that we have in the
statutes are too low or is there something else that is going
on? I think that is a very legitimate inquiry that we should
engage in. We have to have a deterrent effect. We can't make
this something that people do with the thought that, if caught,
they are not going to face a very substantial penalty given the
impact that it has in Mexico. But not only in Mexico, the
impact that it has in the United States. It makes the cartels
stronger in Mexico and gives them a greater capacity to ship
drugs to our country. As you know, the violence we see along
our border is only fueled by these same weapons.
Mr. Schiff. Thank you, Mr. Chairman, and I yield back.
Mr. Mollohan. Mr. Culberson.
Mr. Culberson. Thank you, Mr. Chairman.

PROVISION OF MIRANDA RIGHTS TO TERROR SUSPECTS CONTINUED

Mr. Attorney General, the Miranda case of course is
designed to preserve the admissibility of evidence in a court
proceeding. Do you believe Miranda is essential in order to
preserve the admissibility of evidence in criminal court
proceedings against the--for example, these enemy combatants
brought to trial in Article III courts?
Mr. Holder. Well, it depends on the situation. For
instance, that initial interaction with Abdulmutallab, there
was no need for Miranda warnings under the public safety
exception to Miranda. There are a number of exceptions to the
Miranda rule that I think are appropriate and that law
enforcement can use in questioning, gaining intelligence----
Mr. Culberson. Excited utterance?
Mr. Holder. Excited utterance. There are a whole variety of
things. The Supreme Court said, not too many years ago, that
the Miranda warning regime was a constitutional dimension. It
was a seven to two opinion, I think.
Mr. Culberson. You mentioned a moment ago, sir, that the
people on the scene made the decision to provide Miranda
warnings to the Christmas bomber. I just wanted to confirm that
if I understood you correctly. Who did authorize the Miranda
warnings to be given to the Christmas bomber?
Mr. Holder. That was done by people on the scene, but
although I was not involved in that, I think that the decision
was correct.
Mr. Culberson. And the purpose of the questioning. If the
purpose of the questioning of an individual is to gather
intelligence, are they entitled to Miranda warnings?
Mr. Holder. Well, again, it depends. A byproduct of the
questioning that was done of Abdulmutallab, justifiably done
under the public safety exception, was the acquisition of
intelligence information. We were also trying to determine
whether there were other people in other planes, other people
in the same plane, that he was on.
I have heard a lot said about the fact that he was only
questioned for 50 minutes. That is a fairly long period of
time. It certainly is not as long as what has happened
subsequent to that. If you look at the report of the interview
that was gotten from him in that 50 minutes, or hour, there was
a pretty substantial amount of information that was received
from him that proved to be actionable, that proved to be
timely, and that continues to be, at least in some ways, the
basis for a lot of the cooperation that he has shared with us.
Mr. Culberson. Since you have made the decision to try KSM
in a U.S. court, wouldn't all of incriminating statements be
inadmissible because he was not advised of his--not given his
Miranda warnings?
Mr. Holder. This is something I really can't get into too
much. There are a variety of statements that are available for
our use in that trial, some of which have no Miranda issues at
all.
Mr. Culberson. So when he raises the objection in--as he
will when he is brought before a federal judge--when his
lawyers raise the objection that he was not given a Miranda
warning, what will be the position of the Department of
Justice?
Mr. Holder. In the Article III trial that we would present
there would not be a basis for a Miranda challenge.

USE OF CIVILIAN TRIALS AS A TOOL IN THE WAR ON TERRORISM

Mr. Culberson. Mr. Chairman and Mr. Attorney General, this
is why this is such a--I mean this is just one piece of why it
really is a sincere concern to the people of Texas that I
represent, to me, my colleagues, that the approach of the
Department of Justice and the Obama Administration is that this
is a law enforcement action that in this war on terror is in
fundamentally a law enforcement action like the war on crime,
and it is not. We are at war. And Texans understand when you
are at war the goal is to hunt down your enemy and kill them or
capture them.
And in particular in this case, this war requires that the
President of the United States as Commander in Chief be given
full discretion authority to use whatever tools are at his
disposal as the Supreme Court has ruled repeatedly, and
specifically referring to the Hamdi versus Rumsfeld case, the
Supreme Court said that in reversing the Second Circuit Court's
decision in Padilla that a citizen of the United States,
according to the Supreme Court, no less than an alien can be
quote ``part of or supporting forces hostile to the United
States or coalition partners and engaged in an armed conflict
against the United States.'' And if U.S. citizen if released
would pose a threat of returning to the battlefield as part of
the ongoing conflict, then that U.S. citizen can be held in
detention through the military tribunal system because we are
at war. And that is my concern, and it is a very deep seeded
and earnest profound disagreement with the approach of the
Administration that this is not law enforcement, we are at war.
And as Mr. Wolf quite correctly said through the KSM case,
set the precedent that when Osama Bin Laden is captured, and
you didn't answer the question directly, but it is a very
legitimate one, if Osama Bin Laden is alive, because his role
is equivalent to that of KSM, would you try him in a civilian
court?
Mr. Holder. As I said, I don't expect that Osama Bin Laden
will face justice in a military commission or in an Article III
court.
Mr. Culberson. Right, odds are. But if he is captured alive
where will he be tried?
Mr. Holder. Again, I----
Mr. Culberson. If he is captured alive?
Mr. Holder. I think that is speculation. You are asking me
about something that, on the basis of all the intelligence that
I have had a chance to review, the possibility just simply does
not exist.
Mr. Culberson. It is profoundly concerning to me, to the
people of Texas, I know I saw it in the polls in the
Massachusetts, that because of the precedent you are setting in
the KSM trial, because of the precedent that you are setting in
the Ghailani trial, because of the precedent you are setting in
granting constitutional rights to enemy soldiers in time of war
that your approach to the war on terror is as though it is a
war on crime in fighting gangs or murderers and the cities of
the United States, and it is not, we are at war, and it is
completely different.
Mr. Holder. As I have said, I don't know how many times, is
that I know we are at war. And let me make this clear, let me
make this very, very, clear. If you were to take away from the
Justice Department, from this Government, from this
Administration and subsequent administrations, the ability to
use Article III courts you would weaken our ability to
successfully fight these wars. It is as simple as that.
This tool that we are talking about is only one tool that
we have in our arsenal, and to take that tool away and to say
these are people who can't be tried would weaken our ability to
ultimately be successful.
Before you asked the question about examples of people
caught on the battlefield and prosecuted in court.
Mr. Culberson. Foreign nationals.
Mr. Holder. Foreign nationals. This woman Siddiqui was
caught in Afghanistan, shot at military soldiers there,
indicted in New York by the Bush Administration. Wesam al-
Delaema is an Iraqi born Dutch citizen who was tried in D.C.
for planting roadside bombs targeting U.S. soldiers in Iraq.
Again, minor examples, perhaps you would say, but
nevertheless examples of people who committed acts overseas and
were tried here in American courts. But the thing that I want
you to focus on in the Ghailani case is that it is consistent
with what happened in the Bush Administration with the other
people who were responsible for the embassy bombings. If you
take away this Article III tool, and it is not the only thing
that we use, if you take it away you are unnecessarily taking
away an effective tool, and one only has to look at what has
happened this year in terms of who we have incapacitated, who
we have gotten viable intelligence from, who we will be
sentencing for extended periods of time in the coming months.
Mr. Culberson. And I am not suggesting take it away, it is
just that you turn to it too readily, and the approach of the
Administration and the Department is that this is a war on
crime, and it is really not, we are at war.
And the two cases you mention, I want to make sure, because
this is the first time in public testimony you have ever
identified. Tell me again the name of those cases, because I am
unaware of any example in American history.
Mr. Holder. Just don't ask me to spell them.
Mr. Culberson. Okay.
Mr. Holder. Aafia Siddiqui, that is the woman who was just
convicted in New York. She was caught in Afghanistan, shot at
military soldiers, and tried in New York by the Bush
Administration.
Mr. Culberson. And she is a foreign national?
Mr. Holder. A foreign national.
Mr. Culberson. Okay.
Mr. Holder. And Wesam al-Delaema.
Mr. Culberson. Okay.
Mr. Holder. Iraqi born Dutch citizen tried in D.C. for
planting roadside bombs targeting U.S. soldiers in Iraq.
Mr. Culberson. Okay, and both of those were sent to
civilian court by the Bush Administration?
Mr. Holder. Yes.
Mr. Culberson. Okay, I will run those down. Those are ones
that none of us have ever been aware of before because in
granting constitutional rights to these folks and giving them
the opportunity to as in the Ghailani case, file a motion to be
released or charges dismissed because the failure to provide a
speedy trial, it gives an opportunity to our enemies not only
to have these people releases and freed, chain of evidence
wasn't preserved, can't prove beyond a reasonable doubt, speedy
trial, et cetera, that they would not have in military
tribunal. That is a huge concern.
Mr. Holder. You raise good points there. Looking at an
individual case that had those kinds of problems, if I were
convinced that those problems existed and they could not be
cured in an Article III court, I would have the option of
trying that matter in the military commissions. There are a
variety of factors that go into this, and that is why I say it
is done on a case by case basis. What will be best for this
case.
Mr. Culberson. Yes, sir. I am sure I am just about out of
time. The Chairman is very gracious. May I ask one very short
follow up?
Mr. Mollohan. We will be back to you in another round.
Mr. Culberson. All right, sir, thank you.
Mr. Mollohan. We will be back to you. Mr. Serrano has
waited a long time. Mr. Serrano, we have had a number of
rounds, so please feel free to ask your questions. We will give
you plenty of time.

HOLDING 9/11 TRIALS IN NEW YORK CITY

Mr. Serrano. Thank you so much, Mr. Chairman. I apologize
for being late. I was interestingly enough at a hearing where
we were discussing compensation for the victims of 9/11.
Mr. Attorney General, I am in a very, very unique or small
minority. I am the only elected official in New York who still
thinks it is fine to have those trials in New York. And I think
it is important to know why I feel that way, but it is also
important to know how it came to be what it is now.
When it was first floated or introduced as a thought that
we could do this in New York, everyone I remember was in favor
of it, and everyone said it was the right thing to do. And then
something happened. And what had happened is not what people
throughout the country think happened. It wasn't a community
that spoke up, it wasn't elected officials, it was the business
community that said they were concerned about traffic jams in
lower Manhattan. Traffic jams in New York City--that is
redundant. This should not be a shock to anybody. Ironically
the people who lost so much business during the attacks and the
aftermath of the attacks were now complaining about this
congestion in downtown Manhattan. And little by little you
began to see this turning around of elected officials,
colleagues of mine, friends of mine, people I have served with
for many years who were rah, rah, rah for having the trials in
New York and then all of a sudden they are all against it.
Next thing you knew something which I still don't
understand, but I respect, the families of victims turned
against having the trials in New York. Somehow this was an
insult to their memory to do it in New York. I see the world
differently. The best respect you can pay victims is to say
that as a country they may have killed some of us, they have
maimed many of us, but they have not defeated us as a country,
and that we are not afraid to try people at the scene of the
crime, and that we are not afraid to try them within our court
system. That is the way I feel.
I was one of the few elected officials who was not in
Washington that day. I was in New York City. My son, who is now
a state senator, was running for the city council. Very few
people wrote about the fact that elections were interrupted
that day. Amongst all the things the terrorists accomplished,
one was to disrupt an election, which stands at the center of
our democracy. And I remember the pain that day and the
aftermath of that pain and everything that we are still
discussing today, and yet there is this feeling that somehow if
we hold trials in a civilian court and if we do it in New York
we are dishonoring these folks and we are opening ourselves to
more terrorist attack.
Well if there are people who are upset at the fact that we
are going to put people on trial, does it matter whether we put
them on trial in New York, in Duluth, Minnesota, or Waukegan,
Illinois? With all respect to Duluth and Waukegan. They are
going to be angry regardless of what we do. And if we do it in
a military court they will be angry, if we do it in a civilian
court they will be angry. If they are going to be angry they
are going to be angry. And if New York City is going to be
under the possibility of an attack because of that I would
submit to all of us that New York City lives with the
understanding that it is still the main target for any
terrorist group. It is the main target. It is the Big Apple
that people love to hate, but it is a symbol of who we are as a
country. Of the strength and the financial community.
And so I know when an issue has left me, and it is not one
I want to devote a lot of time to in the next few months. That
train may have left the station already. In fact I think it
has, because every elected official now thinks this is the
worst thing you could do. But at least know that there is one
elected official in New York City who feels that there was
nothing wrong with trying them there. On the contrary, I
thought it was very dramatic to say we are not afraid of you,
we will try you at the scene of the crime, we will try you in
our courts, and we will show you that you can't defeat our
judicial system, and you can't defeat us as a people. And I
just wanted to make that statement to you, sir.
Mr. Holder. Thank you, sir. For those who don't know, I was
born and raised in New York City. I was born in the Bronx,
spent my first years in Manhattan, was raised largely in
Queens, went to high school, college, and law school in
Manhattan. I am a New Yorker. My brother lost many people. He
is a retired Port Authority lieutenant, he lost colleagues,
people who went to training school with him, that day.
The decision that I made, I thought, was the right one for
that case. But there was, very frankly, an emotional component
to that as well; what was I doing to my city? I think the
decision that I made was good for the case and, ultimately,
that is what I had to focus on. But I appreciate the
observations that you have made.
I think that we should have great faith in the resilience
of our systems, resilience of our people, and the toughness
that has always separated Americans from other peoples in this
world and what has made this country.
You might be right that the train has left the station, it
is certainly a factor that we are working with as we try to
determine where this should occur. But on a very personal level
that was at least a part of my thinking.
Mr. Serrano. Thank you. Mr. Chairman, do I have time to ask
a question?
Mr. Mollohan. You have all the time you want.

HATE CRIMES AGAINST IMMIGRANTS

Mr. Serrano. Thank you. We discussed this in the past, it
keeps growing as an issue, and that is hate crimes against
immigrants. As we get closer to perhaps discussing immigration,
as the economy continues to hurt, as we continue deportations
and raids, I think it could only get worse before it gets
better.
I know you have been strong on trying to do something about
this whole issue, but I think we need to continue to call the
attention of this Congress and the American people to the fact
that there is another category of hate crimes, and that is
people who are attacked because they are immigrants, because
they look like immigrants, because somehow before they are
attacked no one asks whether they are here illegally or not,
whether that--doesn't make a difference, but it encompasses a
lot of people.
And again, I want to be clear, what I was saying was not
that because you are illegal you should be attacked, but it
doesn't matter to people if you are an immigrant or you look
like an immigrant they are going to attack, and it is something
that we have to deal with. And I am wondering just what
programs you are putting in place and new actions that the
Justice Department will be looking at as we deal with this very
serious issue.
Mr. Holder. Well, we certainly have a new tool, a very
substantial new tool, the Matthew Shepard and James Byrd Act,
that was finally passed. I testified on behalf of that statute
when I was Deputy Attorney General about 10 or 11 years ago, it
was finally passed in October of last year. That gives us tools
that we didn't have before, and that is a tool that we will use
to get at the kinds of victims that you have described.
We have in our budget for next year a $1.4 million increase
so that we can hire 14 attorneys in our Civil Rights Division.
This is a priority for this division. Tom Perez is the
Assistant Attorney General for the Civil Rights Division, he
has energized that place. He has the division focusing on the
things that it has traditionally been focused on. Hate crime
prevention and hate crime prosecutions are one of the key
things that I have asked Tom to focus on in the Civil Rights
Division, and I am confident that, with these additional
lawyers and with this additional statute, that we will be
successful. That is a priority for us.
Mr. Serrano. I thank you for that, and I just again
reiterate the obvious, that the President has said publicly,
and he certainly told Members of Congress that went to see him
last Friday, that he wants to work on an immigration reform
bill, and that is great news, continues to be great news, but
as you know, that will only inspire a few people in this
country to commit even more hate crimes because somehow those
people are going to be legalized and they have to be dealt with
and be taught a lesson.
So I would hope that we stay very vigilant as this period
takes place. Thank you.
Thank you, Mr. Chairman.
Mr. Mollohan. Thank you, Mr. Serrano.

INTERROGATION OF ABDULMUTALLAB, CONTINUED

Mr. Attorney General, for those terrorist suspects that we
are talking about trying in Article III courts, the premise or
the concern around the Miranda rights are that we won't get
good information from them. So just a little bit of questioning
with regard to that.
First of all, with regard to Abdulmutallab, the Christmas
bomber, a timeline. Correct me to the extent that I am in error
here, but I would like to lead you through this just a little
bit. He was taken into custody by security officials at the
airport first, I believe, and then taken to the hospital. He
was then interviewed by the FBI team, which as you described
was a pretty sophisticated group of people.
Mr. Holder. Right. I am not sure, but I believe that is the
correct timeline and the correct people who interacted with him
along the way.
Mr. Mollohan. So up to that point, Miranda rights are all
preserved because that is obviously, I think, a public safety
exemption to the necessity for issuing Miranda rights. When
questioning somebody in the heat of an arrest, or in the
aftermath of an event, because you do have public safety
concerns you are more interested in that than you are in----
Mr. Holder. Yes. And I also think you can argue that it was
not at least in those initial times, you could argue he was not
in a custodial situation.
Mr. Mollohan. Okay. So he was questioned for some period of
time without Miranda rights, correct?
Mr. Holder. Correct.
Mr. Mollohan. Then he was treated in the hospital, and,
after he was released, he was Mirandized; is that correct?
Mr. Holder. He was. He was Mirandized by a different team,
a clean team as we call it. I think it was interesting that
their view was that he came out of that procedure a different
person. That he was more, for lack of a better term, warrior
like, and I am not sure, that is, I am not convinced, this is
Eric Holder's personal opinion, I don't think it was the
Miranda warnings that made him decide not to talk. I think it
was something within him that took him back to where he was
immediately before he ignited the bomb, he became that person
again. That is why I think he answered a few questions in that
second interaction, but not many, and then ultimately decided
he did not want to continue the conversation.
I think we should never forget that in the days that
followed that, actually in the weeks that followed, that he has
been talking.
Mr. Mollohan. You are getting my point, but you are getting
ahead of my point. My first point is that he was interviewed by
a qualified team, and I don't know what justification there
would be for undermining the qualifications of the team. These
are professional people out in the field who are trained in
this area.
Mr. Holder. The people did that first one hour, 50 minute,
interview were good, trained FBI agents. One thing I should
clear for the record, to the extent that I said that the
determination was made only by them, with regard to the whole
Miranda warnings question, that was not done only by them. It
was also done in conjunction with people at FBI and Justice
Department headquarters. I was not involved, but other people
at higher levels within the Department made those decisions.
Mr. Mollohan. Okay. So the suspect was interviewed prior to
being Mirandized, was Mirandized, and was subsequently
questioned after being Mirandized. He was difficult right after
getting out of treatment, but subsequently I think your
testimony has been a number of times that a lot of good
information, or perfectly good information, was gotten after
being Mirandized.
Mr. Holder. Right. What people should understand is that
there are studies in those briefs that we have heard about, I
don't have it in front of me, that substantial numbers of
people will, even after they are Mirandized, continue to talk.
Two, once they are provided with lawyers, the lawyers can make
a more objective determination of the fix that their clients
are in. The defense lawyers frequently become, not advocates
for the Government, but advocates for their client, in the
sense that they tell an Abdulmutallab, ``Unless you want to
spend the rest of your life in a super max facility, you better
start sharing information with the Government.''
I don't want to get into a specific case, but it frequently
happens that the defense lawyer helping his client also helps
the Government.
Mr. Mollohan. I think that is the point I really wanted to
get to. If the premise of those who argue that a person should
be questioned without Miranda rights is that better information
is received prior to, or by techniques which are employed
without, Miranda rights, that is a premise they would have to
prove. It is certainly contested in the public debate. That is
a premise that has not been established or laid before.
So my point is that we should us not presume that pre-
Mirandized information, or never Mirandized information, is
better information. It is simply, as I understand it, not an
accepted premise among the profession. Your comment?
Mr. Holder. I think you raise a very good point. It is one
that I would throw back at those who have criticized us for
using the criminal justice system and the Miranda requirement.
``Well, what is your proof that if he were whisked off to a
military facility and questioned by military people, even
without the presence of a lawyer, that information you would
receive would have been more voluminous, would have been
better?''
There are psychologists we have consulted who say that the
presence of military people in uniform makes them perhaps maybe
warrior like.
Again, I would try to look at the facts and the experiences
that we have had, and the use of the criminal justice system to
get information from Abdulmutallab, from Zazi, from Headley,
and from a whole variety of cases that we have had this year. I
think it shows the efficacy of that system and the efficacy of
that approach.
Mr. Mollohan. Okay. Well my point is that the premise that
I think is assumed in this line of questioning is that the
information is better when the person is not Mirandized as
opposed to when they are Mirandized. That is not proven and is
contradicted in a whole lot of testimony, including yours here
today.
We just had three bells. That means we have 15 minutes to
vote, but it will probably last longer than that. We are going
to divide up the remaining time between myself and the other
members who were here roughly equally, so it will be kind of a
rapid fire here, Mr. Attorney General. Then after that, we are
going to adjourn the hearing.

PREVIOUS TERRORIST TRIALS IN CIVILIAN COURT

I want to get on the record clearly that there have been a
significant number of terrorist cases tried in Article III
courts during different administrations, both Republican and
Democrat administrations. Is that correct, sir, and can you
give us a little detail on that?
Mr. Holder. That is absolutely correct. There were
terrorism cases that were tried in Article III courts in the
Bush Administration. I don't have the exact number here, but I
am pretty sure it is close to about 150 or so. Ramzi Yousef,
the original World Trade Center bomber, was tried in Article
III court. The blind sheik. There are a number of high profile
terrorism cases that were tried successfully in Article III
courts.
Mr. Mollohan. They were tried in Article III courts during
the Clinton Administration, the Bush Administration, and now in
President Obama's Administration.
Mr. Holder. Right, that is correct.
Mr. Mollohan. Terrorist suspects tried in Article III
courts. Convicted?
Mr. Holder. Convicted, yes.
Mr. Mollohan. And serving time in?
Mr. Holder. Federal prisons.
Mr. Mollohan. Federal prisons in the United States. Thank
you.

WHITE COLLAR CRIME

There is a lot of interest in the extent to which criminal
fraudulent conduct may or may not have been involved in the
financial crisis that the country has just experienced and is
trying to fashion regulations to prevent. Can you speak to your
department's efforts to address that question and the status of
your investigations?
Mr. Holder. We have put together a financial fraud
enforcement task force that marries a group of federal
executive branch agencies with our state and local
counterparts, chiefly attorneys general.
Mr. Mollohan. The Financial Fraud Enforcement Task Force?
Mr. Holder. Exactly. With state attorneys general to look
at a whole variety of financial fraud. Everything from mortgage
fraud to securities fraud. A case brought just yesterday in the
Southern District of New York involving a bank and one of the
first TARP criminal cases was brought by the financial fraud
enforcement task force.
That is something that is very broad in scope to look at,
the entirety of financial fraud activity that may have
contributed to the economic downfall that we saw, but to the
extent that these crimes exist, we are determined to find the
people responsible and to hold them accountable.
Mr. Mollohan. The task force includes the Treasury
Department, HUD, SEC, and various inspector generals. It looks
like a broad base. Does your budget request anticipate greater
activity with regard to that task force going into 2011?
Mr. Holder. Yes. We have increases with regard to corporate
fraud; DOJ opened an 11-percent increase and with regard to
corporate, mortgage, and other financial fraud DOJ wanted an
increase request of 23 percent.

ADAM WALSH ACT

Mr. Mollohan. Mr. Attorney General, the Adam Walsh Act was
passed in 2006, as you know, but we are still struggling to
fully implement it due to a lack of funding. Has the Department
quantified what it would cost you to fully fund and implement
the Adam Walsh Act? If you have not, could you submit that for
the record?
Mr. Holder. Sure. Let me submit something for the record,
just so that I can be more precise in my answer.
[The information follows:]

Full Cost and Implementation of Adam Walsh Act

The Department of Justice (DOJ) does not have an estimate for the
full implementation cost of the Adam Walsh Act (AWA). However, the
Department is working with DOJ components to quantify the resource
requirements associated with the full implementation of the Act. Once
completed, the Department will share the cost projection with the
Appropriations' Committees. The Department has already identified
current resources appropriated for AWA enforcement. In FY 2008, the
Department's resources for AWA enforcement, excluding grants, was $116
million. The FY 2011 President's Budget requests more than $165
million, excluding grants, for the Department to enforce the Act. The
overall growth of the Department's resources for AWA enforcement,
excluding grants, from FY 2008 enacted to the FY 2011 request is 42
percent.

Mr. Mollohan. Just to get a little support on the record
from the executive for Adam Walsh, I was heartened to hear that
President Obama recently committed to John Walsh that he would
get the Act fully funded. Although clearly the 2011 request
doesn't do that. Do you have a strategic plan, or is one being
developed, to ramp up the program over time?
Mr. Holder. Yes. We are determined to make real the Adam
Walsh Act. As the President indicated, we are looking at about
a 20 percent increase in funding for next year, and I think
that over a year we will be looking at those kinds of increases
even in spite of the economic downturn that we have to deal
with and a deficit reduction that we have to engage in.
Mr. Mollohan. And you are going to submit for the record--
--
Mr. Holder. Yes, I will.
Mr. Mollohan [continuing]. What it would cost to fully
implement that Act, and, if you would, your plan for ramping it
up to full funding and how many years that would take.
Let me note quickly, certainly with approval, that I
applaud your request with regard to the Indian nation's
leadership council. I feel confident it will help the
Department coordinate tribal leaders and be more responsive in
their campaign.
I think we all understand the ambiguities and
jurisdictional difficulties of law enforcement in Indian
territory, and the terrible consequences that result. This
Committee certainly is sensitive to that. Our bill last year
reflected our interest in increasing resources for law
enforcement in Indian territory, even given these
jurisdictional challenges. I want to compliment you on your
budget, because you have significantly increased funding for
maybe one of the most unnoticed issues in the country with
regard to law enforcement.
Mr. Wolf.

INTERROGATION OF ABDULMUTULLAB, CONTINUED

Mr. Wolf. Thank you, Mr. Chairman. I am going to submit a
lot of questions for the record, but on the issue of timeliness
and Miranda, the press announcement materials provided to the
Congress last fall stated that the principal function of
interrogations of high value detainees is quote ``intelligence
gathering rather than law enforcement.'' One.
Secondly, I have talked to a lot of people, some in your
department who are experts, they said you missed it on the
timeliness. Timeliness is very important.
To have shown him pictures of Guantanamo people that have
been sent back, to show pictures to the Christmas day bomber
could have said did you see this man, did you see this man, did
you see this person? You didn't have enough time to do that.
Also what location were you in? Were you in this location,
what building were you in, what address, who did you see, who
were you with, who else was in the class?
I mean there were so many things that could have been
missed. So I mean, there was an opportunity that was missed and
we will never get it back again.
Mr. Holder. That is simply not true.
Mr. Wolf. It is true. It is true.
Mr. Holder. It is not true.
Mr. Wolf. We missed opportunities. Because once we missed
them----
Mr. Holder. That is not true.
Mr. Wolf. Well it is true.
Mr. Holder. I know.
Mr. Wolf. Well, I say it is true, and you say it isn't
true, but people that I have talked to said you missed an
opportunity----
Mr. Holder. I have had access to the documents.
Mr. Wolf. You never had the pictures with you to show him
in Detroit at that time.
Mr. Holder. It is not true.
Mr. Wolf. You never had the pictures to show.
Lastly on the prison rape thing.
Mr. Holder. That is not true. For the record, that is not
true.
Mr. Wolf. Well, I believe it is based on the information
that I have.

HUMAN RIGHTS WATCH REPORT ON PRISON RAPE

On the prison rape thing I am going to end by reading this.
This is from Human Rights Watch. No escape: Male rape in U.S.
prisons. ``Preface.'' ``I have been sentenced for a DUI
offense, my third one. When I first came to prison I had no
idea what to expect. Certainly none of this. I am a tall male
who unfortunately has a small amount of feminine
characteristics and very shy. These characteristics have got me
raped so many times I have no more feeling physically. I have
been raped by up to seven men at one time. I have had knives at
my head and throat. I fought and I have been beat so hard that
I didn't even think I would see straight again. One time when I
refused to enter a cell I was brutally attacked by staff and
taken to segregation. Though I had only wanted to prevent the
same or worse by not locking up with my cell mate. There is no
supervision at the lock down. I was given a conduct report. I
explained to the hearing officer what the issues were. He told
me that off the record he suggested I find a man that I can
willingly have sex with to prevent these things from happening.
I requested protective custody only to be denied. It is not
available here. He also said there was no where to run and it
was best for me to accept things. I probably have AIDS now. I
have had difficulty raising food to my mouth and from shaking
after nightmares of thinking how this all is. I have laid down
without physical fight to prevent so much damage and struggles
that when fighting it has caused my heart and my spirit to be
raped as well, something I don't know if I will ever forgive
myself for. This has gone on and the longer you delay it the
more this will happen.''
I yield back the balance of my time.
Mr. Holder. Again for the record, I share, as I indicated
before, the concern that you have expressed. That story is a
horrible one, and we are committed to doing all that we can as
quickly as we can to deal with those kinds of situation.
Mr. Mollohan. Mr. Culberson.

LEGAL TECHNICALITIES IN TERRORISM TRIALS

Mr. Culberson. Thank you, Mr. Chairman. Mr. Attorney
General and Mr. Chairman it is my concern and I know the
concern of my constituents and all my colleagues, it is not
just the quality of the information that we would obtain with
or without Miranda, it is our worry is that these people will
be released on technicalities, that they will go free because
they were given constitutional protections by this
Administration that foreign nationals in time of war have not
been given previously. I am still trying to run the two
individuals you gave me. Mr. Chairman, I do know for a fact
that Richard Reid was arrested at a time when there was no
military commission, that is why he was sent to civilian court.
Your testimony, Mr. Attorney General, that Siddiqui and al-
Delaema individuals were sent to civilian court at a time there
were military commissions in existence?
Mr. Holder. I have to look at the dates. I believe that is
correct.
Mr. Culberson. Okay. We are very, very short on time. Mr.
Chairman, I wanted to also ask if I could the Attorney General
if the charges against KSM are dismissed because of some legal
argument that he raises under the Constitution or Supreme Court
case law, his charges are dismissed by the federal court and he
is ordered released, I think I heard you say that you are going
to--the Administration will order that he continue to be held;
is that correct?
Mr. Holder. Yes. First off, in terms of the premise, I
don't think there is an instance of a terrorism case where
somebody, a terrorist charged in an Article III court, got off
on a so-called technicality. I don't know of one case.
Mr. Culberson. Excuse me, I am talking about KSM. You have
ordered that he be sent to be tried in a civilian court.
Mr. Holder. Yes, that is fine.
Mr. Culberson. Regardless of where that takes place.
Mr. Holder. I can certainly deal with that question, but I
am just dealing with what you said at first, and I don't want
to let that go unrebutted.
Mr. Culberson. Oh, I am sorry if you misunderstood me.
Mr. Holder. Again, what I would said is let us look at the
facts and let us look at history. There has never been, as far
as I know, a terrorism trial that ended in a pretrial release
of somebody on the basis of some technicality.
Mr. Culberson. In a military tribunal.
Mr. Holder. In an Article III court.
Mr. Culberson. Okay, but that is the danger we expose
ourselves to and that is our concern, is that this hasn't been
done before, other than those two cases you mentioned, which we
are going to run down.
Mr. Holder. We have tried hundreds of cases in Article III
courts where I am sure pretrial motions have been raised, none
have resulted in the release of somebody on a technicality.
Mr. Culberson. Well in time of war is the concern.
But if I could very quickly, because we are running out of
time. If the charges against KSM are ordered dismissed by the
District Court I have heard you say publicly that the
Administration would order that he continue to be held; is that
correct?
Mr. Holder. I will answer that question, but first, on the
basis of the way in which this case would be structured in an
Article III court, the chances of his being released on a
technicality are slim to non-existant. Having said that, you
are correct. I have said that if Haley's Comet were to come
flying through this hearing room today, and if something like
that happened, it would not be the intention of this
Administration to release him into the United States.
Mr. Culberson. Well so if you get a court order ordering
that KSM be released and the charges dismissed you will release
him overseas?
Mr. Holder. That is not what I have said, no.
Mr. Culberson. Well you said you wouldn't release him in
the United States. Where would you release him?
Mr. Holder. Well there are a variety of things that can be
done. Again, I think we are talking hypotheticals that we will
never have to face.
Mr. Culberson. But we have to think about it. And if he is
ordered released by the court where would you release him if
not in the United States?
Mr. Holder. Under the system that we have in place there
have been cases where we have made the determination, with
regard to detainees, that certain of them can be transferred,
certain of them can be tried and certain of them can be held on
a long-term basis.
Mr. Culberson. Okay.
Mr. Holder. We have I think the facility under the AUMF,
the Authorization of Use and Military Force, to detain somebody
on a long-term basis. So if, and it is not going to happen.
Mr. Culberson. It is an if. You got a court order, charges
are dismissed, he shall be released. Where would you release
him?
Mr. Holder. It is an if, it is not going to happen. But if
that were to be the case, he would not be released.
Mr. Culberson. You said he would not be released in the
United States and he will not released period.
Mr. Holder. I am not qualifying it. He would not be
released.
Mr. Culberson. Well then if the nobility of American
justice, the example we would set to the world so the
terrorists would like us you just threw all that out the
window.
Mr. Holder. No, I am not. I am dealing with a hypothetical.
Mr. Culberson. Mr. Chairman, am I missing something here?
Mr. Wolf, Mr. Chairman.
Mr. Mollohan. Yes.
Mr. Culberson. What am I missing, please. I will yield. I
mean, I don't get it. Texans don't understand this. I mean if
you are at war you hunt them down, you kill them. I don't know
why are we giving this guy constitutional rights to make the
terrorists like us or think that we are noble and you are going
to hold him in jail anyway if he is ordered released.
Mr. Holder. But you are dealing----
Mr. Culberson. Mr. Chairman, I will yield. What am I
missing?
Mr. Holder. What you are missing is that what I said is you
are dealing with a hypothetical that is not going to happen. It
is not going to happen.
Mr. Culberson. It is a distinct possibility it could
happen, and you said you are not going to release him.
Mr. Holder. On the basis of what? Why would you say that?
Mr. Culberson. Well this is a public hearing, our enemies
are listening, you have just said that you are going to hold
this guy in jail if the court orders him released. And the
purpose of the trial is to show the nobility of American
justice and we treat everybody equally and the terrorists will
like us, you know, kumbaya. Well if the court order is saying
release and you are going to hold him in jail you just
nullified all that, right?
Mr. Holder. See this is the danger----
Mr. Culberson. And I yield, Mr. Chairman. If I am missing
something I am missing something. This just does not make any
sense at all. This is war. You hunt them down you kill them or
you hold them forever. This is not complicated to a Texan.
Mr. Holder. Okay, but this is my fault for having gone down
the road of a hypothetical, and I should have simply said the
hypothetical that you have posed is not a real one on the basis
of our experience and the facts that we have over the years in
Republican and Democratic administrations.
Mr. Culberson. But I hope you can see my concern. You say
that if Osama Bin Laden is captured he is entitled to the same,
you know, he is going to be treated as a murderer like Charles
Manson. We are going to try KSM----
Mr. Holder. That is not quite what I said.
Mr. Culberson. That is the gist of your testimony. Is that
he is----
Mr. Holder. That is not what I said.
Mr. Culberson. As a murderer is treated as a murdered like
Charles Manson. They are not even in the same category. And it
is just a real concern, Mr. Chairman, and I think it exposes
the immense danger of going down this path, Mr. Attorney
General. We are at war, you cannot treat these people, this is
not a war on crime, this is a war on terrorists, and you treat
them like you would Nazis. If you captured a Nazi on the
battlefield you should treat them no different than you would a
terrorist captured on the battlefield. And that is the danger,
you have opened up a can of worms and pandora's box. We need to
stick with what works. We are at war. You hunt them down and
you kill them or you capture them.
Mr. Holder. I think you are right, we do stick with what
works and we look at history, we look at facts, we don't look
at hyperbole, we don't look at campaign slogans, we don't use
fear. And if that is the case there is no reason for us to have
any concern or fear that our Article III courts, our military
efforts, the use of military commissions, or our diplomatic
efforts will not ultimately be successful in winning this war.
But as I said before, if you take from us, if you take from
us----
Mr. Culberson. Not suggesting that.
Mr. Holder. That is in essence what you are trying to say.
Mr. Mollohan. The gentleman's time has expired.
Mr. Culberson. Thank you, Mr. Chairman.
Mr. Mollohan. I will give the witness a chance to finish
his answering.
Mr. Holder. I was simply going to say if you take from us
the ability that has been used by Republican and Democratic
administrations and attorneys general to use the Article III
courts in the successful way that we have you will weaken our
effort in this war that we must win.
Mr. Mollohan. Mr. Attorney General, I would only add to
that other administrations have likewise not taken those tools
out of their toolbox presumptively. The law works wonderfully
when it works in the context of real cases, and chasing
hypotheticals can be extremely difficult in the law.
Tangibility is always helpful in answering these kinds of
questions.
I thank the Attorney General for his service and for his
testimony here today. I compliment the Administration on really
ensuring that process is re-emphasized at the Department, and
thank you very much for doing a very difficult job extremely
well, both in regard to the conventional crime responsibilities
and the effort of the Department to handle these very
complicated, difficult terrorist situations with
professionalism while keeping in mind all of the
responsibilities and rights that you must balance under the
Constitution.
Thank you for your testimony here today, Mr. Attorney
General.
Mr. Holder. Okay, thank you.
Mr. Mollohan. Thank you.

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Wednesday, March 17, 2010.

FEDERAL BUREAU OF INVESTIGATION FY2011 BUDGET OVERVIEW

WITNESS

ROBERT MUELLER, DIRECTOR, FEDERAL BUREAU OF INVESTIGATION

Opening Statement of Chairman Mollohan

Mr. Mollohan. The hearing will come to order.
Good afternoon. The subcommittee would like to welcome
Robert Mueller, Director of the Federal Bureau of
Investigation, to discuss the FBI's 2011 budget request and
related issues.
We are pleased to have you here, Director Mueller, and
thank you for your appearance.
The FBI's budget request for 2011 totals nearly $8.2
billion. Within such a large total there are clearly many
programmatic and policy issues to cover. Too many, in fact, for
any one hearing to cover exhaustively, but I do hope that we
can use this opportunity to focus on at least a few important
areas which we consider high priority.
The first of these areas, for me, is white collar crime.
Our economy has suffered billions of dollars in losses due to
the illegal and immoral behavior of individuals who capitalized
on weaknesses in the regulatory and enforcement system to
profit at the expense of shareholders, investors, homeowners,
workers and taxpayers. While many firms on Wall Street have
recovered and are, in fact, making substantial profits again,
there are millions of regular Americans who are still hurting
and have yet to see any real justice for the economic violence
that was perpetrated on them.
I am glad to see that this administration has recognized
the error of past practices and is now proposing to invest in
your fraud enforcement programs rather than raiding those
resources year after year to pay for other priorities, Mr.
Director. This is the priority now. What remains to be
determined is whether the size of this investment is sufficient
to the size of the problem. Your budget request proposes to add
62 new agents for white collar crime, but compared to the
thousands of active cases and billions of dollars of losses,
the question is, does that seem small? I am anxious to explore
this during your testimony.
The second area of concern is law enforcement in Indian
country. This subcommittee has heard many times and from many
different people how desperate the law enforcement situation
really is in Indian Country. Unfortunately, it's not obvious
exactly how to solve this problem. Will clarifications to the
jurisdictional construct help? Will more agents or more
prosecutors or better evidence processing capabilities do the
trick? Do we need to focus on building community trust between
the tribes and Federal law enforcement entities, or on
significant substance abuse problems among tribal populations?
I am sure that these are all elements of the solution, and
the key is to find the right mix of those elements. Your budget
contains some resources to address one part of this mix, and
that request is certainly welcome. For too long, the FBI has
failed to request the resources necessary to improve its
presence in Indian Country or to follow up aggressively on the
execution of existing funds to make sure that the resources you
have are actually reaching the Native American communities for
which they are intended.
The final area that I think needs to be addressed is the
treatment of terrorism suspects apprehended in the U.S. This
issue emerged as a major subject of debate after the arrest of
Umar Farouk Abdulmutallab in December when a whole spectrum of
public figures alleged that the FBI's provision of Miranda
rights to Abdulmutallab was unnecessary, misguided, and perhaps
even detrimental. It is the position of the administration that
there was no difference between the handling of this case and
the way the FBI always handled these cases in the past, and
there were apparently no criticisms when the FBI gave virtually
identical treatment to David Headley and Najibullah Zazi, to
name recent examples, or to dozens of others apprehended during
the previous administration.
I would like to think that much of the current criticisms
and misrepresentations are just the result of some
misunderstandings about what has taken place in this case. The
fact of the matter is that the FBI has made it clear that it
sent experienced knowledgeable agents to question
Abdulmutallab. Beyond this one particular case, I believe there
are also some fundamental misunderstandings of the overreaching
legal framework in which you operate when someone is
apprehended within our borders for committing or attempting to
commit a terrorist act. Can that person legally be held without
charge or without the provision of certain constitutional
rights? Whether he is a U.S. citizen or not, once in custody,
what are the provisions with regard to his advice on his right
to remain silent, his right to retain counsel, and the
government's right to use statements against him?
These are all questions which I am sure will be explored.
The FBI simply cannot take a suspect apprehended domestically
and just pack him off to Guantanamo Bay. You can't turn him
over to CIA, which does not have authority to operate
domestically, and you can't decide to give him to the military
where, by the way, he would still be entitled to constitutional
rights. I understand that there are differences of opinion, and
we look forward to exploring them in the context of the
Constitution and the reality in which we find ourselves. I
intend to pursue these topics in more detail during our rounds
of questioning, and I also hope to address some newly emerging
problems with the development of the Sentinel case management
system. This is a critical effort and one that absolutely must
succeed in order for the FBI to fully bring its investigative
technology into the new century.
Before we get into these issues, however, I would like to
recognize our ranking member, Mr. Wolf, for any comment he may
have.
Mr. Wolf. Thank you, Mr. Chairman.

Opening Statement of Mr. Wolf

Director Mueller, I join the chairman in welcoming you this
morning to testify before the committee. I am pleased that we
are holding the hearing. For 2011, you are seeking an
appropriation of $8.3 billion, an increase of $366 million or
4.6%. We look forward to your testimony on the new increases
you are seeking as well as on the FBI's continuing with
transformation activities to fulfill its role as the key
domestic counterterrorism and intelligence agency. In addition,
I am interested to hear more about the FBI-led effort to
establish a new interagency capability for the interrogation of
high-value terrorist suspects pursuant to the recommendations
of the interrogation task force set up last year by executive,
and yesterday I asked the Attorney General and I sent a letter
down to the administration asking that the HIG be relocated at
the counterterrorism center.
The whole purpose of establishing a counterterrorism center
was to bring people of different backgrounds, different
agencies together, and rather than having it in a separate
building away from there; so I would like to get your comments
with regard to this. This function is critical to the
intelligence gathering, and as the Christmas Day bombing
revealed, there is an unacceptable level of confusion about how
such interrogation should be handled.
Lastly, I would like you to pass on to your people our
appreciation for their hard work, the work of your agents, your
analysts and support staff to protect the Nation from terrorism
and crime is perhaps the most important activity that we
support in this subcommittee. I recognize the tireless efforts
that are required to carry out those responsibilities, and your
people should be commended, and quite frankly, speaking for
myself, I think you should be commended. I think you have
provide a great service to the country.
Your wife and I would probably differ but I am not looking
forward to the day that you leave because I think you really
have in this difficult time done an outstanding--I would say
your people have done a good job, but I think you have too, and
I want to go on the record with that.
I yield back to the chairman.
Mr. Mollohan. Mr. Mueller, as you may know, your written
statement will be made a part of the record and the committee
invites you to proceed with your oral testimony. Thank you.

Oral Remarks of Director Mueller

Mr. Mueller. Thank you. Chairman, members of the
subcommittee, Congressman Wolf, thank you for your comments.
You probably do differ with my wife who is looking forward to
that time. I appreciate the opportunity to appear here today
before this committee to discuss the budget for 2011. The FBI
is requesting approximately $8.3 billion to fund more than
33,000 FBI agents and staff and to build and maintain our
infrastructure. This funding is critical to continue our
progress in transforming the FBI into an intelligence-driven,
threat-based agency and to carry out our mission of protecting
the Nation from ever-changing national security and criminal
threats.
Let me start by discussing a few of the most significant
threats. Fighting terrorism remains our highest priority at the
FBI. Over the past year, the threat of terrorist attacks has
proven to be both persistent and global. Al Qaeda and its
affiliates are still committed to striking us in the United
States. We saw this with the plot by an al Qaeda operative to
detonate explosives in New York subways and the attempted
airline bombing plot on Christmas Day to which, Mr. Chairman,
you have alluded. Both incidents involved improvised explosive
devices, or IEDs, and underscore the importance of our
continuing to develop explosives intelligence to support and
guide terrorism-related investigations.
Homegrown and lone wolf extremists pose an equally serious
threat. We saw this with the Fort Hood shootings and with the
attempted bombings of an office tower in Dallas and a Federal
building in Springfield, Illinois. We have also seen U.S.-born
extremists plotting to commit terrorist acts overseas, as was
the case with the heavily armed Boyd conspiracy in North
Carolina, and David Headley's involvement in the Mumbai attacks
from his home base in Chicago, Illinois.
These terrorist threats are diverse, far reaching and ever-
changing. Combating these threats requires the FBI to continue
improving our intelligence and our investigative programs and
to continue engaging with our intelligence and law enforcement
partners both domestically and overseas. Accordingly, for
fiscal year 2011, we are requesting funds for 90 new national
security positions and $25 million to enhance our national
security efforts.
Next let me spend a moment discussing the cyber threat.
Cyber attacks come from a wide range of individuals and groups,
many with different skills, motives, and targets. Terrorists
increasingly use the Internet to communicate, to recruit, to
plan and to raise money. Foreign nations continue to launch
attacks on U.S. Government computers and on private industry
hoping to steal our most sensitive secrets or benefit from
economic espionage. Criminal hackers pose a dangerous threat as
well as use the anonymity of the Internet to steal identities
and money, across the country and around the world. These
attacks undermine our national security and pose a growing
threat to our economy. We are seeking 163 new positions and $46
million for our cyber programs to strengthen our ability to
defend against cyber attacks.
Let me turn for a moment to white collar crime. Mortgage
fraud is the most significant threat in our efforts to combat
white collar crime. Mortgage fraud investigations have grown
five-fold since 2003, and more than two-thirds of these cases
involve losses of more than $1 million each. If trends
continue, we will receive more than 75,000 leads regarding
mortgage fraud in this year alone. Securities fraud is also on
the rise. We have 33 percent more security fraud cases open
today than we had 5 years ago, and the economic downturn has
exposed a series of historically large Ponzi schemes and other
investment frauds. And of course, health care fraud remains a
priority for the FBI given the estimates on the billions lost
to fraud each year in health care programs.
Investigating and bringing to justice those who commit
fraud is critical to restoring public confidence in our
Nation's mortgage, financial securities, and health care
industries. We are requesting funds for 367 new positions and
$75 million for our white collar crime program.
The fiscal year 2011 budget also requests new funding for
the threats from crimes in Indian country and international
organized crime, and we are also seeking additional funds for
our infrastructure to address these national security threats
and crime problems including funding for training facilities,
information technology, forensic services, and as you point
out, Mr. Chairman, my written statement I submitted for the
record discusses these requests in far greater detail.
I will say that over the past several years, we have worked
to better integrate our strategic direction with a 5-year
budget approach and with a more focused human resources
management. Indeed, the FBI's fiscal management has been
recognized by the Inspector General's annual audit as being
among the top performers in the Department of Justice and we
are on pace to achieve our hiring and staffing goals this year.
Chairman Mollohan, Ranking Member Wolf, I would like to
conclude by thanking both of you and the other members of the
committee for your support and particularly in your support of
the men and women of the FBI, and I am happy to answer any
questions you might have.
[The information follows:]

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Mr. Mollohan. Thank you, Director Mueller.

INTERROGATION OF TERRORISM SUSPECTS IN THE U.S.

I would like to begin by revisiting the Abdulmutallab case
and attempting to clarify some issues that have been subject to
a lot of controversy in the press and in the public and on the
Hill. Some of those controversies stem from confusion or a
misunderstanding, perhaps, about how you proceeded on the day
that Abdulmutallab was arrested and whether the Intelligence
Community was consulted about the handling of the case.
So Mr. Director, can you walk us through the basics of what
occurred on Christmas Day and how you interacted with the
Intelligence Community, almost a chronology?
Mr. Mueller. Yes. Starting around noon, word was received,
and again, I am not specific on the particular time; so please
don't hold me to those, but approximately noon or a little
afterwards we received word that an individual on a plane bound
to Detroit, I believe from Amsterdam, had apparently attempted
to set off something. Initial reports indicated it may have
been firecrackers. When the plane landed, first on the scene
were those at the airport, principally Customs and Border
Patrol and ICE agents. We were shortly there ourselves and
learned that an individual had attempted to trigger an
explosive device on the plane and had been stopped by one or
more passengers.
He was placed into the custody of--I believe it was Customs
and Border Patrol, and because the device, as he attempted to
ignite it, had burned him, he was taken in custody to the
hospital. As we found out about that, we immediately attempted
and did find out information about him, understood that he was
of Nigerian background and had flown in from Amsterdam.
Immediately e-mail traffic began from both Detroit to our
National Joint Terrorism Task Force here in Washington, and out
to various agencies, including the Department of Homeland
Security, National Counter Terrorism Center, and the
Intelligence Community about what little information we had.
That correspondence carried through the afternoon.
At approximately 2 o'clock, our agents went to the hospital
and interviewed Abdulmutallab with the specific objective of
finding out whether there was any immediate threat of
additional bombs on other planes or additional persons on that
plane who might constitute a threat. They spent up to an hour
interviewing Abdulmutallab.
As has been pointed out, the determination was made not to
provide Miranda warnings on the belief that this was
information that was absolutely essential to determine public
safety and so that interview was conducted along those lines.
We continued to obtain information from various entities in the
Intelligence Community throughout the afternoon, and at 5
o'clock that evening, there was a video teleconference that was
established by John Brennan at the National Security Council.
We attended that video teleconference where most of the
members of the Intelligence Community representatives of the
Department of Justice, NCTC, National Security Council, and of
course, representatives of the FBI, reviewed what had happened
and what was going to happen thereafter. There was the ongoing
assumption at that time that Abdulmutallab, having been
arrested on United States soil, would proceed through the
Article III process. There was no debate at that time whether
there was the issue of whether or not to Mirandize him.
Later that night it was determined to try again to
interview Abdulmutallab, and at that time, it was determined
both by the Department of Justice and the FBI that we would
follow our ordinary procedures and attempt to interview him and
provide him his Miranda warnings. When the agents went in that
evening, he was less responsive to interviewing. He was not
providing basic booking information. He was read his Miranda
rights and discontinued any conversation afterwards. He
remained in custody in the hospital that night and was brought
before the magistrate the following day, as is required under
rule 5 of the Federal Rules of Criminal Procedure, later on the
following day. That, in brief overview, is what happened that
day, consistent with the practices that we have utilized
generally throughout any arrests that we do in the United
States.
Mr. Mollohan. Was there communication with the Intelligence
Community about how this case was being handled? Was there
cooperation among the various law enforcement agencies and
intelligence agencies during this process?
Mr. Mueller. Well, there was continuous coordination in
obtaining information to the extent that we could pull it from
our various archives the afternoon of Christmas, and the
communication was between persons not at the highest level. In
other words, I would not have been necessarily involved in that
communication nor Secretary Napolitano nor the Attorney
General. But yes, in the discussions throughout that afternoon,
there was a colloquy between various elements of the
Intelligence Community and the law enforcement community as the
events unfolded.
Mr. Mollohan. Were his arrest and the process that you just
described handled any differently than the process followed for
any other terrorist suspect arrested in the United States
either before or after 9/11?
Mr. Mueller. The only distinction I would say is that we
made the determination early on not to Mirandize him in the
initial interview. We knew we had a relatively short window of
time in order to conduct that interview and believed that in
that window of time we had to focus on immediate information
relating to public security.
Mr. Mollohan. You indicated that the next day the suspect
was taken before a magistrate?
Mr. Mueller. Yes. We are required under the rules to
present the individual in custody before the magistrate.
Generally we are required to do it within a 24-hour period.
Mr. Mollohan. Is there a Mirandizing requirement at that
time?
Mr. Mueller. That happens whenever you are presented to the
magistrate. The magistrate will review your rights for you. And
it was done on that occasion. At least that is my
understanding.
Mr. Mollohan. So the court itself would advise the
defendant of Miranda rights at that time?
Mr. Mueller. Yes.
Mr. Mollohan. So really there is a requirement that, except
for the public safety aspect of this, a suspect arrested in the
United States would be subject to Mirandizing under the law?
Mr. Mueller. Yes. Once that person has been presented to
the magistrate for any initial appearance.
Mr. Mollohan. There has been considerable discussion about
Miranda warnings and how they may or may not impact suspects
from cooperating with investigators. I would like to just
explore that a bit with you. Given that a suspect is going to
be advised of his rights by a court within hours after his or
her arrest, the FBI, is it correct, generally provides Miranda
warnings itself so that you can take full advantage of anything
he might say in the intervening period and preserve it for an
Article III court? Many people have contended that the moment a
suspect is provided Miranda warnings he will immediately cease
cooperating with you.
So I am asking in your experience, is it the case that
suspects become uncooperative and invoke their right to remain
silent after being read Miranda rights, and does that attitude
persist?
Mr. Mueller. Let me divide it up in two parts if I could.
The first part with regard to our policy, we make hundreds of
arrests a day across the country. State and local law
enforcement make thousands of arrests across the country daily.
It is generally the protocol for ourselves as well as State and
local law enforcement to provide Miranda warnings before
interrogating somebody who is in custody to maximize the
opportunity for utilizing whatever is said by that individual
in the case against him in court.
Turning to the second part of that in terms of what one can
anticipate, it really depends on the case. I think prosecutors
and agents and police officers would say that on many
occasions, persons who are Mirandized agree to cooperate
afterwards and reach some sort of understanding whereby they
would have to truthfully cooperate in order to get some
consideration in terms of sentence. There are others who will
never cooperate.
Richard Reid is an example of an individual, the shoe
bomber, whose arrest was I think in 2002, who has never
cooperated to this day even given Miranda warnings, and there
probably are others out there who might have cooperated had
they not been given Miranda warnings. So it really depends on
the circumstances of the case.
Mr. Mollohan. There has been a lot of discussion of whether
Abdulmutallab was willing to talk to you and whether the
provision of Miranda warnings prevented you from achieving some
form of cooperation from him. When agents spoke to him
following his medical procedure, was he uncooperative?
Mr. Mueller. My understanding is that he did not display
the same willingness to respond to questions that he had
displayed earlier in the day when we first interviewed him.
Mr. Mollohan. What about now? Did he cooperate with you
some time post-hospitalization or post-operation, after having
been advised of his right to remain silent and the right to
retain counsel? Is he cooperating with you now?
Mr. Mueller. He has been providing information, yes, sir.
Mr. Mollohan. He has been?
Mr. Mueller. He has been, yes.
Mr. Mollohan. I don't know that you can answer this, but
what causes his cooperation now?
Mr. Mueller. It may well have been a combination of
factors, and I can generally say that I think his family had
some role in that. The fact that he faced substantial--life
imprisonment probably played some role in that. There may be a
number of other factors.
Mr. Mollohan. Well, there is no clear lawful authority to
move a defendant out of the civilian system; is that correct?
Mr. Mueller. I think that, when you say no clear authority,
I do believe that this issue has been litigated and come up
with different results in different circuits. So to the extent
the question is, is there any certain authority on that, I
don't believe there is.
Mr. Mollohan. Well, we have heard in the media and
elsewhere that the military should have taken custody of
Abdulmutallab. That is a contention that is out there, with the
implication being that the government would have gotten more
out of him if the military had been allowed to handle his case.
Since
9/11, has the FBI ever arrested a suspected terrorist inside
the United States and immediately turned the person over to the
military?
Mr. Mueller. No, we have not.
Mr. Mollohan. And for both the past administration and this
administration, that's a true statement?
Mr. Mueller. We have not done that. Let me just put it this
way: assuming the President has the authority to direct that,
we have not been directed to do that ourselves.
Mr. Mollohan. Have you ever turned such a person over to
the military later in the process, such as after their first
appearance in court?
Mr. Mueller. The FBI has not. There have been other
occasions where the Marshals Service, upon the direction of the
President, has, I believe, turned at least two individuals over
to the military.
Mr. Mollohan. Do you know who those two individuals were?
Mr. Mueller. I think one is named Padilla and the other was
al-Mari, both of whom were directed into military custody for a
period of time, and then were returned to the Article III
courts for disposition of their cases.
Mr. Mollohan. And who had custody of those individuals?
Mr. Mueller. At the outset, we probably did the arrests on
both of them. I think we did the arrests on both of them. They
went into the Article III court system, into the custody of the
U.S. Marshals Service as their cases were going to the courts.
They were then transferred to the military for a period of time
and then transferred back into the custody of the Marshals
Service for disposition of their cases.
Mr. Mollohan. Just backing up a little bit, you didn't make
that decision?
Mr. Mueller. No, we did not. That is the President's
decision.
Mr. Mollohan. In those two cases did the President make
that decision?
Mr. Mueller. I believe that is the case.
Mr. Mollohan. President Bush made the decision to transfer
those two individuals over to the military----
Mr. Mueller. I believe that to be----
Mr. Mollohan [continuing]. For disposition. Are those
defendants still in military custody?
Mr. Mueller. Mr. Padilla went to trial before an Article
III court, I believe in Florida, was convicted, and is serving
his sentence in the U.S. prison system.
Mr. Mollohan. So that implies to me that they came back
from military custody into the civilian forum?
Mr. Mueller. Yes, sir. In both of those cases, they came
back into civilian----
Mr. Mollohan. How did that happen?
Mr. Mueller. I believe it was directed by the President
that they be returned to the custody of the Attorney General.
That was exercised through the Marshal Service. As for al-Mari,
I believe he was sentenced. He may well still be in jail or may
have been released. I would have to check on that.
Mr. Mollohan. But was there not an intervening challenge by
the defendants to their detention in the military system? The
judiciary issued contradictory decisions about whether the
transfers were legal and both the civilians moved back into
civilian custody. My question is, did the courts direct that
they be sent back, or did the Bush administration send them
back before a court's determination was made whether they were
illegally detained in the military system?
Mr. Mueller. I have not reviewed their cases recently, but
I do believe one circuit ruled against the transfer of the
individual into the military system whereas the other circuit
upheld the transfer. Neither of the cases reached the Supreme
Court and both were resolved in Article III courts before it
could go to the Supreme Court.
Mr. Mollohan. So I guess faced with conflicting decisions
in different circuits, the administration pulled them out of
military custody and put them back over into the civilian
forum?
Mr. Mueller. I was not involved in the decision-making
process, but I can say that they did come back into that----
Mr. Mollohan. Both of them, although one circuit determined
that a transfer to military custody was lawful; so there was a
contradictory----
Mr. Mueller. Yes. Excuse me a second.
That is right, sir. I just wanted to check up and make
certain I was on solid ground.
Mr. Mollohan. So there is no clear legal authority to
transfer terrorism suspects arrested inside the United States
to the military?
Mr. Mueller. You would have to go to constitutional
scholars other than myself to----
Mr. Mollohan. Based on court decisions, we have a conflict
in the court decisions.
Mr. Mueller. I think there is a conflict. Again, the cases
may have been somewhat different. All I can say is that I am
probably not the person to opine on to what extent it still
remains unsettled.
Mr. Mollohan. I probably should know, but do you know
whether those cases went to the district court or circuit
court?
Mr. Mueller. Both went to circuit courts.
Mr. Mollohan. So we have a difference of opinion in two
different circuits.
Being in the civilian system does not mean an interrogation
won't be useful; that is the point of this next line of
questioning I have. So we have established for this purpose
that there really aren't any constitutional alternatives that
the FBI's handling these cases directly. Let's turn then to the
contention that your interrogation of Abdulmutallab wasn't
necessarily effective. That is an accusation. Some critics have
charged that you could have achieved a more effective
interrogation if there were better interrogators available. As
I say that, I have not seen a shred of evidence to substantiate
that from my position. But just to explore this contention, do
you believe that you had the right mix of agents on the ground
for the initial interviews of Abdulmutallab?
Mr. Mueller. Well, I think if you put this into context, in
the middle of Christmas Day there is this attempt by an
individual to blow up a jet as it was coming into Detroit.
Nobody could quite obviously have anticipated that and it could
have gone into any city in the United States. I believe that
the Special Agent in Charge there and the agents on the ground
did an admirable job in identifying persons available to
conduct the initial interview. They chose an agent who had
substantial terrorism experience who had served overseas--I am
not certain if it was Iraq or Afghanistan, and was fairly
familiar with terrorism issues and----
Mr. Mollohan. Both domestically and internationally, then?
Mr. Mueller. Yes. And also an individual who--he may not
have been a certified bomb technician, but was expert when it
comes to explosives because of the necessity of identifying
what kind of explosive was on the plane and what we were
dealing with. So I believe they did an admirable job in pulling
together the right persons to conduct the interviews on the
day. Now, down the road----
Mr. Mollohan. Excuse me----
Mr. Mueller. I am sorry.
Mr. Mollohan. No. You keep that thought. But before we get
down the road, these individuals who conducted these
interrogations, am I accurate in saying that they were members
of the FBI's Detroit Joint Terrorism Task Force?
Mr. Mueller. I would have to check on that. It may well
have been. At least one was, but I am not certain. It may have
been--the bomb technician or another may not have been a member
of the Joint Terrorism Task Force but had the type of expertise
that they believed was necessary immediately.
Mr. Mollohan. You may want to clarify that for the record.
Mr. Mueller. We will get back to you on that.
[The information follows:]

If Any of the Agents Who Did the Initial Abdulmutallab Interview Were
Part of the Local JTTP

Yes. Both FBI Agents who were involved in the initial interview of
Mr. Abdulmutallab were members of the Detroit Joint Terrorism Task
Force.

Mr. Mollohan. Excuse me. Down the road?
Mr. Mueller. Well, I think one of the benefits of the HIG
program, the High-Value Interrogation Group program, is that
you want to pull together persons with a variety of
capabilities. You want a strong interrogator. You want a strong
subject matter expert. You want a person who is knowledgeable
of the individual. You may need language experts. And we,
thereafter as the process went on, increased our numbers of
persons with various degrees of expertise that could contribute
to that interrogation, but we were dealing with on that day a
necessity to respond and within very few moments, to get the
information we thought was essential. And so I do believe that,
yes, we could have brought in and had afterwards brought in
greater number of subject matter experts, but they were not
readily available on the ground at that time.
Mr. Mollohan. The administration recently established the
High-Value Interrogation Group, the HIG, to interrogate
individuals of significant interest to the government overseas;
that is my understanding. Why wasn't the HIG deployed to
interrogate Mr. Abdulmutallab instead of your Detroit Joint
Terrorism Task Force agents, and do you believe your
interrogation was effective without HIG involvement?
Mr. Mueller. Well, by Christmas the HIG had not been
formally set up, but that did not mean that we did not use the
same concept prior to that time. We recognized for a period of
time and certainly our agents who are far more expert than I,
understand the advisability of having any number of areas of
expertise to contribute to the success of a particular
interrogation. We had used that concept previously last fall in
Chicago with an individual by the name of David Headley, where
we pulled various experts to contribute to that interrogation.
On that particular day, we would have been anticipating
down the road what we would need to flow into Detroit to
complement the individuals who were doing the initial
interrogation, and indeed that is what happened.
Mr. Mollohan. Well, my understanding, and I think your
testimony substantiates it, is the proposition that
Abdulmutallab was interviewed by anybody but absolutely expert
experienced interrogators, members of the Detroit Joint
Terrorism Task Force, would be unfounded. And the HIG, as I
understand it, might be available for consultation on domestic
cases. Let me ask you if they would, but primarily they are a
deployment group for overseas interrogation; is that correct?
Mr. Mueller. That is correct, but that does not preclude
them from being used in the United States and that expertise
has been and will be used in the United States.
One point I do want to make because I have heard some
criticism of the fact that he was interrogated by FBI who were
in Detroit. The fact of the matter is our agents are very
experienced. As they go through new agents class, one of the
key areas that is covered is interrogations and many of our
agents that come in have spent a great deal of time as police
officers and that is what you do day in and day out.
I might also add that we have had some successes, some of
them fairly renowned. An individual by the name of George Piro
was selected by the military to do the interrogation--long
interrogation--of Saddam Hussein. So I do believe we have the
expertise. I do believe we had the expertise on the ground that
day to do a very good job and that the HIG would only augment
what we have been doing for a number of years.
Mr. Mollohan. At the risk of asking a leading question, I
don't suppose you get on the Detroit Joint Terrorism Task Force
without being seriously experienced.
Mr. Mueller. Generally that is the case. We certainly have
a lot of experience on that task force.
Mr. Mollohan. Mr. Wolf.
Mr. Wolf. Thank you, Mr. Chairman.
My views are as follows: I really want to find out what
have we learned. What have we learned to protect the American
citizens so that next time something happens we are safer?
There has been a lot of effort by the administration trying to
defend themselves, and I want to make sure that I don't get
into any political questions with you, and then there have been
those on the other side who wanted to perhaps exploit that.
Judge Mukasey did a piece where he said Abdulmuttalab should
have been held as an enemy combatant. I don't know if you read
this. It was in The Wall Street Journal.
Mr. Mueller. I generally read his pieces, yes, whether Wall
Street Journal or----
Mr. Wolf. And I will submit that for the record. Judge
Mukasey, if I recall, was the judge in the '93 World Trade
Center; is that correct.
[The information follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Mr. Mueller. That is true, yes, sir.
Mr. Wolf. It's true. And I think he has forgotten more
about this than most people will ever, ever know. And the point
was, and the whole purpose of the high-value detainee
interrogation group is to deal with high-value detainees, not
criminal detainees, but the high-value detainees as an
intelligence point of view; is that correct?
Mr. Mueller. Yes.
Mr. Wolf. And so we are not really saying that the guy who
drew the short straw in Detroit on Christmas Day was a bad
person. He may have been a wonderful person. I stipulate for
the record they are wonderful people, but maybe there were some
others that could have also added some value to that that were
not there. And one of the recommendations that I made, and you
might want to comment on it, is I have asked that the HIG be
colocated at the National Counterterrorism Center for that
very, very purpose because they were not involved--and based on
what you said, they were not involved before the decision was
made with regard to Miranda rights. And so therefore--and when
Secretary Napolitano testified, she said she did not know.
I believe that Admiral Blair testified over on the Senate
side. I can still see the hearing. I think the question was
asked by maybe Senator McCain. I am not sure. I think Senator
McCain. And he said he did not know. And I think Mike Leiter
said he did not know. And I think Leiter does a great job. I am
very impressed. I think the more people go out to the
Counterterrorism Center and see the number of pieces of
information that come in every day and how they have to boil it
down--and so I think those of us or I--I am not speaking for
the other side--felt that perhaps if he could have been
considered an enemy combatant, as Judge Mukasey said, and had
more opportunity, there may have been a chance to say to them,
did you see this gentleman when you were in Yemen?
Did you ever talk to Awlaki? What building were you in? Did
you ever see any of these pictures, people that have been sent
back? Are there any American citizens that were in the class
with you? There are a lot of things that could have been asked.
And so I think the question is what did we learn? You can spend
a lot of time going back either criticizing what took place on
Christmas Day or you could go back and defend what took place.
Now, the administration announced that the high-value
interrogation--they announced it in August; correct?
Mr. Mueller. I am not certain when they first announced it.
It may have well been last summer, yes.
Mr. Wolf. In August. And this is one of the most
significant issues that our Nation is facing because there are
young men and women that are serving in Afghanistan and Iraq
and serving us well and some of your people have really done a
great job. So let's find out what we have learned from it
rather than defending or tearing it down. And I would stipulate
that as great as they may very well be, they were not the best
people we had in the Nation at that time to have interrogated
the Christmas Day bomber because they were on vacation. They
were having--celebrating the birth of Jesus Christ on Christmas
Day. They may have been at church service. They may have been
somewhere else. And that is not bad. It is okay for people to
take off.
And so the point that I have tried to make at that time--
because this is such an important issue because of the number
of people who have died in this country, the number of people
who died at Fort Hood who were impacted by Awlaki; correct? Did
he have any impact on the major down in Fort Hood? Yes. Did he
have any impact on the Army recruiter that was killed? Yes. Did
he have any impact on John Walker Lindh, who may have been
responsible for killing or involved in the killing of Michael
Spawn, the first CIA people from my district? The answer is
probably yes. And you could go on and on and on.
So I think it is what did we learn--without being defensive
or without being protective, what did we learn to truly make
sure that the next time, and unfortunately there may very well
be a next time, to make sure that we do everything we possibly
can? Now, I have talked to your people and they tell us, and I
think you sort of acknowledged it, that the HIG will be used
domestically. It won't only be for international. But that is
accurate, it may very well be used for domestic----
Mr. Mueller. Yes.
Mr. Wolf. So I think that is where I go. And I read the
interview and I read the stories of the fellow Piro. He's a
great guy, but how long did Piro have with Saddam?
Mr. Mueller. Months.
Mr. Wolf. Months.
Mr. Mueller. Months.
Mr. Wolf. Months. But he understood the culture. He
understood--I can still remember the time that former
Congressman and Secretary Richardson met with Saddam Hussein,
when he put his sole up and Saddam got up and walked out.
Culturally that was not appropriate. So to have someone who
understood the culture and the language--and the point is they
were probably very good people, but there are probably people
that are better in the country and in order to make sure that
America is safe and secure, I think we should do everything we
possibly can.
Let me ask you some questions----
Mr. Mueller. Can I respond if I could to a couple of
aspects of that?
Mr. Wolf. Sure.
Mr. Mueller. First of all, with regard to military
commissions and the support of military commissions for the
trials that Judge Mukasey argued for, I believe the President
has the authority and the right to determine where a person is
to be tried, whichever. And I also believe that the most
important thing we need to get is intelligence to prevent
additional attacks and we want the best possible people doing
interrogation, as soon as possible.
The one thing I do think is lost in some of this dialogue
is that one has to make decisions relatively quickly in order
to maximize the opportunity to get that information and
intelligence, and oftentimes where the opportunity is greatest
is after the arrest. And most police officers, I think, will
tell you that that is the time where you have the greatest
opportunity to obtain the information you need.
I would have liked to have gotten out to Detroit. The plane
came in around 12 o'clock. Abdulmutallab is at the hospital at
2 o'clock and we have got a very small window of opportunity to
interrogate him before he goes under surgical procedures. I
could not get an expert on Nigerian radicalism at that point. I
could not get somebody from Quantico who does this for a living
at that point. And the individuals were selected for their
capabilities to do those interviews.
And what is lost in the dialogue is that we were relying on
the people in the field who were doing this and reacting to a
number of stimuli that come through either what is happening at
the scene, what is happening dramatically, what is happening
right after the scene, or the willingness for the person to
talk at that particular time. And I think what our people did,
and cannot be lost in the future, is to keep the opportunities
open as long as you can but take advantage of those
opportunities when they are presented to us.
Mr. Wolf. Sure, I agree with that. And I think it's
important not to browbeat and go after--my dad was a
Philadelphia policeman--not to go after the people who were on
the scene. That is not the point. The point is what do we learn
by that? And I think the article--and I wish I still had it. We
will submit it for the record. I think what Judge Mukasey was
asking for was not that he be tried in a military tribunal. I
think he felt, and I could be corrected here because it has
been a long while since I have read it, that he be held as an
enemy combatant for a long time that would have given an
opportunity for your very best people to have interviewed him
and then after that he could have gone to an Article III.
So I think it's an issue of timeliness and length of time.
And, listen, I have great respect. I mean the policemen or the
person at that moment, you get these silk stocking lawyers from
the big firms that come in and make a value judgment. That man
or woman on the street at that time has to make a very tough
call--and I respect that.
What do you think about the idea--and I have sent a letter
down to the administration. I did not send it to you because on
some of these I don't send it to the Bureau because it is a
political judgment to a certain extent, but what I did was--and
I talked to John Brennan and I sent a letter to the President's
Foreign Intelligence Advisory Board, to the Secretary, to
former Senator Boren and also Senator Hagel, both good people,
asking them to look into the possibility of co-locating, the
HIG at the Counterterrorism Center so that they are there at
that very moment when something is coming in and also when you
are out there at the center, the breaking down of the barriers
because they are in the same cafeteria together. They kind of
know each other and relationships develop. What are your
thoughts about locating it there?
Mr. Mueller. Well, I think you are aware from past
discussions that I am a firm supporter of the National
Counterterrorism Center. Early on we were one of the first
occupants. I moved our Counterterrorism Division from FBI
headquarters out there so that we co-located with NCTC and
other elements of the Intelligence Community. I would have
liked to have had the HIG located there. We talked about
getting space there. And my understanding from the response of
those discussions is that they are stuffed to the gills and we
could not get the space there for what we wanted to do.
I can tell you we are operating out there, putting together
our HIG. Our people are out there today. But we needed
additional space that they could not accommodate. Ideally it
would have been nice but now the space that we do have, which I
think you are familiar with, also gives us space that we can
move in relatively quickly and also is well on its way to being
SCIF'ed, and so that was a consideration. I agree with you.
Ideally I would like to have them there but they did not have
the space.
Mr. Wolf. Okay. They tell me they actually won't get into
their current place until August 1.
Mr. Mueller. I would love to have another building----
Mr. Wolf. Well, I am going to continue to push this because
I think it is a bigger issue, and let me say, I am also going
on record--having complimented you and your people, I also want
to compliment Michael Leiter and the group at the
Counterterrorism Center. If everyone who writes a critical
article or makes a comment could go out there and spend a day
and look at the number of things that come in every day and
then to boil that down, I felt that there was maybe a political
decision made that was wrong, but the fault was really not out
there. And if you begin to browbeat the people out there, you
begin to get them so skittish that they are going to make a
mistake sometimes. So anyway I am going to continue to push to
see if we could have it relocated there.
The administration has been unwilling to share with the
Congress any details about the Nation's new interrogation
policy, and based on the Christmas Day bomber case it looks
like there is some confusion out there as to what is the
policy, and so--not generally like a newspaper story but what
is the real policy? So has a charter or an MOU been written for
the establishment of the HIG, and if so, could the committee
see it?
Mr. Mueller. Yes. I think it is being modified to address
the issue of--use of the HIG within the United States and I do
believe there is every intent to provide it to Congress as it
is finished.
Mr. Wolf. Okay. So the modification is so that the HIG will
be used potentially here in the----
Mr. Mueller. Could be, yes. Not----
Mr. Wolf. Well, when----
Mr. Mueller [continuing]. But allows it to be used, yes.
Mr. Wolf. Allowed, sure. Well, when it is available if you
could just submit it for the record----
Mr. Mueller. I believe there is an intent to provide it to
you.
Mr. Wolf. If the deployment is domestic, as the decision
has been made, does HIG still adhere to the rule of
intelligence gathering taking priority over the law
enforcement.
Mr. Mueller. Generally, yes. I would say yes. I think every
circumstance is a little bit different, but one of the things
that the HIG has to do is put together an interrogation plan
that has the input not just from the bureau and others in the
law enforcement community but also input from the Intelligence
Community. So the plan would address that particular issue with
input from the various communities.
Mr. Wolf. Okay. The last question is a budget issue too.
What are the FBI's funding requirements associated with the HIG
and how much are you allocating in fiscal year 2010 and how
much are you requesting in fiscal year 2011 and what does the
FBI estimate a full year recurrent cost of the HIG once it is
fully set up.
Mr. Mueller. We were--we were late in attempting to obtain
the funding in the 2011. It will be in the 2012. As to the
particular figures, I would have to get back to you on that. I
will tell you that the FBI is footing the bill for the space.
We hope to get contributions from the others. And the personnel
will be contributions from the--contributing from various
associated agencies.
[The information follows:]

Big Budget Numbers

The FBI is bearing the initial administrative costs for the HIG in
FY 2010; however, participating agencies are bearing the cost of the
salaries and related expenses (travel, transportation, etc.) for their
agencies' personnel. The initial costs of facility build-out and
personnel cost of the HIG Director is approximately $6 million.
There was no specific request for HIG funding in the President's FY
2011 Budget. By the time the Interrogation Task Force concluded, and
recommendations were sent to the President, decisions on the FY 2011
Budget had already been made. The FBI will work with participating
agencies to identify and relay funding requirements through appropriate
channels to the Department of Justice, the Office of Management and
Budget, and Congress.

Mr. Wolf. Will that be based on the number like if there is
overhead and everything like embassies do abroad, will that be
if you have three people, you will pay a percentage of it or
how will----
Mr. Mueller. I would like to split it up as much as I can.
But I want to get as much input, whether it be from the
perspective of people or funds, from other agencies who are
participating, but I did not want to hold up the process as we
went through this.
So I have got the people on the ground. We have got the
experts together. We are well on our way. And with the building
blocks, my hope is I would have contributions from other
contributing agencies, and then my hope is that we would have
something in the 2012 budget that would make this a continuous
budget item down the road.
Mr. Wolf. Okay. Mr. Chairman, I have other questions, but
since we are on that issue, I will just kind of end with that
and go back to you.
Mr. Mollohan. Mr. Ruppersberger.

DEVELOPMENT OF THE NATIONAL SECURITY BRANCH

Mr. Ruppersberger. Director, first I do want to
congratulate you and all the men and women who work for the
FBI. You do a good job. Our job in oversight, we have to look
at certain things that we think how we can do better. One of
the issues I want to talk about is your national security
branch. You know, the intelligence is one of the best defenses
against terrorism and we need to really focus on that.
In the beginning when the national security branch stood
up, I was concerned it was more of the culture which is
supposed to be of the FBI--investigate, arrest, and convict.
But when you are dealing in the intelligence arena you need a
certain kind of culture and collecting and analyzing and issues
like that. Then there were some problems with certain people
leaving, whatever, but I understand that the national security
branch is really coming together pretty well, and could you
explain where you are on that.
Mr. Mueller. Yes. First of all, I do think that because you
are an FBI agent and well versed in law enforcement techniques,
that does not mean you cannot utilize those skills to develop
intelligence. And I do believe early on, our organization,
agents, analysts, and professional support understood that we
had to prevent terrorist attacks, and that is a result of good
intelligence, not necessarily putting people in jail.
The caliber and quality of the intelligence analytical
corps has dramatically improved over the last several years.
Actually, Harvard Law School is doing a study, and has looked
at us under the microscope in terms of an organization going
through change, and we had a professor go out and visit offices
he wanted to go to. He visited them 2 years apart, and he came
back and he basically said, This is a different, completely
different analytical corps than I saw 2 years ago.
I do believe that the quality of our products, the ability
of a Special Agent in Charge of a division to look at what is
happening in his or her domain and understand the intelligence
threats and then task persons to collect against the gaps that
we don't have has dramatically improved.
Mr. Mueller. The areas in which we still need improvement
are to continue to grow our analytical corps and the persons
who can support that analytical corps; and data input and the
tasks that are necessary to accumulate the data that can then
be analyzed. The other side of it is data aggregation and
better search tools on the IT side.
So those are the areas in which we still need to drive
forward, again, continuing to improve our analyst capacity with
additional personnel as well as improved information
technology.

JURISDICTIONAL ISSUES BETWEEN FBI AND DHS

Mr. Ruppersberger. Now, you were a prosecutor years ago and
then in this role, so you knew law enforcement pretty well.
Anyone who has been in law enforcement understands sometimes
there are turf battles, whether they are Federal, State or
local.
What I am concerned about--because I am on another
subcommittee, Appropriations with Homeland Security--is really
the issue of who is in charge with respect to the FBI and
Homeland Security. If I were the President, I would have the
FBI in charge, by the way.
There have been turf battles that I have been aware of and
whatever, and these were years ago, but I think it is really
important that you and Secretary Napolitano really focus on
where we are and on who is in charge of what, not only in
Homeland, but you are talking cybersecurity, as an example.
The President gave a directive to Homeland Security that
they are supposed to be involved in dot-com and dot-gov. I see
Homeland Security as having so many missions on their table
that I don't know how they are going to accomplish all of them,
and I think there are 22 different areas that they have to deal
with.
I am really focusing more on the issue of terrorism and on
how you deal with them on that issue.
Secondly, if you could address the cyberattack. We know
cyber is a very serious issue. It is a serious threat to our
country, to our businesses. Yet Homeland Security has a long
way to go in order to be able to develop the programs that are
necessary to deal with this issue. I feel more secure that NSA,
who has the military side, has the technology--they need to
know where it goes--but I think Homeland Security has a ways to
go.
So, in working together with them on those two issues, how
are you dealing with Napolitano? Do you have any
recommendations on who should be in charge of what or who
should have certain responsibilities?
Mr. Mueller. I don't disagree. There has been some
ambiguity, let me say, in terms of certain areas when it comes
to terrorism, most particularly in terms of the delivery of
information to State and local law enforcement. In the past
there has been confusion as to their relationship with fusion
centers, which have been established in every State, generally
through the Governors and the Joint Terrorism Task Forces.
Almost everyone I know defers to the Joint Terrorism Task
Forces when it comes to action.
Mr. Ruppersberger. Can I stop you there?
I think that the Joint Terrorism Task Force is probably our
best defense right now against terrorism because of the strike
force concept. You are in charge, and you know you are in
charge, but you have disciplines from every major agency in the
United States there to fight terrorism. So I think it is a
great program.
Mr. Mueller. And I believe that that is acknowledged.
The issue that we are working out with DHS, and we are
doing it jointly, is the relationship of the fusion centers to
Joint Terrorism Task Forces. No two fusion centers are
necessarily the same. They are different. They have been
established often for different purposes in different aspects
of the local government. Our effort is to contribute to the
success of the fusion centers and also to make certain that
fusion centers are contributing to the success of the Joint
Terrorism Task Force, and we are doing that jointly with DHS.
Very briefly, on the cyber side, our role is investigating
cyber attacks, preventing cyber attacks. Our principal vehicle
to do that is the National Cyber Investigative Joint Task
Force, which has the contribution of any number of agencies,
including NSA, to identify particular threats and to
investigate the sourcing of those threats and attribute them to
either a country, an individual or a group of individuals. That
is our role.
I think it is relatively clear that we do not have a role
in protecting dot-com, dot-edu or the rest. That is DHS's
responsibility. I do believe that our role, and the principal
role that we should play--and I think we play it fairly well--
is to bring to the Cyber Task Force arena what we have learned
and have utilized in the Joint Terrorism Task Force arena.

HOMEGROWN TERRORISTS

Mr. Ruppersberger. Another area is homegrown terrorists.
When you are looking at what we are doing throughout the
world--and I think our military, our CIA and NSA are doing a
really good job in other parts of the world, but more and more,
I am concerned. We are getting information that we are going to
see homegrown terrorists, and it already started just last
week, and then we had the Colorado issue. You know, there are
certain people who might be in certain minority populations or
whatever who have been treated very poorly throughout their
whole lives, and who are very much vulnerable to having an al
Qaeda-type situation recruit them for jihad or whatever.
How are you dealing with homegrown terrorists? What is your
opinion on the homegrown terrorist issue?
Mr. Mueller. I do not think you can really attribute
homegrown terrorists--I would call them lone wolves--to any
particular segment of any society. Abdulmutallab had one of the
best educations you could get in the U.K. He came from a very
wealthy family, and he was not homegrown, quite obviously.
Mr. Ruppersberger. Part of my question, and where I am
leading, though, is like the woman who was----
Mr. Mueller. Yes, I know. She is the one who was just
arrested, ``Jihad Jane.''
Mr. Ruppersberger. Right.
Mr. Mueller. There are a number of ways that we do that. We
try to pick up on communications, whether it be the Internet or
otherwise, in which a person has gone from First Amendment
protected activity to undertaking some attack. We have a number
of tripwires around, whether it be in chemical companies or in
weapon shops, where we ask people to alert us to persons who
may display the characteristics of somebody who may utilize a
weapon or explosives to kill others.
It is the most difficult thing we address because you don't
have the opportunity to pick up on communications. You don't
have the opportunity to pick up on persons who may be on the
periphery to this to whom this person may have talked, and it
is the biggest single threat that we face in the
counterterrorism arena in the United States.
Mr. Ruppersberger. Sir, I have one more question. Do I have
any time left?
Mr. Mollohan. You are fine. Continue to march.
Mr. Ruppersberger. Okay. I want to talk about domestic
gangs. Gangs are a serious problem in this country.
Mr. Mueller. It is also in the domestic terrorism arena. In
1995, McVeigh blew up the Oklahoma City building. That is still
the type of domestic terrorist incident that can kill many
people and that we have to be alert to. So it is not just
somebody who follows an international terrorist ideology; it is
also somebody who is much more domestic oriented.

THREATS FROM GANGS

Mr. Ruppersberger. Okay. The issue of gangs. Gangs are a
very serious problem. A lot of times you have children in
middle school who are being recruited for gangs. There is a lot
of reason for that. Their family lives are not very good, and
the gangs become their families, but there are a lot of issues
there.
What do you feel are the biggest threats for gangs and
which gangs at this point? I mean, you have Crips. You have
Bloods. You have MS-13. It is on the east coast, west coast and
in a lot of parts of the country.
The other issue, too, is that we have spent so much money
on terrorism, and we have not spent as much money on drugs, and
drugs probably still impacts more people in this country in a
negative way than terrorism does. It is unfortunate that we
have not been able to give the resources to drugs that we
should. And that ties into some of the gang issues, too,
because a lot of the gangs are dealing with drugs, prostitution
and that type thing.
Mr. Mueller. We have doubled, if not tripled, Safe Street
Task Forces since 2001, which have, in my mind, the same types
of capabilities that Joint Terrorism Task Forces have. Gangs
have proliferated since the last time we were here. I am not
certain that hundreds of thousands of the percentage of growth
in gangs, but gangs have proliferated over the last several
years. You mentioned a few. MS-13 is still bloody and violent.
The other aspect that we have seen is where gangs used to
be fairly localized and then became nationalized, now they are
internationalized. We have close working relationships--for
instance, if you talk about MS-13--with El Salvador, Honduras,
Guatemala, and Mexico, because there are substantial components
of those gangs operating in those countries. We have a task
force down in El Salvador now that focuses on the MS-13 gangs,
because it is a revolving door between El Salvador and the
United States. It is true with many other gangs at this point,
but we have asked, and have received over the last several
years--and I believe we have a request in this budget--for
additional capabilities when it comes to addressing the gang
phenomenon.
Mr. Ruppersberger. Okay. Thank you for your testimony.
Mr. Mollohan. Mr. Serrano.
Mr. Serrano. Thank you, Mr. Chairman.
Welcome, Mr. Director.
Mr. Mueller. Sir.

NEW AGENTS VISITING THE HOLOCAUST MUSEUM

Mr. Serrano. Prior to asking you a couple of questions,
does the FBI still continue the practice of bringing new agents
to the Holocaust Museum?
Mr. Mueller. Yes, sir.
Mr. Serrano. Just to have you on the record once again,
because you know I am a big supporter of that action, could you
tell the committee why you think that is important, why the
Bureau thinks that that is important?
Mr. Mueller. The worst thing that can happen to law
enforcement or, for that matter, to an intelligence agency is
to lose sight of the fact that the public has given you an
immense amount of power to exercise. They give you a badge and
a gun, and you have tremendous power to affect persons' lives.
It is important that each of our agents, analysts and others
understand that power, and, most particularly, that you have an
obligation not to abuse that power. So the trip to the
Holocaust Museum is to impress upon people what can happen when
you lose sight of the authority you have been given and the
constraints upon that authority to do good.
Mr. Serrano. Well, I thank you. I thank you for that
statement, and I wanted to put you on the record again, because
I think it is really something that is very, very important and
something that I commend you for.
Mr. Mueller. Let me just check on one thing, if I may. I
haven't been asked that question in the last few months. I
wanted to make sure I was right when I said absolutely. If they
discontinued it, I didn't know about it. But no, it is firm
that that is the case.
Mr. Serrano. Well, I am glad they didn't.

WHITE COLLAR CRIME

In past hearings we have discussed publicly, you and I, my
concern and the concerns of others that the focus on the war on
terror, which is extremely necessary--at the top of our list--
would take away from the whole issue of the war on white-collar
crimes. In view of what happened on Wall Street, and in view of
what happened to our economy, we know that some people have
been convicted and have gone to jail who had certain dealings
within our economy, but as for so-called insiders, to my
knowledge, none have been indicted or convicted.
So, first, am I correct? If not, then what has happened
there to make people like me feel that while we are fighting
the very important and necessary war on terrorism, we are not
short on resources or on man/womanpower, if you will, to fight
the other wars that we have to fight? The drug war is also
included in that.
Mr. Mueller. We have been given additional resources for
white-collar crime, and we requested additional resources in
the 2011 budget, but we have probably close to, the last I saw,
2,900-some--I am sure it is up to at least 3,000 or over in
terms of just mortgage fraud cases. We are not talking about
corporate fraud, securities fraud, other fraud. This is just in
mortgage fraud cases.
Now, our effort has been to identify those cases with
losses in excess of $1 million, and we have taken the most
serious cases and are running with them. We have set up a
number of working groups and task forces around the country to
enlist State and local support, but also to triage the cases,
attempting to get State and local law enforcement to follow up
on cases that we don't have the resources to meet and to track.
We would like to be dealing with more, but the fact of the
matter is, that there are so many out there that we can't reach
all of them.
We have been very successful in the cases we have brought,
and we have brought cases against insiders. We have brought
cases against banking executives and securities firms
executives. We currently have a number of pending prosecutions
of high-profile persons who have abused their trust at the top
of various organizations.
I would be happy to give you more of a breakdown of the
number of indictments and the number of persons and what we
have done. I cannot tell you that we are able to do all we
would want. We do have to triage, but it is much like that
which we saw immediately after 2001-2002 when we had a series
of corporate cases--Worldcom, Healthcom, Enron--where we had a
substantial challenge to get through those cases in the same
way we are going through these cases now.
Mr. Serrano. So, when you say you wish you could do more,
is that because there is so much out there that it is hard to
keep up with all of it, which is a terrible sign, or is it that
there is a shortage of resources?
Mr. Mueller. It is a shortage of resources. We can use many
more forensic accountants. I can use far more agents who have
spent time on Wall Street, who know Wall Street, who have done
well--I mean, the good agents from Wall Street who know Wall
Street.
Mr. Serrano. I got worried for a minute.
Mr. Mueller. We do have a number of those. They help to
prosecute them because they know the ins and outs. It is always
a question of resources, and I think we are making a
substantial dent in the workload, but yes, it is always a
question of resources.
Mr. Serrano. Now, at the expense of getting the obvious
answer, which is that it is a great relationship, what is the
relationship between the Bureau and the Securities and Exchange
Commission in terms of their turning over information to you or
their doing some legwork, if you will, if that may help you?
Mr. Mueller. There has been a wholesale change at the
Securities and Exchange Commission. The individuals who come
over to take over the investigative side of the Securities and
Exchange Commission are former Assistant United States
Attorneys, who have worked well with the FBI over the years and
with whom both we and the Department have a very close
relationship.
There is one area I know we are working closely on, and
that is making certain that documents that are subpoenaed by
one entity go to a database so that, if there is authority for
the other entity to have those documents, you don't have to
replicate what had been done by the previous entity. It seems
basic and simple, but we have been working with them so that
there is a common database structure. When we pull in
documents, we want to ensure that they can be utilized and
searched, given the appropriate authorizations by the FBI and
the Securities and Exchange Commission, and then be ready for
the prosecutors. That has not always been the case.
That is just a small example of an area we are working on
to make certain that we coordinate the civil on their side with
our criminal activities.
Mr. Serrano. Thank you.

HATE CRIMES ENFORCEMENT

Let me take you over to the area of hate crimes. As you
know, the President has signed new legislation that covers
issues that we needed to cover in this area. There is also the
concern that many of us have about hate crimes directed at
immigrants or having to do with the whole immigration issue. As
we get closer, hopefully, to an immigration reform bill, I
think there will be more people acting out their anger and
their hate and their differences with the immigrant community.
Also, if this economy doesn't turn around quickly, there will
be more feelings somehow that immigrants are causing problems.
So, in general, as to the issue of hate crimes, what can
you tell me about the involvement of the FBI? Again, is the
Bureau in the situation where it can't do as much as it would
want to do for whatever reasons--resources or that it is just
focusing in on the war on terror?
Lastly, what kind of requests, if any, are you getting from
local authorities on issues that they feel they need FBI
involvement?
Mr. Mueller. Well, we have augmented our agents and our
focus on civil rights in general, of which hate crimes, quite
obviously, are a strong part.
As I believe you are aware, we had an initiative looking at
the civil rights cases that had been unaddressed for 40 or 50
years, and that initiative we have been involved with for now 2
years. We have had some very successful prosecutions even
though they are 30 or 40 years after the events themselves took
place.
But when it comes specifically to hate crimes, we generally
back up State and local authorities. They want to handle them.
If we do not believe they are being handled appropriately, we
and the U.S. Attorney's Office will move in to make sure they
are handled appropriately. It is not an overwhelming workload,
and we should be available, because if we are not available to
do that, nobody is.
So we have not seen, I don't believe, an uptick in hate
crimes, although, with the new legislation, we undoubtedly will
see an uptick in the numbers, and we will have to address
those.
The other thing I would say we are pressing on is when it
comes to reporting the numbers for the reports that we produce
in terms of crime up and down and the like. State and local law
enforcement have not been amongst the leaders in terms of
reporting hate crimes, and so we continuously push State and
local law enforcement to record that so that we have some
accurate accounting throughout the country as to what is
happening with that type of criminal activity in the same way
we do with rapes and murders and robberies and burglaries.

RECRUITMENT IN DIVERSE COMMUNITIES

Mr. Serrano. One last point and question, Mr. Director. In
the past, at public hearings, in private and over the phone, I
have discussed with you incidents where I have felt that the
Bureau was taking actions that I thought were unfair--not
taking actions, but things that have happened historically
about the treatment of certain communities by the FBI in
general. For the record, you and I have discussed this, and I
believe it has been very helpful, for instance, in releasing
documents about 60 years of FBI behavior towards the Puerto
Rico independence movement and so on.
Having said that, you know I have great respect for the
Bureau, and I have great respect for you, and I think that
anyone who is a member of the FBI is a person who should be
proud of the work they do. So, with that in mind, every chance
I get, I encourage people from my community to consider the
Bureau as a career. So I bring the question of recruitment.
How do you recruit these days? Where are you recruiting
these days? Are you recruiting? How do people from communities
like mine, both the physical community and the racial and
ethnic community that I represent, get a shot at joining the
Bureau?
Mr. Mueller. Everybody has a shot at joining the Bureau.
I will tell you, though, that it goes back to what I say
about the power that one has when you give one the authority of
being an FBI agent. We generally take persons who have had
another career beforehand. In other words, the most important
criterion, in our mind, is judgment, maturity and integrity in
terms of becoming an FBI agent. Consequently, we don't do as
well as other agencies who recruit out of college, and it is
for the reason that we believe that the Bureau is enhanced by
having persons with a number of skills. It can be military. It
can be police. It can be a teacher. It can be an accountant. It
can be, in this day and age, somebody with regional expertise
or languages. But generally, they will be 3 or 4 years out of
college when they come to us. We have recruiting drives for
particular specialties.
I will tell you I think last year we had something like
73,000 individuals who sought to become special agents, but
that does not mean that we want you to, in any way, reduce your
encouragement, your recruiting a person from your community. We
need the representation of every person in this country.
Mr. Serrano. Well, I am considering a next career at this
point.
Mr. Mueller. I can give waivers.
Mr. Serrano. I am glad you cleared that up about 3 or 4
years out of college. The way you were saying it, for a while
it sounded like the Bureau was going to have a lot of older
people. I am glad you cleared that up.
Thank you so much, Mr. Director.
Thank you, Mr. Chairman.
Mr. Mollohan. Thank you, Mr. Serrano.
Mr. Fattah.
Mr. Fattah. Thank you.
Let me first applaud your efforts. I wrote to you about
this whole mortgage fraud area over, I think, 2 years ago and
about the fact that these numbers of cases are, well, quite
close to 3,000 now, up from, I think you testified in your
written testimony, 400. So, from 2003, I think it is
extraordinary and important, and I note that there have been
significant arrests in Pennsylvania, in and around
Philadelphia, and I am very pleased that the FBI has been quite
aggressive on this matter.
I want to go through a couple of things.

TERRORISM INTERROGATIONS, CONTINUED

One, your long public service from your days of leaving the
Armed Forces goes over any number of Presidencies; as best as I
can count, you know, Ford, Reagan, Bush I and II, Clinton,
Carter, and now President Obama. So you have served in a
variety of capacities. You took this job a few days before 9/
11. Since that fateful day, you have done a great deal to make
sure that our country could be safe, and you should be
applauded for that.
Given your entirety of your experience, I know there is
probably some discomfort about the criticism about how we are
handling some of these cases now, and I just want to go back
over some material because I think that you said--and I want to
make sure that we get it on the record--that no arrests in the
United States of America are being handled any differently for
suspected terrorists since 9/11 up until this moment; is that
correct?
Mr. Mueller. With the rest of the United States, we have
followed essentially the same procedures, yes, sir.
Mr. Fattah. So, in fact, what is being criticized by this
Christmas Day activity is kind of like somehow we played a weak
hand. From my read of this, it is not actually true. That is to
say that what you had was you had a suspect who was injured--
that is, an explosive went off, and he was injured--and before
he could get medical treatment, surgery, he was questioned to
make sure that there was no other immediate public danger. Then
he went into surgery. When he came out of surgery, as many who
have been in surgery, he was less responsive. Then after that
point, he became more responsive and has been cooperating.
Am I mischaracterizing that in any way?
Mr. Mueller. No. I think--and that is accurate. The only
thing I would say is that after he came out of the medical
procedures--I am not sure it was surgery, but there were
certainly medical procedures----
Mr. Fattah. Whatever it was. Okay.
Mr. Mueller [continuing]. He was suffering burns, and that
he was less responsive that evening than he had been before in
terms of answering questions.
Mr. Fattah. Right; but that the notion that somehow he was
being coddled just doesn't square with the facts in this
instance.
Mr. Mueller. I am sorry, sir. I had not heard that word.
Mr. Fattah. Well, coddled. There has been a lot of
criticism that he is being treated--you know, that we should be
so much more aggressive somehow, you know, like we have been in
the past with the shoe bomber. But your testimony is that this
is exactly the same way these matters have been handled?
Mr. Mueller. I think they have been handled pretty much
identically, yes, sir.
Mr. Fattah. Okay. I want to just cover one other thing.

CIVILIAN TRIALS FOR TERRORISM SUSPECTS

Now, there has been a lot of discussion about trials. You
are aware and you testified about all of the threats facing the
country from the national criminal enterprises, you know, both
the Albanian mafia and the African criminal organizations. You
can go through a whole list. We have domestic terrorists and
the drug cartels. We have had a lot of trials in America.
Mr. Mueller. Yes, sir.
Mr. Fattah. So you have an expert view about the threats
that face our country.
Is there any circumstance in which you would advise our
country that we couldn't put someone on trial that we had
captured because we would be unsafe? I mean, have we gotten to
the point where these threats outweigh our pursuit of justice,
and that the FBI could not protect an American city in which a
trial was taking place?
Mr. Mueller. I think we are getting a little bit beyond
where I feel comfortable testifying. It is really speculative.
Mr. Fattah. Okay. Well, you can see, heretofore all of the
cases that have gone on, and there have been some 300 trials of
terrorists in the country. Have there been incidences where
those trials were taking place in which Americans have been
harmed or have been under some threat?
Mr. Mueller. Not to my knowledge.
Mr. Fattah. Okay.
Mr. Mueller. That is to say I don't believe any have been
harmed. As to say under a threat, I can't speak to that because
I am not familiar with the circumstances, but I am not aware of
a person's being harmed or of any serious threats in the course
of one of those trials.
Mr. Fattah. You just had very significant success today, in
terms of the Mumbai attacks, at a trial in which someone was
found guilty of the attacks in India where 136 people lost
their lives, right?
Mr. Mueller. Well, I believe there is an individual who is
going to plead guilty----
Mr. Fattah. Pled guilty.
Mr. Mueller [continuing]. Either today or tomorrow.
Mr. Fattah. Today. You have been in here. I have been out
there.
Okay. So, you know, what I am saying is that we are going
after drug cartel leaders, and we are going after people
involved in criminal enterprises in a variety of ways. I just
want to be clear because there is a lot of political dialogue
as to whether we could put someone on trial in New York City or
not. Rather, we have gotten to the point--in many developing
countries, you know, putting someone on trial is a dangerous
thing. You know, it could be a problem. I just thought in the
United States of America that we would not be in a position
where we would be fearful of taking someone who had harmed
American citizens and of putting him before the bar of justice.
Mr. Mueller. I understand your concern, Congressman.
Mr. Fattah. Thank you very much.
Mr. Mollohan. Mr. Schiff.
Mr. Schiff. Thank you, Mr. Chairman.
Thank you, Mr. Director, for being here.

DNA AND FINGERPRINT ANALYSIS

I have two questions. The first is an issue of great
concern to hundreds of jurisdictions around the country,
dealing with the backlog of DNA profiles collected from crime
scenes and offenders. In Los Angeles, as you know, the LAPD and
the sheriff's department have backlogs of several thousand
sexual assault kits. In order to close those backlogs, the city
and county have often outsourced their samples to private labs.
You know, that has been helpful, but there is now a second
backlog that has been created because once the samples come
back from the private labs, the city and county need to do a
technical review of every case to ensure that the private lab
did the job right.
So, last year, for example, with the Chairman's help, we
got $500,000 for the City of Los Angeles to get through the
backlog. They used that money to contract out. They got through
the backlog by contracting out, but now they still have not
uploaded them in CODIS because of this 100 percent technical
review requirement.
That doesn't make sense to me for a couple of reasons. One,
it is expensive. Two, none of the technical reviews have come
up with any errors that I am aware of in terms of the private
labs. Three, you could have a 100 percent requirement of a
technical review where there is a match made once it is
uploaded into CODIS. Therefore, only when it is actually
utilized do you need to go through, you know, what looks
increasingly like a redundant step.
So my question is: Is this really necessary? Can't we
really cut down on the backlog, really at no expense, by
eliminating this 100 percent review requirement except in a
case where it is a hit in CODIS where it could actually make a
difference? That is the first question.
The second question on mentoring. One area we have tried to
make progress in dealing with circumstances where sex offenders
take advantage of volunteer programs is to have a system of
screening volunteers for mentoring programs. Congress tried to
accomplish that goal first with the National Child Protection
Act of 1993 and later with the Volunteers for Children Act.
Youth-serving organizations got access to FBI checks working
with their States. Still, though, more than two-thirds of the
States don't have a workable, affordable system for youth-
serving organizations to screen the people who want to
volunteer with them.
In 2003, we passed the PROTECT Act, which was a national
pilot, allowing youth-serving organizations to conduct national
fingerprint-based background checks. The FBI has now run, I
think, 60,000 checks through the pilot. In 6 percent of those
cases, they have turned up criminal records of serious concern.
For example, the pilot identified an applicant who was a
registered sex offender for having intercourse with a child
under the age of 15, but because he was applying in a different
State, only a national check would have turned up his record.
These checks can be conducted for a fee of less than $25.
I have introduced legislation, with the support of Chairman
Conyers, the Child Protection Improvements Act, which is
bipartisan legislation to build off the success of that pilot
and to put in place a permanent fee-supported system to ensure
that every child-serving organization has the ability to
quickly and cheaply do these checks. Senator Schumer introduced
identical legislation in the Senate, but the bill has been
stymied, notwithstanding bipartisan, bicameral support, in
large part because we were told, despite repeated requests to
the DOJ and the FBI, no formal comment has been offered on the
bill, so they are reluctant to move the bill without having the
DOJ or the FBI weigh in one way or the other, we like it and go
forward, or we don't like it and would like to see it fixed.
So I wrote, along with Senator Schumer, Congressman Mike
Rogers, Senator Hatch, to the Justice Department, asking for
the Department's views on the bill, and we still have not heard
back. If you could get us an answer, let us know whether you
support it so we can move forward, or if you think things need
to be changed in it, let us know that, too.
Mr. Mueller. Addressing the second question first, I will
say I will carry back to the Department of Justice your request
for their views on that particular legislation. I understand
the importance of that legislation, but I will carry the
request back to the Department of Justice.
[The information follows:]

Views on the Child Protection Improvement Act

The FBI does not have any comments at this time. Any Department of
Justice or Administration views will be provided through the normal
Executive Branch legislative review process.

Mr. Schiff. Well, I think, you know, they are going to be
principally interested in what is the FBI's view on this
because it implicates the FBI more than any other part of the
DOJ.
Mr. Mueller. If it is a question of additional name checks,
we can handle that. If it is a question of who pays, then that
is another issue altogether. I don't know the ins and outs of
the bill. I would expect that someplace in there the cost of
doing this is a factor in somebody's view, but we do millions
of name checks now. We are through our name check backlog, and
I can't imagine that that would be a substantial issue for us,
but I don't know what other issues there might be. In any
event, I will take it back to Justice and try to get back to
you on that.
Mr. Schiff. Thank you.
Mr. Mueller. On the DNA backlog, and from the dialogue we
have had over the years on the DNA backlog and on the ingestion
of the samples, addressing, first of all, your question in
terms of the request for quality control and where it is
reviewed by a separate set of experts before it is put into
CODIS, we are looking at that.
My expectation is we will remove some of those hurdles in
the very near future. I know that has been an issue. I know you
raised it yesterday with the Attorney General. It is one we
have been looking at, and we want to remove the obstacles to
the providing of those samples to CODIS. So I think we will be
able to get back to you relatively shortly with what we hope
will be a fix in that area.
[The information follows:]

Answer on Fix for the DNA Technical Review Problem

Many law enforcement agencies collaborate with private laboratories
for analysis of their DNA samples. The FBI Laboratory is currently
reviewing its existing policies, standards and protocols, to include
requirements for outsourcing DNA analysis to private laboratories and
review of their results by public law enforcement laboratories, to
enhance NDIS efficiency. Private laboratories are and will continue to
be an integral part of the process and a contributor to the success of
NDIS. The current policy assessment will engage both public and private
laboratories in identifying ways to enhance these contributions.

More generally, I would say that the backlog that we have
had in terms of processing DNA samples will be reduced to
almost nothing by September. We now ingest, I think it is,
25,000 samples a month. Now we will go up to 90,000 a month
given the resources that were appropriated for us back in 2009.
We have now brought those persons onboard. We are reorienting
how we do things, and we are also using robotics in ways we
have not in the past so that, by September, our hope is that
there will be no more than a 30-day delay in ingesting any new
samples that come in regardless of the amounts that have
tripled or quadrupled over the years, as I know you understand.
Mr. Schiff. Do you know where the backlog is now? What kind
of numbers do you have?
Mr. Mueller. I would have to get back to you on that. I
have charts showing the elimination by September, but where we
are right now in March, I would have to get back to you on it.
Mr. Schiff. If you would, which would be where we are now
compared to a year ago----
Mr. Mueller. Yes.
Mr. Schiff [continuing]. And how fast we are processing
them as compared to a year ago. That would be very helpful.
[The information follows:]

Update on DNA Backlog

As of March 2010, the backlog of offender samples at the FBI
Laboratory was 298,749 samples. One year ago, the FBI Laboratory's
capacity for analyzing offender samples was less than 700 samples per
month. Because of enhancements and technology improvements, the
capacity of the FBI Laboratory for offender sample analysis has
increased in the past year to approximately 25,000 samples per month,
with the eventual goal of analyzing approximately 90,000 samples per
month. With the capacity of 90,000 samples per month, the FBI will be
able to analyze all samples received with a 30 day turnaround time once
the backlog is eliminated. At this time, the FBI anticipates the
backlog will be eliminated by fall 2010.

Mr. Schiff. I would like to work with you also on a couple
of related issues. One is the lack of uniformity in the loci
that we look at and those that others in Europe and other parts
of the world look at. Our databases can't talk to each other
because of that. I would love to see if we could work on an
international effort to harmonize, you know, what part of the
DNA strand we look at to compare.
The arrestee issue, which the President recently spoke in
favor of, we would love to try to advance.
Finally, a couple of other, I know, controversial issues,
but the running of partial DNA as well as----
Mr. Mueller. Familial DNA.
Mr. Schiff [continuing]. Familial DNA, both of which I
support and think make sense, which will take violent people
off the streets, and I think we can have the right safeguards
in place not to violate anyone's privacy.
So I look forward to working with you on those issues.
Thank you.
Mr. Mueller. I do, too.
If I might add, of the universe of samples that are to be
ingested in, we also look at what we are going to have to do to
ramp up to obtain those samples.
The other thing I would say, in terms of working with
Europe, one of the biggest concerns we have with Europe is
their privacy rules that inhibit dialogues and discussions in
terms of exchanges and the capability of identifying criminals
who populate both our side of the pond and the other side.
Mr. Fattah. Will the gentleman yield?
Mr. Schiff. If I have time, yes.
Mr. Fattah. I know in the European Union, all of those in
law enforcement have been cooperating one to another in between
their various countries on all of this.
Are you saying that, in terms of interacting with us, there
is still a ways to go?
Mr. Mueller. Yes, but in terms of the action amongst
themselves, it is the lowest common denominator. Then it is a
question of if they have different views on privacy than,
perhaps, we do, and that becomes a problem when the law
enforcement elements of both countries want to work things out
and exchange information.
Mr. Schiff. Thank you, Mr. Chairman.

LAW ENFORCEMENT IN INDIAN COUNTRY

Mr. Mollohan. Director Mueller, it is well established and
sad fact that public safety services in Indian Country are
severely lacking, the result being that the criminal
victimization rate on tribal lands is significantly in excess
of the national average. I know you know that, and I know of
the kind of scarce resources you are dealing with as you
address that problem.
A Native American living on reservation lands can expect
fewer police officers, longer emergency response times and
higher crime rates than the average person living outside of
Indian Country. I know that I am not alone in finding these
disparities disturbing and unfair.
I am pleased to see that this administration, the
Department of Justice and the FBI are all supplementing the
increased resources provided by this committee last year to
address this problem.
I know it is further disturbing, fundamentally disturbing,
that the victims and the targets of these crimes are
predominantly women. Because of the jurisdictional issues,
there are structurally difficult questions about going into an
investigation and helping to provide law enforcement activities
in Indian Country. But there is also just a fundamental lack of
resources, too.
So can you describe the trends the FBI has seen in the
level and types of crimes committed in Indian Country over some
reasonable period, say, over the last 5 years?
Mr. Mueller. I will probably have to get back to you with
specific statistics on that.
Mr. Mollohan. You may submit that for the record.
Mr. Mueller. I will do that.
[The information follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Mr. Mueller. I can tell you I have tried to corral off the
resources the Bureau is putting into Indian Country. From
September 11th, I had to reassign a number of criminal agents.
I have left the same numbers of criminal agents working in
Indian Country since that time, but it still is inadequate. It
is not enough.
When you say crimes against women, it is crimes against
women and children. We take the most serious ones, but it is
inadequate, and I am not certain ultimately that we in the FBI
can satisfy the need for police services in Indian Country. It
is going to take other organizations to be ramped up and to
have the training and the capability of addressing crimes on
Indian reservations as well as ourselves. It is an issue that
we try to address with the resources that have been allocated
to it. We have requested additional resources and are getting
some, but it still is not necessarily adequate to the crime
that we have seen grow over the last several years.
Mr. Mollohan. I commend you for your request for additional
resources, and I can assure you that this subcommittee is going
to be inclined to be responsive.
On a practical level, as I understand it, there are over
200 individual reservations and you have, approximately, 100
officers to cover those 200 reservations.
Does that sound right?
Mr. Mueller. That is correct. That is correct.
Mr. Mollohan. I guess it just prompts me to ask: What can
you expect to accomplish when you are spread that thin? I mean,
on the face of it, that is inadequate.
Mr. Mueller. What we accomplish is we address the most
serious cases with the United States attorneys, but our agents'
work is stretched. Their caseloads are unbelievable. The time
they spend away from their families and other life to provide
the services to the Indian Country is truly remarkable, but
every one of them thinks that they are contributing
substantially in the work that they are doing; but we are
overstretched.
There are others with the State and local authorities who
may have some concurrent jurisdiction who are also
overstretched, but we do what we can with the resources that
are allocated to it. The one thing I have made certain is that
they have not been reduced even though we have the first
priority of stopping the next terrorist attack.
Mr. Mollohan. Here, if you are able to provide it
accurately, or for the written record, how would you compare
your law enforcement presence in Indian Country to your
presence in comparably-sized rural areas?
Mr. Mueller. I think it really would be difficult to look
at apples and oranges. There are areas in the far West where we
have very, very low coverage, but where the population is
fairly low. I would have to get back to you in response to that
question.
[The information follows:]

Comparison of Agent Coverage in Indian Country to Coverage in
Comparably-Sized Rural Areas

The FBI does not currently have this data available; however, the
FBI has been specifically appropriated funding for 70 Special Agent
positions to address its responsibility to investigate crimes in Indian
Country. The FBI has supplemented those 70 specifically appropriated
positions with additional Violent Crime Special Agents and has
consistently dedicated over 100 agents full-time to investigate crime
in Indian Country over the past 10 years. In addition to the full-time
dedicated Indian Country agents, over 40 Special Agents work part-time
on Indian Country cases. The majority of the Special Agents working on
Indian Country cases are assigned to small rural Resident Agencies.

Mr. Mollohan. Maybe this would be an even better
comparison. How about the areas where crime rates are
comparable to those in Indian Country? In other words, where
are the areas with comparable crime rates to crime rates in
Indian Country, and how do you compare your coverage in those
areas to Indian Country?
Mr. Mueller. I would have to get back to you on that.
[The information follows:]

Comparison of Agent Coverage in Indian Country to Coverage in Areas
With Comparable Crime Rates.

The Bureau of Indian Affairs submits crime data within Indian
Country to the FBI's Criminal Justice Information Services Division
(CJIS) in aggregate at the end of the year, which is published in the
FBI's Uniform Crime Report. The crime data submitted only reflects
crimes where the sentence is less than one year (due to sentence
limitations within the tribal communities). Therefore, it is not
possible to compare the level of FBI resources dedicated to an Indian
Country region with the level of resources dedicated to a similarly-
sized region elsewhere in the country with a similar crime threat.

Mr. Mollohan. Did you follow that?
Mr. Mueller. Yes, sir.
Mr. Mollohan. Okay. Good.
President Obama's budget request proposes to add 45 new
agents to your Indian Country program. As I understand it,
those agents are to be funded out of the Bureau of Indian
Affairs.
Why that arrangement? Why aren't the requests for that
increased number of agents in your budget?
Mr. Mueller. I would have to get back to you on that, sir.
I am not familiar with the intricacy of that arrangement.
Excuse me. Just a second.
I would have to get back to you on that. I do believe that
we want to prioritize it, but we have the white-collar crime,
terrorism and the like. Consequently we are looking for support
in terms of adding agents for this particular responsibility.
We have the same understanding when it comes to health care
fraud, for instance, with other departments--HHS--so we are
hoping to have--
Mr. Mollohan. Transferring the money to pay for your
agents?
Mr. Mueller. Yes.
Mr. Mollohan. Well, I don't know. Maybe with health care or
white-collar crime, there are spikes in these areas, so maybe
it makes sense to fund them out of other budgets. It doesn't
make sense to me for these agents to be paid for from the
Bureau of Indian Affairs because I don't think there is any
contention that this is a spike that is going to go away. I
think funding them in the Bureau of Indian Affairs creates the
situation where you are not building your base, and where those
dollars could disappear very easily.
Different subcommittees have different priorities and
different demands on their dollars. I think we would rather see
this funding particularly included in your request so that it
becomes a part of your base, and so that there is a consistency
and a dependability about the availability of the agents we are
able to increase who are dedicated to these assignments.
Mr. Mueller. I will have to get back to the committee on
that, sir.
[The information follows:]

Official Response on Why the Indian Country Agents are Being Funded
Through BIA

Twenty-five percent of all violent crimes prosecuted by United
States Attorneys occur on Indian Reservations. As of March 2009, the
FBI had over 2,300 pending cases, of which 75 percent involved
homicides, sexual/physical abuse of children, rape, and aggravated
assault. Given the large geographic size and complexity of federal laws
in Indian Country, coordination between FBI and BIA is critical. The
reimbursable funding through BIA fosters such coordination. The FBI
believes additional resources are imperative to combat crimes in Indian
Country, whether they be directly funded or through a reimbursable
program.

Mr. Mollohan. I would like to get some other information
highlighting the problems in Indian Country. The FBI budget
request also proposes to add two forensic examiners to your lab
to address evidence processing for Indian Country cases. Two
forensic examiners. The budget notes that the 164-day average
turnaround time for Indian Country cases is so lengthy that the
results are often useless for purposes of intelligence and lead
generation. I mean, there is almost an inadequacy to the point
of not being able to really provide the service in Indian
Country. So we are very pleased to see this requested increase,
and I think we will be very responsive to it.
If you know, give us for the record how the 164-day average
turnaround time for lab case processing compares to the labwide
average turnaround for evidence processing?
Mr. Mueller. I would have to get back to you on that.
[The information follows:]
lab-wide average evidence processing turnaround time
The average turnaround time for Indian Country casework in Fiscal
Year 2009 was 168 days. The average turnaround time for all casework
completed by the FBI Laboratory in this same time period was 274 days.

Mr. Mueller. Also, one of the things we had requested is,
yes, additional examiners in the FBI laboratory, but there are
other laboratories that are closer to Indian Country that might
provide the same services if they had funding.
Mr. Mollohan. Okay. Well, we will certainly look at it from
that perspective as well.
My understanding is that the violent crime rate in Indian
Country is about two-and-a-half times higher than the national
average, and that 25 percent of all violent crimes prosecuted
by U.S. Attorneys occur on Indian reservations. Seventy-five
percent of the FBI's 2,368 current cases in Indian Country
involve homicides, child abuse, as you pointed out, or violent
assaults. They are really just terrible statistics. We
appreciate the fact that the administration is focusing on it,
and we look forward to being responsive to that.
Mr. Serrano asked a number of questions about white-collar
crime, so we have some questions for the record that we will
submit there to supplement those.

SENTINEL

Mr. Mollohan. One last line of questioning, Mr. Director. I
understand that the FBI has recently discovered some problems
with phase 2 of the Sentinel program, which will affect the
budget and the schedule for both that phase and, perhaps, for
the overall project. That news, of course, makes everybody
nervous because of the experience with Sentinel's predecessor,
the Virtual Case File.
What are the problems? What is the nature of the problems
that we are experiencing with Sentinel?
Mr. Mueller. Let me start by saying that we sent in the
requirements for the system back in, I think, 2005, and the
contract was let in 2006.
I believe we put in the first phase in 2007. It is a
successful system in that we have a number of agents who are
already using it out in the field. Phase 2 was to go to the
field at the end of 2009, the beginning of 2010 in terms of
pilots. We have delayed that, and that delay is attributable to
basically three reasons. Over a period of time, both the
technology, as well as our business practices, have changed,
and the users have looked for additional items in phase 2 that
had not been, and could not have been, anticipated back in
2005.
Mr. Mollohan. Added requirements from the agency?
Mr. Mueller. Yes, but not large-scale requirements; they
were rather minimal requirements, but before we pushed it out
into the field, we wanted to make certain that we maximized the
usability so it would have a high degree of user acceptance. To
the extent that we have had it out in the field, it already has
a high degree of user acceptance.
The three issues were, first of all, some design changes
from the perspective of the users that we have been very
reluctant to do, but these make some sense. Secondly, there are
issues relating to coding that we needed to address before we
sent it out. Thirdly, there are system requirements that we
wanted to make absolutely certain that we had in place so that,
when we rolled it out, it would be successful. So the pilots
that we anticipated rolling out just about now or a little bit
before now----
Mr. Mollohan. For phase 2?
Mr. Mueller [continuing]. For phase 2, will be rolled out
this summer. We had expected to have the whole system completed
in 2010. It will push the system completion into 2011.
But I can tell you I am the one who made the decision to
delay until we got these issues addressed, and I am comfortable
and confident that the system is working. It is a good system
and will be beneficial when we are through.
Mr. Mollohan. Phase 2 is a good system, and it is working?
Mr. Mueller. Yes, which is completely different from our
previous experience, which I would not want to replicate in any
way in the future. I can also say, with our contractor, while
there have been issues, we have a very close relationship. Both
ourselves and Lockheed want to make certain this works.
Mr. Mollohan. Well, let me ask questions about that. The
problems that you have described, are they agency problems
because of added requirements, or are they contractor problems?
Mr. Mueller. There are certainly problems on both sides.
This is always the case in something like this.
Mr. Mollohan. How does that impact the question of the
award fees?
Mr. Mueller. We are in discussions with the contractor on
that right now. We partially halted the continued work on
phases 3 and 4 until these issues are resolved.
Mr. Mollohan. Can you describe those? What are those issues
that you are talking about?
Mr. Mueller. The three that I described.
On the one hand, there were certain things that users
requested. Secondly, there were coding issues. Thirdly, we
wanted to make certain that the system, when it goes out, meets
the infrastructure requirements.
Mr. Mollohan. Do those changes to the contract and the
requirements have a budgetary impact?
Mr. Mueller. They will. What size? I cannot tell you at
this point.
Mr. Mollohan. But it has a budgetary impact?
Mr. Mueller. It will increase the cost, yes. In looking at
it, we believe we can address those costs with what we have in
our budget; but again, that is something that we are discussing
with----
Mr. Mollohan. In the 2011 budget request, do you propose to
pay for those increased costs as a result of these problems?
Mr. Mueller. We are at the initial stages of determining
exactly----
Mr. Mollohan. Well, we have your request.
Mr. Mueller. Pardon?
Mr. Mollohan. We have your 2011 request. Is it contained in
it?
Mr. Mueller. No, it is not.
Mr. Mollohan. Is it possible that you would pay for some or
all of those cost increases through--what do you call the
payments--the reward fees, the performance award fees?
Mr. Mueller. Yes. There will be give on both sides. Let me
put it that way.
Mr. Mollohan. So those discussions are ongoing?
Mr. Mueller. Yes, they are ongoing.
Mr. Mollohan. Otherwise you would be looking at a
reprogramming?
Mr. Mueller. I am not certain the vehicle we would use, but
we will keep what we have to date, and we will continue to keep
you apprised.
Mr. Mollohan. Right now you are holding back a portion of
the contractor's fees perhaps as a means to pay for it?
Mr. Mueller. We have partially stopped the work on phases 3
and 4 until we get satisfactory resolution of the issues that
we won't resolve before we move it.
Another point I might make is that our experience in the
past is we had one solid contract. You either lived or died in
that contract. After phase 1, we went into an incremental
development where we decided to develop phases so we could
accept a particular phase before we moved on to the next phase,
and so we could make certain that it met our expectations. This
is exactly why we went to incremental development as opposed to
the development process we had used before.
Mr. Mollohan. You expect to have this system up and
operating by?
Mr. Mueller. Well, the system is operating now.
Mr. Mollohan. Okay.
Mr. Mueller. For phase 2, the pilots will begin this
summer, which will be pushed out to the field as a whole.
Basically this is the largest phase. The most momentous part of
the project is phase 2. Phases 3 and 4 will follow relatively
quickly after that.
Mr. Mollohan. It sounds like you are on top of it.
Mr. Mueller. One has to stay on top of it weekly,
absolutely.
Mr. Mollohan. Mr. Wolf.

GANG ENFORCEMENT

Mr. Wolf. Let me ask you a couple of questions because we
do have a vote, and I will submit.
On the gang issue, the committee plused up the gang issue.
The National Gang Intelligence Center has determined that gangs
are active in every State of the Union, and that 39 of the
gangs have been identified as national threats. In 2008, 58
percent of the local law enforcement agencies reported that
criminal gangs were active in their jurisdictions, an almost 30
percent increase since 2004. The committee included a
significant increase of $25 million above your request to
specifically address this issue.
Could you tell the committee how many Safe Street Task
Forces exist? How many additional agents and task forces will
be added as a result of the fiscal year 2010 increase? Is this
a top law enforcement priority?
Mr. Mueller. Excuse me just 1 second.
I needed to know the background from those who are more
knowledgeable with the figures. Approximately 13 million is
going to additional personnel. We intend to establish three new
Safe Street Task Forces, and to augment the Safe Street Task
Forces we already have. As I mentioned before, and I can get
you the statistics, we have doubled, if not tripled, the number
of Safe Street Task Forces we put up in the last several years.
Mr. Wolf. But is the money used in a way--because as you
recall, there had been a request that maybe you use the same
approach that was during used during the 1960s with regard to
organized crime, that this becomes a major effort, that you
actually have someone in the Bureau who is focusing like a
laser beam, because if you live in a neighborhood where you are
terrorized by gangs, in essence that is a form of domestic
terrorism that the people can't really live and----
Mr. Mueller. We certainly have a gang intelligence center.
We have gang task forces. But what we have come to understand
is we need fusion centers focusing on particular gangs. And as
I think you are aware, we have a specific MS-13 Task Force with
persons operating not just in headquarters, but also in the
various communities like yours, but also Los Angeles, adjunct
task forces in places like El Salvador.
So we have focused on gangs in general, but we also are
pushing to make sure that we focus on particular gangs and take
out the leadership and, to the extent possible, remove those
gangs from particular neighborhoods. I think we have had some
success in neighborhoods in northern Virginia, for instance.
And I know that the new Assistant Director in Charge has, as
one of the mandates, to work very closely with you to address
that continuous phenomenon that we see there.
Mr. Wolf. Okay. Hopefully, we can continue the additional
funding. Again, if somebody is living in a poor neighborhood,
they fear for their family. What impact do you see in the
killings that took place in Mexico the other day, that violence
spreading across the border?
Mr. Mueller. We have had pockets of violence spreading
across the border; in particular, when it has come to
kidnappings, cross-border kidnappings, San Diego, El Paso,
Juarez, San Diego, Tijuana. And we have task forces in both of
our cities to address that. This occurred on Saturday afternoon
and we are working very closely with our Mexican counterparts
to identify the persons responsible and assure that they see
justice.
I sent an inspector down to take charge of combining the
resources, not just the FBI, but DEA, ATF, and others who wish
to participate to address that circumstance. This is the first
instance that we have seen, I believe, of individuals
associated with the American Consulate in Juarez attacked in
such a brazen manner.
Mr. Wolf. Did the car have a Texas license, a U.S. license
plate, the car that----
Mr. Mueller. I am not sure whether it did or not.
Mr. Wolf [continuing]. That the people who were murdered
were in? Was that an American car----
Mr. Mueller. I would have to get back to you on the
specifics. But in one car there were two individuals murdered.
In another car there was one individual murdered. His family
was actually in another car, but both those cars had come from
the same birthday party on that day.
[The information follows:]

License Plate on Car Driven by Consular Employee Murdered in Juarez

The license plate of the vehicle driven by the American citizen
victim was a Texas license plate, and the license plate of the vehicle
driven by the Mexican national victim was a Mexican license plate.

Mr. Wolf. Okay. I would be interested to know if they were
U.S. license plates, embassy license plates or Texas license
plates. There are a number of other questions I will ask on
that.

TERRORIST RADICALIZATION

The radicalization issue, over the last year or so, we have
seen a disturbing trend of terror attacks planned and carried
out by individuals, including Americans, who had been
radicalized often through contact with violent Islamist
influences. The Fort Hood killings, the Christmas Day bombing,
now Jihad Jane, and others, Mobley, the fellow the other day,
Mobley. There have been reports in recent days of Americans
being detained in Yemen, Pakistan, and other countries. Does
this represent a significant shift in the terrorist threat
facing the Nation, and how is the FBI adjusting to counter
these new developments?
Mr. Mueller. I think those in the Intelligence Community,
including ourselves, would say there has been a shift in the
degree of concern about affiliates of al Qaeda growing in
strength and presenting a more enhanced threat to the United
States. By that I am talking about the FATA, the Federally
Administered Tribal Areas--Waziristan, western Pakistan,
eastern Afghanistan--which has been the heartland of al Qaeda
and still presents a threat. We saw with Najibullah Zazi, the
individual from Denver who went back to New York, and
anticipated attacking the New York subways back in September.
He was recruited and trained in Afghanistan.
We also are concerned about Yemen individuals. In the last
year, year and a half, an individual, Bledsoe, who was
responsible for the Little Rock shootings of the military
recruiters, one of them died----
Mr. Wolf. Did he have contact with Awlaki when he was in
Yemen?
Mr. Mueller. He was in Yemen at the time. He was in Yemen
and then came back to the United States, but was radicalized in
Yemen. Abdulmutallab originated in Yemen. We have a number of
ties now with Yemen; so Yemen is an issue as well as Somalia.
And we have had a number of individuals from communities in the
United States who have traveled to Somalia to train and to
fight with al Shabab, and we have continuing concerns about
that being exported back to the United States.
So those are three focal points of our concerns overseas,
and then we have, quite obviously, what we discussed before,
homegrown terrorists who have been radicalized on the Internet
or otherwise.
Mr. Wolf. Does it trouble you that there are 50,000
Americans living in Yemen today?
Mr. Mueller. I think that is the case. Many of them are
dual citizens, but I believe it is that many.
Mr. Wolf. And the Bureau is dealing with that insofar as--
--
Mr. Mueller. Yes. Not just the Bureau, but in terms of
identifying individuals who may have been radicalized in Yemen
and want to come back to the United States and undertake
terrorist attacks, we are attempting to identify those persons.
We are also attempting to identify persons who were radicalized
by Awlaki or others overseas; never traveled overseas, but were
radicalized to the point where they want to undertake terrorist
attacks in the United States.
Mr. Wolf. I am going to submit others for the record. I am
just wondering who do you think is doing a better job with
regard to the radicalization issue? Does Great Britain do a
better job than we do? We used to hear the story, well, that is
a problem over there, but we don't have the problem. Now we see
Jihad Jane from Philadelphia. I mean, I read your bio. You are
from the Philadelphia area. She is from Pennsburg, I think it
is. We see the five now in Alexandria. We see Major Hassan, a
Virginia Tech graduate, born here.
Are we doing everything we should? And maybe there should
be a development of a different approach. Clearly what we used
to say is no longer the case because it is a problem. Are you
thinking deep insofar as how do we deal with this from a
different way that we continue to adjust because maybe we were
not doing as well as maybe people said we were in comparison to
other countries?
Mr. Mueller. Well, I do think there are somewhat different
problems that the U.K. faces where it has communities that have
been alienated, and to a certain extent, I guess you would say,
dispossessed, and they are focused on deradicalization in many
of these communities.
We have diverse communities of Muslims in the United
States, and we are all immigrants, and we have immigrants from
any number of African countries, Middle Eastern countries and
the like. So there are very few areas that you can look at and
say, okay, these are pockets----
Mr. Wolf. Correct. I am from an immigrant family, too. The
tie is green, and my grandfather could barely speak English. He
was German. He had a German bakery in south Philadelphia. What
I meant was the radicalization. Jihad Jane was not from Yemen.
She was from the United States, born and raised, and so that is
what I am talking about from that perspective. You find Mobley,
who--I think he was.
So I am talking about a radicalization of a domestic
population that we hadn't thought of before. You had me
confused thinking that in England they talk about the Pakistan
community. I am talking about domestic recruitment of people
who were born and raised here in the United States that
normally you would not think, because if you look at--I looked
at the Senate Foreign Relations Committee. They talked about a
number of ``blonde hair, blue eye'' types moving to Yemen who
had been radicalized in prisons. So to think a little bit
differently--and we don't have enough time. Maybe we can talk
about it. Are you open to seeing if there is some other way to
kind of deal with that?
Mr. Mueller. Absolutely. And we have looked at places of
radicalization, points of radicalization, prisons, for
instance, with the Federal as well as State and local prison
systems, the various communities, and working with the leaders,
outreach in the communities.
But I will tell you the one that is most worrisome is the
Internet. I think everybody will tell you that the influence of
the Internet not just in radicalization, but moving from
radicalization to organization to undertaking terrorist
attacks, is the greatest, most serious phenomenon that has
resulted, I believe, in many of the radicalization cases we
have seen in the United States. It has not been the communities
or persons in the communities, it has been the Internet.
Mr. Wolf. Right. Well, maybe you can have someone come up
and we can see--there may be something that the committee can
do with regard to giving you some resources to kind of deal
with that issue.
Mr. Mueller. Thank you, sir.
Mr. Wolf. Anyway, thank you. I will have questions for the
record, too, Mr. Chairman.
Mr. Mollohan. Thank you, Mr. Wolf.
Mr. Schiff.
Mr. Schiff. Thank you, Mr. Chairman.

FIREARMS TRAFFICKING

I will be real quick, and then we are going to have to run.
But is there any indication in the case of the three that were
killed in Mexico that came from the same party that they were
targeted because they were American, or do we still not know
whether it was a case of mistaken identity?
Mr. Mueller. I think it is too early in the investigation
to reach a conclusion. I know there has been speculation in the
media, but I do believe it is too early to reach any
conclusion.
Mr. Schiff. On the broader issue of guns going down to
Mexico from the United States, I know this is an area where ATF
probably has primary jurisdiction, but what do your agents tell
you about the willingness of U.S. Attorneys to prosecute these
cases, even cases that may involve straw purchasers that are
fairly low on the hierarchy, but nonetheless might lead to the
prosecution of those enlarged--those engaged in the larger gun
trafficking?
Mr. Mueller. I have not heard the attitude of U.S.
Attorneys. Periodically I hear that judges would just as soon
not do gun cases in Federal court, but it has been some time
since I have actually been in Federal court, but that is what I
picked up. I am going to meet with the U.S. Attorneys next
week, and that is something I will try to remember to mention
to them, but I have not heard one way or the other.
Mr. Schiff. Please let us know if they need the resources
to do it or they need the encouragement to do it.
Mr. Mueller. I can tell you they will tell you they need
the resources to do it.
Mr. Schiff. I am sure that is right.

FOLLOW-UP ON THE ROBERT HANSSEN CASE

Very quickly, and you may need to get back to me in writing
on this, but in my prior lifetime as an assistant U.S.
Attorney, I prosecuted the Miller spy case. So I followed with
great interest the Hanssen case and now the Aragoncillo case.
The inspector general did a follow-up report on some
recommendations that were made after Hanssen about changes the
FBI could make to improve its ability to ferret out people who
were attacking the FBI from the inside, and the follow-up--the
recent follow-up assessment found that there were several very
important recommendations that had not yet been implemented,
including the establishment of a new unit detailed--or
dedicated exclusively to internal penetration; there was the
need to have a need-to-know system; the computers, which had
probably been set back by the Virtual Case File system,
Sentinel problems. But also one of the key concerns in Hanssen
was Hanssen's ability to walk out of the FBI headquarters with
these classified documents undetected, and the IG also found
that the FBI Information Assurance Program didn't address that
key concern.
Can you respond back to us in writing and let us know where
FBI is in----
Mr. Mueller. I think that is at least 2 years ago, I may be
wrong, that IG report. But I know, for instance, we have had
that unit in place for a period of time, and we have addressed
the other concerns that the IG had. But overall, in terms of
the recommendations in the wake of Hanssen, we have adopted, I
would say, 90, 95 percent of them. These were several, and I
think very few given the overall suggestions that were made,
that we had to close up, but I do believe they were closed.
[The information follows:]

Progress In Responding To IG Report On Hanssen Follow-Up

In September 2007, the Department of Justice Office of Inspector
General issued a special report entitled ``A review of the FBI's
progress in responding to the recommendations in the Office of
Inspector General Report on Robert Hanssen.'' Of the 21 recommendations
issued, only nine still remain open. The FBI is working diligently with
the Office of Inspector General to resolve these issues, and will keep
the Committee apprised of the status.

Mr. Schiff. Thank you.
Thanks, Chairman.
Mr. Mollohan. Director Mueller, thank you very much for
your testimony here today, and thank you for your service to
the country and the service of all your employees at the FBI.
We will have some questions for the record, and I know you will
respond to them.
Mr. Mueller. Thank you.

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Thursday, March 4, 2010.

BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES

WITNESS

KENNETH MELSON, DEPUTY DIRECTOR, BUREAU OF ALCOHOL, TOBACCO, FIREARMS,
AND EXPLOSIVES

Opening Statement of Chairman Mollohan

Mr. Mollohan. The hearing will come to order. Good morning,
I would like to welcome Kenneth Melson, Deputy Director of the
Bureau of Alcohol, Tobacco, Firearms, and Explosives to discuss
his agency's fiscal year 2011 budget request.
We are pleased to have you here, Mr. Melson, and thank you
for your time. I would like to note for members of the public
who may be present that Mr. Melson, as Deputy Director, is
currently heading the agency since the director position is
vacant.
While we are here today to discuss all aspects of your
budget request, I suspect that a significant portion of
collective conversation will focus on firearms trafficking
enforcement and your efforts to control the movement of weapons
across the U.S./Mexico border.
This Subcommittee has provided you with more than $100
million over the past few fiscal years to address an ever-
growing case load of border related trafficking investigations,
and we are pleased to see some positive results coming out of
this effort.
ATF agents have achieved more than 800 convictions, seized
almost 7,000 firearms, and trained nearly 900 Mexican law
enforcement counterparts through your Southwest Border
programs.
As valued as these successes are, however, much work
remains to be done to rein in the violence being perpetrated by
Mexican drug cartels on both sides of the border.
In addition to the focus on your Southwest Border mission,
I do also expect the conversation to touch on a few of your
other program areas this morning. One of particular interest to
me is your regulatory program, which has experienced some
challenges since your split with the Department of Treasury.
The general public relies on the timely issuance of regulations
to protect public safety, and regulated businesses rely on the
timely issuance of regulations to guide their commercial
behavior. Neither group is well served when the regulatory
process becomes unnecessarily bogged down.
I know this is an area that ATF has been focused on
improving for a few years now, and I am anxious to hear about
your progress.
I am sure other members have a variety of other topics they
will raise with you, and we look forward to having a lively
exchange.
Your written statement will be made a part of the record.
Before you begin with your summary of your remarks, I would
like to call on Mr. Culberson for any introductory comments he
may have.

Introductory Remarks by Mr. Culberson

Mr. Culberson. Thank you, Mr. Chairman. Director Melson,
thank you for being with us and particularly for the service
that you and all of the officers that serve with you do for the
Nation to help protect us, we generally do appreciate it and
commend you for all that you do.
You are requesting an appropriation of $1.16 billion, an
increase of $42.2 million or 3.8 percent. And considering what
the scope of your responsibilities are it is actually not that
substantial because a good portion of that money is simply to
maintain staffing levels that were provided in the Stimulus
Bill for Project Gun Runner to address illegal firearms
trafficking along the southwest border, which is a terrible
problem. There is sort of an undeclared war going on along the
southwest border on the Mexican side that has been a continuing
catastrophe and a real concern, and we appreciate the good work
that you and your officers are doing along the southwest
border.
But the Committee would be interested to hear about the
progress the ATF has made with Gun Runner and what the next
steps are in the fight against the drug cartels.
And on behalf of Ranking Member Wolf, he also will have
some questions about the substantial increase above the request
that the Committee provided in fiscal year 2010 for the anti-
gang activities of the Violent Crime Impact Teams, something
that is vitally important language that Mr. Wolf put in a
number of years ago.
Again, welcome, we thank you for your service and look
forward to hearing your testimony.
Mr. Mollohan. Thank you, Mr. Culberson.
Mr. Melson, your written statement will be made a part of
the record.

Opening Remarks of Deputy Director Nelson

Mr. Melson. Thank you. Mr. Chairman, Mr. Culberson, thank
you so much for allowing us to come today to discuss our budget
request for 2011 for the ATF. On behalf of the men and women of
ATF I would like to convey our appreciation to the Subcommittee
for your interest in our mission and our activities to help
protect the American public.
I would like to particularly thank you for your support in
our 2010 budget submission. We are aware that you have many
competing priorities and are cutting the budget up to serve all
those, which is a difficult task.
As Mr. Culberson indicated, for this coming year, we are
requesting $1.16 billion. The request includes $1.15 billion
for current services and $12 million for building ATF's
capacity to carry out its law enforcement missions.
As you know, ATF's primary mission is to protect our
community from violent crime and terrorism by investigating and
prosecuting, with the help of the U.S. Attorney's Office, the
illicit use of firearms and explosives. The synergy between our
regulatory authorities and investigative expertise makes the
ATF the pre-eminent agency for investigating firearms and
explosives.
You may know that we have approximately 601 industry
operation investigators, what we call IOIs, who are responsible
for inspecting approximately 115,000 Federal firearms
licensees, and 11,000 explosive licensees around this country,
which is a total of 126,000 licensees that we have to inspect.
These inspections help us identify possible diversion of
firearms and explosives from legal commerce to illicit
activities thereby producing leads for criminal investigation.
Many of the 126,000 licensees do not get inspected for five
years or more because of a lack of ATF personnel. This really
hampers our ability to conduct inspections that help us protect
the American people by providing leads to law enforcement to
take crime guns out of the hands of criminals.
The complementary nature of our regulatory and criminal
jurisdictions is evident in our history of successes with
investigating bombings, including the identification and the
arrest in 2009 of a suspect in West Memphis, Arkansas who had
used a bomb to attempt to kill Dr. Trent Pierce.
Similarly, we have a long and proud history of
investigating arsons, including the rash of church arsons in
Alabama several years ago, and more recently the church fires
in Texas.
I would also like to note that ATF proudly shares our
explosives expertise with our state and local partners as well
as with the Department of Defense through our training in
Virginia and the National Center for Explosives Research and
Training in Huntsville, Alabama.
You know that a recent OIG report made recommendations to
clarify the jurisdictional issues between ATF and the FBI with
respect to bombings. I want to assure the Subcommittee that the
ATF and FBI have agreements in place which clarify our roles in
the vast majority of cases which we work together. And we are
working diligently with the Department of Justice and the FBI
to address these areas which remain in need of clarification.
ATF has worked successfully with the FBI for over 30 years, and
we will continue to ensure the safety of the American people.
Another core mission of ATF is to deny organized crime its
profits by stopping the illegal diversion of tobacco products,
which are depriving the states and localities of approximately
$5 billion in tax revenue a year.
For example, in one recent case, the ATF and the Fairfax
County, Virginia, police department dismantled an organization
that trafficked more than $2 million worth of contraband
cigarettes to New York. This organization was also involved in
money laundering and bank fraud, and had solicited an
undercover agent to murder two of its own members.
For the first quarter of this fiscal year, fiscal year
2010, ATF seized $21 million in crime proceeds in tobacco
cases. Our Budgetary Division Unit for tobacco cases for the
entire year is only about $20 to $22 million, suggesting that
even after equitable sharing and administrative costs these
investigations will be paid for by the recovery of illicit
crime proceeds.
With respect to firearms, ATF has the expertise and
experience to combat the threat to public safety posed by gangs
which use guns to carry out their illicit activities. Thus ATF
has led many successful investigations against well known
street gangs like the Crips, the Bloods, and MS-13, as well as
outlaw motorcycle gangs. We have established Violent Crime
Impact Teams, known as VCITs, in some of the Nation's cities
most impacted by violent crime to help identify and arrest the
worst of the worst criminals, including gang members. We have
31 VCITs currently in such cities as Richmond, Virginia;
Birmingham, Alabama; Camden, New Jersey; and Houston and
Laredo, Texas.
Our regulatory authority and investigative expertise are
also directed at dismantling firearms trafficking networks.
Through the use of trafficking schemes, criminals divert guns
from lawful commerce to be used in illicit activities. Firearms
trafficking networks extend throughout the United States and
affect communities nationwide.
In recent years ATF has focused its attention on these
networks, particularly those that exist primarily to supply
weapons to the Mexican drug cartels.
Between fiscal year 2005 and 2009, ATF has had a
significant impact on firearm trafficking in the Southwest
Border states.
ATF has recommended for prosecution 900 cases involving
2,034 defendants. 497 of those cases have charged violations
relating to trafficking an estimated 14,923 firearms. In all
the investigations, over 6,680 firearms have been seized and
are no longer available to the Mexican drug cartels.
Of the additional funding we are seeking for fiscal year
2011, approximately $11.8 million is to annualize 37 positions
we received in the American Recovery and Reinvestment Act to
establish Project Gunrunner teams in New Mexico, California,
and Texas. The annualization of these positions is necessary
because we were not provided the base funding for the salaries
or operational requirements of the three new Project Gunrunner
locations.
The fiscal year 2011 budget cycle is the first opportunity
we have had to ask for that annualization. Absent that
annualization we would suffer an $11.8 million operating
deficit.
We are also asking for approximately $2 million in
additional resources for our participation in the National
Response Framework, which is a federal strategy for providing a
unified national response to national disasters and acts of
terrorism.
During the past five years ATF has funded these efforts
from our base budget; we have received no dedicated funds.
Instead, we have been forced to divert money from other very
important programs to ESF 13.
Mr. Chairman, Mr. Culberson, and others, I thank you again
for the support that you give us and the support of your
Subcommittee. With the backing of your Committee I think ATF
can certainly build on our accomplishments and make our Nation
much more secure.
We look forward to working with you in pursuit of our
shared goals. Thank you.
[The information follows:]

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Mr. Mollohan. Mr. Melson, the recorder records off a live
mic.
Mr. Melson. Yes, and I have the mic on now.
Mr. Mollohan. You do. Okay. Thank you.

PROJECT GUNRUNNER

Project Gunrunner. Update us on Project Gunrunner, talk to
us a little bit about your successes and what the positive
statistics that you have cited tell us about what we are really
achieving with Project Gunrunner and where you think it can
take us.
Mr. Melson. Well, Project Gunrunner has been a very
important part of our southwest border strategy, obviously. It
has allowed us to focus on the trafficking of guns to Mexico,
allowed us to work with our other federal partners such as DEA
and ICE to combat gun trafficking, and has created the ability
for us to have many successes.
For example, just recently in Phoenix we disrupted a ring
that was in the process of taking over 40 AK variants down to
Mexico. We have had great cases and successes in Texas as well
where we have recently taken of a similar number of guns that
were headed towards Mexico.
With the increased leads coming from our tracing and
inspections and the increased personnel that we have, we are
able to build on our investigative capabilities, and I think
that Gunrunner is a very significant effort on our part, with
your support, to combat gun trafficking to Mexico.
One of the efforts we had last year was what we called
GRIT, which was the Gunrunner Impact Team. That was a surge in
ATF personnel in Houston where we sent 100 of our personnel to
Houston for 120 days. It was a combined effort of sending IOIs,
our investigators, down to inspect the licensees as well as
agents to follow up on a backlog of leads that they had in the
Houston area; It was very successful. We were able to arrest
189 defendants, 150 of whom were associated with trafficking an
estimated 644 firearms. We actually seized 443 firearms.
Our leads that we developed out of this led to leads for
local law enforcement and they seized 171 firearms for a total
of 614 firearms over this 120 days.
Mr. Mollohan. Can you put all those numbers in some
perspective for us? What increase does that represent, or what
percentage of the weapons that are in transit to Mexico does
this represent?
Mr. Melson. Well, it is hard to give you a specific
percentage, because----
Mr. Mollohan. No, not specific.
Mr. Melson. We don't know how many guns are going across
the border. Because if we had that information we would be more
likely to be able to interdict them. So we don't know the
universe of guns going across.
Mr. Mollohan. So when you talk about this in your offices
and your strategy sessions, you don't have a sense of what the
scope and scale of the problem really is to beginning with?
Mr. Melson. We know----
Mr. Mollohan. I know you don't know the exact number, but--
--
Mr. Melson. Right, we know the scope of the problem by the
types of seizures that are occurring in Mexico. When they raid
these homes that have caches of weapons in them that gives us
an idea of the number that is going over. And we can be assured
that it is only a minimal number that they are recovering in
Mexico as related to the number that are there. So I think we
are probably only hitting the tip of the iceberg.
With guns going across. It is a multi faceted problem. It
is not just being able to identify the rings that are taking
them across, but it also is going to include, and this is
outside our jurisdiction, the southbound check of people going
into Mexico, which is not traditionally what the U.S. has done.
We usually do the northbound checking, the Mexicans do the
southbound checks.
As part of our southwest border strategy we have been
working very closely with our partners in Mexico. With the
resources you have given us, by the end of this year we hope to
have 19 special agents in Mexico in various consulates and in
our embassy in Mexico City where we are developing very strong
relationships with the federal police, SSP, with the
prosecutors, PGR, with Aduanas, which is the customs people,
and others there so that we can get better intelligence and
better information from their seizures, which gives us leads to
come back to the U.S.
And try and determine----
Mr. Mollohan. Right. My line of questioning right now is
just to get some sense of the scale of this problem. So if you
can't give us a really useful estimate of what percentage you
are seizing of the guns that are going across, give us some
sense of the increase in seizures that Gunrunner has
represented versus pre-Gunrunner days. How many more weapons
are you seizing today than you were seizing before?
Mr. Melson. I will have to get back to you with that
number, but I can tell you in general that it is a significant
increase because of the additional resources we have along the
southwest border.
I think as our resources grow we are obviously going to
seize more weapons. I think there is an unlimited number of
weapons we should seize.
[The information follows:]

Comparison of Weapons Seizure Statistics

While ATF has steadily increased the number of firearms seizures
relating to Project Gunrunner, it is difficult to determine what
percentage of firearms destined for Mexico are actually intercepted.
ATP can, however, illustrate the increase in the number of firearms
seizures as well as the number of firearms traces submitted by Mexico
relating to pre and post Gunrunner enforcement.
The four years preceding the initiation of Project Gunrunner (FY
2002-2005), ATF's four Southwest Border Field Divisions seized 18,267
firearms, as compared to the seizure of 31,157 firearms in those same
Southwest Border Field Divisions during Project Gunrunner (FY 2006-
2009). This represents an increase of more than 70 percent.
In 2009, a total of 53,329 firearms recovered in Mexico were
submitted to ATF for tracing; this is nearly five times the number of
traces submitted in 2008. As of February 1, 2010, over 3,500 firearms
recovered in Mexico have been submitted for tracing this year.

Mr. Mollohan. Okay, well let me get to that, because that
is really my point here. What more could we be doing? This is a
huge problem, particularly on the Mexican side. For the record,
will you get use of those numbers? And I would also like the
numbers on the pattern in Mexico, what they are experiencing
what they are seizing, and maybe estimates about what
percentage of the guns coming across they are seizing. I
suppose they could probably identify the weapons that have come
across, or maybe not. But, any way, give us some sense of the
scale of this problem for the record.
Do you have any requests in this budget to augment
Gunrunner in terms of new programs, new dimensions,
improvements looking forward that you see could be implemented
that would make the program increasingly effective? Like you
said, checking on the southbound traffic, for example.
Mr. Melson. The President's Budget asks for the
annualization of last year's recovery funds.
Mr. Mollohan. How many agents did the recovery funds hire?
Mr. Melson. It gave us a total of about 25 agents for the
recovery. And we need those. And there were additional----
Mr. Mollohan. I'm sorry, how many?
Mr. Melson. Twenty-five.
Mr. Mollohan. So only 25 Gunrunner agents were funded in
the Recovery Act.
Mr. Melson. Well, there were non-agents as well. We had
IOIs--
Mr. Mollohan. Agents and non-agents?
Mr. Melson. Yes.
Mr. Mollohan. Okay.
Mr. Melson. So we had additional Intelligence Research
Specialists (IRS) and IOIs that were down there.
Mr. Mollohan. Okay.
Mr. Melson. And this budget just asked for those
annualizations because they have done great.
Mr. Mollohan. Well, let me ask a question about that. It is
great that you are asking for the annualization. So the
Recovery Act funding was important, obviously, to the Gunrunner
program.
Mr. Melson. Yes, absolutely.
Mr. Mollohan. And you are asking to annualize those 25 new
hires.
Mr. Melson. Yes.
Mr. Mollohan. Why does the budget not ask for additional
agents or other additional personnel for Gunrunner?
Mr. Melson. We are hoping that as our budget goes through
the process in the upcoming years that we may have requests for
that in the budget. I think with more resources down there we
can do a tremendous amount of work on Gunrunner projects and
other programs, and not just along the Southwest Border,
because this has become a national problem.
Mr. Mollohan. Right. So I guess my question is, why aren't
we requesting more resources? If Gunrunner is the signature
program and in your judgment is really having a beneficial
payoff, why aren't we scaling that program up if the problem
continues to exist and we are only seizing a fraction of the
guns that are going across?
Mr. Melson. I think certainly if there were more funding
available we could do a lot more. The President's Budget just
asked for the annualization.
Mr. Mollohan. If we were to look for places to address this
problem, forgetting about the funding for a second, what would
be the most effective effort you could undertake to further
reduce gun running across the border?
Mr. Melson. It would be twofold. One would be for
additional agents not just along the Southwest Border, but
throughout the Nation, because the guns are coming from the
interior as well.
The second is for industry operation investigators. Right
now we have so few to handle so many inspections, which is the
real backbone of our investigative capability. Without the
compliance by the licensees regarding the regulatory matters,
which are designed solely to help us in law enforcement, we
lose a lot of very, very good intelligence.
When we did the GRIT, for example, in Texas, we did in the
120 days with our surge 1,100 inspections, and some of those
licensees had never been inspected before. As a result of that,
we develop relationships with our gun dealers and we develop
intelligence. We make sure there is regulatory compliance,
which assures us that when we recover a crime gun we can trace
it to the first retail buyer, which helps us in our
investigation of these gun trafficking organizations.
The combination of agents and investigators allows us to do
more--we would love to be able to get on a three-year cycle on
inspections. We have a very good relationship right now with
the industry and the organizations that represent the industry.
I think they understand why we do this.
Mr. Mollohan. You are still talking about efforts that
would impact the problem that Gunrunner is focused on.
Mr. Melson. Absolutely.
Mr. Mollohan. Because there are some inspections for which
an increase wouldn't benefit this effort. What is the target
with regard to the inspection aspect of this?
Mr. Melson. Certainly with respect to explosive licensees
that would not necessarily pertain to the trafficking of
firearms going southbound, but all of the other inspections of
dealers would.
Mr. Mollohan. All across the country?
Mr. Melson. All across the country. For example, we just
took down a case from Minnesota where there was an individual
there trafficking guns to Mexico. The State of Washington is a
source state for guns to Mexico. Florida is a source state for
guns to Mexico.
So this is no longer just a Southwest Border state problem.
This is a national problem that we are seeing. Now the more we
squeeze down there, because of your helping us to put resources
down there, the more that activity comes into the interior of
the country.
Mr. Mollohan. Does your budget complement Gunrunner by
requesting additional funds for these inspections across the
territory? It does not?
Mr. Melson. No, not the 2011 budget.
Mr. Mollohan. Okay. Mr. Culberson.

GUN DEALER COMPLIANCE

Mr. Culberson. Thank you, Mr. Chairman, Mr. Wolf. And
following up on some of the Chairman's questions, Director
Melson. The surge that you did in Houston, we have in Texas a
long and proud history of, you know, the right to keep and bear
arms and take a lot of pride in our dealers and owners honoring
the law and following it.
Of the inspections that you performed of licensed gun
dealers what percentage of the dealers that you encounter do
you discover violations of the law that they are not following
the law?
Mr. Melson. Well out of the 1100 that we inspected during
GRIT there were 440 notices of violations. Now those could be
very minor violations, it could be a couple 4473's that are
missing, the forms that you have to fill out when you purchase
a weapon, or they could be a little bit more serious. But 440
violations out of the 1100 inspections; there were 78 adverse
actions.
Nationwide over the period of last year, about 53 percent
of the inspections discovered no violation whatsoever, and less
than one percent of licenses were revoked as a result of
serious violations that affected public safety.
I don't believe that the firearms dealers are the primary
source of the problem in the U.S. with respect to a knowing
involvement in providing guns for trafficking going south.
Their important role for us is the regulatory compliance,
making sure that their acquisition and disposition book is in
order, that they do the 4473's, that they do the multiple sales
reports.
We have found in Texas, when we were down there on the
GRIT, that there were some firearms dealers that proactively
called us and told us there was suspicious activity in their
gun shop, which led us to an investigation that resulted in
arrests. So these gun dealers are cooperating with us. And I
really think that the more we get out there and work with them
in inspections the more they understand that we are not out to
get them, we are not out to get lawful gun purchasers or
possessors; we are out after the criminals. And the regulatory
scheme is designed solely for us to be able to do that trace,
to create the investigative lead, to capture the criminal.
Mr. Culberson. So it is fair to say that over 99 percent of
the gun dealers in the United States are following the law, and
if they have a problem it is paperwork and minor?
Mr. Melson. I think it is correct to say that 99 percent of
the inspections that we do each year are of gun dealers that
substantially follow the law.
Mr. Culberson. And the problem we see with guns going
south, those guns in your experience are coming from what type
of sources? Because some of my colleagues love to point to the
weapons flowing south is some indication of gun dealers
breaking the law, of law-abiding citizens breaking the law, and
therefore we need gun control, which of course defies common
sense, because Washington, D.C. has gun control and is one of
the most dangerous cities in the United States, and Houston,
probably at least a third of my constituents are carry
concealed carry permit holders and the crime rates, you know,
we don't have a real crime problem. That law enforcement
officer's best friend is concealed carry permit holder.
Mr. Melson. And that is the same argument being made in
Chicago right now.
Mr. Culberson. Right.
Mr. Melson. There are several sources of the weapons, and
there is no single source that we can look to. Assuredly there
are guns that are sold by dealers that end up in Mexico. That
does not mean the dealer is doing anything wrong. It could very
well, and almost in all these instances, it is a lawful sale.
The person may be a straw purchaser, but unknown to the dealer.
I mean there is no way you can necessarily tell the intent of
the person.
Mr. Culberson. Fair to say though that the gun dealers, the
licensed gun dealers, law-abiding gun owners are not the
problem?
Mr. Melson. Right. Every once in a while we have a misfit,
but that is true in any profession or business, but it is not
them.
The other areas could be from purchases at gun shows, they
could be thefts from interstate shipments, it could be thefts
from individual homes during burglaries, things--
Mr. Culberson. Right.
Mr. Melson [continuing]. And personal----
Mr. Culberson. Criminal activity.
Mr. Melson. Yes.
Mr. Culberson. Is it also fair to say that in your
experience and the experience of your officers that concealed
carry permit holders are not a problem, and that they are, as
we believe in Texas and have seen and experienced, that a
concealed carry permit holder is a law enforcement officer's
best friend in your experience?
Mr. Melson. Well they certainly have not impacted us
negatively or helped gun trafficking going south. There is no
impact that they have in our law enforcement.
Mr. Culberson. Your paths don't cross with those guns.
Mr. Melson. They don't cross.
Mr. Culberson. The Southwest Border of course is a
continuing problem. We in Texas have a wonderful program that
is working very well in Laredo and Del Rio sectors and in the
Yuma sector called Operation Streamline where the--in
cooperation with you, your officers, all the law enforcement
agencies are working together beautifully to enforce existing
law, and one of these days I hope to get the Chairman and Mr.
Wolf down to see this, because the local community supports it,
the crime rate has plummeted in Laredo and Del Rio and in Yuma
as a result of simply enforcing existing law and prosecuting
people that cross illegally.
On the flip side however in the Tucson sector they don't--
if you are arrested by the Border Patrol you have a 99.6
percent chance of never being prosecuted if you are carrying
less than 500 pounds of dope, which is just unbelievable. So
Tucson is like a super highway, it is wide open.
Are you aware of problems with your officers, ATF? I was
told by law enforcement officials in the Tucson sector when I
visited there that it is not just the Border Patrol that is
having trouble getting prosecutions of people they arrest, but
also ATF and DEA. Are you aware of problems of getting
prosecutions of people you arrest in the Tucson sector?
Mr. Melson. Well not so much currently. When I was the
director of the Executive Office for U.S. Attorneys, those
issues were----
Mr. Culberson. You talked about that, right?
Mr. Melson. Yes. They were abundant in the Arizona area--
and I worked closely with CBP and others, the Border Patrol on
Operation Streamline and so forth--but I believe that the new
U.S. Attorney who is in place now is very aggressive.
When I was the director we gave Arizona a number of new
Assistant U.S. Attorneys. There are more Assistant U.S.
Attorneys positions that are being allocated as we speak now.
Mr. Culberson. Terrific, thank you.
Mr. Melson. So I believe that situation will improve in
Arizona.
Mr. Culberson. Thank you.
Mr. Melson. We certainly hope it will.
Mr. Culberson. Thank you. If I could, one final question,
Mr. Chairman? The Chairman has been very gracious with his
time. You served in the Department of Justice, we met, and I
thank you so much for your work, and I wanted to ask if I could
finally, Mr. Chairman, and ask Director Melson, I may have a
couple of follow ups.
What changes in policies at the ATF have you seen as a
result of the new Administration? Have there been new
directives or changes and policy? I know that my constituents
in particular, I am a very passionate--I am a life member of
the NRA and very passionate about the Second Amendment. My
constituents are very concerned about this new Administration's
direction in attempting to through administrative order impose
gun control or restrictions on the ability to purchase and own
weapons, and what can you tell me about changes in directions
you have seen at the AF under the new Administration.
Mr. Melson. At this point we have not received any new
direction from them to change our manner of operation. We are
still using the laws that are on the books to effectively
combat gun trafficking and violent crime to the best of our
resources and ability. We have done a lot, I think, in this
last year to create a good working relationship with the
industry. We have made personal visits to some of the places of
business to actually see what goes on so we better understand
what the problems and the issues are.
My personal goal is to make sure that everybody in ATF is
accountable for what they are supposed to do both with respect
to responsiveness to our constituents who are the gun industry
and the explosives industry and the citizens who are trying to
get licenses for an FFL or an FEL or an NFA weapon and so
forth.
Mr. Culberson. Thank you. So I can tell my fellow Texans
the ATF, you believe in the Second Amendment, it is written in
plain English, you are not going after ammunition or going
after people's guns. Thank you. Thank you very much, I
appreciate it.
Mr. Mollohan. Thank you, Mr. Culberson. Mr. Wolf?
Mr. Wolf. Thank you, Mr. Chairman, and Mr. Melson, we want
to welcome you.
Mr. Melson. Thank you.

VIOLENT CRIME IMPACT TEAMS

Mr. Wolf. Thank you for your service and I thank the men
and women who work for your agency for their service.
I wanted to ask you a little bit and we talked a little bit
about it when you came by the office, but ATF plays a lead role
in the Department's program to combat gang and gang violence.
Your Violent Crime Impact Team concept seems to be very
effective. Can you give us the thoughts behind it and tell us
what you are doing if you can with regard to the gang issue?
And secondly, can you tell us where the biggest problems in
the country today are with regard to gangs?
Mr. Melson. All right. The VCIT Program is very important
in our gang reduction efforts. The concept behind it is to put
our resources where there are the worst gang issues in the
cities, and we have 31 VCITs now. We've placed them around the
country, one in Richmond as you know, and these are designed to
focus resources specifically on the gang issues. As a result we
have had some tremendous successes with respect to gangs; MS-13
and others.
In fact if you have read the Washington papers you will
know that we've had a number of very good gang cases in
Maryland taking down networks that have spanned all the way
from Maryland to California.
So our success with that has been very good. Our desire is
to expand the VCIT cities from the 31 we have now to other
cities where there are gang problems as well.
The gangs have now spread all over the United States. They
are no longer limited to one or two cities as perhaps they were
in prior years, and so I don't know that I can tell you where
the worst is, except to the extent that, in the larger cities,
there are significant gang problems such as in Los Angeles. We
have done tremendous work there. There is still a lot of work
to be done in Los Angeles and in Chicago, and in some of the
other bigger cities.
Mr. Wolf. Would the 31 be an indication of the 31 worst
areas in the country?
Mr. Melson. They were at the time that we put them there.
They were placed strategically to respond to violent gang
activity, but I think the number of cities that would fall in
that category now could be expanded if we had the resources to
do that, and certainly because of our successes in that area I
think we could show you that we would be able to make a
significant impact on it.

INTERNATIONAL NEXUS TO GANGS

Mr. Wolf. What percentage of the gang violence that you see
has an international aspect to it? Like for instance, MS-13
obviously is controlled partially out of El Salvador and you
have other gangs and Mexican cartels. But of the gang problem
in the United States if it is 100 percent and you had to do an
impact on what percentage of that gang violence had as
international connection versus, you know, a local gang that
may be operating somewhere where everyone is from Philadelphia,
if you will, versus MS-13 or some of the others, can you tell
us where the international aspect is?
Mr. Melson. Not with a specific percentage. I think a
significant number of these gangs have an international
connection, if by international connection you mean they are
ethnically based with respect to other countries like MS-13.
But there are still a significant number of gangs that are
purely home grown local gangs. Many of the motorcycle gangs,
for example, are solely controlled by elements within the U.S.
and not outside the U.S.
Mr. Wolf. I understand, but I am just trying to get a
sense. How significant is the international aspect of it?
Mr. Melson. Well there is a significant international
aspect with respect to control in some of the gangs. I believe
that the more these gangs are being dispersed around the United
States that the control of these gangs, even though they may
have begun with international gangs, are going to become more
domesticated as they become more entrenched in our cities, but
there is certainly a very significant involvement still of an
international aspect. And of course if you consider gangs to be
drug related as well you have the cartels that have a
tremendous infusion into our economy and into our society, as
well in our communities.
[The information follows:]

International Nexus of US Gangs

ATF is not aware of specific gang-related data that would allow for
the calculation of the percentage of gang violence that is attributable
to an international influence. The most comprehensive assessment of
violent gangs is the 2009 National Gang Threat Assessment prepared by
the National Gang Intelligence Center in collaboration with and based
upon data collected and analyzed by the National Drug Intelligence
Center. That report conservatively estimates gang membership in the
United States at more than one million and states that ``local street
gangs, or neighborhood-based street gangs, remain a significant threat
because they continue to account for the largest number of gangs
nationwide.''
It also states that ``Currently, 11 national-level street gangs
have been identified in the United States, and associates or members
have been identified in foreign countries, according to analysis of
federal, state and local law enforcement information. Established cells
in foreign countries assist gangs operating in the United States in
further developing associations with DTO's and other criminal
organizations in those countries.''

Mr. Wolf. So have you had any indication, and I have seen
articles to this effect, that there has been a combination with
regard to terrorism and gangs?
For instance, why would a person from an international
terrorist group, why would they take the risk to fly into
Dulles Airport and going through customs both wherever they are
flying from here, versus why wouldn't they just go down south
of the border and connect into MS-13 and for a fee be taken
from some place down there to come across the border?
Have you seen any signs of that being the case that there
have been gang connected to MS-13 or others just to get across
the border and to come into the country?
Mr. Melson. Or for terrorism related purposes?
Mr. Wolf. Not that they have committed terrorist activity--
--
Mr. Melson. Right.
Mr. Wolf [continuing]. But certainly if you were the seed,
you know, the cells to come in, but who would be potentially
connected to terrorist activity?
Mr. Melson. I will have to get back to you on how many, if
any, that we have found specifically. There have been some that
have been reported that other agencies have been involved with.
Our concern as has been reported by others, and is the same
concern, is that this certainly provides an opportunity for
terrorists to come in through the Southwest Border. How many
have actually done that I don't know that we have an answer to
that, but it is certainly an opportunity.
[The information follows:]

Connection With Regards to Terrorism and Gangs

ATF is not aware of information currently linking U.S.-based street
gangs to international terrorist groups.

Mr. Wolf. Or the northern border too.
Mr. Melson. Or the northern border. That is an excellent
point, and one that I hope that neither the Committee nor ATF
forgets. We have a problem with the northern border as well,
not only coming into the U.S., but with guns, drugs, and
tobacco going across our border into Canada. We have focused so
heavily on the Southwest Border that I think sometimes we
neglect to look at the interior of the country as well as the
northern border.
Mr. Wolf. The report language for the Committee directed
you to coordinate with the FBI which also received a
significant increase in appropriation for anti-gang activity.
How are the ATF and FBI dividing the responsibilities and
working together to maximize?
Mr. Melson. Well it depends somewhat on the particular
geographic area. For example, in Richmond when I was an
Assistant U.S. Attorney over there, we divided it up
geographically within the City of Richmond, where we had VCIT
working in one area that was high crime and the Safe Streets
from the FBI was working in another area.
So while we may work in different geographic areas, we work
well together because we share our information and we work
together in joint operations when our investigations overlap,
or when we need additional help and resources from other
agencies to take on.
Mr. Wolf. Is there a rivalry too much of the time? I mean
frankly, you know, I like the Bureau and I like the ATF. I
stipulate, I think both of you do a great job. It does seem
that the Bureau sometimes gets a little more credit or
publicity or notoriety than ATF.
Mr. Melson. They do, but you know our people are out there
to do the job.
Mr. Wolf. I know that.
Mr. Melson. You know, I had been with the U.S. Attorney's
Office for 25 years, so I have seen a lot of different agencies
and personnel, and I can truly tell you before I even came to
ATF that there was no other agency out there who was there just
to do the job, to get it done, regardless of whether it was in
their job description, and didn't really care whether they got
the credit as long as the community was safe.
Mr. Wolf. That is good. Last question. There are others we
will just submit for the record.
Do you still have staff assigned to the National Gang
Intelligence Center over----
Mr. Melson. Yes, We work closely with the FBI at both the
Gang Tech and the Intelligence Center.
Mr. Wolf. Well how do you think that is working? Glenn Fine
has been critical. Well, I think Glenn Fine is critical. I
think somebody ought to investigate Glenn Fine's office some
time to find out some of the things that he is critical about.
It seems that every time they do an investigation they release
it to the media before they tell the agency what they are
doing. We are trying to get Glenn Fine to look at the whole
U.S. vs. New Black Panther Parti Dismissal issue, and he
doesn't want to kind of get involved in this one.
But on this, how effective is the National Gang
Intelligence Center? Are there potential improvements? Is there
anything that you would change or do different? Is there
anybody participating or not participating? Did you look at
Glenn Fine's comments about----
Mr. Melson. Yes, we have, and we are satisfied that both
the FBI and we, and the other participants are making the
Intelligence Center a success. There is always room for
improvements, and I think they are working on some of those.
But it is an important element of our gang strategy. Because as
you have pointed out, these gangs have fingers all over the
place, and without a unified Intelligence Center we are not
going to be able to work with them as much, we are not going to
be able to focus on them as well as we could without it.
We also work with DOJ and with respect to their involvement
in the DEA Fusion Center with gangs as well. So there is a good
synergy between everybody.
I remember when I was in Virginia we were trying to work on
a gang intelligence database for the State of Virginia and how
hard that was to put together and how many competing interests
there were there.
I think the National Gang Intelligence Center has really
overcome some of those issues nationwide and is a very
important asset to us.
Mr. Wolf. One last question. Do you think most state and
local law enforcement people now know the Intelligence Center
is there? Are they accessing it, I mean, a rural sheriff in an
area? And if the answer is maybe not as much as they could, is
there something that should be done to make sure that they are
aware? I mean, if they pick up somebody that they can come to
the center. Is there anything more that should be done?
Mr. Melson. I would certainly hesitate to say that every
sheriff in a county in the State of Virginia or other place
knows of that Intelligence Center.
I think the way we can get the word out is to work through
our field divisions and field offices to make sure when we
have--in conjunction with the U.S. Attorneys, meetings with the
head of law enforcements in the area--that we talk about this
center and how important it is and what a resource it is to
local sheriffs. This I think is a combination of work that can
be done with the FBI, ATF, DEA, but led by the U.S. Attorneys
because they get the law enforcement together to talk about
these issues, and certainly that should be something that is on
their radar as well as on ours individually when we meet with
the local law enforcement.
Mr. Wolf. Thank you, Mr. Melson. Thank you, Mr. Chairman, I
appreciate it.
Mr. Mollohan. Thank you, Mr. Wolf.
I understand we have three votes starting now, so that
probably means one 15 minute vote and two 5 minute votes. If we
could keep it going as much as possible, I would like to during
this time. So I will certainly be pleased to leave and let
you----
Mr. Wolf. Do you want me to run down and vote?
Mr. Mollohan. Sure, that would be great.

SPANISH ETRACE

I understand the Spanish version of the eTrace system will
finally be completed and deployed this month and that it is
expected to have a big impact on the volume of cases that you
could trace and requests you have. Can you quantify the
expected impact on the number and quality of the trace requests
you will receive from Mexican law enforcement counterparts?
Mr. Melson. Well it is hard to quantify because we are not
sure what the level of their tracing activity will be based
upon prior experience, because the prior experience has been
somewhat minimal.
[The information follows:]

Spanish Version of eTrace

ATF projects that we will receive about 354,000 trace requests in
FY 2010 and about 364,000 trace requests in FY 2011. Spanish eTrace
usage will be expanded in Mexico, Central America, and likely South
America before the end of FY 2011.

Mr. Mollohan. Well, what do you mean the prior experience
has been somewhat minimal?
Mr. Melson. There has been some difficulty in getting the
coordination on eTrace throughout the Mexican government. While
we have had a lot of individual eTraces and we have gone in and
obtained information to submit for traces ourselves with the
cooperation of the Mexican government, the network has not been
sufficiently placed throughout Mexico to have a universal
access to the tracing firearms.
However, having said that, both PGR, which is the Attorney
General's department, and SSP, which is the federal police,
have taken a very strong interest in eTrace, and they will be
increasing, I believe, their activity with respect to eTrace as
a result of the Spanish version of it.
Mr. Mollohan. Right. Well the information we have is that
it is increasing pretty quickly right now because the firearms
traces requested by Mexican law enforcement have steadily
increased over the years. You processed more than 53,000
Mexican trace requests in 2009, which is five times as many
requests as processed the year before. So even without the
Spanish augmentation to the program you are getting a dramatic
increase, if those numbers are correct.
Mr. Melson. That is right, but that is a small part of what
I think can be traced. We got a disk with 60-some thousand
trace requests on it that they had not given us, so we are
working on that, and that is going to cause somewhat of a
spike.
But I think that with respect to the federal police, when
they start integrating Spanish eTrace into what is in essence
their fusion center in Mexico City, that we will see an even
greater increase in the number of traces, and that is going to
have several impacts on ATF.
First of all it is going to----
Mr. Mollohan. And that is my question, actually. What is
the impact on the ATF?
Mr. Melson. The first impact is it is going to start
overwhelming our tracing center. Already with the people we
have that are actually responding to the trace requests we are
at capacity, if not overcapacity already. So that is going to
burden us.
Secondly, our tracing system itself, the computers and the
software need to be refreshed. We are in the process of doing
that, and hopefully as we do that we can stay up with the
increase in the tracing.
Thirdly, these trace requests give us more leads throughout
the country. Every time a trace is done and it comes back to an
FFL in some part of the country or some city our agents have
that as a lead.
So as these traces come in we are going to have a
tremendous number of leads to follow up on.
Mr. Mollohan. Okay, well I am back at handling the traces
in the National Tracing Center.
Mr. Melson. Right.
Mr. Mollohan. Right now you are at the maximum capability
of doing traces.
Mr. Melson. Absolutely, if not beyond it.
Mr. Mollohan. If you have had a fivefold increase over the
last year, then you can expect a dramatic increase when spanish
eTrace is deployed. Does your statement today anticipate this
increase?
Mr. Melson. Not currently.
Mr. Mollohan. Not currently? Do you plan on submitting an
amended budget request to address this?
Mr. Melson. We will have to work with the department on
that, but we could certainly use additional people in our
tracing center.
Mr. Mollohan. Do you have estimates of how many additional
people you would need in your tracing center to adequately
handle----
Mr. Melson. I could certainly get back----
Mr. Mollohan. Excuse me, let me ask you the question
first----
Mr. Melson. Sorry.
Mr. Mollohan [continuing]. The anticipated increase in
requests based upon the implementation of the Spanish language
version of eTrace?
Mr. Melson. I don't have a specific number right now only
because it is a little bit early to see what that impact is,
but I surely can get with you.
Mr. Mollohan. Surely somebody has looked at that at ATF. I
mean, you are going to have a increase.
Mr. Melson. I can go out to the tracing center and get that
specific information for you.
Mr. Mollohan. Okay. I wonder if that has already happened
and somebody sitting behind you might know the answer to that.
Or, if you are more comfortable submitting it for the record,
that is fine too.
Mr. Melson. Yes, they confirmed that. We don't have an
exact number yet because of the transition, but we can get back
to you with a specific number on that.
Mr. Mollohan. Okay. It is going to be a problem. ETrace is
going to be implemented, isn't it? So it is going to be an
issue for this year, let alone next year.
Mr. Melson. Yes, it will be an issue this year. We actually
released the Spanish eTrace version at the end of December, so
it has been out there for a couple of months. It was sort of a
beta testing period where we are trying to determine whether we
were totally successful. We are making some changes to that and
updating the version of it, but yes, it is going to be coming
quickly.
Mr. Mollohan. Okay. Well, would you please get to the
Committee what your needs are going to be for this year, or
what the deficit is going to be for this year and then the
anticipated need for additional resources next year. All right?
Mr. Melson. Okay.
[The information follows:]

Impact of Spanish ETrace on National Tracing Center Capabilities

ATF projects that the NTC's workload will exceed its capacity by
27% in FY 2011.
The NTC is currently staffed with 61 FTE government employees and
272 contractor employees. The NTC requires 17 additional FTE government
employees and 74 additional contractor employees ($3.7 million) which
is a total of 91 personnel (a 27% staffing increase consistent with the
workload increase). The NTC has considered converting a large portion
of its contractor employees to FTE, which if properly structured would
result in a slight reduction in costs.
In the long term, ATF requires additional improvements to its
tracing workflow system to improve the accuracy, efficiency and
timeliness of firearms tracing (est. $1.2 million). Further, ATF
recommends expanding this workflow to include other related firearms
databases that affect the tracing process. This would benefit the
public both in terms of improved services related to firearms commerce
as well as improved services relative to firearms tracing and criminal
enforcement matters.

Mr. Mollohan. Thank you. The eTrace system offers an
efficient and systematic method for fulfilling trace data
requests, but a large portion of ATF's current record holdings
are either in paper or microfilm. For eTrace to work, it has to
work in a digital format. Therefore you have to transition to a
paper search of paper records. Are you dealing with that
problem, is there a conversion effort going on, and what's the
status of it?
Mr. Melson. That is a huge problem that we have. We have
like 14.4 million out of business records coming in per year,
and they are almost all, if not all, in paper format. We don't
have at this point a significant conversion process in place.
We are doing some electronic scanning of the microfiche images,
but they are not being indexed. So still if we get a hit from a
manufacturer that says the gun was shipped to X, Y, and Z FFL,
we can go to that FFL, but that may pull up hundreds and
hundreds of weapons that we will have to search through by hand
for purposes of identifying the weapon.
That is an area that if we could fix by being able to
electronically search them through indexing we would become so
much more efficient that in the long run, those resources could
be put to answering the actual trace request. Our response time
on traces has increased 40 percent over the last year from 10
days to 14 days.

REGULATORY BACKLOG

Mr. Mollohan. Okay, thank you. We have talked about the
regulatory backlog for more years than I can remember. I am
quite sure Mr. Wolf was chairman of this Subcommittee when I
raised this issue many years ago. Of course, it wasn't that
many years ago that he was chairman, but the point is I have
been raising this issue. Give us a sense of the accumulated
regulatory backlog that exists at ATF.
Mr. Melson. Well we have about 17 now that are really in
the process which have either gone over to the Department or--
--
Mr. Mollohan. Seventeen what? Rule makings?
Mr. Melson. Rule makings, or have been returned to us. We
were able to complete four of them last year either by
determining that we would no longer go ahead with them or they
have been completed and published. I have signed I think two
this year.
This is a problem, and I am embarrassed about it. I haven't
been on long enough to fix it and I haven't been able to
examine it well enough, but there are I think three things that
we need to do. One is to make sure we have sufficient resources
attributed to the reg writing. We've added a couple over the
last year. We now have four reg writers, but the team that
writes these regs include not only the reg writers; you also
have to have the subject matter expert and you have to have an
attorney on, so we have to look at that.
Secondly----
Mr. Mollohan. Talk a little bit now about the staff. You
have an inadequate staff. I don't want you to forget what you
were going to say next, but I want to know more about the staff
aspect of it.
Mr. Melson. We have four regulation writers right now that
work on these regulations.
Mr. Mollohan. Is that an improvement?
Mr. Melson. Yes.
Mr. Mollohan. From when?
Mr. Melson. It is an increase of about 50 percent from a
year or two ago. So this should help some.
Mr. Mollohan. Well, I think we could Xerox so far this
testimony on this issue of four years ago, but go ahead, excuse
me.
Mr. Melson. Yes. Well, I understand that, but I am here to
fix it if I can. One way is for us to focus more resources on
that, the other is to do better coordination with the
Department, because they are an integral part of the process of
reviewing these regulations. And so I think with those types of
improvements we can do that.
The other thing, Mr. Chairman, that we are doing is in some
of the changes we are making in ATF. I am creating a quality
assurance, quality control office within the directorate that
has not only the regulation writers, but also the national
tracing center and the licensing centers, so that we have an
oversight office that makes sure that we are not only
responsive to the public and the industry, but also responsive
with respect to your concerns on regulation writing. It is a
cumbersome system and it has to go to many different places to
get approved. There are regulations that require us to
publicize these in the federal register.
Mr. Mollohan. No, I understand, and I am sure the committee
understands the process. It is akin to making legislation,
which can be extremely cumbersome.
When you were moved to DOJ, 15 of your regulation writers
were left at Treasury. Do you need anything near 16 regulation
writers to keep up with the need? If you do, your request is
woefully inadequate.
Mr. Melson. Well yes, we need 16.
Mr. Mollohan. No, I want the real answer. I want the real
answer.
Mr. Melson. But I don't want to give you just a guess and
ask for more than we actually need. I would have to talk to our
chief counsel and EPS to find out how many more we need.
Mr. Mollohan. You know, that would really be a good start.
Mr. Melson. Okay.
Mr. Mollohan. To find out what your needs were.
Mr. Melson. And we may have figured that out and have put
it in our budget request.
[The information follows:]

Need for Additional Regulation Writers

ATF currently has four regulation writers who are responsible for
approximately 30 open rulemaking proceedings that are under development
or review, and an additional 20 concepts for rulemaking projects. The
Bureau still does not have sufficient resources to process its
rulemaking proceedings in a timely manner, particularly in the firearms
area. As a result of additional petitions received from the industry
and rulemaking needs identified during industry meetings, we would like
to recruit four additional regulation writers. These individuals would
help reduce the backlog of open rulemakings and address the significant
number of pending rulemaking projects.

Mr. Mollohan. I take you at your word. I sense your
sincerity, and I look forward to working with you on this.
Industry, you know, needs this clarity that comes from good
rule making, and I know you want to do that. Mr. Wolf?
Mr. Wolf. Yes.
Mr. Mollohan. I am going to run and vote.
Mr. Wolf. Thank you, Mr. Chairman. Back briefly to the gang
issue and then I have a couple others.

ANTI-GANG COORDINATION

Do you think we need a major effort with the FBI and ATF
similar to what was done with Cosa Nostra back in the '60s, a
major comprehensive government-wide effort to eradicate other
gangs? If you have living in an area that is infested with
gangs, it is a form of domestic terrorism for those families,
many of them poor, that live in an area like that. Does it make
sense to have a major effort similar to what was done in the
'60s, or do you think the current approach, you are doing your
thing, FBI does its, DEA does its, and I know so much effort
has been gone into the counter terrorism. What are your
thoughts about that?
Mr. Melson. I also have a concern, and I hope I am not
speaking out of school, of duplication of responsibilities,
because then you do get a clash of personalities and of
agencies trying to do the same thing in a particular
jurisdiction.
But having said that, I think there could be much more that
can be done with gangs, and given a unified Department approach
to it, along with the sufficient resources, I think we could do
a lot in that regard.
Mr. Wolf. Well you all do a good job. Should we do a letter
to the Attorney General asking--or maybe this is already done.
Is there sort of a coordinating council on this issue whereby
the U.S. Attorney's, Marshal Service, DEA, ATF, everyone is
kind of touching gloves every other week just sort of
coordinated to make sure? Is that done?
Mr. Melson. Yes, it is done through the Criminal Division,
Gang TECC and the Fusion Centers. It is also done through the
Attorney General's Advisory Committee and other areas.
Mr. Wolf. Is that advisory committee, is it an advisory
committee on gangs or is it----
Mr. Melson. Well it is the Attorney General's Advisory
Committee, but they have----
Mr. Wolf. On gangs?
Mr. Melson. No, it is a full one, but they have
subcommittees, and they have subcommittees on violent crime and
gangs that deal with this.
There is also an anti-gang coordinating group at the
Department that looks at that.
Mr. Wolf. And how often do they meet?
Mr. Melson. I am not sure how often they meet.
Mr. Wolf. Well maybe we will do a letter to the Attorney
General. I am sure he wants to deal with this issue, and maybe
it is already being done, but to see if there could be some
sort of formal structure. Iron sharpens iron. You are all
together on a periodic basis and making sure, on the issue of
gangs, not that gangs happens to be one of the things we talk
about today, but on just gangs to deal with. Because I think
those who live in areas that are gang infested that is as much
of an act of terrorism on them as it is if an international
terrorist group is coming in.
Mr. Melson. Yes, Mr. Hoover pointed out to me that the
anti-gang coordinating group meets once a month at the
Department.
Mr. Wolf. Once a month. Well let us look into that and see.

ATF ACTIVITIES IN IRAQ AND AFGHANISTAN

One other issue is Congress provided funding and passed
supplement bills for ATF to deploy personnel to Iraq. Can you
describe what presence you have been able to stand up in Iraq
and Afghanistan, and what training and other activities your
people are engaged in?
Mr. Melson. Yes. We have trained a number of Iraqi police.
We have been participating in groups like what they call the
Combined Explosive Exploitation Cell (CEEC) where they are
looking at the IEDs. We are in preparation of sending people to
Afghanistan to do the same thing. We work with the FBI on
analyzing IEDs when they come back to the states, being sent
over here to determine common sources and so forth. We are very
involved in training the military with respect to the use of
explosive canines for use over in Iraq and Afghanistan. In
fact, there was a report back just recently that one of our
dogs over there, being used by one of the military personnel
has already discovered 14 IEDs before they have gone off.
Mr. Wolf. And how many dogs do you have over there?
Mr. Melson. I think there is a real shortage of explosives
dogs, canines both over there as well as in the U.S. We are
pushing out as many as we can through our canine center, which
is in your district I believe, and trying to train more and
more of them.
We have a state of the art process for training them for
odor detection of explosive devices. We are also training dogs
down in Yuma for the military with respect to the same type of
capability.
Mr. Wolf. Roughly how many dogs?
Mr. Melson. From ATF? I am not sure I know.
Mr. Hoover. We've trained over 200 for the U.S. military.
[The information follows:]

Number of Bomb Sniffing Dogs in Iraq and Afghanistan

ATF has deployed numerous Special Agent Canine Handlers and their
Explosive Detection Canines to Iraq to assist with the detection of
improvised explosives devices (IEDs). Since 2004, there have been 39
ATF canine handlers deployed to Iraq and additional handlers are
scheduled for rotation on an as-needed basis. In addition, ATF has
entered into another Memorandum of Agreement with JIEDDO to imprint
U.S. Marine Corps canines for homemade explosives. This training is
conducted at Yuma, AZ, and to date, 206 canines have received the
training. It is anticipated by the end of the calendar year, 352
canines will receive the imprinting.

Mr. Melson. I don't know that they have told us how many
they could use if they had an unlimited number. We can
certainly find that out for you and get back to you. But just
like in the U.S., these dogs certainly protect our human
capital.
Mr. Wolf. Well let us talk about that. Thank you, Mr.
Chairman.
Mr. Culberson. No further questions, but thank you for your
service to the country, and we appreciate all that you and your
agents do, and in particular we really appreciate in Texas the
work that you do of getting--we are grateful for your service.
Thank you, sir.
Mr. Melson. Thank you very much.

ATF'S ETRACE SYSTEM

Mr. Mollohan. Just a follow-up question on the eTrace
system. My information is that a manual search can take up to
ten times longer than an electronic one. Does that sound right?
Mr. Melson. Well, I think it is common sense that a manual
search will take much longer than an electronic one.
Mr. Mollohan. But ten times longer? I mean, you must have
to go to file boxes.
Mr. Melson. Well in essence what you are going to are the
microfiche, and you may have a roll that has 4- or 500 firearms
on it that you literally have to scroll through and look for a
particular firearm.
You should come out there with us. I was out there and I
was absolutely appalled and depressed at what they are going
through out there. You literally see pallets of these out of
business records come in, and they are just absolutely
overwhelmed. You see people in these cubicles going through the
microfiche looking for these weapons.
Mr. Mollohan. Well how does your budget address this
problem?
Mr. Melson. Right now we would be struggling severely to
change that.

ATF/FBI EXPLOSIVES ENFORCEMENT EFFORTS

Mr. Mollohan. Okay. I would like to hear you talk about
jurisdictional overlap in explosives cases a little bit.
It seems ATF and FBI have always been at a point where the
jurisdictional lines have not been clear. I know you have
undertaken efforts to address this, and in our 2009 CJS Bill we
required the Department to review instances of overlap and to
begin sorting through that. I assume you are not very far in
sorting because we asked for a report, which is seven months
overdue. So can you give us an update on that?
Mr. Melson. Well as you know the IG came out with a report
on that. The Deputy Attorney General's Office has formed
several working groups between the FBI and ATF to look at
various issues relating to the overlap of jurisdiction. Very
soon the Deputy Attorney General is going to have a meeting
with ATF and the FBI in his office to discuss these issues and
a recommendation will be made from the deputy to the Attorney
General on clarifying these issues of jurisdiction.
We believe that ATF has the expertise in explosives issues.
99.9-some percent of all the explosions by bombs in the United
States are non-terrorism type of cases which we respond to now
and have done it very successfully and professionally. We
believe we can continue to do that and incorporate with our
response individuals and representatives from the JTTFS, so if
there happens to be a terrorism connection they can identify it
quickly and take the case over.
Mr. Mollohan. DOG's IG reviewed, as you point out, these
jurisdictional problems last year. They had three areas of
concern, the control of explosive investigations where it is
unclear if there is a nexus to terrorism, the consolidation of
multiple explosives or related data tracking systems, and the
coordination of explosives training.
So I guess we are looking for a time frame, a status
report, on what steps are going to be taken to address and
hopefully eliminate those conflicts. So can we expect a report
on that soon as requested?
Mr. Melson. I think that the Attorney General will resolve
all those issues in the near future.
Mr. Mollohan. He is going to resolve all of these
conflicts, all of these issues? That will be welcomed. That
would be historic.
Mr. Melson. Well my understanding----
Mr. Mollohan. I am sure when the agents go out there in the
field after an explosion and start bumping into each other,
they will be thrilled.
Mr. Melson. Well they will be, and hopefully we won't be
bumping into each other; there will be a coordinated response.
Mr. Mollohan. That was probably----
Mr. Melson. Yes, I understand that. My understanding is
that the Deputy Attorney General is going to make a
recommendation to the Attorney General within the foreseeable
future which will address these issues that the IG raised.
Mr. Mollohan. Okay. Well we look forward to working with
you on those. I know it would be in everybody's best interest--
Mr. Melson. It would absolutely.
Mr. Mollohan [continuing]. To try to sort through those
difficult issues.

EMERGENCY SUPPORT FUNCTION #13

Your budget request includes a small amount of money to set
up a dedicated staff in dealing with ATF's Emergency Support
Function 13 responsibilities. What is your ability? You have
never had a dedicated budget line item for this. Are you
requesting a dedicated line item now?
Mr. Melson. Yes, that is what our request is for. I think
it is seven positions and some operating funds in order to do
that.
Mr. Mollohan. How is your ability to perform your required
ESF 13 duties constrained by the lack of a dedicated budget?
Mr. Melson. We are obviously having to take resources from
other operational areas to sustain our ESF 13 responsibilities,
which we take very seriously, because we understand that local
communities are going to be relying on us to help them
provide----
Mr. Mollohan. Will your request preclude the necessity of
your going to the other budget line items to support this
function?
Mr. Melson. Yes.
Mr. Mollohan. Really?
Mr. Melson. If we get this line item we will have seven
personnel that are dedicated.
Mr. Mollohan. At the requested level?
Mr. Melson. Yes, at the requested level. We should be able
to fulfill our function of training and preparedness for
purposes of establishing the ESF.
Mr. Mollohan. So this requested funding level will take
care of all of your ESF 13 responsibilities? Or will it only
establish and dedicate funding for a portion of them?
Mr. Melson. It is hard to say we will never need anything
more, because with this program----
Mr. Mollohan. Would you like to answer that for the record?
Mr. Melson. Yes, I will, thank you.
[The information follows:]

Budget Request for ESF-13

In addition to the $1.22 million budget request, ATF has forwarded
another request seeking approximately $9.6 million. This amount will
provide:
$1.57 million for nine full-time employees to
satisfy critical personnel needs in the implementation and
responsibilities of ESF #13;
$500,000 for operational travel expenses of ESF #13
personnel whose travel throughout the Nation is critical in the
preparation and planning for an effective Federal response;
$300,000 for government-wide ESF #13 training,
education, and associated travel which is essential to the
overall success of the initiative;
$3.75 million for the purchase of four command and
control vehicles to be strategically placed throughout the
country to provide centralized command platforms for responding
Federal law enforcement assets;
$875,000 for computers and related software to equip
the currently non-automated ESF #13 National Coordination
Center with the proper mechanisms to effectively communicate
with responding personnel and other law enforcement partners;
$500,000 for equipment for the currently unequipped
ESF #13 Assessment Team which affords essential first
responders the ability to remain self-sufficient and protected
for a period of time while affected areas are initially
recuperating;
$1.95 million for 14 emergency management contractor
positions to be located in Washington, DC and within the FEMA
Regional cities to provide FEMA and State partners with the
everyday law enforcement guidance needed to prepare meaningful
policy; and
$219,000 for ESF #13 National Coordination Center to
be positioned in Sterling, Virginia, for continuity of
operations assurance should an incident occur within the
National Capital Region.
Because ATF has not received resources to support its
responsibilities under ESF #13, existing staff are necessarily assigned
ESF #13 responsibilities in addition to existing operational duties.
This is limiting ATF's ability to consistently engage fully in required
exercises regarding the planning for and the response to a natural
disaster and/or act of terrorism.
The increased request for resources will allow ATF to fill
essential vacancies within the existing ESF #13 program and expand
critical readiness efforts nationwide. These additions will maximize
ATF's ability to immediately provide the American people with the
caliber of law enforcement preparation expected from the Federal
government in a time of crisis.

RECOVERY ACT EXPENDITURES PER PROJECT GUNRUNNER

Mr. Mollohan. Let me give you an opportunity for the record
to respond to some of the IG's concerns about your Recovery Act
expenditures.
The IG contended that several of your Recovery Act funded
offices are located in areas that have relatively little direct
nexus to firearms trafficking activities of Mexican drug
cartels. How do you respond to that criticism?
Mr. Melson. We disagreed with the IG in that regard. When
we placed our resources along the Southwest Border we concluded
that New Mexico was part of the Southwest Border and that gun
trafficking was going to be an issue in the Roswell, Las Cruces
area itself.
Since the recovery money has come, and even though we don't
have all the people there yet because they are still going
through the process of being hired, last year we had 38 cases
involving illegal gun purchases. Four of them were tied to gun
trafficking, and that is a funnel for one of the cartels to go
through to Mexico.
We thought that we ought to take a strategic approach.
Instead of being reactive to where the problems were going to
exist, we thought we would put individuals in places where we
knew there was not only an existing problem, but will be a
growing problem. Roswell and Las Cruces were two of those
places where we are trying to be predictive in our efforts. And
we have expressed our disagreement to the IG with respect to
that.
As I indicated before, the problem of gun trafficking is no
longer right along the border, it is going to go into the
interior, and we can't be complacent and just put resources
there and forget about the rest of the country with respect to
the source of these guns to Mexico.
Mr. Mollohan. So with the funds you are requesting to
annualize, you intend to continue supporting the plan that you
have implemented and you will not be changing it in light of
the IG's----
Mr. Melson. No, sir, we are confident that our analysis is
correct. It is beginning to come to fruition as we see the
types of cases that they are developing there in our strategic
analysis of not only the gun trafficking patterns, but the
cartel trafficking patterns as well.
Mr. Mollohan. The IG also raised a concern about being able
to ensure that the GRIT personnel would be tasked solely with
Mexican firearms trafficking enforcement cases. My first
question is, is that your intention?
Mr. Melson. Are you talking about the Gunrunner?
Mr. Mollohan. Yes, I am.
Mr. Melson. Okay. Yes, they are focused on the gun
trafficking to Mexico.
Mr. Mollohan. But that is your intention?
Mr. Melson. Yes. Now, I was going to say, you have got to
do the investigative ground work for one of these trafficking
cases. So you may investigate straw purchasers who are
collecting guns, but it may end up not being a ring or a group
that necessarily is going to Mexico. We still have to prosecute
that case. We can't tell necessarily at the beginning of an
investigation that it is a trafficking case to Mexico; we have
to investigate it. That type of information comes along during
the investigation.
We wouldn't want the IG or anybody to come back and say
hey, this Gunrunner team investigated three domestic gun
trafficking organizations. Well it just didn't turn out to be
one that went to Mexico. But that is our intent, yes.
Mr. Mollohan. The answer to the question is that it is the
intent that the GRIT personnel be solely tasked with Mexican
traffic cases. The IG's concern was that there aren't
procedures in place to ensure that, and I just wanted to give
you an opportunity to speak to that or the importance of it.
Mr. Melson. Yes, sir. That is why we have supervisors in
each of these offices which----
Mr. Mollohan. The IG's contention is that there are no
procedures in place, so the supervisors could on their own
discretion assign them to other duties.
Mr. Melson. Well, I guess that----
Mr. Mollohan. I am not arguing with you, I am just giving
you an opportunity to----
Mr. Melson. I understand that. I think we----
Mr. Mollohan. I am sure you went back and defended
yourself.
Mr. Melson. Yes. I think that we have sufficient control
over our supervisors to have them do what we want them to do
with respect to these resources and what our priorities are.
Mr. Mollohan. Sure. Well, that is the IG, don't look at me.
Mr. Melson. Oh, I know, I know.
Mr. Mollohan. I am just giving you a chance to respond.
Mr. Melson. I understand that.
Mr. Culberson. Thank you, Mr. Chairman.
Mr. Mollohan. Mr. Culberson.
Mr. Culberson. I did get a question too, I am a member of
the Houston Gun Collectors Association, and that the director
of the show had--that is why I stepped out to visit with him,
because I remember there was a controversy in the Austin gun
show. The Thursday before the show the local ATF agent showed
up and asked the director of the Austin Gun Club to transfer
all--all the private sales had to go through license dealers.
Is that a new policy at the ATF, or is that just something that
he did locally for that one time?
Mr. Melson. No. It is not a policy of ATF, and it has never
been a policy of ATF to do that.
As I understand the situation this was a contract dispute
between the owner of the premise and the promoter of the gun
show. The owner of the premise wanted to make sure that the
guns were lawfully sold on his or her premise, and asked the
local police for suggestions as how they could ensure that. We
were invited to attend that meeting and gave them a list, as I
understand it, of different things they could do to make sure
that guns were lawfully sold.
One of the suggestions, which is a common sense suggestion,
is just have licensed FFLs there. And they made the decision as
to what to do on their own after hearing from us.
Mr. Culberson. Local police?
Mr. Melson. No, the owner of the premise.
Mr. Culberson. The owner of the facility. Okay.
Mr. Melson. Who then said----
Mr. Culberson. You can image the uproar that caused.
Mr. Melson. Oh, I understand, but the owner made his or her
own decision as to what to do.
Mr. Culberson. Okay.
Mr. Melson. And we discussed this very issue with the
various industry organizations, including the organization that
represents the gun show promoters at the shot show, and I think
they understand that we did not suggest to them that that was
the way it was going to be.
Mr. Culberson. Okay. But beyond the commonsense
restrictions that all of us are under, you know, if I wanted to
sell a gun to my friend Mr. Wolf or Chairman Mollohan, there is
no restriction on that other than--there is no restriction on
private individuals selling guns to each other or at a show if
I want to go rent a table and sell some guns other than the
commonsense ones, don't sell it if you know the guy is a felon,
and don't sell it to an illegal alien. Other than those
restrictions there are no restrictions on the rights of
individual Americans to rent a table at a gun show and just go
sell it if it is a hobby type thing or personal.
Mr. Melson. That is right, but having said that, the owner
or the promoter has the absolute right to impose whatever
restrictions they want to.
Mr. Culberson. On the facility.
Mr. Melson. On the facility.
Mr. Culberson. Got it.
Mr. Melson. Right. That is up to them completely.
Mr. Culberson. Sure, yes, sir. And then the other question
I got from the Houston Gun Collectors Association is how can a
private individual--if a private individual is present, would a
valid driver's license by somebody that wants to buy a gun, I
rent a table at a show, a guy shows up, he has got a valid
driver's license. Is that sufficient to protect the private
seller from the probation against selling to an illegal alien?
Because if you are presented with a driver's license, if you
are just a private individual----
Mr. Melson. May I have a second?
Mr. Culberson. Sure.
Mr. Melson. One of these lifelines.
Mr. Culberson. Because that is a worry, you know, if you
are just a private guy selling, you probably have individuals,
Mr. Chairman, in your district that collect guns, have fun with
them, and they will go rent a table at a show and go sell guns.
God bless America.
We are going to go vote here pretty quickly, but----
Mr. Melson. Okay.
Mr. Culberson. Is a driver's license sufficient?
Mr. Melson. The test is reasonableness on the part of the
seller, and if it is reasonable to rely on that driver's
license, then yes.
Mr. Culberson. That makes sense to me as an attorney. Thank
you very much for your service and to all of your agents, we
appreciate what you do. Thank you, Mr. Chairman.
Mr. Mollohan. Which can only be answered in the context of
each individual case.
Mr. Melson. Yes.
Mr. Mollohan. There'll be some questions for the record
that I will certainly submit and perhaps other members of the
Committee. I have a series of questions about tobacco
diversion, trafficking, and how it pays off for increased
enforcement.
Thank you very much for your testimony here today, Mr.
Melson.
Mr. Melson. Thank you.
Mr. Mollohan. And thank you for the excellent job all of
your agents and other employees do in defense of the country.
We appreciate the assistance of your individual employees in
every instance. They do excellent work. Thank you.
Mr. Melson. Thank you very much. Thank you, Mr. Culberson.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Thursday, March 18, 2010.

BUREAU OF PRISONS FY2011 BUDGET OVERVIEW

WITNESS

HARLEY G. LAPPIN, DIRECTOR, BUREAU OF PRISONS

Opening Remarks

Mr. Mollohan. Good morning. We are pleased to welcome Mr.
Harley G. Lappin, the Director of the Federal Bureau of
Prisons, who will be testifying today about the fiscal year
2011 budget request for the Federal Prison System.
Director Lappin, welcome, first of all.
Mr. Lappin. It is good to be here.
Mr. Mollohan. We appreciate your being here and appreciate
your service and that of your fine organization.
We talked quite a bit during our hearing last year about
BOP's reentry programming and how that is related to recidivism
and the growing federal prison population. And we will
certainly be asking questions again today about your Second
Chance Act and reentry activities and plans for the coming
year.
It has become very clear, however, that the Bureau of
Prisons' ability to implement effective reentry programs has
been hindered in recent years by a critical shortfall in the
number of on-board correctional workers and by the inadequate
capacity of the aging federal prison infrastructure. And these
problems have in turn been the result of inadequate budget
requests for the Bureau of Prisons.
Over the last three years, the Subcommittee has provided
significant additional resources above the proposed budget
request to allow BOP to meet its basic operational requirements
and begin addressing its staffing shortfall.
For fiscal year 2008, we provided supplemental funding and
approved a reprogramming when it became clear that BOP would
otherwise run out of funding before the end of that fiscal
year.
For fiscal year 2009, the Subcommittee provided $160
million above the budget request. For fiscal year 2010, we
provided $106 million above the request.
BOP's proposed budget for fiscal year 2011 appears to be an
improvement over prior years, although I will be asking you
about how realistic it really is.
I am pleased to say that the Bureau of Prisons has made
some important progress on the staffing front since our hearing
last March, although there is still a lot more work apparently
to be done.
And there are still significant challenges ahead when it
comes to acquiring or constructing new prison facilities and
keeping up with the growing backlog of modernization and repair
projects for BOP's aging facilities.
We will be asking you this morning about these and other
important challenges you face, including how you are addressing
violence in the prisons, particularly assaults directed at
prison staff, but also assaults by prisoner upon prisoner.
Mr. Lappin, in a moment, I will ask you to briefly
summarize your statement. Your written testimony, of course,
will be made a part of the record.
First, I am pleased to turn to our Ranking Member, Mr.
Wolf, for any opening comments that he may like to make.
Mr. Wolf.
Mr. Wolf. Thank you, Mr. Chairman.
And I want to welcome Mr. Lappin. Thank you and your people
for the work you do. And with that, I look forward to hearing
your testimony.
Mr. Mollohan. Okay. Thank you.
Mr. Lappin.

Opening Statement

Mr. Lappin. Chairman Mollohan, Congressman Wolf, it is a
pleasure to be back, and I certainly appreciate all of your
support.
And let me begin by thanking you for your strong support of
Bureau of Prisons. I am particularly grateful, as you just
mentioned, for the assistance with the additional funding
included in the 2010 Consolidation Appropriations Act that
allowed the Bureau of Prisons to continue basic operations and
allowed us to increase on-board staffing. And I will talk a
little bit more in detail about that in a moment.
I assure you we will continue to exercise sound fiscal
judgment and contain costs while maintaining the highest level
of service that we possibly can.
During fiscal year 2009, we achieved a net increase of 775
employees from the beginning of the fiscal year. And through
February of this year, we have added a net increase of 325
additional staff to the total staff on board.
We anticipate by the end of this fiscal year, we will add
about 925 staff to the base, and that number is inclusive of
the new activations.
The continued professionalism and dedication of our staff
has been critical to the Bureau's ability to operate safe and
secure facilities, managing more inmates than our prisons were
designed to house, and preparing inmates to transition back
into their communities.
Continuing increases in the inmate population pose
substantial ongoing challenges for our agency, particularly at
the medium- and high-security levels.
In 2009, a net growth of 7,091 new inmates was realized and
net growth with 7,000 inmates per year is projected for 2010
and 2011.
The continued increases challenge us in providing safe and
secure institutions for staff, inmates, and surrounding
communities.
The President's 2011 budget request for the BOP is $6.534
billion for the Salaries and Expense budget. That is nearly
$450 million more than the 2010 enacted level.
For the Buildings and Facilities budget, the request of
$269.7 million is nearly $171 million more than the 2010 level.
Our highest priorities continue to be: ensuring the safety
of staff, inmates, and surrounding communities; increasing on-
board staffing at BOP correctional institutions; adding bed
space; reducing the use of double and triple bunking, thus
leading to lower violence and crowding in prisons; increasing
the Federal Prison Industries work program, and other inmate
reentry programs such as drug treatment and education, through
an inmate skills development strategy that is consistent with
the Second Chance Act and; finally, maintaining the existing
institutions in an adequate state of repair to ensure safety.
Resources are requested in the New Construction decision
unit to acquire and modify the Thomson, Illinois Correctional
Center, expanding high-security federal prison capacity,
currently at 52 percent overcrowding. The Thomson facility
would provide up to 1,600 new high-security cells.
The number of Supermax or ADX beds available at Florence
has not increased since the ADX Florence was activated in 1994,
when the total inmate population was 95,000 inmates.
Thus, in addition to housing general population and high-
security inmates at Thomson, we will also use this to house a
number of administrative max-type inmates and other inmates who
have proven difficult to manage, and inmates who are designated
for special management units.
Conditions of confinement of special management inmates are
more restrictive than general population inmates and the
Thomson facility provides the physical structures and security
to appropriately house special management unit inmates at that
location.
Therefore, we are grateful for the Thomson opportunity but
remain concerned as the inmate population far outpaces the bed
space added.
In the M&R Program, we continue to address our highest
priority needs and work towards improving environmental and
energy performance, within the constrained funding levels that
exist in the M&R Program.
As you know, it is imperative that we reduce crowding and
to do so, one or more of the following must occur:
One, reducing the length of time that some inmates spend in
prison is an option.
Two, expand inmate housing at existing facilities where it
is conducive to do so. Add a housing unit if, in fact, it is
not going to be overly expensive to expand the support areas,
an assessment that we would have done.
Contract with private prisons for additional bed space for
low-security criminal aliens. That is number three.
Four, significantly increase the number of inmates in
community corrections, including home confinement.
And, number five, acquire and/or construct and staff
additional prisons.
Thus, there are major safety issues as the population grows
by thousands each year, but the capacity does not. In fact,
there are no fully funded new construction projects to add any
beds beyond 2013.
And four or five thousand inmates will be absorbed each of
those years into existing overcrowded and overutilized
infrastructure.
Chairman Mollohan, Congressman Wolf, again, we appreciate
your ongoing support. This concludes my formal statement.
I am encouraged that the 2011 President's request moves us
a step further towards adequate staffing and bed space
requirements to manage the increasing inmate population.
I look forward to the questions you may have of me on any
of these issues.
[The information follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

INMATE POPULATION INCREASES

Mr. Mollohan. First of all, I would just like to see if I
heard you right with some of your testimony, some of the facts
here.
In 2009, you took in 7,091 new inmates, is that----
Mr. Lappin. Our last year's increase was 7,091 inmates to
the base.
Mr. Mollohan. Seven thousand ninety-one----
Mr. Lappin. Seven thousand ninety-one to the base.
Mr. Mollohan [continuing]. Inmates to the base?
Mr. Lappin. We released----
Mr. Mollohan. Is that a net increase?
Mr. Lappin. Net increase, yes a net increase.
Mr. Mollohan. A net increase of 7,000, so you took in a lot
more than that.
Mr. Lappin. Let me explain. We actually released a little
over 60,000 inmates, but we admitted a little over 67,000
inmates. Of the 60,000 inmates released, around 20 thousand,
maybe a little less, were deported and a little more than 40
thousand were transferred or reentered communities in our
country.
Mr. Mollohan. And you are going to have the same experience
in 2010?
Mr. Lappin. We believe we will add another 7,000 to the
base this year, yes, and in 2011.
Mr. Mollohan. And in 2011? So that is 14,000 added to the
base during the next two years?
Mr. Lappin. And just a little background, one of our two
drivers right now is immigration. We actually received about
fifteen, sixteen hundred more inmates last year than we
expected.
We have seen a 45-percent increase in immigration the last
two years. That is 8,000 inmates with immigration convictions.
Their sentences are slightly shorter in nature, so we do not
have them as long, but it is still 8,000 inmates.
The other area is a small uptick in drugs and firearms. But
even a small increase for, say, fifteen hundred to two thousand
inmates has substantial impact because their average sentence
is 80 months.
So if you add 1,500 inmates in drugs or firearms, they are
staying with you for 80 months. That is one prison full for 80
months.
Mr. Mollohan. Well, what does the trend line look like past
2011?
Mr. Lappin. What we do is monitor indictments. We are
continuing to see a dramatic increase in indictments in
immigration. Again, we are seeing a slight increase of 1,500 to
1,700 indictments increase in drugs and firearms.
Mr. Mollohan. So you extrapolate out of that a certain
increase?
Mr. Lappin. A certain percentage of those will end up being
convicted----
Mr. Mollohan. Okay. So what----
Mr. Lappin [continuing]. Based on historical----
Mr. Mollohan. Yeah. What is the bottom line?
Mr. Lappin. We are going to see an increase in both drugs
and firearms and immigration----
Mr. Mollohan. Into the foreseeable future?
Mr. Lappin [continuing]. For the first--in the next couple
of years, yes.
Mr. Mollohan. But I am asking for a number associated
with----
Mr. Lappin. I will have to get you the number rather than
me guessing. I will give you what our projections are.
[The information follows:]

Future Population Projections for FY 2011, FY 2012, and FY 2013

The BOP's inmate population is projected to increase by a net 7,000
inmates per year for FY 2010 and FY 2011. For FY 2012 and 2013, the
inmate population is projected to grow by an additional 4,500 inmates
per year. The distribution of current population offenses are as
follows: Drugs 52 percent; Weapon offenses 15 percent; Immigration Law
violations 11 percent; violent offenses 8 percent; Fraud 5 percent;
Property Crimes 4 percent; Sex offenses 4 percent; and other
miscellaneous offenses 1 percent. BOP does not project offenses by
category for future years; however, the BOP does not anticipate
significant changes in the inmate population distribution by offense
category for FY 2010 through FY 2013.

Mr. Mollohan [continuing]. Your trend line projection past
2011. You gave it to 2011.
Mr. Lappin. Yeah. I think we go out three years, so we can
give it to you up to three years. So it will be 2011, 2012, and
2013 when our projections----
Mr. Mollohan. But just here for this testimony and not
holding you to the number----
Mr. Lappin. Sure.
Mr. Mollohan [continuing]. Does the trend line look the
same as what you have described for 2009, 2010, and 2011?
Mr. Lappin. Yes.
Mr. Mollohan. Out to----
Mr. Lappin. What we do in the out years, though, this is
just our conservative approach----
Mr. Mollohan. Yeah.
Mr. Lappin [continuing]. It is more difficult to predict
beyond three years, so what we typically do in the out years is
reduce that projected increase from the prior three years----
Mr. Mollohan. You say conservative. Does that mean you are
conservative to make sure you hit the number and if you are a
little above, that is conservative, or are you conservative on
the low side?
Mr. Lappin. We are conservative on the low side, so----
Mr. Mollohan. Why would you be conservative on the low
side?
Mr. Lappin. In lieu of us asking for and building more beds
than what we might need. We realize----
Mr. Mollohan. That seems like a slim prospect----
Mr. Lappin. That is true. And it has been.
Mr. Mollohan [continuing]. Given this kind of----
Mr. Lappin. And it may be that we need to step back,
although I have to say the GAO report, that study that was done
just recently was very complimentary of our population
projections, only a one-percent difference in what we projected
and what we actually received.
Mr. Mollohan. Yeah.
Mr. Lappin. So we have adhered to that.
Mr. Mollohan. Okay. But----
Mr. Lappin. For example, we have got 7,000 in 2011, 4,500
in 2012. 4,500, I am sorry, 4,500 in 2013. So in the out years,
2013, 2014, we projected about 4,500.
As we get closer, we would adjust those up or down based on
the indictment information we are receiving because that is a
better predictor the closer you get to the three-year window.
So right now our projections are 7,000 in 2011, 4,500 in 2012,
and 4,500 in 2013.
Mr. Mollohan. And thereafter about 4,500?
Mr. Lappin. Thereafter.
Mr. Mollohan. But that is really just a placeholder almost?
Mr. Lappin. That is a placeholder. As you get closer, you
begin to see the indictments coming in.
Mr. Mollohan. Yeah.
Mr. Lappin. Then you can make an adjustment----
Mr. Mollohan. Yeah.
Mr. Lappin [continuing]. Up or down based on the number of
indictments.
Mr. Mollohan. I see. So----
Mr. Lappin. Does that make sense?
Mr. Mollohan. Yes, it makes sense. Of course it does. It is
your testimony.
Mr. Lappin. Thank you.

CROWDING

Mr. Mollohan. Well, I mean, I want to get into these
questions, but, you know, anybody's reaction to that would be
how in the world, where in the world are you going to put these
people.
Mr. Lappin. Well----
Mr. Mollohan. I mean, Thomson uses 1,600 beds and, you
know, a prison here and a prison there, and you are going
around the country buying a lot of prisons.
Mr. Lappin. You want me to respond to that?
Mr. Mollohan. Sure.
Mr. Lappin. Okay. Obviously we have got four prisons being
built. McDowell and Mendota are being activated. And, in
essence, in our opinion, they are filled.
Mr. Mollohan. Okay.
Mr. Lappin. So next up obviously is Berlin and if we were
to acquire Thomson. Now, Thomson has 1,600 cells. We would
double bunk some of that. So if we had the entire prison, we
are going to get more inmates in there----
Mr. Mollohan. I see.
Mr. Lappin [continuing]. Than we do in our normally
constructed prisons. So it is a little larger.
Mr. Mollohan. Yeah. So you might get 3,200?
Mr. Lappin. I am not going to go that high, but we could be
in the 2,200, 2,300 range.
Mr. Mollohan. That still is far short of the net increase
you are going to----
Mr. Lappin. And then beyond that, we have Yazoo City,
Hazelton, and Aliceville. So that is everything that we are
building. And without a doubt, each of the years those come on
line, it is not going to be enough beds to accommodate the
number of inmates coming in----
Mr. Mollohan. Yeah.
Mr. Lappin [continuing]. If we hit the 7,000, 7,000, 4,500.
So we already started identifying and informing wardens where
we are going to add more beds at existing locations.
Mr. Mollohan. Which means more crowding?
Mr. Lappin. More triple bunking. I mean, that is where we
are at. There are very few single celled, single bunked rooms.
They are reserved for only those inmates that we cannot house
someone else with.
Mr. Mollohan. Okay.
Mr. Lappin. So we are going to increase triple bunking is
what is going to happen.
Mr. Mollohan. Okay. We will get into that in more detail a
little bit later.
Mr. Lappin. Okay.

GAO REVIEW OF BOP'S BUDGETING

Mr. Mollohan. Let me talk to you about budget formulation
process. The explanation statement accompanying the fiscal year
2009 bill directed the Government Accountability Office to
review BOP's budgeting methods, including the accuracy of its
estimates for utility and medical care costs and the accuracy
of its estimates in the growth of the inmate population.
GAO provided that report to the Committee late last summer
and made it publicly available last November.
I note first that GAO found the Bureau of Prisons' basic
budgeting processes to be sound, which is not quite the same
thing as saying that the budget requests submitted to Congress
have been sound or adequate. We understand that there is a give
and take process that you go through with the Department and
with the OMB and that BOP has frequently come out on the short
end of that.
The Government Accountability Office's major recommendation
was that you carry out an uncertainty analysis for each budget
request you submit to the Department and to OMB. Such analysis
would quantify the risk that would be incurred by cutting the
budget request below the amount requested by BOP's budget
formulation process. And by risk here, I mean the risk that
actual operating expenses would exceed the budget request.
How has BOP responded to the GAO recommendation?
Mr. Lappin. Well, we are very pleased with their evaluation
of our budget preparation process and the cost estimation. They
were very complimentary. We appreciate that. And I applaud my
staff who do a great job at that every year.
Without a doubt, you are correct. There is ongoing debate
between the Department and OMB about what the right number is.
We appreciate the recommendations to conduct uncertainty
analysis.
We are in the process of working with a company who is
helping us do that, so it is a statistical analysis that
provides a variety of scenarios as to the likelihood----
Mr. Mollohan. So you are developing a capability to be----
Mr. Lappin. We are doing that.
Mr. Mollohan [continuing]. Responsive to that----
Mr. Lappin. Yes.
Mr. Mollohan [continuing]. Recommendation?
Mr. Lappin. Yes, we are.
Mr. Mollohan. So what is the status of that?
Mr. Lappin. We are talking with a company. We are going to
hire a company who has experience doing this. So it is a matter
of us getting them on board and a contract and then working
with our research staff to develop an approach to doing this.
But I am hopeful in the next year we will be----
Mr. Mollohan. Will you be able to apply that analysis to
the 2011 request post----
Mr. Lappin. Probably 2012.
Mr. Mollohan [continuing]. Post request?
Mr. Lappin. We could certainly go back and look at it----
Mr. Mollohan. Yeah.
Mr. Lappin [continuing]. And see how it compares.
Mr. Mollohan. That would certainly be interesting.
Mr. Lappin. Yeah, it would be. But I think the actual use
of it is more likely 2012.
Mr. Mollohan. For your budgeting process?
Mr. Lappin. Yes.
Mr. Mollohan. Will you do that and will you make the
results of that available----
Mr. Lappin. Yes.
Mr. Mollohan [continuing]. To the Committee? You answered
yes before I asked the question, see, so then I cannot commit
you, I cannot hold you to answering the questions. Would you
make it available to the Committee?
Mr. Lappin. The results of our analysis?
Mr. Mollohan. Yes.
Mr. Lappin. Yes.
Mr. Mollohan. As applied to the 2011 request?
Mr. Lappin. Right.

FY 2011 BUDGET

Mr. Mollohan. Is the Administration's fiscal year 2011
budget proposal for BOP less than BOP's estimate for its
operating needs?
Mr. Lappin. I think it----
Mr. Mollohan. In other words, where are the----
Mr. Lappin [continuing]. S&E.
Mr. Mollohan. Where are the holes?
Mr. Lappin. I think without a doubt, construction and M&R
funding is hard to come by. And so I am not sure that we
received what we asked for in M&R and New Construction.
But the S&E side, we are satisfied with. And we can meet
our basic needs and hire more staff if we receive what has been
proposed in the 2011 President's budget.
Mr. Mollohan. Okay. But now let me just make sure I asked
that question so you understood. Is the Administration's fiscal
year 2011 budget proposal for the Bureau of Prisons less than
the Bureau of Prisons' estimate for its operating needs?
Mr. Lappin. I do not believe it is. I do not believe it is
less.
Mr. Mollohan. Okay. If the answer is different, you will
submit it for the record?
Mr. Lappin. Yes.
Mr. Mollohan. And if there are holes in the budget
request----
Mr. Lappin. The two areas that we are----
Mr. Mollohan [continuing]. Where are they and how big are
they?
Mr. Lappin. Yeah. I mean, obviously based on my opening
statement, we are requesting additional funding to build or
acquire additional bed space. We have been asking for
additional funding for maintenance and repair. And so those are
the two areas that concern us the most, the ability to acquire
more beds and the ability to repair our existing
infrastructure, so those are the two areas that continue to be
of concern.
Mr. Mollohan. The GAO report also recommended that the
Bureau of Prisons do a better job of documenting the
information that supports its budget estimates.
Have you----
Mr. Lappin. Yes.
Mr. Mollohan [continuing]. Instituted any new policies in
response to that recommendation?
Mr. Lappin. Yes. We are working on some ways of better
documenting what our calculations are based on, trying to make
the whole process more transparent so that more information is
understood as to how we go about coming up with the amount of
money we are requesting. So we agree with that recommendation
as well and we are putting in place some processes to
accomplish it.

STAFFING

Mr. Mollohan. Okay. Let us discuss staffing levels here for
just a moment. During our hearing last year, you estimated that
the Bureau of Prisons needed at least an additional 3,000
correctional workers to meet its staffing needs.
At the time, you were not sure if you would be able to
achieve any net staffing increase in fiscal year 2009. So I was
pleased to see your testimony indicate that BOP actually hired
755----
Mr. Lappin. Uh-huh.
Mr. Mollohan [continuing]. 775 new staff by the end of the
last fiscal year. In the fiscal year 2010 Appropriations Act,
we provided $106.4 million above the budget request, including
$98.2 million to allow you to annualize the cost of those new
workers for fiscal year 2009, and to make significant progress
in hiring additional correctional workers in the current year.
What is the total number of on-board staff you anticipate
reaching by the end of the fiscal year?
Mr. Lappin. We anticipate increasing----
Mr. Mollohan. Where is that chart?
Mr. Lappin [continuing]. Between 900 and 1,000 this fiscal
year, so around 925 this fiscal year added to the base and some
activations. So we added 775 last year to the base. We are
going to add nine, nine-fifty this year to the base and
activations. And if we get the President's request, we will add
around 2,000 next year.
But let me help separate those numbers. Our goal was adding
3,000 to the base excluding new activations. We believe if we
get the President's request that by the end of next fiscal year
at a minimum, we will have filled 2,600 of the 3,000 positions
we intended to, we wanted to fill to the base excluding the new
activations. So we are doing well.
Again, as I said last year, I am not sure that the 3,000
ultimately will be enough. Obviously that need grows. If
crowding continues to increase, we will have to reassess. But
as far as what we committed to, adding 3,000 to the base, we
are going to be at a minimum, we believe, at about 2,600 filled
by the end of 2011.
Mr. Mollohan. Twenty-six hundred?
Mr. Lappin. Twenty-six hundred of those 3,000. We may get
closer to that 3,000, but right now we believe we are going to
get pretty close around 2,600 of the 3,000 that we wanted to
fill. That excludes the activations.
So, if you add those activations in there, you are going to
be up probably close to 4,000 because you have got Thomson,
Berlin, and then there were some inmate coordinator positions
and a few other things.
Mr. Mollohan. The 3,000 you are talking about is to be
added to the base----
Mr. Lappin. The base.
Mr. Mollohan [continuing]. Not including activations?
Mr. Lappin. Correct.
Mr. Mollohan. What percentage would that bring you up to if
you actually hit that?
Mr. Lappin. Between 91 and 92 percent of authorized
positions. So in 2008, we were at 86 percent. And we if are
able to accomplish this by the end of 2011, we should be
between 91 and 92 percent.
Mr. Mollohan. What percent of your authorized level would
you like to be at, a hundred? No. Realistically what would it
be----
Mr. Lappin. Realistically.
Mr. Mollohan [continuing]. 97, 98?
Mr. Lappin. We were performing quite well when we were
filling 95 percent to 96. I mean, you realize we will never get
to a hundred because there is just too much turnover, people
retiring.
Mr. Mollohan. Yeah. And that is why I backed off of a
hundred.
Mr. Lappin. So years ago, when we were at 95, 96 percent,
we were functioning quite well. We knew this was a big request
to get that amount. That is why we suggested we do this
incrementally and we picked the 3,000 target. That is what we
are working towards.
When we finish that, we will step back and reassess
assaults on staff and inmates, waiting lists for drug
treatment, GED--those indicators we look at to see are we
accomplishing the work we want to accomplish.
Mr. Mollohan. That is where you come up with your
authorized numbers, going through that drill?
Mr. Lappin. Well, if the 3,000 has had the----
Mr. Mollohan. You will make an assessment?
Mr. Lappin. We will make an assessment.
Mr. Mollohan. Okay.
Mr. Lappin. And if, in fact, we have not reduced those
waiting lists, if we have not reduced----
Mr. Mollohan. Then you will go back to----
Mr. Lappin [continuing]. Then we will go back, then we will
come back and we will make another run of some additional----
Mr. Mollohan. And that would impact your authorized level,
right? I mean, you come up with your----
Mr. Lappin. Yes.
Mr. Mollohan [continuing]. Authorized level?
Mr. Lappin. Correct. What we would request would impact our
authorized----
Mr. Mollohan. Yeah. You would readjust what we need----
Mr. Lappin. Correct. That is correct.
Mr. Mollohan [continuing]. And what you need by your own
judgment becomes your authorized level, so we are measuring
against----
Mr. Lappin. Correct.
Mr. Mollohan [continuing]. What you, in essence, say you
need?
Mr. Lappin. Correct.
Mr. Mollohan. Has OMB provided input on that exercise?
Mr. Lappin. Well, obviously they have a lot of input into--
--
Mr. Mollohan. No. My question is, do they provide input on
your exercise of coming up with the number that you need? We
know they impact your----
Mr. Lappin. We come up with our number.
Mr. Mollohan. You come up with your authorized number?
Mr. Lappin. We come up with our number in our budget
development process.
Mr. Mollohan. All right. You come up with it. Are they part
of the process of your coming up with it, OMB?
Mr. Lappin. There is some budget direction given every
year.
Mr. Mollohan. No, no.
Mr. Lappin. Before we begin to develop a budget----
Mr. Mollohan. When you come up with your authorized number,
which is the number you want, does OMB push back on the number,
because that is a base upon which you work? That is your
justification for your budget request. And I am just asking, do
they push back or do they allow you to come up with your
authorized number and then just let you fund it at 91 percent
or 92 percent or whatever?
Mr. Lappin. Every year, there is some direction given at
the beginning of the budget process by OMB.
Mr. Mollohan. With regard to your authorized number?
Mr. Lappin. Correct.
Mr. Mollohan. Well, that is interesting. Those are two
different processes, I would think. I think it would be fair
for you to come up with what you need. You are the
professionals. I mean, they are great, smart people. And then
if they say we just do not have enough money, so you are going
to have to operate at 92 percent of your authorized level, that
is one thing. But for them to impact your authorized level as
you compute it based upon your need-- and tell me how I am
wrong here.
Mr. Lappin. There is obviously----
Mr. Mollohan. No, no. There is push and I just want to know
if they impact the process of your coming up with your
authorized number of employees?
Mr. Lappin. Yes.
Mr. Mollohan. They do? And so they push back and say, no,
you do not need that number of employees, is that----
Mr. Lappin. I am not sure exactly what type of----
Mr. Mollohan [continuing]. The push back you get?
Mr. Lappin. Push back occurs----
Mr. Mollohan. Okay.
Mr. Lappin [continuing]. Or if there is that much. You
know, it may be we are in agreement based on our----
Mr. Mollohan. Well, it may be and it may not be. But I just
want to understand. So they impact it at two levels, number
one, your authorized level, which we look at that and we say--
we assume here in good faith, oh, gee, your authorized level.
I mean, if I did not know a little bit more about it, I
would think the authorized level was in the authorizing bill.
But you come up with that based upon your need. And so if they
are impacting that number, then that impacts your percentage.
And so we look at 92 percent and say, gee, you are
operating at 92 percent and, you know, you need to get to 95.
But if they push down on your authorizing level, then it has
less meaning. Anyway, okay.
When discounting staff positions at newly activating
prisons, is the number of authorized correctional worker
positions at your existing institutions going down, going up,
or staying level?
Mr. Lappin. Could you say that again?
Mr. Mollohan. Yes, sir. When discounting staff positions at
newly activated prisons, taking that out, and I guess looking
at your base----
Mr. Lappin. Yeah.
Mr. Mollohan [continuing]. Is the number of authorized
correctional worker positions at your existing institutions
going down, going up, or staying level?
Mr. Lappin. The number of staff at those locations is
increasing. There is no change in positions. There are X number
of positions that are authorized at a location.
The issue is how many of those can you afford to fund and
fill. That number is increasing. It increased last year. It
will increase this year. It will increase next year if we get
the President's requested budget. So those 3,000 positions are
being filled and funded in existing facilities.
So their base, the number of employees they have on board
is increasing to the tune of 3,000, if we fill those 3,000, to
the tune of 3,000 new employees to the base. So we are adding
correctional staff. That has been our focus up to this point.
Now we are looking at other support areas that were
negatively impacted in years past, drug treatment, education.
My sense is that if we are successful in filling those 3,000
positions that virtually all departments at an institution will
reap some benefit, that is more staff than they had before,
with the exception, we are going to be very conservative in
filling administrative support areas, like financial
management. They may get some depending on their situation.
But our primary focus is on positions that have direct
contact with inmates. That number is increasing. It did last
year. It will this year and it will next year if we get the
President's request.
Mr. Mollohan. In the process of determining authorized
positions based on your need, when you look at that institution
by institution, these considerations you are now talking about
determine what your institution develops for the need and for
the authorized level; is that correct?
Mr. Lappin. What we have done is every location has
developed a staffing plan, here is where we would like to be
based on our concerns over areas that are not performing as
well, where we just need more resources.
Mr. Mollohan. At that institution?
Mr. Lappin. At that location. And so when the money is
distributed--. I will be honest with you, in the last year or
so, our direction to the wardens has been we want you to fill
correctional officer positions because we could see that we
were, rather what was happening, because we did not have enough
correctional officers, is that we were taking staff out of
other departments to work in correctional services.
So say here I am a drug treatment specialist or a nurse. We
would take those people out and make them work in correctional
services. We do not want to do that.
Mr. Mollohan. Yeah. But my----
Mr. Lappin. So we focused on correctional officers.
Mr. Mollohan [continuing]. My question has to do with
developing the authorized level, developing the need level. And
so on an institution by institution basis when you say how many
people do you need here----
Mr. Lappin. Yes.
Mr. Mollohan [continuing]. They do an assessment of that,
you know, a particular number of authorized correctional
officers at a particular institution? You determine at an
institution how many correctional officers you need?
Mr. Lappin. That is done locally.
Mr. Mollohan. It is done locally. And then that is passed
up and you add that all up? It is a sum of those estimates----
Mr. Lappin. Well, it is not really.
Mr. Mollohan. For your----
Mr. Lappin. They get some feedback. So we give them
feedback asking them why do you think you need this many or why
aren't you asking for more. And we can do that, in part because
we have so many institutions today that are almost virtually
exactly alike in design----
Mr. Mollohan. Yeah.
Mr. Lappin [continuing]. And types of----
Mr. Mollohan. Older institutions will be a different
number, but the same number----
Mr. Lappin. That is correct. But a lot of these newer
places are very similar in design with very similar inmates. So
when you get this request from one that wants 50 more people
than another--
Mr. Mollohan. Right.
Mr. Lappin [continuing]. And they are alike, we go back and
say, well, how come they can do it with 50 less, so----
Mr. Mollohan. How frequently do you go through that
exercise for correctional officers?
Mr. Lappin. Well, here recently for correctional officers,
we have done it much more frequently than we did in the past.
So we have been doing it probably annually in the recent past
for correctional officers.
Mr. Mollohan. Like in the last two, three years----
Mr. Lappin. Yes.
Mr. Mollohan [continuing]. You have gone through that
assessment coming up with a current authorized----
Mr. Lappin. Correct.
Mr. Mollohan [continuing]. Number? Okay. What is the
process for determining the authorized number of correctional
workers associated with inmate programs such as drug abuse
treatment or vocational training?
Mr. Lappin. Drug abuse is probably the simplest of all the
program areas because we have got a ratio of treatment
specialists to participants of about one per twenty-five. So
that is much simpler to determine. The other ones----
Mr. Mollohan. An optimal ratio?
Mr. Lappin. That is correct, of one to twenty-five.
Mr. Mollohan. That is what you would like to have?
Mr. Lappin. That is what we would like to have.
Mr. Mollohan. So----
Mr. Lappin. Actually, that is what we adhere to. Very
seldom do we slip. We might slip by a couple, three.
Mr. Mollohan. Well, why do you have waiting lists in that
program then?
Mr. Lappin. Because we just have not been able to hire
enough of them. We did not have enough funding in drug
treatment to hire more of them.
Mr. Mollohan. To get to that one to twenty-five ratio?
Mr. Lappin. And that is why there is a waiting list.
Mr. Mollohan. But your authorized number is based upon a
one to twenty-five ratio in that program?
Mr. Lappin. And that is why you have got a waiting list
because we will not increase that ratio to absorb those extra
inmates.
Mr. Mollohan. Okay.
Mr. Lappin. Okay. So we are going to adhere to the one to
twenty-five, in that range, not exactly, but pretty close, and
that is why you have got a waiting list, because you have got X
number of treatment specialists and more participants than you
have to adhere to that one to twenty-five.
Mr. Mollohan. For us that like simple ways of understanding
this, that is a great one. And we will remember that we can ask
you the ratio on----
Mr. Lappin. Drug treatment. That is an easy one.
Mr. Mollohan [continuing]. Drug treatment programs. It has
got to be one to twenty-five and if you are not meeting it, it
is not adequate?
Mr. Lappin. Well, now, the other program area is a little
more difficult, education and vocational training, because we
provide that function in a combination of ways. At some
locations, it is Bureau employees and at others, it is
contract. And at some, it is a combination of both depending on
what is available in the community. So it is a little harder to
assess.
Mr. Mollohan. I have gone too long. I am going to pick up
on that.
Mr. Lappin. Okay.
Mr. Mollohan. Mr. Wolf.
Mr. Wolf. Thank you, Mr. Chairman.
And I think the Bureau of Prisons is fortunate to have Mr.
Mollohan.

U.S. BUDGET AND STATE AND LOCAL

With regard to funding, I think your testimony, there were
so many questions, I was just sitting here, you are going to
get to a point now, though, that not criticism of this
Administration or the last, but of both in some respects.
The nation is fundamentally broke. We are broke. If we
could not print money, we would be in Bankruptcy Court. And if
you look at the numbers in 2020, about a trillion dollars goes
out every year for interest on the debt. And we are borrowing
from China and Saudi Arabia. Saudi Arabia funded the process
that led to the Afghan issue.
We are borrowing money so we can build Thomson or we are
borrowing money from the--I mean, so we are reaching a point
and, of course, there is not the lobby, if you will, or the
support for prisoners that there is for, you know, something
else. I think we are coming to a point, and you probably will
not be there, but we are coming to a point where it is really
going to be just very bad in the country.
I want to ask the questions, though, that I have, but if
you compare this where you are in the federal level, is it the
same problems at the state and local level?

STATE AND LOCAL PRISON POPULATIONS

Mr. Lappin. Well, they are having their own difficulties.
But I do not know if you saw it yesterday or today, the Pew
report is coming out.
Mr. Wolf. I did not see it.
Mr. Lappin. And it will be a good report to look at. It is
the first time in 38 years that the population of state
corrections agency has declined.
Mr. Wolf. And that is because like in Michigan, they are
facing a situation they just let them go. California is
fundamentally broke, so they are just physically letting them
go.
Mr. Lappin. Well, there are a variety of things that are
occurring. But you are right. They have----
Mr. Wolf. They have the same problem, but they are treating
it differently. You are not going to let a guy go. But in
Michigan, and I am not being critical----
Mr. Lappin. Right.
Mr. Wolf [continuing]. We have had before the Committee or
the Chairman had some very good testimony of what they are
doing. But their solution to the problem is opening the door
and having fewer people in.
Mr. Lappin. They have diversion programs, increasing good
time, more reliance on parole, so on and so forth.
Mr. Wolf. So we are now unfortunately number one in the
world of percentage per capita of prisoners in the United
States. Versus these other countries, we are number one.
Mr. Lappin. Yes.
Mr. Wolf. That is not very good.
Mr. Lappin. No, it is not. I agree. It is a tragedy.

FEDERAL PRISON INDUSTRIES

Mr. Wolf. And also because of the lack of support you had
from the Democratic party and the Republican party, members of
both sides, you literally have no prison industries program
left for all practical purpose. It was ready to go. It was
almost going to be like a historical time.
But 15 years ago, how many people did you have in the
prisons working in the prison industries--both numbers and
percentage-wise and what do you have today and what do you
expect it to be next year?
Mr. Lappin. Well----
Mr. Wolf. Show me how----
Mr. Lappin [continuing]. Congressman Wolf, I am not going
to concede yet that we have lost prison industries.
Mr. Wolf. No. But I strongly support it. I think the
Chairman does, but this Congress does not. And the Chamber of
Commerce does not and you go on and on and on and on. But tell
me how many are in the program and where is it going?
Mr. Lappin. Eleven percent.
Mr. Wolf. And what was it 15 years ago?
Mr. Lappin. Probably close to 25 percent.
Mr. Wolf. Twenty-five percent?
Mr. Lappin. Close to 25 percent.
Mr. Wolf. Then doesn't that impact on recidivism?
Mr. Lappin. It does. Yes, it does. There are fewer inmates
learning work skills that they lack and then returning to our
communities. They continue to struggle too, when they find a
job. keeping that job. Because they do not get up on time, they
do not understand how to develop a relationship with their
boss, and work through conflict.
So without a doubt, the fewer inmates that participate in
work programs, we are going to see an increase, we believe, in
recidivism because of their inability to either acquire or keep
a job once they have it.
So, it is tragic that this is occurring. But we have more
support than some may think. I think there are a lot of people
in the Congress out there who see the other side. I know that
there has been a lot of----
Mr. Wolf. If they do not vote with you----
Mr. Lappin. Well, I think some----
Mr. Wolf [continuing]. Do they send you a little message
that we really agree with you, but we are not going to do
anything about it? Is that----
Mr. Lappin. Well, we had a hearing a year or so ago,
Congressman, the House Judiciary had a hearing on prison
industries.
Mr. Wolf. Okay. Bobby Scott.
Mr. Lappin. Bobby Scott.
Mr. Wolf. Bobby Scott supports it.
Mr. Lappin. But there were Democrats and Republicans at
that hearing.
Mr. Wolf. But nothing has happened. I----
Mr. Lappin. You are correct.
Mr. Wolf. I have had a bill in for years which the previous
Administration opposed, this Administration opposes it, and the
Congress to have a program whereby we would get products, and I
am not going to take the time, where they are no longer made in
the United States, almost a repatriation of the industry,
television sets, if you will, and manufacturing. Lorton was
ready to do something and people on both sides of the aisle
opposed it, the unions opposed it, everyone opposed it. But
this would not have been competition with any American
industry.
Mr. Lappin. We understand.
Mr. Wolf. It would have been to create new industry and
then the truck drivers dropping off the wire would have been
American employees and a person who--I mean, but we could not
get that passed.
Mr. Lappin. We are working on it. We continue to work on
it. And the Administration is working with us on that. So, I do
not want you to feel as though there is no hope here. This
Administration, as did the prior Administration supported it.
Obviously they did not think it was the time to move forward,
but we continue to advocate for legislation that would help us
do some of the things you had suggested.
Mr. Wolf. Do you expect it to pass in this Congress?
Mr. Lappin. I have no idea.
Mr. Wolf. Probably not.

COUNTERTERRORISM

Let me ask you. Congress identified 14.2 million in fiscal
year 2010 for your counterterrorism unit. This office
coordinates procedures and information related to the growing
terrorist prisoner population. This has been funded out of the
supplemental bills in the past.
Is the staff unit operating at full strength this year and
does your fiscal year 2011 request continue full funding?
Mr. Lappin. The unit is in operation.
Mr. Wolf. How many people?
Mr. Lappin. I will have to get exactly how many people are
there, but it is staffed and it is funded to be staffed in
2011. My guess is we have actually put more resources in there
than the 14 million provided because we know how important this
issue is. So, we have gone even beyond the staffing of this
unit. We have created communication management units.
[This information follows:]

Number of Employees in BOP's Counterterrorism Unit

The BOP Counterterrorism unit currently has 24 staff members.

As you recall, you were angry at us because inmates were
inappropriately communicating with people in other countries.
We have put in procedures and processes to stop that, minimize
the likelihood that would occur, and we have more staff on the
Joint Terrorism Task Forces.
On a day-to-day basis, we are monitoring mail, phones, and
visits of inmates who fall into this category where we are
concerned about what they are going to say to someone outside
of the Agency, outside of the Bureau of Prisons, that might be
detrimental to the safety of the United States.
So, we have more translation services. We have more staff
monitoring what they are doing day in and day out. And we, I
believe, have been quite successful at limiting the ability of
those people to act out in that manner.
Now, the Department has helped us with the Special
Administrative Measures that are imposed on people, as well as
the units that we have created to properly manage and control
their communications. So, it is up and running and it is
staffed, and we will continue to staff it.

PRISON RADICALIZATION

Mr. Wolf. A significant concern with terrorist inmates is
the potential for radicalizing other inmates. Have you seen any
evidence of this in the federal prisons and what measures do
you have at your disposal to prevent this from happening?
And as an afterthought, though, I saw Senate Foreign
Relations Committee report saying that there are a number of
people who have been radicalized in American prisons who have
left and gone to Yemen. And I do not know. It did not say.
But what are you seeing and what is the status of that?
Mr. Lappin. Number one, we are not seeing that happen on a
wide scale. But without a doubt, every single day, there is a
risk that could happen between the interaction of two inmates.
So, what we have done is we have classified these inmates
and identified those who are, one, a greater risk for
advocating for that type of behavior, that they would be out to
radicalizing, or those that are susceptible to being
radicalized to some degree. We are managing them and
controlling them in more restrictive housing, in the
communication management units, or if need be at ADX Florence.
So, through the classification process, we control
communications. If there is someone in our general population
that is acting out in this manner, we immediately move--we
identify them. We counsel them. We stop that behavior or we
will move them to one of these more restrictive units.
So, our staff know how important this issue is. If they
identify an inmate radicalizing, to be quite honest with you,
there is a lot of different types of radicalization, but on
different topics, not just terrorism, but radicalizing inmates
to participate in gang-oriented behavior, we want to discourage
that as well.
So, we do our best to pull those leaders out and manage
them in more controlled environments. That is being
accomplished at ADX Florence, at SMUs, as well as our
communication management units, more restrictive, controlled
conditions, more oversight of their mail, phone, and visits so
that we can better control that behavior.

GANGS

Mr. Wolf. You have indicated that one out of every four
inmates in high-security institutions are gang affiliated.
Number one, is this an increase in previous experience?
What do you think is driving this increasing gang affiliation
and what are the implications of a prolific gang affiliation
for managing your high-security institutions? How serious is
it?
Mr. Lappin. This is a serious problem. We are seeing an
increase in the number of inmates with gang associations or
that want to be part of gangs. The increase is in part because
of the type of people that are being indicted and prosecuted
and sent to federal prison, more serious drug offenders, more
firearms offenses, more cases that identify and prosecute and
convict people who have those associations. That is one.
Number two, the influx of non-U.S. citizens, especially
from Mexico, so the percentage of Mexican gangs--I mean, this
whole issue you see occurring in Mexico, well, some of those
people are in the United States illegally. They get convicted
in Federal Court and they end up in our prisons.
So, we have seen an increase in the number of inmates with
ties to Mexican gangs and organizations who, of course, do not
get along very well with Mexican American gangs, let alone the
white gangs and black gangs. So, we have had to put many more
resources into identifying and managing the gangs. And we do
that by trying to distribute them more equitably across our
institutions. This is a growing concern which is complicated by
more crowding and more of these inmates in larger groups in
individual institutions.
Mr. Wolf. How is the problem comparable in the state
prisons?
Mr. Lappin. Similar problems, especially along the borders
and the larger systems, you know, California, Texas. Those
large systems as well are incarcerating more gang-related
offenders.
Mr. Wolf. So is the prison population generally today
compared to, say, 1965 or 1975 more violent?
Mr. Lappin. Ours is, yes.
We have seen a 50-percent increase in the number of
offenders who have violent backgrounds in our custody, a 50-
percent increase. That drives more gang-oriented offenders. So
those things are driving the increase in these gangs and gang
members and the associations that they establish in prison.

NON-RETURNABLE CRIMINAL ALIENS

Mr. Wolf. Whatever happened, and this is not gang, but you
just triggered a thought, there were a number of prisoners that
were in federal prisons because the country that they came from
would not take them back. Cuba----
Mr. Lappin. Correct.
Mr. Wolf [continuing]. Does not take back. Vietnam does not
take back. How many of those today prisoners are people who are
in prison today because the country of origin will not take
them back? What countries are the prominent countries who will
not take back?
Mr. Lappin. I do not have that number. We can get it for
you. My guess is the number is smaller than it once was.
[The information follows:]

Non-Returnable Criminal Aliens Housed by BOP

The Bureau of Immigration and Customs Enforcement (ICE) typically
removes detainees upon expiration of their sentence and does not leave
them with BOP. The exception to this is that there are a total of six
Mariel Cuban detaines remaining who have been housed in the BOP many
years, and they are reviewed annually by ICE for releasability. These
are the only ``long-term'' detainees housed by BOP for ICE, as a result
of the long-term detention issue addressed by the Supreme Court in
2005, which effectively eliminated long-term detention.

Mr. Wolf. Give me a couple you do know.
Mr. Lappin. Well, obviously we cannot get people back to
Cuba. There are some east Asian countries. But I will provide
you the list.
Mr. Wolf. Plus----
Mr. Lappin. Plus the number of people we have in our
custody.
Mr. Wolf. What happens if you have a violent criminal from
Cuba or from Vietnam and the prison sentence was 15 years, the
15 years is up, it is the beginning of the 16th year, what
happens to them?
Mr. Lappin. Well, technically they have finished their
federal sentence, but they have a detainer from BICE precluding
them from being released in our country. And one of two things
happen. We either transfer them to Bureau of Immigration and
Customs Enforcement and they house them and deport them or--I
do not know what happens to them once they leave us. Or they
ask us to house them, and we house them until they get turned
over to the Bureau of Immigration and Customs Enforcement.
Mr. Wolf. And can you tell us how many?
Mr. Lappin. We will get the number of how many of those
that we have. I can tell you we have got 55,000 non-U.S.
citizens in our custody. How many of them fall into this
category of not being deportable is what I do not know and we
will find that number.
Mr. Wolf. Somehow the Administration, and, again, the
previous Administration did this, but there has to be some
candid conversation with some of these countries. Some of these
countries we help in many different ways. We gave MFN to
Vietnam. They are persecuting the Catholic Church, persecuting
Buddhists and our Ambassador never speaks up for that, yet they
will not take some of these people back.
I think there is almost a disconnect there. If they are not
going to take the people back and they are going to put the
burden on us, there ought to be some repercussions with regard
to the country.
Mr. Lappin. I do not disagree with you, but you are really
asking a question that I would not have the answer for. We
would have to go to the Bureau of Immigration and Customs
Enforcement who has really a larger role in that responsibility
of getting them returned.
We basically hold detainees for them. We turn detainees
over to them once they have room for them and they say we want
them back.

PRISON RAPE ELIMINATION ACT (PREA)

Mr. Wolf. Okay. As you know, this Subcommittee has led the
effort, and it was Senator Kennedy's bill and Bobby Scott's
bill and my bill, for the elimination of prison rape.
On Tuesday, I spoke to the Attorney General about my belief
that the Department must act quickly to implement the standards
recommended by the Commission.
I know the Bureau of Prisons was not excited about our
bill. I know a lot of state people are not excited about our
bill. The Bureau of Prisons and corrections are responsible for
assisting state and local systems on prevention, investigation,
and punishment.
Can you describe some of the training and services you are
providing and does your request for fiscal year 2011 include
additional funding to carry out these responsibilities to make
sure, and I have talked to the people who have been in federal
prisons, who have been raped, and so what training do you do
and how much funding do you have for that allocation?
Mr. Lappin. Well, let me begin by saying that reducing
assault on inmates of any kind is a high priority for all of
us. And when I say all of us, I am going to qualify that.
I meet annually with the other Directors of Corrections and
they all, virtually all of them agree that reducing assault of
any type, sexual, physical, verbal, is a high priority for all
of us.
So, I do not necessarily agree with your opinion that we do
not agree with the Act that was passed.
Mr. Wolf. I talked to people who have been in prison and I
have also talked to some of the associations that deal with
this issue and they tell me there have been cases where prison
staff have threatened people to put them into a certain prison
with a certain person almost as a form of intimidation.
Secondly, I have talked to prisoners who have told me that
they went through this terrible thing and there were staff
members and others that knew what was going on and never really
raised it.
And we have also talked with people, several women who went
through this in the Federal Bureau of Prisons.
You have prisoners who have been assaulted by some of your
federal people, correct?
Mr. Lappin. Without a doubt, we have. And without a doubt,
it does occur and it should not occur and we want it to end.
And given that, we agree with legislation to assist us in
precluding that from occurring. And we have been working with
the Commission, the PREA Commission. We are now working with
the Attorney General in his responsibilities.
To be honest with you, I applaud the approach the Attorney
General is taking to a thoughtful assessment of what should be
done because at the end of the day, what we want to have happen
is we want regulations passed that actually can be implemented.
Those that people not only can afford to implement, but they
make sense to implement. So, I am confident that ultimately
that will happen.
Mr. Wolf. Most of the Commission members who know a lot
about this do not agree with you.
Mr. Lappin. Well, I am sorry to hear that. There are many
of the recommendations they have made, however, Congressman,
that we do agree with.
Mr. Wolf. But the Attorney General is dragging his heels on
this and the Attorney General could say if there are different
recommendations, some are so you agree and everybody else
agrees, implement them now. There are some that, you know, you
could almost phase this in.
But to put it off for another year, maybe even a year and a
half, we have talked to people that are involved in this, they
think it may be 2012.
Have you ever read this, No Escape?
Mr. Lappin. No, I have not.
Mr. Wolf. I will give you a copy.
Mr. Lappin. Thank you, and let me tell you what we are
doing. That was the last part of your--what are we doing to
limit the opportunity for this to occur in our prisons.
I will send you a copy of our program statement that
outlines what staff's responsibility is and what inmates'
responsibility is, applicable to an allegation of sexual
assault. And it will lay out for you exactly what occurs.
[The information follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

We train our employees every single year on that specific
program statement. We train inmates. We go over the program
statement with the inmates. So they know what their obligation
is.
We have increased training for our investigative staff, for
our leadership staff, so that when they become aware of an
allegation, that they know what to do and how to go about doing
it.
When an allegation is made, oftentimes it is a crime and we
treat it as a crime.
Mr. Wolf. Are allegations up or down?
Mr. Lappin. Allegations coming from anywhere, from outside?
Mr. Wolf. Are the numbers, the overall numbers up or down?
Mr. Lappin. Well, our numbers are relatively low. And to be
honest with you, look at the research that the Office of
Justice Programs has done. Their research, which I think is
exceptional research, reflects that the numbers are not very
high to begin with.
Mr. Wolf. They are low, but are they up or down?
Mr. Lappin. Our numbers are probably about where they have
been. You know, it is a very low number. We will get the
numbers over the last four or five years.
For example, last year, we had three sustained misconducts
of inmate on inmate sexual, inappropriate sexual misconduct.
And that is broad--that is everything from verbal abuse to
actually a physical assault. So, we had three sustained.
We will get you the numbers for the last few years, but the
numbers are low. We do not see that increasing in the Bureau of
Prisons. I cannot say that is true elsewhere.
[The information follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Mr. Wolf. What about at the state level?
Mr. Lappin. We will have to rely on OJP's research and we
can provide a copy of that to see what is happening there.
In many states, I think they are similar to us. You are
going to see this happening on occasion. The number is
typically low. Some variation in increase and decrease, but
overall, the numbers have been low with the exception, as you
probably read, in juvenile facilities where there was more of
an increase in that evaluation.
[The information follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Mr. Wolf. You are aware the report came out?
Mr. Lappin. It did. But, again, this has been----
Mr. Wolf. Why do you think there was an increase there?
Mr. Lappin. I am not familiar enough with the situation.
Mr. Wolf. The Attorney General ought to read that too.
Mr. Lappin. We are on a working committee. We look at all
those documents and work with the Attorney General's staff on
what is available.
Mr. Wolf. Well do you agree that the longer it takes to
implement this the greater the opportunity and the greater
chance this will continue?
Mr. Lappin. I can say that many states have already done
some of the things we have done. So, I think just the passage
of the law has resulted in more attention.
And let me mention, I am going to pat the National
Institute of Corrections on the back. They have done great work
developing training programs, CDs, videos, materials that have
been sent out to all the states, all the jails, to provide them
a process by which they can better educate staff and inmates
about PREA.
Mr. Wolf. Okay, last question. Do you believe that once the
regulations come out it will have the impact in decreasing the
number of prison rapes?
Mr. Lappin. We are certainly hopeful.
Mr. Wolf. Okay. So if we are hopeful the earlier they come
out the better.
Mr. Lappin. We are hopeful, absolutely.

FEDERAL PRISON INDUSTRIES (FPI)

Mr. Wolf. Your testimony indicates that on the 11 percent
of your work eligible inmate population is able to participate.
How does that compare? And you answered that with regard to the
previous. Do you compare it to the 25 percent or is that your
high point?
Mr. Lappin. My guess is if you go back further when the
Bureau of Prisons was much smaller it was probably even larger,
probably 35 percent, but the Bureau of Prisons at the time may
have only had 26,000 inmates.
Mr. Wolf. At that time did everyone that wanted to work
could work?
Mr. Lappin. I can't say whether or not they had waiting
lists or not, I don't know.
Mr. Wolf. As a result of this you have had to close
factories and lay off staff the last year. Is that accurate?
Mr. Lappin. That is correct.
Mr. Wolf. How many factories closed last year?
Mr. Lappin. We closed upwards of eight factories, we
eliminated 105 positions, staff positions, and about 1400
inmate jobs.
Mr. Wolf. And will there be further closures this year
based on the budget?
Mr. Lappin. It is not really based on the budget, it is
non-appropriated.
Mr. Wolf. Well it is based on the law.
Mr. Lappin. It is actually based on our loss of money in
prison industries. I think there is a possibility we are going
to see more closures or more downsizing.

RE-ENTRY PROGRAMS

Mr. Wolf. Let me ask you this other question before I go
back. The reentry and faith based. The fiscal year 2010 bill
included a major investment in prison reentry programs. I know
we also included a language in the fiscal year 2010 bill
directing you to get an independent panel to make
recommendations for options for the development of prison
reentry programs, including the options related to the role of
faith based community programs.
Can you bring us up to date on your actions so far to carry
out this language and share with us some of your ideas on how
this might be able to help and contribute to the development of
a more effective reentry program? And the language as you know
called for a report within 120 days.
Mr. Lappin. We have convened the panel, they met last
Monday. The panel of experts included Dr. Ed LaTessa out of the
University of Cincinnati, Dr. Roger Jarjoura out of Indiana
University and Purdue University, and Steve McFarland, now with
World Vision, previously with Prison Fellowship, Nancy Merrit
out of National Institute of Justice was invited, but was
unable to attend.
They met for the day. They met with all of our reentry
quote ``inmate skills development, second chance related
staff,'' both prison industries and drug treatment, our core
staff who are involved in the inmate skills development process
to look at what we were doing, the direction that we were
going. They provided a number of recommendations, and we will
be drafting a report that identifies their recommendations and
how we are going to address those recommendations on our
process.
I am happy to say that with the funding we have gotten the
last year we are much further along than I anticipated in the
requirements applicable to Second Chance Act, in the
implementation of the inmate skill development program that was
advocated for in that Act. So, more inmates are getting into
that process.
Let me just tell you where we are at now. We are now
inventorying all of the programs in the Bureau of Prisons to
identify where we have holes. Where do we have institutions
that lack programs that address skill needs, and what is it we
need to do to fill those holes? So, that is a huge initiative
at 115 locations, but that is where we are at in the process.
But I am encouraged by the progress that is being made by
direct involvement in this program not only with the staff who
oversee it, but actually applying it to the inmates that they
have responsibility for managing.
Mr. Wolf. And do you think faith based is an important part
of that?
Mr. Lappin. Sure, it is. It is a part of it. Absolutely.
Mr. Wolf. Would it make sense to you if you could actually
find a panel not over to the right nor the left just, you know,
a panel made up of people like Mark Earley and people like that
to really take an in-depth look at the prison system? Kind of a
blue ribbon panel. I always am careful about offering this
because then you are going to get some guy that wants to do
this, you are going to get some that go so far off. But I mean,
are there five people or ten? Would it make sense to give the
whole prison system kind of a look at, a blue ribbon panel that
started out not with any preconceived notions, but just would
really go with truth and integrity and to really look at it?
Mr. Lappin. For the same reason you hesitate, I hesitate as
well, and am a bit reluctant to say this is what we need to do.
We have a lot of oversight out there, as you well know, and you
are right, I am not sure that you can really identify folks who
would approach it as you would like them and we would like them
to approach it. So, I am hesitant to say yes, this is the right
thing to do.
Mr. Wolf. The last question. Who do you think is the most
knowledgeable person in the country that doesn't have a
political agenda, that he or she is not going to be----
Mr. Lappin. Influenced.
Mr. Wolf. Yeah.
Mr. Lappin. Let me give it some thought. I will come up
with a name or two and reach out to you.
Mr. Wolf. Thank you very much.
Mr. Lappin. You are quite welcome.
Mr. Mollohan. Mr. Fattah.
Mr. Fattah. Thank you, Mr. Chairman. Let me thank you for
your long service. You have been in this position since 2003?
Mr. Lappin. Yes, sir.

INMATE PER CAPITA

Mr. Fattah. So you are not a political appointee of any
kind, you are just serving the public's need to administer the
prison system.
I got a few questions. You got over 200,000 inmates. The
cost per inmate across the system is?
Mr. Lappin. Cost per day per inmate?
Mr. Fattah. Per inmate on annual basis.
Mr. Lappin. On annual basis. It is around 25 thousand.
Actually it is, with everything, I am talking about every
single penny, $27,000 a year. That is including administrative
staff, staff in the field, all the training programs, $27,000
per year.

NON-U.S. CITIZENS

Mr. Fattah. Okay. Now and you said 53,000 are not American
citizens?
Mr. Lappin. Well 54,899 non-U.S. citizens.

LIFE SENTENCES

Mr. Fattah. Okay. Now can you tell the Committee what
percentage of across the board, obviously probably the American
citizens, but you know, as best as you can tell in terms of the
population, how many of them are lifers? How many of them are
going to be with you for the duration, absent some of the
judicial intervention?
Mr. Lappin. A small percentage. Most inmates are going to
ultimately be released.
Mr. Fattah. Right.
Mr. Lappin. I don't have that with me.
Mr. Fattah. Okay.
Mr. Lappin. But a small percentage are in our prisons for
the rest of their life. Now some of them do it on the
installment plan.
Mr. Fattah. Right. They may make multiple----
Mr. Lappin. That's correct. But when you look at the entire
210,000 it's a small percentage.
Mr. Fattah. But would you guess it is one percent or is
it----
Mr. Lappin. I don't really want to guess. It is something
we can get for you. Two or three percent.
[The information follows:]

Percentage of Inmate Population Identified as ``Lifers''

There are a total of 6,058 inmates (about 3 percent) in BOP custody
with life sentences.

Mr. Fattah. Yeah, two or three percent. So even though you
run these prisons and the society is safe, you know, and people
are put away, the real secret here is that the vast majority of
them are going to come back to our communities.
Mr. Lappin. You are absolutely correct.

FUTURE PRISON CHANGES

Mr. Fattah. Now, I know you're responsibility is to
incarcerate them and you do have a number of programs to try to
improve their life circumstances, you know, so that when they
return or reenter communities that they may not be involved in
further anti-social or illegal activity, and you know, we have
passed the Second Chance Act which I was involved with and
cosponsored, and I know there are a number of efforts there.
What I am interested in is given the fact that you have
been doing this for a while and that the country has been doing
it for a much longer while, in fact we incarcerate more people
in our country per capita than any other country in the world,
where are we headed down the road?
I mean, in terms of kind of enlightened--I know we have
been doing a lot of research and evidence based analysis. So if
you were sitting here in front of this Committee ten years from
now is the system that we have essentially going to be the
system that we have now or are we learning things that are
going to change the way our country deals with people who
commit crimes and who need to be punished or that society needs
to be protected from on a temporary basis? Are we going to do
anything differently and the research and all of the experience
we have had informing any great changes in our prison system?
Mr. Lappin. I hope there are changes. I will be honest with
you, I don't think we are doing a good enough job. One, we
think, we believe a major part of our responsibility is
preparing that offender for release.
Mr. Fattah. Right.
Mr. Lappin. Not just providing a safe environment for them
to live in and for our staff to work in, and to protect the
public, a major part of our responsibility is to try to improve
the skills and abilities of that inmate in making that
transition to the community.
Mr. Fattah. Uh-huh.
Mr. Lappin. I think that there has got to be some
strategies to reevaluate whether this individual needs to be in
prison. Is that the most appropriate way to address what they
did? I am hopeful that we will continue to see a debate on
alternative methods to correcting their behavior for some
people.
I believe we have got some people in prison that could be
handled differently than going to prison. However, there are
many, many people in our prisons who belong in prison because
they have hurt people.
Mr. Fattah. Uh-huh.
Mr. Lappin. Once, twice, two or three times. They victimize
people, and they obviously need to have time out to protect the
public in an effort to change that culture, that attitude, that
approach. Without a doubt we are more successful with some in
prison than others.
Right off the bat, speaking as a former warden within a few
weeks of an inmate being in a prison you know if you have got a
willing participant or an unwilling participant. That is the
key to determining how successful we are going to be--his
participation. I don't see that changing.
Here's our biggest concern. My biggest concern is the day
they walk out of prison. A society that is resistant and
discriminates against people who have been incarcerated. Just
plain and simple.
Mr. Fattah. Uh-huh.
Mr. Lappin. It is a shame, I can understand why that
occurs. I don't know how we overcome that. And it goes right
down to our ability--as simple as this--we believe that
transition from prison to community--that a community-based
transition is important whether it is home confinement or
halfway houses.
In this past year you can't imagine the number of locations
we have tried to place halfway houses. It's absolutely not
working. So, what does that mean for that offender? That means
on one day we are going to give him $50 and a set of clothes,
put him on a bus, and we are going to drop him off on the
street corner. Very, very unwise. Unsafe. In lieu of us
transferring him to a halfway house that is in the community,
but has supervision of that person, and overseeing some of that
during the transition. It is in part because of this resistance
in our society to accept these people back. Literally people
calling me saying, ``we don't want them back Director, don't
send them here.'' These are Governors, these are Congressmen
and Senators, these are other community leaders. That has got
to change.
Mr. Fattah. So if we incarcerate more people per capita
than any other country and we have a couple hundred thousand in
your system, and 97 plus percent of them are going to be
released to, you know, Pennsylvania, which I represent, or West
Virginia, or California, they are all at some point going to
reenter society, and some you are going to have some success
with, some you are not going to have a lot of success with, and
we basically as best as I can tell, I mean there have been some
tweaks here and there, but basically our prison system is
pretty much the way it has been.
Mr. Lappin. With some changes.
Mr. Fattah. Right. You know the question is, you know, as
the country looks forward, you know, like how we might rethink
what we are doing.
So part of it is maybe diverting some people from the
system whose crimes, even though they are crimes, could be
addressed in a different way. So we are probably talking non-
violent, you know, crimes.
Mr. Lappin. Some type of intervention, right?
Mr. Fattah. Some kind of intervention. And you have some
very dangerous people that we need to be protected from and you
need to keep, right?

CLASSIFICATION/SEGREGATING GROUPS OF INMATES

So I want to ask a couple of other questions on this note.
You know, there has been some controversy in some of the state
prisons about maybe segregating groups of people who don't know
how to get along with one to another, and you have referenced
some of the ethnic or racial groupings in the prisons, but I am
going to ask you a different question, but it is along the same
line.
Is there any utility in trying to separate out or segregate
some who are going to be with you for the duration or those who
are the most violent from those? And I co-sponsored the bill
that Ranking Member Wolf was talking about, but I am not just
talking about that issue, but just kind of separating the kind
of groupings of these inmates in ways in which we don't have
youthful, non-violent, going to be released back home soon,
incarcerated with people who are lifetime criminals who are
very violent.
Because one of the things we have seen in the studies is
that the more youthful an offender goes in the longer they stay
and their crimes become more and more violent over time. That
is that they are kind of almost going away to college, expect
they are learning all the wrong things, and then you say kind
of go in under the installment plan. And the problem is not
only are they on an installment plan, the community gets
victimized more and more and more as they kind of go up this
escalator of criminal activity.
Mr. Lappin. Two comments on your previous discussion. So
you have these facts--over 600,000 inmates a year are released
into our communities, state and federal, 600,000 people every
year being released from state prisons and federal prisons
going back into your communities. I think it is a huge issue
and one that we have got to address more adequately than we
have.
Our success rate, we are seeing a 40 percent recidivism
rate in the federal system. So, six out of ten we are seeing
success with, we are not seeing them come back to prison.
You are right, it is better than we are seeing in the
states, and I am not being critical of the states, there are
some very challenging issues out there, but we are seeing
success with about six out of ten not coming back to prison.
Your question about the day-to-day management and this
concern over the young folks with the more violent people.
Years and years ago credible correction systems created
classification systems. That was a key addition to successful
prison operations, to begin to predict those types of behavior
based on their history, based on their violence and their
background, if any, based on a number of factors. Before they
even come to prison, we have an idea of what type of prisons
they should be housed in. Minimum, low, medium, or high
security with different conditions of confinement at each
level, driven by the behavior, the characteristics of that
individual inmate. So, that helps us separate those who prey on
other inmates from those who tend to be preyed upon. It is not
perfect, because it is a paper process.
The key is the administration of that by our staff. And as
they look at that inmate and look at what the classification
suggests, is it in fact consistent with what we actually
observe and see? And that is where the day-to-day work of our
staff in the institution begins--observing behavior, seeing
compliance or non-compliance, addressing inappropriate
behavior. Through a valid discipline program, you begin to
separate those who prey on other inmates and who are violent to
the point that they can't be housed with others.
That is why you have got the ADX Florence, that is why we
need space at Thomson, because that group of inmates, here in
the recent past has grown without a doubt.
In our population of 210,000 at one time the 500 beds at
Florence handled those inmates, and that is no longer the case
today. There is a larger group of these more violent people who
cannot be out in that general population of a facility with you
being successful in running it safely and securely.
What are we going to do? We are going to remove them and we
are going to manage them in those more controlled, more
structured environment. So, that is kind of the extreme.
Mr. Fattah. Let me just ask you one last question.
Mr. Lappin. But let me answer one issue. Your issue of--is
there people that can't get along. Let me tell you what our
expectation is. If you are following the rules and you are able
to follow the rules to a point that you can stay in a general
population. We do not want to segregate people by race or gang.
We expect you, we set the expectation you are going to get
along with these people. Because they are going to return to
our community. What's our expectation in the community? That
you are going to learn to get along with others, understanding
the differences among cultures and ages and beliefs, you are
going to get along with those people. So, we believe it is our
responsibility to teach them; to get them to understand this is
part of life.
Without a doubt we have got this group that resists, and
that is this group you see going to ADX Florence and the
special management units, because they don't get it. They don't
care, they are mean nasty people, and we need to manage them
that way.

VETERANS

Mr. Fattah. Veterans. What percentage of the inmates are
U.S. veterans?
Mr. Lappin. I wish I could tell you that. I am going to be
able to give you an estimate. I don't have it here.
[The information follows:]

Estimate of the Percent of BOP Inmates That Are U.S. Veterans

The Bureau of Justice Statistics has reported in past studies that
an estimated 10 percent of the federal incarcerated population is
veterans (please see http://bjs.ojp.usdoj.gov/content/pub/press/
vsfp04pr.cfm).
This information would have been noted in the inmate's individual
Central File. However, the BOP is currently implementing a
comprehensive system to track inmate skills and reentry needs and once
fully implemented this system will also contain veteran status.

Mr. Fattah. Okay.
Mr. Lappin. Once we get inmate skills completely
implemented we are going to be able to tell you how many
veterans. I can tell you this, it is a tragic number, it is a
high number unfortunately, and it is unfortunate. And just so
you know, we have been working with the Parole Commission and
the Department of Defense and the Veterans' Association,
looking at some places that started these veteran courts, to
try to intervene before the vets get back in our communities
and get involved in the criminal justice system. No different
than the mental health courts. I think there is some real
potential there.
But it is a tragedy that these people have served our
country, and now we end up with them incarcerated, and we have
not reached out quicker. And so I am encouraged that the VA and
the Department of Defense also see this as a concern and we are
working with them on some of those issues.
Mr. Fattah. If you could keep the Committee informed.
Mr. Lappin. Sure.
Mr. Fattah. I have a lot of interest. I know the Chairman
and the Ranking Member would also have interest in that.

INCARCERATED WOMEN

And the last point, last question. Woman, female. There has
been a major increase at the state level. In fact, I mean a
huge growing number of women incarcerated. Is that the case at
the federal level?
Mr. Lappin. It was for a brief period of time, and I am
just looking here for my number. I think we are about 14
percent. I'm sorry, 13,663, or 6.5 percent of the inmates are
female. We had a spike here a year or two ago, but that leveled
off. So, we have not seen a substantial change over the last
few years as far as incarcerated women.

PRISON POPULATION INCREASES

Mr. Fattah. And I'm sorry, Mr. Chairman, one other quick
question. The state prison numbers have dropped last year,
yours went up.
Mr. Lappin. Yes.
Mr. Fattah. You don't decide who gets incarcerated or not.
But I assume in part it is because we have like in
Philadelphia, and Ranking Member Wolf was chairman when he
helped with this, we got a lot of federal involvement in some
of your drug problems and there were a lot of federal
prosecutions for gun crimes and so on. Is that just because
there is more action at the federal level trying to intervene
on some of these issues?
Mr. Lappin. Significantly more. You have got a combination
of things going on. And this just didn't happen this last year.
What's happened over the last 30 years is we federalized more
crimes that had traditionally been state crimes--drugs,
firearms, sex offenders.
Mr. Fattah. Well speaking for Philadelphia, we were happy
with the help.
Mr. Lappin. Well there are a lot of states very happy with
it.
Mr. Fattah. Ranking member who was chairman at the time got
the DEA, the FBI, all of the agencies to sit down and come in
and provide some help.
Mr. Lappin. Your point is right on target. All these task
forces out there that as long as they had a federal component--
--
Mr. Fattah. We want more of them.
Mr. Lappin. That's correct. So what's that going to mean?
Mr. Fattah. That doesn't help you though.
Mr. Lappin. It doesn't help us. That means our BOP
populations are going to continue to grow because of the
federalization of crimes, as well as task forces and other
initiatives at the local level, that drive more people into
federal court rather than state court.
Mr. Fattah. Thank you, Mr. Chairman.

FEDERAL PRISON INDUSTRIES (FPI)

Mr. Mollohan. Thank you. A couple of follow up questions,
Mr. Lappin.
Mr. Wolf was asking several questions about Federal Prison
Industries, and your response was that you have closed eight
factories, eliminating 1,400 inmate jobs.
Under the law is that absolutely necessary? Is there not
another strategy to prevent closing these facilities? And if
you are closing those facilities and there is no option to
maintain them for prison industries activities, are you
converting them for vocational training activities, and have
you requested funding to support alternative activities as you
close down a prison industries facility?
Mr. Lappin. As you realize, this is a rather recent event.
I mean for years we didn't close factories, we created
factories. So let us put it into perspective.
Actually, if you look at this last ten years, there were
four or five years that prison industries was doing extremely
well. During the war, because over half of our products and
services were war driven, and so we were more profitable, we
could open factories, sometimes even though we didn't need the
factories. So, why did we open it? Because at the end of the
day our real product is putting inmates to work.
So what's happened? One, we are beginning to feel more
directly the effects of legislation that has been passed that
has watered down the FPI mandatory source. It is evident--
especially in furniture, textiles, and electronics.
Number two, just a general downturn in the economy. People
just aren't ordering and buying as much stuff, not only from
us, but from private companies as well.
And thirdly, a downturn in the war effort because we relied
so heavily on the Department of Defense.
So, those three issues have driven the loss of profits last
year and this year in prison industries. Fortunately in those
prior three years we did well, and we have got some money in
the bank that we are now using in lieu of going out of
business. So we are relying on savings that we generated in
those prior years to continue the operations.
Mr. Mollohan. What do you mean ``going out of business?''
What does that mean?
Mr. Lappin. Well, I mean technically we must make a profit
in prison industries. There are no appropriated funds, they
must be self-supporting.
Mr. Mollohan. Yeah.
Mr. Lappin. And so we are using those savings to allow FPI
to continue to be operational, but we must become more
profitable, because we don't know how long this downturn is
going to last. So, we are making decisions to try to stop the
bleeding, just like any other private company would, in hopes
that eventually a number of things could happen.
One, maybe we will get legislation that would give us more
authorities. You are right, it is probably a long shot, but
there is always a possibility.
Two, maybe we will get to see more of our customers buying
more materials and services, we will see more business and the
tide will begin to turn.
So, we are trying to bridge ourselves to when that upturn
begins.
Federal Prison Industries is managed by a board, a
Presidentially elected board, so they have input, they give us
direction. We just met yesterday. These are businessmen and
women who get greatly concerned when they walk in and we tell
them we are going to lose $27 million this year. That is what
we project we are going to lose, $27 million this year. And so
obviously they are reacting to that. What can we do to reduce
the loss, keep as many inmates employed as we can? They are
working with us, but it is just a business that has to be run
like a business, even though our product is a bit unique in
that the real product is keeping inmates employed.
Mr. Mollohan. When was the legislation that creates this
framework passed?
Mr. Lappin. The original?
Mr. Mollohan. The one that is operative today?
Mr. Lappin. 1934.
Mr. Mollohan. So you were operating under the same rules as
the original legislation passed in 1934?
Mr. Lappin. The original legislation was passed in 1934.
Since then, especially in the last decade, provisions have been
put into law that have affected how those statutes are
interpreted. And what we will do, we will send you a list of
those provisions and how they changed the original law.
[The information follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Mr. Mollohan. I am going to get into this a bit more as
time goes on here following up this hearing, but if this trend
line is defined and dictated by a statutory requirement and it
is obviously discernible, what strategy are you pursuing to
supplement the kind of experience that the inmates are having
and the training they are receiving in place of prison
industries?
Mr. Lappin. Yes, very good point. What we have done is
where we have closed factories we are working directly with the
wardens there to figure out what can we not only do with that
space, but what resources do we need to replace that factory
with additional programs? Whether it is VT, you know, a drug
treatment program, you know whatever it is we need.
Mr. Mollohan. Well this is skill training.
Mr. Lappin. That's correct.
Mr. Mollohan. This is employment training.
Mr. Lappin. You are absolutely correct.
Mr. Mollohan. So if you replace it with drug treatment
space, you know, that needs to be out some place else and
hopefully it is already happening at some place else in your
prison.
Mr. Lappin. It is very difficult for us to recreate a work
skill program like prison industries.
Mr. Mollohan. Why?
Mr. Lappin. There are only so many jobs you have in prison.
Mr. Mollohan. No, it is not jobs, I am talking about
vocational training. When young people go through vocational
training in high school they don't have a job, they get trained
on how to do it.
Mr. Lappin. I understand that.
Mr. Mollohan. So I guess what I am getting at, is your
budget requesting money to supplement the training experience
that prisoners would get in prison industries as the prison
industries activity atrophies?
Mr. Lappin. I will make sure I am clear.
Mr. Mollohan. Is your budget requesting additional funding
for vocational training?
Mr. Lappin. If you replace what we have lost in prison
industries to something like that----
Mr. Mollohan. No, no, to replace the training. Let me be
clear, and I am sorry not to be clear.
If I am working in Glenville prison learning how to redo
these big trucks that come from the Army and that job goes
down, I can still learn to do that if I am participating in a
vocational training program, the difference being, I suppose,
the funding source.
Mr. Lappin. I see one clarification.
Mr. Mollohan. Okay.
Mr. Lappin. We see the provision of vocational training as
providing knowledge about how to do something.
Mr. Lappin. What it doesn't do that prison industries does
do is teach them work responsibilities.
Mr. Mollohan. Great. Well let us increase the prison
industries program.
Mr. Lappin. I wish we could.
Mr. Mollohan. And we can't.
Mr. Lappin. That's right.
Mr. Mollohan. That is the next best thing.
Mr. Lappin. Yes, we are looking at what funding we need. I
am not sure it is in the 2011 budget.
Mr. Mollohan. Does that mean it is not?
Mr. Lappin. We are being assessed.
Mr. Mollohan. Does that mean it is not?
Mr. Lappin. That means it is not, I just was told. It will
be in our future requests, because we are doing the assessment
now.
Mr. Mollohan. Yeah.
Mr. Lappin. But we are just ramping down those factories.
Mr. Mollohan. You are saying they closed eight out of how
many?
Mr. Lappin. We have----
Mr. Mollohan. Fourteen hundred inmate jobs?
Mr. Lappin. No, we have--I am going to tell you how many
factories we have.
Mr. Mollohan. Eight sounds like a lot to me.
Mr. Lappin. We have about 100 factories.
Mr. Mollohan. And how many closed last year?
Mr. Lappin. Eight.
Mr. Mollohan. How many closed the year before that?
Mr. Lappin. None.
Mr. Mollohan. None.
Mr. Lappin. Yes.
Mr. Mollohan. Oh, so this----
Mr. Lappin. So last year was the first year we closed
factories. There could be another round of closures.
Mr. Mollohan. Well let us work together to see if there is
a strategy to be developed, work with Mr. Wolf, and you know,
the minority and the majority, to see if there are some
strategies we can pursue legislatively to reverse this trend.
If that trend doesn't reverse and you don't train these folks,
what do people do when they get out? Your statement to him was
that people are shunned when they get out. Well if they had a
skill they might overcome that, but if they don't have a skill
they will not overcome that.
Mr. Lappin. And we are very supportive of that.
Mr. Mollohan. I know.
Mr. Lappin. Just realize we are still not going to address
the work skills issue that many of them lack, because you just
don't get that in a vocational course. You learn the skill, but
you don't really address the issue of your responsibility of
being a good worker.
Mr. Mollohan. Well maybe you fashion it after that model
just like you were trying to do it.
Mr. Lappin. We will do the best we can.
Mr. Mollohan. Yeah.
Mr. Lappin. What we have found is that it is not quite as
useful as the prison industries program in that regard. But we
will work with you to identify what resources we need to back
fill for some of these ideas.

BUDGET GAPS

Mr. Mollohan. I am sure, and we look forward to working
with you.
I have a few questions on staffing that I will submit for
the record, but I think we have plowed that ground. But in
order to carry out your hiring plan for fiscal year 2011,
Congress would need to provide an additional $44.1 million
above the budget request. Do you agree with that statement?
Mr. Lappin. I am not familiar with that.
Mr. Mollohan. In other words, when I was asking you about
where the holes where, that was the answer I was fishing for.
Mr. Lappin. In essence to establish what part, the hiring
process?
Mr. Mollohan. This addition funding----
Mr. Lappin. Yes.
Mr. Mollohan [continuing]. Is required because OMB did not
allow the Bureau of Prisons to request funding to finish the
activations of FCI McDowell and FCI Mendota.
Mr. Lappin. You know, I know what it is we are addressing
now. If you go back to the 2010 budget----
Mr. Mollohan. It is OMB. Who are these people?
Mr. Lappin. You got a line item in there for the activation
of McDowell and Mendota.
Mr. Mollohan. Right.
Mr. Lappin. And I think we got $22 million at one and $36
million at the other. That is for the first year of activation.
It remains silent in 2011 as to the final second year of these
activations. So, it is not specifically identified. We are
going to have to finish those activations, and so, one would
assume that we are going to take it out of our base.
Mr. Mollohan. That is what we call a hole. So are there any
holes in your budget?
Mr. Lappin. Well we are going to have to identify the
funding to finish the activations for McDowell and Mendota.

MODERNIZATION AND REPAIR (M&R)

Mr. Mollohan. Okay. Facilities modernization and repair.
During last year's hearing we talked about the Bureau of
Prisons facility modernization and repair needs and about the
Federal Facilities Council guidelines, which suggests that the
annual M&R cost for a facility should be in the range of two to
four percent of the aggregated current replacement value of the
facility. Even two percent of the value of BOP's facilities
would be several hundred million dollars annually, and the
Department has not proposed M&R budgets approaching anything
near that amount in recent history. In fact, the M&R proposal
for fiscal year 2011 is only $74.2 million, roughly equal to
the 2010 funding level of 73 million.
What's the impact of BOP's growing backlog of M&R projects
on the basic operation of facilities? And we go over this every
year. I mean you would think at this point they are falling
down.
Mr. Lappin. They are not falling down because I have great
folks out there that do a lot of good Band-Aid work, and the
reality is this is obviously an area of concern. We have got
115 prisons that we are maintaining and repairing. You are
right, the budget for the last few years has been around 74
million. A two percent replacement value is about 500 million.
So what are we doing? Every single year we prioritize every
single request, and those that are the most critical, and by
most critical I am saying life safety and security go to the
top and those are the ones we fund. And we fund as many of
these as we can.
Mr. Mollohan. Well some of them are probably being closed
down as new facilities come on board and so that takes the
worst facilities out of your inventory.
Mr. Lappin. We haven't closed any facilities. We can't
afford to close a facility because we would then have more
crowding.
Mr. Mollohan. Yeah.
Mr. Lappin. So without a doubt, those that aren't being
addressed, the buildings are continuing to deteriorate or the
issue continues to exist. We just have to prioritize them the
next year, identifying those most critical, and we will fund
whatever we can fund. And we do that nationally now. We used to
do it regionally, so now it is a single group that collects all
of the requests and prioritizes them. We then get it out to
each region and say here is what we consider the highest
priorities. We ultimately agree, and then we distribute what
money we have to those highest priorities.
Mr. Mollohan. You just work with it the best you can.
Mr. Lappin. Do the best we can to keep them----
Mr. Mollohan. But you are pushing it out there in the
future. I mean it is real at some point.
Mr. Lappin. It is either pay me now or pay me later, you
know, like the old oil change commercial.
Mr. Mollohan. Yeah.
Mr. Lappin. That is where we are at. Pay me now or pay me
later.
Mr. Mollohan. So some time you are going to have to come up
here and say we need a billion dollars, we have to have a
billion dollars.
Mr. Lappin. I am afraid it is either that or ultimately we
will have housing units or buildings that we will have to
close, in lieu of occupying, given some safety and sanitation
and environment issues.
Mr. Mollohan. You know that would be a very useful prospect
to have substantiated and analyzed for the Committee. Would you
do that and submit a report?
Mr. Lappin. We will do our best. I hate to say that I went
to an institution about a year ago, when I went to the housing
unit it was raining, and they gave me an umbrella. An umbrella
because it was raining into the common area. It didn't have a
decent roof, and so obviously it got a new roof after that
visit. I came back here and said we have to get the money to
fix the roof.
[The information follows:]

BOP's Modernization & Repair Needs

On January 15, 2010, the Department provided the Congress a
complete summary of the Modernization and Repair (M&R) backlog of the
BOP's highest priority unfunded M&R projects. This list included
projects such as roof replacement, fire alarm system replacement,
installation of additional high-mast lights, and upgrade of electrical
systems and generators.

Mr. Mollohan. Where was that?
Mr. Lappin. Memphis.

NEED FOR NEW PRISON BEDS

Mr. Mollohan. Construction and activation of new BOP
facilities. The fiscal year 2010 act provided $52 million to
begin the activation of FCI McDowell, in West Virginia and FCI
Mendota, in California. When fully activated, these new
facilities will add approximately 2,500 beds to your total
capacity, but BOP anticipates a gain of 7,000 inmates as you
testified before.
The 2011 budget proposes $28.5 million to begin the
activation of FCI Berlin, in New Hampshire, which would add an
additional 1,280 new beds, but you anticipate a net gain of
7,000 in 2011.
You know, when you do the math, and in your opening
statement it was the thing that came through most impressively,
it is clear that the Bureau of Prisons is continuing down an
unsustainable path.
What happens here? And does your current request for
acquisitions or construction anticipate the numbers that you
are providing for the Committee today with regard to the growth
of the population?
Mr. Lappin. The 2011 budget also, just to make sure it is
on the record, requests funding for the activation of Thomson,
and so its got Berlin and Thomson.
Mr. Mollohan. It still doesn't add up. I mean we went
through those numbers at the beginning of the hearing. So what
happens here?
Mr. Lappin. And again, my reference that there are a few
things we are going to have to address, and so we are working
with the Administration to address these four or five
suggestions that I made. And I am encouraged, I have to say, by
the Attorney General's efforts, he has created a working group
in the Department of Justice called the sentencing and
corrections working group and they are looking at some of these
alternative strategies. Like, should we be looking at
increasing good times for inmates?
Mr. Mollohan. Okay, I don't want you to go into them
because we don't have time. Let me ask you. That exercise is
ongoing?
Mr. Lappin. That exercise is ongoing.
Mr. Mollohan. When do you expect it to be mature enough to
produce a product that we can look at?
Mr. Lappin. I don't know, but I will get back to you.
[The information follows:]

Status of AG's Sentencing and Corrections Workgroup

The Attorney General created the Sentencing and Corrections Working
Group last year to conduct a comprehensive review of federal sentencing
and corrections policy, including a review of possible recommendations
to the President and Congress for new legislation to improve federal
sentencing and corrections policy and practice. The mission of the
Working Group has been to help develop sentencing and corrections
systems that, in an effective and efficient manner as possible, promote
public safety, provide just punishment to offenders, avoid unwarranted
sentencing disparities, and reduce recidivism by breaking down barriers
for exoffenders to successfully rejoin society. The group has been
examining, among other issues: (1) the disparity in federal crack and
powder cocaine sentences; (2) prisoner reentry and other programs to
reduce recidivism; (3) the Department's policies on charging and
sentencing advocacy; (4) the federal sentencing guidelines, (5)
mandatory minimum sentencing statutes; (6) the impact of current
charging policies, sentencing practices, and resource issues on the
Bureau of Prisons; (7) alternatives to incarceration; and (7) the
Department's protocols for reviewing capital offenses for the possible
application of the death penalty.
The Working Group has been completing aspects of its work on a
rolling basis. The Department anticipates announcing some changes o
several policies in the near future and to work with Congress later
this year on possible legislative changes affecting federal sentencing
and corrections policies.

Mr. Mollohan. Okay.
Mr. Lappin. But, what are we going to do? We are going to
continue to work to add beds through private contracts, and try
to get funding to build prisons. You will see another request
to purchase prisons. We are looking at existing empty
facilities like Thomson. Believe me, there are not very many of
them, because most of the inventory that is empty, is old and
inefficient and we don't want it. However, there are a few of
them out there that may be available that we could purchase,
and we would advocate for the purchase of those facilities to
help shore up the limited bed space we are acquiring.
Mr. Mollohan. Mr. Wolf.
Mr. Wolf. Thank you, Mr. Chairman.

FEDERAL PRISON INDUSTRIES (FPI)

I just have two questions, or one on the prison industries
thing. You know, I have an amendment I can offer. It really
does go a long way to solve the problem. There were a couple
articles in the news yesterday about the repatriation of jobs
back to the United States. Call centers. I mean you have the
opportunity, there are call centers in Monterey, Mexico could
be in Monterey, California. There are call centers that could
be--I mean the opportunity is wide open.
And you know, I would challenge the Attorney General and I
would challenge you, the previous one did not do it because of
the Chamber of Commerce, you know, to really get behind this.
I will offer it here and we will see what the authorizers
say. But that would create more jobs. I mean just that one
dignity, you can't put a man or woman in jail for a long period
of time without giving them work.
Secondly, and I have talked to prisoners who said they
would make some money and that would give them some money to
come by the canteen to buy whatever they wanted to buy, but
also they had an account whereby when they got out they just
didn't get-- what do you give them now when you get out?
Mr. Lappin. Fifty dollars.
Mr. Wolf. Fifty dollars. So they would have had not a lot
of money, but maybe $1,800, something to begin with. And so by
the Congress doing what it has done and by the administration
previous failing to, you have almost guaranteed the recidivism
rate can't get any better. I mean it is almost biblical.
So I will be glad to offer the amendment, and I don't know
if the Rules Committee will strike it, but it really almost
does solve the problem. Because for instance, there are no
television sets made in the United States. If you were to use
that as an oversimplification, the person who drops the plastic
case by would be an American worker driving a truck. The person
who drops the wire by. The person who sells the gas to the
truck. They would have created American jobs, and I think there
isn't any other way. And to just almost pretend that something
is going to happen is kind of, not to quote Simon and Garfunkel
in two straight days, but man hears what he wants to hear and
disregards the rest.
There is no way this Congress, particularly now in a
declining job market, the perception is that every job is in
competition.
So I think you could do it in a way that you are not
competing with the furniture guys. I understand that. But when
you walk through prisons, federal and state, the men and women
are just hanging out, they are just kind of hanging out. You
know, you don't even make them walk across like we did in the
military to pick up cigarette butts anymore. No one is almost
working. And so this would honestly provide dignity, and yet I
think create American jobs and not take away one job. And so
let us see, maybe we can put it in a bill and see what happens.
Mr. Lappin. You are right, inmates in federal prison no
longer pick up butts because we don't let them smoke, but I
guarantee you they are clean prisons, because we make the
inmates work.
But we are more than happy--we would love to come meet with
you so that we don't get on different tracks.
Mr. Wolf. I have met with you guys over and over. I mean
send the Attorney General over.
Mr. Lappin. But I think these are some new developments
that you need to be aware of before we move forward too
quickly. It won't take long. Let us first give you an update,
an update on what we are working on, and how you might be able
to fold that into something that would be helpful.
But we realize though, Congressman, we have got to rely
less on furniture, textiles, and electronics. We have got to
compete, we have got to rely less on that mandatory source to
get the critics to understand we do not want to take jobs away
from American citizen businesses. We don't want to do that--or
at least limit it as much as we can. We agree with you, there
are some things that we can do.

PRISON INDUSTRIES ENHANCEMENT

PIE authority. We want to work with those businesses. We
would like to have that influence. We don't have PIE authority.
That is an option that we would like to pursue, and that way we
are helping American business not replacing them.
So, we would love just to give you a short briefing on
where we are at, with some of those things. But we really want
to work with you on this, because it is critically important.
And I know I am optimistic, that the glass is half full.
Mr. Wolf. It is only a quarter, right?
Mr. Lappin. It is half full. I believe we can make
something happen, if we think otherwise it won't happen, and we
are going to keep going.
Mr. Wolf. Okay. Sure, we will be glad to do that. But I
asked the Department of Commerce to put together some
information of the 25 largest international companies that are
doing business aboard, and maybe when we get that information
we can share that with you.
Mr. Lappin. We operate right now eight or ten call centers.
We would love to take you to one. It is a wonderful assignment
that not only keeps these--I mean, some of them run 24 hours a
day, so inmates are learning to work shift work. Before they go
into that assignment, they have to go to English class and
eliminate their slang. They have to go to geography class so
they know, you know, when somebody says I want the phone number
in X city they can go right to it, because we compete with the
private contractors in these countries. So, it is a great
opportunity. We would like to see more of that. But on the
other hand, they are automating a lot of that work too. You
know, when you call in and you get some automated message, so
that is replacing some of the traditional call service
programs, but we have got eight to ten of those factories. They
are great.

SEXUAL ABUSE OF INMATES

Mr. Wolf. Okay. A September 2009 OIG report is critical of
your oversight of the programs to prevent sexual abuse of
inmates by staff. And the Committee prepared language in the
fiscal year 2010 bill urging you to act as soon as possible on
the OIG's recommendations. Can you tell us what his
recommendations were and whether they have been implemented?
Mr. Lappin. I can't recall the specific recommendations. We
can follow up with you on our response back to the IG on those
issues. I assure you what we have done is increased training
and enhanced investigative skills, and we try to hire people
that won't act out that way. I mean that is the most
frustrating thing.
I know you all realize that this is a very, very small
percentage of our entire work force who we find acts this way,
and it is unfortunate, it is shameful, and we want to do
everything to prevent that.
So, will in writing come back and share with you what the
recommendations were, what our response has been, and what we
have done to comply with those recommendations.
[The information follows:]

BOP's Response to OIG's 2009 Report on Preventing Sexual Abuse

Please see the following link for the information, and see Appendix
V and Appendix VI: http://www.justice.gov/oig/reports/plus/e0904.pdf.

THOMSON FACILITY

Mr. Wolf. Okay. I have a number of questions on the Thomson
facility.
With the transfer of Guantanamo detainees to the United
States, which certainly has a lot of controversy, if that never
had come to fruition in your view, does it still make sense,
and is it financially prudent to purchase this facility,
Thomson?
Mr. Lappin. Yes, it does. And we understand the
controversy, we are not a part of that, and to say we support
the Administration's effort to solve both these problems. To
increase prison space, and if in fact you, the Congress,
changes the law for detainees to come into this country and it
is decided they should be housed at Thomson, we are more than
willing to work with the Department of Defense. But this
request is only addressing the purchase and the operation of
Thomson as a federal prison. It doesn't change that authority
of where detainees will be housed.
Mr. Wolf. Does DoD plan on putting any money in assuming--
and I think as of now if this comes up in the Congress that
Congress will vote it down, but that is any sense--but it
should go forward. Does the DoD plan on participating in it?
Are they putting money into it?
Mr. Lappin. The purchase?
Mr. Wolf. Yes.
Mr. Lappin. No, none. This is going to be at first an all
Bureau of Prisons facility, 100 percent. And again, this
request only addresses the purchase of that facility and
operation of it. So, at some point in the future, if it becomes
legal to bring them into this country and we went into this
agreement with the Department of Defense, we would permit them
to use a small portion of that facility to house the detainees,
but only after they have the legal authority. And, they would
pay for any additional infrastructure necessary to facilitate
that operation.
We would not be involved with the management of those
folks, other than the support--food service, laundry, perimeter
security, those types of things.

GUANTANAMO BAY

Mr. Wolf. Have you or your people been down to Guantanamo
Bay and looked at it, and what is your just sense? And the
record states you are not taking a position one way or the
other, I put that out there. But what kind of place is it?
People that I have talked to tell me it is a pretty impressive
operation, and I have never been there so I don't know. But
what is your----
Mr. Lappin. I have been there, and there is some new
construction there, and also, there is some old construction
there. So it is a mixture of different types of facilities. But
you know, the Department of Defense does a great job.
Mr. Wolf. Yeah.
Mr. Lappin. And in fact, if we were to work together at
Thomson, we would look forward to that. But again, that is
really I think a separate issue not applicable to this request.
Mr. Wolf. Oh, I understand. So it is not a torture chamber,
it is not a horrible place, it is----
Mr. Lappin. No.
Mr. Wolf. I think the Guantanamo name has sort of taken on.
But for people that have been down there, the media people that
I have talked to they tell me it is a very well run operation.
And why do the guards in Guantanamo--and I think I know the
answer, but I want you to tell me--wear that cover on their
name so that the people in Guantanamo, the prisoners can't see
their name?
Mr. Lappin. I don't know, you would have to ask the
Department of Defense.
Mr. Wolf. What do you suspect it is?
Mr. Lappin. I really don't know.
Mr. Wolf. You do know.
Mr. Lappin. I don't know.
Mr. Wolf. Could you guess?
Mr. Lappin. Don't want to guess.
Mr. Wolf. I know that I am the one that said it. I have
been told because they certainly don't want to see any
ramifications with regard to them as they come back, and I
think that is a whole concern with regard to moving people.
Because wasn't Officer Pepe stabbed by one of the----
Mr. Lappin. By a convicted international terrorist, yes, in
MCC New York.
Mr. Wolf. And I think there has also been some concern to
prisoners who are known and their families will be subject to,
and so that when they come back up from Guantanamo they don't
want that connection whereby there could be some danger.
Mr. Lappin. I mean, in our institutions, as you well know,
we house over 200 international terrorists. Those terrorists
know the names of our employees, but not unlike any other
inmates they are all risky. You could be assaulted by any of
them. And we have not seen behavior beyond what is typical of
one's background and characteristics. Some of them are
assaultive, some of them are not. So, obviously because we have
them in ADX Florence, we have some in communication management
units, we have some in general population facilities, even in
low security institutions, and they have been successfully
managed in a variety of different levels of security and
oversight.
Mr. Wolf. Any way, thank you, Mr. Chairman, through Mr.
Lappin.

INMATE ASSAULTS ON STAFF

Mr. Mollohan. Well that is a segue, and I suppose a good
segue into my next line of questioning with regard to inmate
assaults on staff. The first thing we want to do is make sure
that staff are protected as much as possible, and I know you
totally agree with that as they perform these very dangerous
jobs.
Looking at the statistics of serious assaults and less
serious assaults from 2007 through 2009 and then those that
have been reported to date, this is an interesting trend line
and it appears to all be up as a matter of fact. And I am
wondering if you are familiar with those statistics?
Mr. Lappin. I am, and maybe you and I have different
statistics.
Mr. Mollohan. Well, I have, for 2007, a total of 1,306
assaults, for 2008, a total of 1,601 assaults, and for 2009 a
total of 1,891 assaults. That is all an up trend. Now the
serious assaults from 2007 to 2008 went from 65 to 98. That is
my information.
Mr. Lappin. I don't have that.
Mr. Mollohan. And from 2008 to 2009, they went to 104. Do
you have different statistics?
Mr. Lappin. I am going tell you what I have.
Mr. Mollohan. Okay, well thank you.
Mr. Lappin. In 2007 we had 79 serious assaults on staff.
Mr. Mollohan. In 2007 you had what?
Mr. Lappin. Seventy-nine on staff.
Mr. Mollohan. These are different numbers than I have. I
just wanted to know that.
Mr. Lappin. We had 91 in 2008, and we had 81 in 2009.
Mr. Mollohan. Serious assaults----
Mr. Lappin. Serious assaults on staff.
Mr. Mollohan [continuing]. Inmate assaults on staff at the
Bureau of Prisons.
Mr. Lappin. That's correct.
Mr. Mollohan. Well where did we get these numbers?
Mr. Lappin. Now let us back up. We have separated them into
two categories. Minor assaults, less serious assaults.
Mr. Mollohan. Well, I have less serious assaults.
Mr. Lappin. We have 1,284 in 2007, 1,547 in 2008, and 1,631
in 2009. And there is a----
Mr. Mollohan. What was 2008?
Mr. Lappin. I'm sorry, 1,547. And 1,631 in 2009.
So, what we have seen is actually--and I realize that
looking at the whole number is not an accurate reflection of
what's going on, because obviously there are more inmates each
year. That is why we do this by rate rather than by whole
numbers, because you are adding 20,000 inmates over the course
of those three years.
So, what the trend of serious assaults on staff is actually
a downward trend on the rates of assaults on staff, because we
had 81 in 2009, but we had more inmates.
Mr. Mollohan. Well that makes sense, those just aren't the
numbers I had.
Mr. Lappin. Correct. So, here is what we are seeing. We are
seeing a slight reduction from 2008 in serious assaults on
staff. We have seen an up tick in less serious assaults at high
security institutions on staff. That concerns us. But also the
serious assaults concern us. We don't want any. But my sense is
the downward trend is related.

SPECIAL MANAGMENT UNITS (SMUS)

I am not going to go out and say this definitively yet, but
we activated the SMUs in 2008, end of 2008, and we now have
almost 1,300 inmates who we have identified and moved to these
more restrictive facilities. As a consequence, we are beginning
to see not only fewer assaults, we are seeing fewer homicides,
we are seeing lock downs that last much less, a shorter period
of time. There is about the same number of lock downs lasting
for a couple three days because the incidents are not nearly as
serious or nearly as impactful. And so I am encouraged by that,
I am not there yet, I don't think we are there yet. We still
have inmates out in our penitentiaries who belong in SMUs or
some more restrictive environment that we currently have beds
for.
Mr. Mollohan. Is the SMU a fairly recent strategy?
Mr. Lappin. It is. It is somewhat consistent with the ADX
Florence approach, it is just that we didn't think that those
people needed to be in a program that takes so long to get
through before getting back out on the compound.
If you are in the control unit at Florence it is like a
five or six year process. We believed that we could correct the
behavior of some of these inmates in less time.
So it has some similar conditions, some, not entirely, but
the inmates are much more controlled, much more restricted,
they don't get as many opportunities for programs and visiting
and other things, but if they behave they can be out in two
years or less. Actually, 18 months to two years. Some will get
it, some will not. So, some are going to be retreads and go
back through the program again, or we will send them to
Florence.
But we need more of these beds, that is why I am urgently
requesting funds for Thomson so that we can increase the number
of beds, move more of these inmates who are acting like this
into those SMU beds.
Mr. Mollohan. Thomson would be a special management unit?
Mr. Lappin. Yes.
Mr. Mollohan. The whole prison?
Mr. Lappin. Not the whole prison, the majority of that
prison. A part of that prison we are going to make ADX type bed
space. Those are for folks that are even more serious, that
don't get it in the SMU program, we've got to put them over
there for even longer periods of time. So a portion of that
would be ADX space.
What we are having to do right now is take general
population space off line. So we have taken an entire
penitentiary at Lewisburg that was general population, and
converted it to SMU space. We cannot continue to afford to do
that. We need new space, and more appropriate space. Thomson
was built more for this mission than some of our other
facilities.
And again, this is such a small shift. I can be back here
next year and the rate of assaults may have gone up a little
bit or the whole number has gone up a little bit. I question
the rate is going to go up a lot.

INMATE ASSAULTS ON STAFF

Mr. Mollohan. I don't want to interrupt you because you are
answering most of the questions that I want answered, and that
is very efficient. But with the less serious assaults the
numbers I have for 2010--what are your numbers for your less
serious assaults for 2010?
Mr. Lappin. They have gone up in 2009. I don't have the
2010 number with me, but they have gone up. The minor assaults
on staff have increased each of those three years from 1,284 in
2007 to 1,545 in 2008 to 1,631 in 2009. Now, I can't say the
rate has changed that much, again, because we have added
inmates each of those years.
Mr. Mollohan. No, I understand. Could you do an analysis
that we have----
Mr. Lappin. We will do it.
Mr. Mollohan. Statistics come from all different
directions, this isn't a comment on anybody who supplied this
information, but just could we reconcile these different
numbers?
Mr. Lappin. Absolutely.
[The information follows:]

ASSAULTS IN BOP & PRIVATE SECURE FACILITIES
----------------------------------------------------------------------------------------------------------------
Less Less
Serious serious Serious serious
Fiscal year assaults on assaults on assaults on assaults on
staff staff inmates inmates
----------------------------------------------------------------------------------------------------------------
2005........................................................ 132 1,404 413 1,966
2006........................................................ 117 1,334 482 2,241
2007........................................................ 68 1,242 397 2,566
2008........................................................ 99 1,505 466 2,616
2009........................................................ 105 1,789 517 2,657
2010*....................................................... 20 687 135 1,082
----------------------------------------------------------------------------------------------------------------
FY 2010 Data through March 27, 2010.

Mr. Mollohan. And then the trend line, the rate increase
that you would have to factor in the number.
Mr. Lappin. We can do that.
Mr. Mollohan. And in what circumstances.
We want to support your special management unit program to
the extent it is your strategy and it is being successful. I
hope that it does make your correctional officers anticipate an
improvement in the situation that they are concerned about. It
is a very serious matter for the Committee and we want to
support a resolution of it as quickly as possible, and it
sounds like the strategies you are employing have promise of
being successful.
Mr. Lappin. Well it is a very important concern of ours as
well for all of our staff, and we want them to be safe at work,
and we are going to do everything we can do to reduce that
number.
Mr. Mollohan. I have a number of questions on the Second
Chance Act that I really want to get to. I am glad to have
gotten to the security issues on the record.
We are going to submit a number of questions for the record
now. I just want to hear you talk about this.

ANTI-CRAVING MEDICATION

We don't know how using anti-craving medication in the
context of a prison environment works or doesn't work, and that
is why we have asked the experts to look at that.
During last year's hearing, I asked you whether the Bureau
of Prisons was using any anti-craving medication as a part of
its drug treatment programs and you responded that the use of
such medication was something you would consider based in part
on the Bureau of Prisons review of research in this area.
The fiscal year 2010 explanatory statement encouraged BOP
to conduct a pilot initiative on the use of anti-craving
medications as part of the RDAP program and through the period
of an inmate's period of supervised release. The statement
further encouraged BOP to coordinate with the National
Institute on Drug Abuse, which is currently supporting research
on the effectiveness of anti-craving medication on probationers
and parolees.
So just to capture for the record the status on that from
you, has the BOP initiated a pilot study on the use of anti-
craving medication?
Mr. Lappin. We have not initiated the pilot yet, but we
intend to. We have looked at the drugs that are available, we
are working with the National Institute on Drug Abuse, some
folks out there who have expertise in this. We are narrowing
the types of drugs that we would--or identifying the types of
drugs that we would use, and we are working on the pilot.
So, we intend to move in that direction. I am hopeful that
we are going to get it implemented this year, the pilot, so
that we can try this as part of our drug treatment protocol,
because we want to do anything we can to help these individuals
resist drug and alcohol use, and certainly this research
reflects that there is potential this could be helpful.
So, we are working on it, we haven't implemented the pilot
yet, but we hope to do so in the not too distant future.
Mr. Mollohan. It will be interesting to see how it plays
out. It is a tool in the tool box, so whether it works under
these circumstances will be very interesting to see.
Mr. Lappin. We agree.
Mr. Mollohan. Director Lappin, thank you for your testimony
here today and thank you for your good service. It is a tough
job. Oh my gosh, you are pulled in so many different directions
and your resources are scarce at best, and so we want to be
sensitive to that and to the limits of the budget
possibilities. We want to be responsive to you because we do
think you are trying very hard and being successful, and you
have a tremendous dedicated staff from the correctional
officers, administration, and correctional workers, and anybody
else that those categories didn't cover who work for the Bureau
of Prisons.
So thank you very much for your testimony here today.
Mr. Lappin. I appreciate that. I couldn't agree with you
more. We have got a great group of 36,000 employees that serve
this country extremely well each and every day and we
appreciate your support and the support of Congressman Wolf and
the rest of the members. Thank you, sir.
Mr. Mollohan. Okay, thank you.

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Wednesday, March 18, 2010.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES--COUNCIL OF PRISON LOCALS

WITNESSES

BRYAN LOWRY, PRESIDENT, COUNCIL OF PRISON LOCALS, AFGE, AFL-CIO
PHIL GLOVER, NATIONAL LEGISLATIVE COORDINATOR, COUNCIL OF PRISON
LOCALS, AFGE, AFL-CIO

Opening Statement--Chairman Mollohan

Mr. Mollohan. The hearing will come to order. Well good
afternoon. I would like to welcome Mr. Bryan Lowry, the
President of AFGE's Council of Prison Locals, and Mr. Phil
Glover, the National Legislative Director for the Council of
Prison Locals, to our hearing this afternoon on major
challenges facing the Federal Bureau of Prisons.
We have asked you to come back again to testify this year
because your perspective from the inside of the federal prisons
is critical for us to understand as we make funding decisions
about the federal prison system.
The Subcommittee has worked hard over the last few years to
provide funding increases above the President's budget request
to ensure that the Bureau of Prisons would be able to meet its
basic operating expenses and would be able to significantly
increase its staffing levels. Although the staffing levels are
not yet what they need to be, we are committed to keep pushing
them higher.
There are many other challenges facing the Bureau of
Prisons, including an inmate overcrowding rate that has reached
37 percent, a growing facility maintenance backlog, and an
inmate population that by most accounts is becoming more
violent and more difficult to manage. We will want to discuss
these and other issues with you this afternoon. In a moment,
gentlemen, I will ask you each to provide remarks summarizing
your joint written statement, which will be made a part of the
record. But first I would like to recognize Mr. Wolf for any
opening introductory remarks that he would like to make.
Mr. Wolf. I welcome you to the Committee. I have no
comments. Thank you, Mr. Chairman.
Mr. Mollohan. Gentlemen.

Opening Statement--Witnesses

Mr. Lowry. Chairman Mollohan, Ranking Member Wolf, and
members of the Subcommittee. My name is Bryan Lowry. I am the
President of the Council of Prison Locals, American Federation
of Government Employees. Here with me today is Phil Glover, who
is the Council's Legislative Coordinator for the Council of
Prison Locals AFGE. On behalf of the over 38,000 federal
correctional workers who work at 115 institutions in the Bureau
of Prisons nationwide, we want to thank you for the opportunity
that you have given us today to testify on various Bureau of
Prisons issues that are critically important to the safety and
security of federal correctional workers and the local
communities surrounding the federal prisons.
BOP prisons have continued to be increasingly dangerous
places to work, primarily because of serious correctional
understaffing and prison inmate overcrowding problems. 340
inmate on staff assaults have occurred at various Federal
prisons since the brutal murder of correctional officer Jose
Rivera on June 20, 2008, by two inmates at the United States
Penitentiary in Atwater, California. These aggressive acts by
inmates against staff illustrate a common reality facing the
staff daily at their workplace. In addition, Bureau of Prison
correctional workers have become increasingly demoralized
because of the lack of necessary funding for correctional staff
positions, staff training, warranted equipment, and
programmatic tools that would improve the safety and security
of BOP prisons. As well as the adoption by BOP management
beginning in 2005 of the Mission Critical Post policy, a cost
reduction strategy involving substantial cuts in correctional
worker positions. This policy resulted in decreased staff
supervision of inmates, including decreasing staff supervision
of inmates in housing units, inmate recreation areas, inmate
work details, as well as unmanning prison towers.
At the same time, I sincerely hope that you and your
staffers know how much we appreciate your active efforts on
behalf of our staff during the past few years. I particularly
want to thank you for all the work that this Committee has done
to help us increase the budgets and the salary and expense
account for the Bureau of Prisons.
I am willing to answer any questions you may have after
that. Thank you.
[The information follows:]

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Mr. Mollohan. Mr. Glover.
Mr. Glover. Mr. Chairman and Ranking Member Wolf, again
thank you for being here and thanks to your staff for working
with us over the last few years to move staffing back in the
right direction. Just a reminder, in 2005 and 2006 the Director
cut 2,300 staff positions. So the discussion about the funding
levels this year are only bringing us back to where we were in
2005 and 2006. But it certainly is moving us in a better
direction.
The staff to inmate ratio is still 1 to 4.9 and will be at
the end of fiscal year 2010. The 900 staff that are to be hired
through this fiscal year will probably not actually be hired
until the end of the fiscal year, and then annualized into the
2011 budget. So while they are bringing staff on, they are
really bringing staff on at the last quarter. This happened
last year, and then they are annualizing that amount of money
necessary to pay for those staff.
We request $219 million above the S and E amount, for a
total of 1,826 more correctional worker positions, and $230
million above the B and F request for the funding of
construction and more M and R projects. As was relayed earlier
in the testimony from the Director, the maintenance and repair
accounts are seriously underfunded.
We hear, or we see, in the Director's testimony that we are
at about an 89 percent staffing rate. And our question is, 89
percent of what? If you have cut 2,300 positions in '05 and
'06, and you are not adding that back into the mix, then it is
89 percent of what amount?
The Obama budget is $6.5 billion for S and E, and $269
million for B and F. We certainly appreciated that there was a
substantial increase. But obviously, as this Committee has said
over the years, and even when Ranking Member Wolf was the
Chairman he repeatedly put into report language, that the
administration really needed to look at funding the prison
system appropriately.
We do want to bring up the private prison issue. We have
seen an increase from three private facilities in the year 2001
to fourteen now. The latest contract award, January 2010, was
an award of $553 million for a four-year base period, with
possible two-year option periods, which I am sure will be
renegotiated at that point. The thing that is getting to us
with these private prison contracts is if you break that down
over a four-year period, that $553 million, I do not think we
have a single facility at this point that per year would run on
that amount of money. We would be far less. And they really
only have to provide four departments: corrections, medical,
receiving and discharge, food service, and some administrative
positions. The private sector with the criminal alien
population is not providing programming at all.
The other issue for us is the revolving door. The SES pay
scale for BOP management is $119,000 to $179,000 per year. That
is top rate for SESs. CCA's average salary to their top three
officers is $279,000, and total compensation is $1.2 million
over a year period. GEO Group is $651,000 on average for the
top three officers of the company, $2.3 million in total
compensation. And we have those documents.
The stun fences, we brought this up last year and we are
going to bring it up this year. We do have specific dates and
times when fences have gone down at specific facilities. We do
not feel we can give that to you in an open hearing, but we
will provide it to the Committee staff after the hearing so
that that information is not out in the public. These security
fences only protect from escape and they do not protect for
activities occurring on a recreation yard. It does not protect
the safety of staff or inmates who are out on a recreation yard
and have issues such as a disturbance out on that yard. Staff
are taught to run underneath the towers for protection in the
event of a riot. If the towers are not manned, those stun
fences will do nothing to help the staff and that is one of our
main concerns with the stun fences.
The Second Chance Act has been brought up repeatedly. We
believe it needs to be fully funded. The issue that we are
hearing back from our case management employees who are union
employees is that there are not enough halfway houses. They are
referring by management's directive all of the inmates that
they can, but many of these inmates are being kicked back
because of lack of bed space in the halfway houses. In
addition, they are being told to submit inmates that normally
would not be appropriate for halfway houses. Inmates who are
child pedophiles, or have a history of assaults, violence. They
are being told to send all of them forward for halfway houses
to increase the numbers. And we think that is a waste of our
staff's time. They should have more discretion to look at
whether an inmate should be placed in a halfway house at a year
or not, and at the six-month rate, which is our normal rate.
The Prison Rape Elimination Act, we talked about that last
year as well. And until all the housing units are staffed, and
the recreation areas are staffed, we cannot monitor what is
going on in those housing units 24/7. We want to do it. Our
staff want to do it. But it is just not possible.
The other issue is training. I heard the Director talk
about training this morning. I can tell you that last year I
received a half hour of training on the Prison Rape Elimination
Act at my facility. I am an active correctional officer, and I
can tell you that that was not a top priority.
FPI, their issues are well documented. We are concerned
with the situation, with more inmates being laid off. It is not
helpful to anyone. And it is certainly not helpful to the
inmate population. How it affects the inmates is that they do
not make very much money. You do not have them using the
commissary as much. Now we are starting to see theft out of
food service. We are seeing them bring food service items up to
the housing units. It is just a bad situation the whole way
around. So anything we can do to get inmates working again
would be helpful. Thank you very much.

STAFFING LEVELS

Mr. Mollohan. Well thank you both for your testimony. With
regard to staffing levels, are you seeing that new staffing in
the prisons? And is it being targeted in the right way?
Mr. Lowry. I know there are increases that have occurred in
some positions outside of correction, and I know that the
correctional staffing levels have gone up some. But it has not
added any new posts. In other words, assignments in certain
areas that we had prior to this Mission Critical staffing, such
as additional recreation yard officers in the evening when the
majority of your inmates would be out there. You could have at
least half, a third to half of your population on the rec yard
during the spring and summer months. And now what you basically
have are one or two people, recreation specialists, and maybe
an officer watching where, you know, ten years ago you would
have four or five people out there, especially in the higher
security level prisons. And they have not added these posts
back on.
It is a matter of what do you do with the resources when
you get them is our concern. We get the additional funding. But
the initiatives that are put into place, in our opinions, are
not sound. Where inmates are likely to congregate in large
numbers, having those positions that we once had, we called
them different things, compound officers that would be in open
areas where inmates would be, having additional officers in
some of these higher security prisons to partner up with one
another, since the violence has increased in our prisons. More
staffing in the evening time, although, you know, an
institution may have on average 300 staff, those staff are all
over the place.
Some of these prisons inside the fence are fifty-plus
acres. And so you have people working in different areas. They
are not supervising or watching the inmates. They are doing
their functions that are assigned to them. But we are looking
for staff to be put in these general areas. Because our main
concern, to try to answer your question, is if you cannot
properly supervise inmates to, number one, stop the manufacture
of weapons; number two, stop the manufacture of contraband such
as alcohol or moving drugs around in different ways, or them
being able to hide it, you cannot stop the violence inside the
prisons. And since our staffing has declined you can look at
the numbers that have been put together by the agency or even
the union. And our numbers would be less because we rely on the
local unions from each institution to report directly to us.
Now, whoever determines what is serious and what is less
serious, we beg to differ if a correctional officer or a
correctional worker is attacked by an inmate. But if you cannot
stop the manufacture of weapons and that sort of thing, and
then you are overcrowded to the point to where if it is an
outright serious act that they deem serious, you have no place
to lock these inmates up.
Our special housing unit, which is our jail inside the
prison, is full. All these places are full. And our numbers in
the high security prisons are something, unless you really know
how the system operates. We have decreased the number of
available beds for high security offenders. As the Director
testified, the number of inmates being involved in gangs is
probably higher than it has ever been before. And when you have
that many inmates as part of gangs, you are going to have a
little more violence. It may not always be directed towards the
staff, but staff get injured when they respond, trying to break
it up. Then the aggression turns towards the staff. The numbers
are high, and they have increased every year the way we have
calculated our numbers of assaults on staff.
But you have got to be able to supervise these inmates. And
we do not have the overall supervision we once had to maintain
real secure environments. Although we do the best we can, and
we think our staff are very professional, it has still gotten
overwhelming.
If I can make one more point on that question? I visited
two high security prisons this week before I came to D.C. One,
United States Penitentiary in McCreary, Kentucky, and another,
United States Penitentiary in Lee, Virginia. And when I went to
the prison in Lee, Virginia there was an incident that I was
not even aware of that occurred on January 25th where they had
a disturbance on their recreation yard.
It was actually during the day watch hours, and because
their staffing level is not at a great extent they were doing
what is called annual refresher training. Which means in a
three-week period you try to get all your staff in that
institution trained, so you break it down by a third. The
disturbance occurred, when most of the staff were down at the
training and not up there at the general institution. And there
was live round fire shot from the towers to quell the
disturbance and to get the inmates on the ground. They resisted
the warning shots, dispersionary rounds first, and then live
fire rounds after that. They continued to riot out there. So an
officer went out there. The last thing he remembered is an
inmate had a weapon and he tried to tackle him. And the next
thing he knew he was in the hospital, carried out in the
ambulance.
Well, the union insisted I talk to this guy. So I went and
talked to him yesterday. And when I went into the office what
he said to me was, ``I'm okay.'' And then he broke down and
said, ``But you know what? People don't understand my family
suffers as much as I did through this whole thing.'' It's the
stress everyday of not knowing what is going to occur, and not
having the staff there to respond that is affecting the mental
health of our staff as well. And that is something we wanted to
make sure that we got across to you, the Committee. Thank you.
Mr. Mollohan. No, thank you. What do you think is the
appropriate baseline measurement for adequate staffing? We
talked about that with the Director this morning a bit. What do
you think ought to be the baseline off of which we work? And as
I understand it, the Bureau goes through an exercise of
determining need and then they generate an authorized number
based on that. And it is off that authorized number that we
measure percentages, and the adequacy of the personnel, the
number of correctional officers and correctional staff
otherwise. What is the right base? What is the right process to
go through?
Mr. Glover. Mr. Chairman, we really believe that the ratio
is the way to go. When we had a low ratio, 1 to 3.5 inmates in
the late nineties, early two thousands, you did not have us up
here screaming for staff, and you did not have us up here
telling you about these horrific assaults and those kind of
things.
Mr. Mollohan. Would the ratio be different today than it
was back then?
Mr. Glover. It actually probably should be lower.
Mr. Mollohan. They say that with the modern prisons, the
way they are designed, they should take less staff.
Mr. Glover. Our problem with that model is this. Yes, we
have new, triangular-shaped units. And so what their theory was
is you could put one person in the middle of that unit at a
desk and he or she could see the entire unit. And that's their
theory on observation. That one person is dealing with inmates
that are more violent than they were ten to fifteen years ago.
I started in 1990, when there were a lot of white collar
criminals, there were some RICO, those types of offenses. And
now there are hard core drug dealers, gang inmates. It's a much
different profile.
Our theory is is that the penitentiaries back then, if you
walked through Lewisburg, or Atlanta, or Leavenworth back
twenty years ago, or fifteen years ago, and you walked down
into the units, they had the high range tiers. There was a
tier, sometimes six deep, or six high. There was an officer on
every tier, not on the unit. And now you have one person, or
two, for that same unit and that tier system. And when they
went to these triangle units where you can see everything their
theory was, ``Well, we will put one person in there and they
can watch.'' And in some cases, I have to tell you, they vacate
one side. They have a triangle unit here, they have a connector
hallway, and they have a triangle unit here. And at night they
will vacate one of those units. And so the officer goes from
here, through there, through the hallway, and down into the
other side. And they are supposed to monitor both sides all
night long to make sure nobody gets hurt.
It's not working. Anybody can sit here and say, ``Well,
there's just a blip in assaults.'' Every time there's a blip in
assaults that is one of us getting carried out the door. So
when there is this little up tick, as they like to call it, an
up tick in assaults, that means one of our guys just got
carried out. And we do not appreciate it.
Last year we testified at the Judiciary Committee and we
testified here that they really should at least go back to a
model of having two officers per unit. And work as a team. Just
like you do with Capitol Hill Police. Just like you do with
other law enforcement.
Mr. Mollohan. That kind of feeds into the need for
modeling, a need based----
Mr. Glover. Right, but they are not looking at it that way.
Mr. Mollohan. Well, what I am saying is, you can say,
``Okay, you need actually during the night a correctional
officer on both sides.'' So there would be disagreement about
that need. But that is not a ratio guide to what your staffing
needs are, your requirements are. That is a, ``We need this,
and we need that,'' and then you build up from that how many
officers you need for a particular institution. That is the way
I understand they get their authorized number, that ``this is
what we need'' process, and then they make their request for
funding based off that as it is impacted by OMB. And so that is
how we get up to an on-board versus authorized staffing level
of 92 percent.
Mr. Glover. Our issue with the ratios----
Mr. Mollohan. And you are saying that that is not----
Mr. Glover. Well it is not working.
Mr. Mollohan. You disagree with that?
Mr. Glover. We disagree with that. We believe that the
ratio is the first step in bringing some sanity back to the
process. Because like they told you today, and like you are
hearing from us, you are going to add 14,000 inmates over the
next two years. We told you that in 2005 and 2006 we cut 2,300
positions. This past year we added 700 at the end of the year,
and we are going to add 900 at the end of this year, and we did
not add any the year before. So you are basically talking about
21,000 inmates that have been put into the system with about
1,600 staff added.
Mr. Mollohan. I know, that is an impressive comparison when
you get that on a chart.
Mr. Glover. That is the problem. I mean, the big states all
look at the ratios. They are 1 to 3, 1 to 5 in California,
Texas, Florida, Pennsylvania, the larger systems. So that is
why we are staying with that model.
Mr. Mollohan. Okay. Mr. Wolf.
Mr. Wolf. Thank you, Mr. Chairman. Thank you for your
testimony. Were you here today when Mr. Lappin testified?
Mr. Glover. Yes, sir.

WORK OPPORTUNITIES FOR INMATES

Mr. Wolf. What do you see is the impact on the reduction
with regard to the work opportunities?
Mr. Glover. Well I can tell you at our facility, FCI
Loretto, we used to have a UNICOR factory that ran electronic
cable. We had about 500 inmates that worked in that factory. We
ran two full shifts. And now we are down to less than 300, 235
inmates working in that factory on one shift. Inmates have
gotten in fistfights on who should have been laid off. So that
causes a problem when you----
Mr. Wolf. They wanted to work?
Mr. Glover. Right. One inmate got laid off, the other
inmate did not. And one inmate took, offense as to why he was
laid off and the other inmate was not, so they got in a fight.
So both of them end up in our segregation unit, which does not
help anybody. I think part of the assault issue is when the
Defense Authorization Bill passed with that language. We told
Chairman Levin at the time that this was going to cause a big
problem in the system. He said, ``Take it up with the Judiciary
Committee.''
Mr. Wolf. And I know Levin was a bit supporter of that.
Mr. Glover. And between him and Congressman Hoekstra at the
time, there was no getting around it. And so we have eaten it
ever since, frankly. Our staff, there is nothing that I know of
that keeps the place humming like 300 or 400 inmates getting up
in the morning, going to main line, eating, and heading to
work. And then when they come back up at lunch, they head back
down, they work some more. They come back. They all kind of
program themselves. They do not want to lose their jobs. You do
not see as many incident reports from those inmates. You do not
see violence.
We had a riot at Bastrop, Texas one year where the inmates
in UNICOR actually locked the doors and would not come out. The
other inmates were egging them on to come out, and they would
not cross, basically, out of the factory because they did not
want to lose their factory jobs.
A lot of those inmates send money home. As I started to say
before, what we are seeing is a big drop in commissary sales,
the inmate trust funds. So there are not a lot of inmate
programs that can be paid for out of the trust funds because
the inmates do not have the funds to buy out of the
commissaries. And so then you deal with theft out of main line,
you know, stealing whatever they can take out of there to go
cook upstairs. And so you are dealing with that issue in the
evenings.
Mr. Wolf. How much would a prisoner have been able to save,
to take out? Let us say they were in for six or seven years. To
take out when they left?
Mr. Glover. I can remember at least a couple of inmates
releasing with up to probably $500 or $600 in the bank. Or they
send it home ahead of time.
Mr. Wolf. And now in order to purchase at the canteen their
family has to send money to them?
Mr. Glover. They would get basically $5 a month, or $5 a
week. You could make a lot of money in UNICOR. But now what
happens, they are put on base pay, or maintenance pay.
Mr. Wolf. And in UNICOR, what would a prisoner leave with,
if he worked with UNICOR for five years?
Mr. Lowry. An inmate can actually make somewhere between
$400 and $500 a month. A lot of that money, if they are not
paying restitution or something such as that, a lot of them
send that money home monthly, almost like child support if they
have children. I mean, that is a fact. And, let us say they
spend $30 to $50 a month in the commissary just to buy some
cokes and some chips or whatever else to have back at their
cell. The rest of it is going to sit in that account, unless
they spend some money, because they have to pay for their phone
calls. And there is a new true link system for inmates to be
able to email, and they have to pay some on that. But the rest
of it is going to be savings. So if they worked in there five,
six years, or however long, they are going to be able to take
all that money with them, other than what they probably sent
out to their family or spent in the commissary.

REENTRY AND RESTITUTION

Mr. Wolf. So Mr. Chairman, on the whole reentry issue and
restitution, they were giving money to the individuals that
they would give money to, their families, the email. It's
pretty pathetic. I spoke to Senator Levin, too. I spoke to Mr.
Hoekstra, too. I was not able to convince either of them.
The last issue, we discussed prisoner radicalization, the
need to know the number of inmates with gang affiliations. As
representative of the workforce, what do you see with regard to
the gang issue in general? And what do you see with regard to
the problems with radicalization?

GANGS

Mr. Glover. We have far more gangs than we had five or ten
years ago, I can tell you that.
Mr. Wolf. Is it actually getting to the point, I have had
people tell me that in some prisons, now this may be state
prisons, but in some prisons they actually almost join the gang
as sort of a form of self-defense before things get too far
along?
Mr. Glover. Well they congregate, essentially together. If
you watch the dining hall, the dining hall is your best example
of who is in what. We have at our facility a number of sexual
offenders. They all hang out together for self-protection,
basically. They eat together. They move together. They recreate
together. And you see the same thing with the gangs. You see
the different groups. D.C. sentenced offenders that we get will
come in and congregate together. That is how the system works.
Some of them are wannabes, they try to, they want to be
something. We have some white pride guys that show up and they
want to be an Aryan Brother, in the Aryan Brotherhood. So they
will act tough, and they will want to go out and fight with
somebody right away to prove that that is what group they
should be with.
So, I mean, you see a lot of these gang groupings now a lot
more than we used to see, I think, with the federalization of a
lot of the state crimes. We have ended up with that mix. And as
the Director mentioned, with the criminal alien portion, I
think last year you had asked us about the MS-13s. And yes, we
have groups of them that have formed inside. Now, the Bureau
tries to ship them out to different places and keep them
separated if possible. But it is a challenge. The gang issue is
a challenge.

RADICALIZATION OF INMATES

Mr. Wolf. What about the issue of radicalization with
terrorism recruitment? There was a Foreign Relations Committee
report saying that a number of people who were radicalized in
prisons, blond haired, blue eyed types, went to Yemen. And now
they are living in Yemen and they are concerned.
Mr. Glover. Well I know we went through a process when,
several years ago, there was a very lengthy process of looking
at the imams and I know the Director took a lot of heat and so
did the Bureau overall for some religious items that they
wanted to take out of the libraries and the chapels. They tried
to get a handle on that. I think they lost in the end and they
had to put a lot of things back. But I think they are screening
a lot of the religious leaders that come in to do volunteer
work. They are screened, I think, a lot more than they used to
be. But the one thing you cannot stop is inmate on inmate. I
mean, inmates talking to inmates in the housing units, or going
around together. That one is tough thing to stop. I do not know
if we see that it is prevalent. I mean, it does not seem to be,
we do not seem to be having sit downs of those inmates, or
specific inmates from those types of inmates. I do not think we
are seeing that. We see more of the gang activity, I think,
than we do that part of it.

RAPE IN PRISONS

Mr. Wolf. Last issue, on the prison rape issue, the
regulations were to go in effect with fed, state, and local,
everybody else. But it has been delayed. How bad of a problem
do you see the issue of prison rape? And you had mentioned you
were only given a half an hour of training?
Mr. Glover. Last year we got I think a half hour of
training on the Act last year. And so----
Mr. Wolf. And how bad of a problem do you see it in the
feds but also overall knowing what you know about state and
local?
Mr. Glover. I know this. When I was Council President at
Dublin there were six or eight staff prosecuted for abusing
female inmates.
Mr. Wolf. And that's prisoner on prisoner, too.
Mr. Glover. Well that is the problem, I think that is the
harder nut to crack. The staff seem to get caught. The inmate
on inmate part is difficult because inmates do not want to come
forward on other inmates.
Mr. Wolf. How prevalent do you think it is?
Mr. Glover. I do not think in our system that it is huge. I
do not think it is a large number in our system. I think the
people that go down that road, Tallahassee, Florida we had some
issues, there were at least four or five officers that went to
jail over that.
Mr. Wolf. There was one that was involved in a shooting
down there?
Mr. Glover. Yes.
Mr. Wolf. Had he been----
Mr. Glover. He was part of that indictment.
Mr. Wolf. And did the shooting have a bearing on that? Was
that one of the reasons?
Mr. Glover. Yes.
Mr. Wolf. Did you follow this? Why do you not explain what
that was.
Mr. Glover. Well, essentially what happened was they had
sealed indictments on five staff. They allowed them to keep
working, which we found out about after the fact and got pretty
upset about. There was a disagreement, from our understanding,
and I will just say our understanding because I was not in the
room and Bryan was not either. There was a disagreement about
when to pick these people up from work, or when to actually go
get them. And it was decided, either by OIG, the FBI, or the
Bureau, that they would wait until they were at work, and then
they would come and get them. And we feel that it was part of a
parade, that this was a show arrest. ``Well, we are going to
come in and we are going to take them off their posts in
handcuffs, and show you not to do that.'' Well, unfortunately
one of those staff had a firearm in a backpack.
Mr. Wolf. And he shot an OIG guy?
Mr. Glover. Yes. Yes, he fatally shot an OIG agent, and he
was shot and fatally killed as well. It was a terrible
incident. As a result of it, we now search our staff. We have
metal detectors that we have to go through to go to work in the
mornings that we in the Bureau of Prisons never had to have.
Mr. Wolf. And they were all involved in basically----
Mr. Glover. They were running some sort of ring with the
female inmates at Tallahassee.
Mr. Wolf. Well, thank you both. Thank you, Mr. Chairman.

VIOLENCE IN PRISONS

Mr. Mollohan. Thank you, Mr. Wolf. Just one follow up
question to Mr. Wolf's coverage of prison violence. Does the
BOP solicit input from the AFGE on policies related to
protecting staff from assaults by inmates?
Mr. Lowry. Our contract allows us to negotiate with the
agency on any change in any policy, practice, or procedure.
Whenever they are going to make a change to a policy or they
are going to propose a new policy, it gets issued out to the
field and then we do generally look at it. If we see concerns
with it we invoke our rights to negotiate. And at that point
there is a time frame set up for us to get together. There was
a lot of, I would say, back and forth on some of these over the
last few years. But since there has been a change to the Chair
of the FLRA, things have gotten a little better. But we do have
a right to negotiate, to provide input and suggest changes, and
to bargain in good faith. You know it works between both
parties.
Mr. Glover. Can I add in just on that? The one thing that,
well there are several things. The problem we have is that some
things are considered internal security matters by law. And
that is what they will rely on when they do not want to listen
to us, is, ``Well, that is internal security.'' If they like
what we are saying, then that is fine.
The other issue for instance is, after the murder in
Atwater, we had asked for pepper spray for the officers.
Actually, we put pepper spray, batons, or tasers. Whatever the
three that they wanted to work with. We were not hung up on any
given one, but pepper spray seems to be about the easiest to
train on and operate with. Many states and many local county
jails carry it daily and there is not a huge issue with it.
They have been completely resistant to add that to our ability
to simply keep an inmate off of you. And I know you have heard
from your folks at Hazelton. Over and over we have nothing to
fight these guys off with. And in a perfect world they would
not attack us. But that is not how it works. And so, all we
have asked for is something simple that will keep an inmate off
of you for a few more minutes to where you can get help there.
We have brought that up to them repeatedly.
We had brought up the issue of stab vests. They bought stab
vests for the people that wanted them. But then what they did
is they created a policy that said if you request a stab vest
you have to wear it everywhere. Even our officers who are on
duty working at a training center being trained, and not inside
the secure facility, are technically required by their policy
to wear the vest. They made it so unworkable that the staff
just turned them back in. I have no idea how much money was
spent on that. But I bet you it is a lot, when you consider
those vests are $300 or $400 apiece.
So there are things that we wanted, or that we have asked
for for safety measures. The two officers per unit, we asked
them to start at the high securities. There's only eighteen to
twenty high security prisons in the system out of the 115, with
an average of six to eight housing units per. So let us say for
the 2 to 10 shift, one shift you wanted to have two people in
there. You are adding about, you are adding six positions. Now
in the whole scheme of the Bureau of Prisons, twenty
institutions, six to eight positions plus a relief, two more
days of relief. There has got to be a way to sort that number
out. And we just have not gotten there, over all this time.
Mr. Mollohan. So you can talk but you do not necessarily
get satisfactory results. Let me ask you, the Bureau of Prisons
seems to be developing this strategy of special management
units to try to get out the most difficult inmates to handle.
How is that working? And how do you think it might work when
fully implemented with additional special management unit
space?
Mr. Lowry. I think we testified about some of that last
year, and I have talked with you recently with the group from
Hazelton about this. What the Bureau of Prisons did is over the
course of probably the last five years, starting with United
States Penitentiary Atlanta, and then United States
Penitentiary Leavenworth, and then United States Penitentiary
Marion, Illinois, United States Penitentiary in Beaumont,
Texas, they changed their missions. All of those prisons now,
even though the older ones for National Archive purposes were
still called United States Penitentiary, they are medium
security level prisons. We have only brought probably two to
three brand new United States Penitentiaries on board but lost
the mission of six or seven, probably, in the same time span.
The high-security type of population has not decreased in
the Bureau. Now, Marion, Illinois was kind of like ADX
Florence, the Supermax. Its mission was to house probably the
most dangerous, most incorrigible inmate who could not be on an
open compound at any security level, and they are locked down
twenty-three hours a day. Marion had the same mission. When
they changed Marion's mission, that was about 500-and something
beds of those type of inmates. And they had no plan or
initiative in place to replace it. What happened is, is the
violence during that period of time, and you could see the
spike even through the Director's testimony, that it greatly
increased from 2006 probably on up to about 2009. Even last
year when he testified, it was pretty much to the fact that the
only security level he would say that really increased was the
high security level. And their reaction was to take Lewisburg
and get rid of the open compound high security inmates.
Now, we had not brought any more on recently. So those
inmates, the probably 1,200, had to go get put in some security
level, or their security level was decreased to medium to fit
them into the system if probably over a number of years they
had not been violent. And then they created two units, one in
Oakdale, Louisiana and one in Talladega at medium security
prisons, to just take units and turn them in to these special
management units.
To me, the inmates that are in a special management unit,
they want to call it programming. The officers that work in
there, or the staff that work in there, will tell you there is
really no programming. They themselves just judge the good time
these inmates, and I am not talking about giving them good
time. The good time they may have for the next two years in
what they would call phase one, and then give them a little
more time out of their cell in phase two over the next year,
and then phase three a little more time. And then see if they
could possibly put them back in an open compound. But they are
the same inmates that because of the violence, or because of
the riots they have been part of, or because of the type of
assault with weapons on other inmates, or the types of assaults
on staff, they belong in ADX Florence, Colorado. But there is
no bed space available. So they started out with units, and
when that was not enough they took one whole institution and
then----
Mr. Mollohan. Well, have we had experience with this long
enough to know whether this strategy is beginning to work or
not? Is it reducing violence in the other prisons?
Mr. Lowry. I think the number is over probably 2008 and
2009, when you asked the question earlier, probably are about
the same numbers that have occurred. The only thing we do not
know is when you determine how serious the violence is, you
know, the disturbance on the yard, did they have to fire live
round ammunition on the yard? And we would only do that,
according to policy, to prevent the loss of life. Now, some of
the things that occur with the weapons and that sort of thing,
I do not think the violence has been deterred. I think what we
did was at that period of time we took some of the most violent
inmates that were already sitting in some of the special
housing units, they were not even out in the open compound,
they were locked down in our jail inside the prison and they
moved them out. Well, now these places have filled back up.
It may have deterred it for a short period of time. But
that type of inmate----

OVERCROWDING

Mr. Mollohan. There are two different things here. Number
one, is the space available in the special housing units and
special management units, to be able to implement the program?
And number two is, if you cannot implement the program, is it a
sound strategy for reducing violence on officers in the prison
system? And I guess what I am getting out of your testimony is
that there is really not enough space. It is still too crowded,
too overcrowded, and there are not enough management units in
order to tell. Is that right?
Mr. Lowry. That is exactly what I am saying. But as you see
the population expand, anywhere from 5,000 to 7,000 inmates in
the numbers we are giving to you, that means that type of
offender is increasing in our system as well. And we had not
made any adjustments for them, and now we are having to react
to it. Before these special management units were put on line,
and then Phil wants to say something, is that they created
these modified, alternate lock down units to try to deal with
them first. And there were many institutions, including
Hazelton, that had one of them, and they were staffing them
with one officer. And then they started putting in regular SMU
inmates, and it just turned into a mess. That is when the SMUs
were created because officers were getting assaulted in there
when they would open a door up for an inmate. They did not want
to call it a special housing unit, where you had all these
restrictions about policies that you were mandated to follow.
So it was a free for all, and none of the policies mirrored
each other from one another, and that is how they dealt with
it.
I think it is working at Lewisburg, but I think they are
going to continue in another year to build another one, just
like Thomson was testified to. We were thinking that would be
open compound and alleviate some of maybe the overcrowding for
the population at the highest security level. But if it is
going to turn into an SMU, that does nothing for our really
open compound United States penitentiaries.
Mr. Mollohan. Well, except that it takes a lot of the most
difficult inmates out of those populations and into another
population. So it should have some benefits?
Mr. Glover. 1,600 beds.
Mr. Lowry. One more thing about these SMUs is when you have
more violent inmates like that locked down by themselves, they
do not want a cell mate. In an open compound, where you say
that you are going to have two in a cell or three, they are so
violent you can not even house anybody so----
Mr. Mollohan. They are going to use Thomson for that
purpose. It actually is only 1,600.
Mr. Glover. There is not a real chance there to double bunk
if you are going to go to an ADX environment at that facility.
The only other thing I just wanted to add quickly, and I know
our time is about up, Lewisburg was made an SMU. They had at
least two stabbings in November, one with a spear out of a
housing unit door. The officer was starting the feed and as he
put the food slot down to put the food trays up, the inmate had
crafted out of paper, rolled and rolled and rolled tight, and
then he put a piece of the bedspring in the one end. And he
actually stabbed an officer through that slot, it is on camera,
into his thigh, and almost got his artery. So whether you are
in an SMU, or whether you are in a regular SEG unit, at this
point the way the population is going it is just not a good
situation.
Are they working? They might make it a little better at one
facility. But Lewisburg is not as good as it was. And again,
like Bryan was saying, they are not staffing them up. The
Supermax at one time had five officers per range. If you went
down range you had five officers with batons before you moved
an inmate and brought him out of a cell. They are trying to get
away at these SMUs with maybe two, sometimes three. They will
put a three-man hold on an inmate, where three have to go down.
But it is still a staffing problem. It goes back to that.
Mr. Mollohan. Well, do you all have anything else that you
want to speak to before we bring the hearing to a close? This
is your opportunity.
Mr. Lowry. Sure. Our issues are not going to change much.
Until the funding increases here, and then sound initiatives
are put into place, there is going to be violence in prison.
There has been a lot of issues talked about, whether it is on
staff or our mission is to make sure that these inmates are
safe and we treat them humanely and protect the public, and
keep them incarcerated inside. Our staffing ratios have to
improve. It is detrimental to our ability to manage the
populations, as well as to keep ourselves as safe as possible.
The numbers are responders. At any given time anything can
happen in a prison setting. And just in my opinion, the higher
security level the more dangerous the individuals are
incarcerated there, and the more violent they probably could
become. Not that incidents cannot occur at any level, because
they most certainly have and they still do. But your numbers
and your ratios are going to be at the higher levels. But the
staffing ratios at every level right now, they have at camps
almost got down to where you just have cameras watching
inmates, which is very unsound to the communities they are in.
At low security basically cameras and sometimes you have one
correctional officer that used to work one unit, with 150
inmates to one on the off shifts. You may have some additional
correctional workers there in the daytime, but that
correctional officer is running the unit. And now you have this
correctional officer working two units. And in some places they
have worked three by themselves. And you are talking 450, 500
inmates.
When you bring up things like the Prison Rape Elimination
Act and other things about our concern to do that, I can as an
officer only be in one place at one time. You have gotten me
taking on more than anything I have ever done before as an
officer moving around the unit.
Mr. Mollohan. It sounds like a lot of territory to cover.
Mr. Lowry. How do you expect me to watch it all? The
inmates know where I am at any time, if they want to move
contraband or even go further with more acts of violence
against other inmates. They have got the ability to do it. We
have lost our supervision. And I really believe we have lost
our way inside the Bureau.
Now, I do not believe anybody, from the Director to anybody
else, wants to see anybody get injured or hurt, especially
staff. But if we can not supervise our population, we cannot
stop them from manufacturing weapons, because they are doing
it. From all kinds of means, as Mr. Glover said, but they have
access to all kinds of plastic, all kinds of other things.
Drugs, other contraband such as making homemade alcohol. I
mean, this stuff is prevalent at almost every institution
because we are not out where we are viewing everything like we
did before when we had more staff.
But these staff are also, given us the ability in case an
inmate aggressively attacks the staff or a disturbance occurs,
our response time is quicker. Our response time is slower now
with less staff. And there are some shifts where you just have
a skeleton crew. Where in the daytime they will say, ``Oh, our
ratios are great.'' Because you have 200 staff on day watch.
But you get to a low security prison, and you might have
thirteen staff now at that institution with 1,700 inmates.
Mr. Mollohan. Okay. Thank you. Thank you, Mr. Lowry. Mr.
Glover, do you have anything you would like to add?

DRUG TREATMENT

Mr. Glover. Just a couple of things. I know what came up in
the hearing this morning, there was a little bit about drug
treatment. And I heard a ratio of 1 to 25.
Mr. Mollohan. Mm-hmm.
Mr. Glover. We have 1,400 inmates at Loretto, and we have
one drug treatment specialist. So I do not know if that is how
many are supposed to be sitting in group together, or that is
certainly not the ratio of drug treatment specialists to the
inmate population, I do not think. I am not sure how it came
out this morning. But I wrote that down because I know we----
Mr. Mollohan. That is the way it came out in my mind.
Mr. Glover. Well, you know, like I said, it may be one and
they run a group of twenty-five inmates at a time, maybe. I do
not know. But that is certainly not the ratio.
Mr. Mollohan. That would be a lot of groups.
Mr. Glover. I am trying to be kind.
Mr. Mollohan. Well, you do not want to confuse the record.
It is----
Mr. Glover. No, I am trying not to do that. Thank you, Mr.
Chairman.
Mr. Mollohan. I think you made it clear to begin with.
Mr. Glover. But that is a real question for us because I
understood that originally to be funded out of a separate----
Mr. Mollohan. But I think what he was saying, and this
would be an extreme example. If he had 1,400 inmates and I do
not know how many of those, what percent would need drug
treatment. But what percent? Fifty percent?
Mr. Glover. I am going to say probably a majority with the
population that we have with drugs and alcohol.
Mr. Mollohan. Well, his point was that there would be a
waiting list, but they would maintain that 1 to 25 ratio in the
treatment environment. So they would not have anymore, so there
would be----
Mr. Glover. I just think that is----
Mr. Mollohan [continuing]. 1,375 people waiting for----
Mr. Glover. Yeah, there are a lot of people waiting----
Mr. Mollohan [continuing]. The next class.

MONITORING OF INMATE COMMUNICATIONS

Mr. Glover [continuing]. For a little help. And the only
other issue that I thought might need to be clarified, there
was a discussion about communication issues and monitoring
mail, telephone, and visits. Well I do not think we are doing
that great on telephone monitoring. We have a telephone monitor
at certain facilities. Sometimes that person is pulled to work
housing units, other areas of the prison.
Mr. Mollohan. Is it random monitoring? Is it random?
Mr. Glover. Yes, it is. Now there are some alert lists
where you will get certain inmates that 100 percent of their
calls have to be monitored. But that is not all the inmates.
And so the rest of it is all scattered, scatter shot.

EMAILS OF INMATES

The other thing is, they just created here in the last year
this true link system that is allowing inmates to use email.
And we have heard, not in all cases, but we have heard from
some of our locals that they have a concern over the security
of the system. BOP is saying that it is a locked in, secured
system where the inmates send the email, it sits for twenty-
four hours, the computer, I guess, has words that will key,
supposedly, although----
Mr. Mollohan. Screen it?
Mr. Glover. I guess screen the mail, and then it will be
sent. And then the message will come in. I have been told by at
least three or four institutions that they are into the
thousands on these emails. And so----
Mr. Mollohan. Backlogged?
Mr. Glover. Well just not monitored. I mean, just, that are
going to go out and who knows? Our only issue with bringing it
up to the Committee is we just want it on the record because,
as with the letters that came out of ADX and went to Spain, as
with the phone calls that have occurred that Mr. Ruppersberger
and others were very concerned about last year with setting up
hits on staff and other things that occur, you know, running
criminal enterprises----
Mr. Mollohan. Oh, we will follow up.
Mr. Glover [continuing]. Well, now we have this on top. And
again, we have been telling you about the staffing levels for
three years and we created a new system to give more
communications. And I, you know, I understand what they are
trying to do. You know? An inmate that communicates with their
family members is supposed to be better at progressing back
into society and all that, and that is great. But it does
create at some level a management nightmare. So we thought we
should at least bring that to the Committee's attention.
Mr. Mollohan. Okay. Thank you. Well, thank you all very
much for your appearance here. Thank you for the good work you
do. I can tell you, it gives us an insightful perspective on
the Bureau of Prisons and very much complements our oversight
of the Bureau. And it also lets us know where we can be helpful
to those who are really on the front line doing this job. And
it is a tough job, you do a great job at it, and we appreciate
your letting us know what your special needs are. So thank you
very much for your testimony. The hearing is adjourned.
Mr. Glover. Thank you, Mr. Chairman.
Thursday, April 22, 2010.

OFFICE OF JUSTICE PROGRAMS (OJP) FY 2011 BUDGET

WITNESS

HON. LAURIE ROBINSON, ASSISTANT ATTORNEY GENERAL
Mr. Mollohan. The hearing will come to order, and we will
all come together. Good morning. We are pleased to welcome the
Honorable Laurie O. Robinson, the Assistant Attorney General
for the Office of Justice Programs. Ms. Robinson, this is your
first appearance here since your confirmation in November. But
it is not your first time testifying before Congress on the
Department of Justice grant programs. And you bring with you a
wealth of experience from many years in the same position
during the Clinton administration as well as other substantive
positions related to the field of criminal justice. And the
Department is lucky to have you back. Welcome, and we
appreciate having you back.
The Subcommittee has made increasing investments in the
Office of Justice Programs over the last few years, including
$2.77 billion through the American Recovery and Reinvestment
Act, and $3.35 billion in the fiscal year 2010 CJS bill, an
increase of $200 million, or 6.4 percent, above the prior year
level. And we look forward to working with you to achieve
significant progress in the areas that these increases
represent.
Last year we held a series of hearings focused on prisoner
reentry and justice reinvestment with a focus on evidence-based
practices that are helping to reduce incarceration and
recidivism and that are giving people a second chance at a
productive life. Two of the major lessons we learned from those
hearings is first there is good evidence about what works and
we should be doing more to disseminate that information to
practitioners around the country and use federal funding to
help leverage evidence-based approaches. And second, we need to
keep investing in research that will help us further refine
what works and help us discover new, even better strategies and
approaches.
There are a number of new initiatives proposed in your
budget that seem to be informed by these lessons and we will
want to hear from you in more detail about how they would work.
There are also proposed cuts to some existing programs and we
will want to ask you about the rationale for that.
I now call on Mr. Wolf and your testimony will proceed
after Mr. Wolf has an opportunity to make a statement. Mr.
Wolf.
Mr. Wolf. Thank you, Mr. Chairman. Ms. Robinson, we want to
welcome you and appreciate you being here today. We support a
lot of your programs at DOJ that assist the state and local
government.
I am concerned about the decision to divert funding away
from some of the critical improvement programs. Prescription
drug monitoring, this problem is growing unbelievably around
the country. The prison rape prevention, I think Eric Holder
when he leaves office will go away feeling great disappointment
in himself in the fact that the failure for the administration
to deal with the prison rape thing. Every day this issue is
growing and growing, and yet the administration is just kind of
almost walking away from it. The methamphetamine enforcement.
So some of those concern me.
Finally, your budget actually reduces funding for victims
of trafficking. I do not understand; this area, the Washington,
D.C. area now is becoming actually a center for trafficking of
victims. We think in terms of Thailand or Albania. But it's now
Virginia and the District of Columbia. And so we will have a
lot of questions that will get into that area. But I do not
know why the administration would want to reduce the funding
for victims of trafficking.
So, but anyway we look forward to your testimony and we
will ask some questions. Thank you, Mr. Chairman.

FY 2011 BUDGET REQUEST

Ms. Robinson. Chairman Mollohan, Ranking Member Wolf, and
certainly distinguished members of the Subcommittee as they
arrive, I am very pleased to be here today to talk about the
President's budget request for the Office of Justice Programs.
I had the privilege of coming before this Subcommittee many
times when I served as Assistant Attorney General in the
nineties. And again as a private citizen, as you may recall,
three years ago at your invitation. I am very pleased to be
back at OJP and very honored, Mr. Chairman, to appear before
you today.
OJP's mission is to help reduce crime and improve the
administration of justice at the state and local level through
innovation, research, and programs. The President's budget
request for fiscal year 2011 includes almost $3.1 billion to
support OJP's activities. The request reflects four themes that
I view as central: strengthening partnerships with state,
local, and tribal stakeholders; restoring the role of research
in criminal and juvenile justice policy and practice; promoting
evidence-based approaches to crime and violence; and ensuring
fairness, transparency, and effectiveness in grant
administration.
To take the first of these, one of the reasons I was
willing to return to OJP was to help the Department reestablish
strong relationships with its state, local, and tribal
partners. I view outreach by OJP to the field as crucial. And
very early in my tenure last year I held a series of listening
sessions with our constituents to hear from them what the
agency was doing well and what we needed to be doing better.
The centerpiece of our commitment to states and communities on
the funding front in my view is the Byrne JAG program, a vital
source of funding for state and local law enforcement. The
President's budget request for fiscal year 2011 includes $519
million for this critical program, the same amount Congress
appropriated in the current fiscal year.
A second of my goals in returning to OJP was to help
restore the role of science in our work in criminal and
juvenile justice. In an era of limited financial resources it
seems to me we have got to employ smart on crime approaches.
This means learning as much as we can about what factors
contribute to criminal behavior and what programs work in
reducing crime. In short, we need a robust research program, as
you mentioned, Mr. Chairman. And that is uniquely a federal
role. To support that, the President's budget calls for a 3
percent set aside of all OJP grant and reimbursement funds.
That is in addition to amounts requested for OJP's research
evaluation and demonstration program and the criminal justice
statistics program. All told, $189 million is requested for
research, evaluation, and statistical activities in fiscal year
2011.
Third, a corollary to OJP's role in providing basic social
science research is helping states and localities put into
place crime fighting strategies that work, that are based on
evidence of effectiveness. That, in my view, is critical. The
President's budget request thus dedicates funding to an
evidence integration initiative that would assess our
understanding about what works in reducing and preventing
crime. It would also help us determine how to use that
information to fight crime more effectively. Two important
elements of that would be an online ``what works''
clearinghouse, that you may remember, Mr. Chairman, I suggested
when I testified back in 2007, and a diagnostic center or help
desk, as I call it, to assist jurisdictions in accessing OJP
resources, technical assistance, training, and how to implement
evidence-based approaches.
The President's budget also proposes a number of programs
that would promote evidence-based practices. These include
funds for smart policing and smart probation initiatives that
link research to practice. $37 million would go toward a
comprehensive initiative to address children exposed to
violence. $12 million is also proposed for a gang and youth
violence initiative.
Finally, as we work to support our state, local, and tribal
partners we have a crucial responsibility to be good stewards
of federal funds. Last year OJP made almost 3,000
[Clerk's note.--Later corrected to ``3,900.''] awards under
the Recovery Act. I am proud that the Justice Department was
the cabinet agency with the fastest rate of Recovery Act
awards. We got 99 percent of our funds out the door in seven
months. In spite of that significant increase in grant
activity, OJP has improved its processes for ensuring open and
fair competition. And I want to tell you I take that very, very
seriously. In addition, I have insisted that we post
information about all our grant awards on the Web.

FY 2011 BUDGET REQUEST

In conclusion, Mr. Chairman, with this budget OJP looks
forward to working with Congress and this Subcommittee to
ensure that public funds are used effectively and transparently
to promote smart on crime policing. Tough choices needed to be
made in this process in this tight budget year. I know there is
not agreement on all the offsets proposed in this budget, but I
am very pleased to have the chance to be here today to talk
with you about it.
And I am now happy, of course, to answer your questions.
[The information follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

THE PURPOSE OF JUSTICE GRANTS

Mr. Mollohan. Thank you, Ms. Robinson. Just to help frame
the questions that we will have about various existing and
proposed grant programs, I would like first to ask you to
elaborate on a more philosophical question about the basic
purpose of the Justice grant programs. And I noticed you have
implemented an OJP-wide evidence integration initiative. Let me
ask you, other than to supplement the criminal justice budgets
of state and local and tribal law enforcement, and the related
budgets of nonprofit organizations, why do we need Department
of Justice grants?
Ms. Robinson. Well, that is a very good question. And I
think, stepping back, one needs to reflect on what the federal
role is vis-a-vis state and local criminal justice. Because as
a student of this area over many years, I think we can look
back at the President's Crime Commission report in 1967 which
talked about the federal role in leadership in this area. What
it talked about and it is recognized that more than 90 percent
of the criminal cases in this country, of course, are handled
at the state and local level, not at the federal level. So
what, it asked, is the federal role here? And what that
Commission's report talked about more than thirty-five years
ago is still true today. And that is that the federal role is
really about promoting innovation. It is something that no one
state or locality can do, but the federal government is
uniquely capable of doing. And OJP's predecessor agency, LEAA,
and OJP have done, I think, a tremendous job over the years in
doing that.
Let me give you a couple of examples. The bullet proof vest
came out of LEAA's research. The victim witness units that are
now prevalent across the country came out of work from LEAA. So
that would be one example. Developing knowledge about what
causes crime and what interventions can help stop crime. That
is something, again, no one locality can do, but funding
research in other words. Diffusion of that research, the ``what
works'' clearinghouse idea of spreading knowledge would be
another area. Collecting and disseminating statistics about
crime. No one city or state can do that on a national level,
the federal government can. Another area is training and
technical assistance. This is the best spent federal money, in
my view, of anything we do at OJP, is that training and
technical assistance. And it is a very tiny percentage of the
overall budget, but it is some of the best spent federal
funding. So these are unique federal roles.

EVIDENCE-BASED APPROACHES

Mr. Mollohan. Obviously you feel that we could better
target funding to evidence-based approaches, and rely on that.
I mean, your creation of the evidence integration initiative.
Why do you not talk about that a little bit for the Committee
and elaborate?
Ms. Robinson. Yes, I was pleased in your opening statement
that you talked about the importance of building knowledge, and
the research in the reentry area in particular. And I think in
the last decade the criminal justice field has become far more
sophisticated about understanding not just the academic side
but that the practitioners in the field are enormously more
sophisticated about understanding the need to know what works.
And part of it is driven by the tightening of resources, and
part of it is driven by the much greater sophistication of
practitioners many of whom, you see police chiefs for example
across the country, including my colleague here who is the
Director of the COPS office, who have advanced degrees. Who are
here and bring tremendous knowledge to their work. And they
know that data-driven approaches, research-based approaches can
make the difference between being effective in addressing crime
and not.
When I returned to OJP one of the reasons I was willing to
do this is because I think it is so important to cross the
divide between academia and practice and policy. And I thought
there was much more that we could be doing in government and in
OJP, in particular. What we are doing with the evidence
integration initiative, or E2I as we call it, everything in
government having an acronym, is to encourage greater research,
yes. But also application of research into the programs that
are funded at OJP and greater generation of knowledge. We also
want to be distilling information from research and translating
that better for the field. There is a lot of information that
we have learned from research that is sitting in academic
journal articles. Busy police chiefs and busy practitioners do
not have time to read those journal articles. We have got to
distill that information and get it out to the field, and that
was my idea behind this ``what works'' clearinghouse.
Mr. Mollohan. I would like for you to apply that in the
real world, with this example. I have funded, or earmarked, I
notice that was among your cuts, these earmarks. A program in
Monongalia County, West Virginia which has migrated to some of
the surrounding counties just because the law enforcement
community has done it. But to achieve better interoperability
of communication and therefore better policing. We have talked
about communication and interoperability here for years. And it
seems to be an elusive, and perhaps because it is very
expensive, but an elusive goal.
But I visited with them over the district work period and
it is clear that they are really moving forward. It is clear
that they are really trying to reach out for all of the
information, and through resources at their fingertips. But it
is also clear that it is very difficult and it certainly falls
short of being totally successful. And in sitting there talking
with them, and this was a group, the principal fundee, the
beneficiary of the grant which was the police chief of the City
of Morgantown. And the sheriff and all the surrounding counties
were there and even, I mean all the surrounding communities
within Monongalia County were there. And then there was even a
representative from, I had a meeting the next day and there
were representatives from other communities.
But they had gone really far without someone who really had
this technical capability and be able to pull it together. And
some of the issues they were dealing with were incompatibility
of systems, the failure of different systems to overcome that
incompatibility with patching or whatever. And I was sitting
here listening and I was thinking, ``Well, there is some
proprietary issues that are at play, here.'' There is, you
know, some competitiveness at play, and our system is better
than that system. And, you know, you cannot change the system,
or you cannot patch the system without, you know, all this.
There just seemed to be a whole lot. And I was sitting there
thinking, ``Wow, these people technical assistance. They need
somebody to define how to do this.''
Ms. Robinson. Right.

DIAGNOSTIC CENTER

Mr. Mollohan. So how would what you are talking about here
translate into the real world? And where do these kinds of
folks plug into that kind of information?
Ms. Robinson. Well, that is a really good question. One of
the things besides the ``what works'' clearinghouse that we
have proposed is what we have called a diagnostic center, or
help desk. So those folks could call the help desk, in which we
would have a live person or set of persons, or they could come
in via the web, via email, and ask, put their questions to
them. And these individuals would not be, probably, skilled
enough in those technical questions. But they would serve as an
effective traffic cop to send them to the folks in NIJ,
probably, in the part dealing with technology, who could either
answer those questions or hook them up with the real experts--
who probably would not be on staff but part of our technical
assistance teams on contract or with a grantee who could either
help them via telephone, or via email, or even go onsite to
help. So it would really be that kind of handoff.
But it is exactly the kind of thing that the federal
government, through the federal criminal justice assistance
program, should be providing. If grant funds are going out
there, but they cannot actually make it work, what is the
point?
Mr. Mollohan. Is this what you are talking about----
Ms. Robinson. Yes.
Mr. Mollohan [continuing]. When you are talking about
evidence-based approaches, and the help desk----
Ms. Robinson. Yes, to----
Mr. Mollohan [continuing]. To transfer this information
based on some determination of best practices and modeling and
prototyping?
Ms. Robinson. Right. It may not be research-based per se,
but more actually kind of technical assistance and best
practices, yes.
Mr. Mollohan. Well this communication area is really
important and I am incredibly impressed with how far they have
come on their own. The town of Grandview can go online and
immediately access the sheriff's department records and
determine if there is a history there with regard to an
individual, for example, and is it a recent history, is it an
old history? What kind of history is it? And it is really a
powerful system. And they have connected with an adjoining
county. It happens to be my home county, Marion County, with
the sheriff's department. But visiting my county the next day,
the sheriff's department was connected with a proprietary
communications system. But the chief of police had another
system and they could not communicate.
Ms. Robinson. Mm-hmm.
Mr. Mollohan. And they talked about how difficult it would
be to communicate. That is not a good thing.
Ms. Robinson. No, no, and----
Mr. Mollohan. It is a good thing to have a lot of
providers, I think, out there.
Ms. Robinson. Right.
Mr. Mollohan. But it is not a good thing for them not to be
able to communicate.
Ms. Robinson. No, absolutely not. And these
interoperability issues have been such an obstacle in the
criminal justice system. With new technology, and I am not the
best person to describe that new technology.
Mr. Mollohan. Yes, but you are the best person to talk
about the processes to get at these issues.
Ms. Robinson. Yes, exactly. Right. I think you have to be
under thirty to understand this stuff. But I do know on the
process that we have ways of overcoming that. And I think some
of these new proposals can help us get a long way there.

WHAT WORKS CLEARINGHOUSE

Mr. Mollohan. Okay. Well elaborate on the clearinghouse----
Ms. Robinson. Yes.
Mr. Mollohan [continuing]. And the help desk. Elaborate on
that.
Ms. Robinson. The ``what works'' clearinghouse, as I said
before, as I looked back on what we did with OJP in the 1990's,
after I left OJP I felt, and I think it is often easiest to be
critical of oneself and what you did or did not do in a certain
setting, I felt that one thing that I had not done sufficiently
was work in this area to convey information from research. And
in subsequent years, as you may recall, I went on and worked at
the University of Pennsylvania in this area of evidence and
best practices, and trying to translate for practitioners and
policy makers. And I thought a great deal about what more the
government could be doing here. And as I said during my
testimony in 2007 I felt that one thing could be something like
this clearinghouse.
So we have been thinking a great deal about this at OJP in
our evidence integration initiative. And the way that it would
work is to look for what scientifically rigorous evidence has
been found in different topical areas. People could access this
via the Web and we would have that information available. Then
the diagnostic center would be a separate operation that would
be staffed by individuals. And as I said before, it could be
accessed either by telephone or by email.
And let us take a specific example. If I were the mayor of
Des Moines and I had a problem with youth violence, I might
first go to the clearinghouse, to the ``what works''
clearinghouse, to get some information more generally about
what information I might access about programs. Once I had read
that, though, I might say, ``Well, I really want some help on
how I would actually go about pursuing this.'' I could then
call the help desk and say, ``Well, I would like to pursue some
of these gang programs,'' as an example. ``How would I go about
this?'' The help desk, then, might give me advice on pulling
together a strategic planning team within my jurisdiction,
within my city, and suggest that I call some business leaders,
criminal justice leaders, the head of probation, my police
chief, maybe the faith based community, other folks to the
table for some planning sessions. They might also have somebody
from OJJDP go out and sit down with that group. We might have a
consultant go out. That consultant might be a peer kind of
mentor help. Maybe Denver has undertaken something like this,
and we would have somebody from Denver go in and say, ``Here is
how we did it out in Denver.'' So that would be more
involvement than just a phone call.
Mr. Mollohan. What is the scope of the topics that people
could call in on? Would it be from how you deal with reentry
issues and recidivism issues to the interoperability questions
that I referenced?
Ms. Robinson. Yes, it could be a broad scope. And I also
envision, I know people have asked how many inquiries could you
handle? I think it could be a whole scope of things because I
envision somebody might also call up and say, ``When is your
Second Chance solicitation coming out?'' We will say it is
coming out Tuesday. So some of these will be very simple
questions and some of them will be very complex.
Mr. Mollohan. Yes. Well surely the Department is getting
these inquiries today?
Ms. Robinson. Of course.
Mr. Mollohan. How are they handled today differently than
what you are proposing?
Ms. Robinson. Well, the simple questions are handled all
the time. We get calls, in fact dozens of calls everyday,
``When is the Second Chance solicitation coming out?'' Those
calls are handled all the time. The other kinds of calls are
handled in a variety of different ways. And many of them, for
example, will call about, ``Can you help on youth violence?''
We will more readily say, ``Here is a solicitation coming
out.'' Or, ``Here are applications that you could pursue.'' But
we probably will not be able to get into it to this degree in
an organized fashion of assistance in this way.
I also am hoping that the Help Desk can serve in a better
way as a road map for that mayor about accessing the variety of
different programs in the entire Justice Department. I think it
is unfair to your constituents to have to know where the School
Resource Officers programs are in the COPS office, where
programs are in the Office on Violence Against Women, in OJJDP,
in this part of the Office on Victims of Crime. It is a very
complex set of programs.

EVIDENCE-BASED SOLUTIONS

Mr. Mollohan. Well when you talk about evidence-based and
developing programs, researching programs on the basis of
evidence, does that imply that you are going to have evidence-
based solutions to these inquiries? I have this community, we
have a particular gang problem, or we have a particularly high
volume of returning incarcerated people, we have a recidivism
problem, we have a reentry problem. What are best practices? Is
the person at your help desk going to turn around to the file
cabinet and pull out, ``Okay, in this situation well here is
the best practices for that.'' Or if someone calls on the
interoperability question and says, ``How do we link this XYZ
Company's communication and data program that the sheriff
really likes with the ABC Program. How do we link those
together? Both of them are in love respectively with their own
program, but their programs cannot communicate. Are you going
to be able to turn around and say, ``Well, we have researched
that and here is where you get the patch.'' Or----
Ms. Robinson. That is definitely the goal. I would make
this caveat. There are a number of areas where we do not yet
have research. And so in some areas, I will give you an
example: For truancy, we do not have a lot of evidence yet. So
we will be very clear. ``Here is what we know. We do not have a
great deal yet in X area.'' But yes, that is definitely our
goal.
Mr. Mollohan. And your request is $6 million----
Ms. Robinson. That is correct.
Mr. Mollohan [continuing]. For this? And what is the $6
million for?
Ms. Robinson. Well, the $6 million would be for, part of it
for the personnel to be staffing it and part of it would be for
assembling the information.
Mr. Mollohan. Okay. Personnel, it is the personnel costs?
Ms. Robinson. Yes.
Mr. Mollohan. Okay. Mr. Wolf.

PROGRAM CUTS AND ELIMINATIONS

Mr. Wolf. I am a little suspicious when you talk about the
evidence-based issue. When I, one of the questions here is your
budget request includes an emphasis on evidence-based approach
to fighting crime. Evidence-based? How has your evidence-based
approach affected your decisions to eliminate or significantly
reduce funding for these programs? The Prescription Drug
Monitoring Program? My sense is the evidence that Congress was
interested and the administration was not. You thought maybe
Congress would put it back so you took it out. The next
program, the same thing would hold true. The RISS Program, we
have had a lot of law enforcement people, evidence-based, write
us about this and yet you have reduced that. The Prison Rape
Prevention and Prosecution Program, which was my bill with
Bobby Scott and Senator Kennedy and Senator Sessions in the
Senate. The evidence is so evidence-based it is unbelievable
that prison rape is bad. And yet the administration, and I am
going to have a question, is reducing that. So the evidence
proves that it is bad, the evidence proves that it is a
problem, and yet the evidence-based program means that you are
reducing the problem. The National White Collar Crime Center, I
guess the evidence-based is that Congress is interested in it
but the administration is not and you think it might be put
back in so we have reduced it. And you can just kind of go on.

PRISON RAPE ELIMINATION PROGRAM

Congress affirmed its duty to protect incarcerated
individuals from sexual abuse when it enacted a prison rape
program. Since then National Prison Rape Elimination Commission
has studied and studied and studied and studied it. The cause
of sexual abuse in confinement, the development of standards
for reduction in sexual crimes. And set in motion a process
once considered impossible, the elimination of prison rape. And
now the Justice Department is cutting it. Why are you cutting
the money for prison rape?
Ms. Robinson. Mr. Wolf, I actually share your concern about
the sexual assault issue in our prisons. I served on the Vera
Prisons Commission in 2005 and 2006. Pat Nolan was a member of
our Commission.
Mr. Wolf. I work closely with Pat.
Ms. Robinson. Yes, and I know he served at that time on the
PREA Commission. He and I have had many conversations about
this. I actually admire your leadership on this issue and I
wanted to fill you in on the work that OJP is doing in this
area.
Mr. Wolf. But the reduction and the fact that the Attorney
General is kicking this can down the road for another year, it
is almost every time I heard a report, there is another rape
somewhere in a prison----
Ms. Robinson. Mm-hmm, right.
Mr. Wolf [continuing]. Which happens more than a lot of
people know. And I say, ``What does the Attorney General think
when somebody gives him a memo that says in Prison X in X state
this took place to a young man or a young women.'' What does
Justice think? Justice, Justice, Justice. It is called the
Justice Department. That is not justice. And the fact is you
ought to go back today and just say, ``Hey, Mr. Holder, I think
we made a mistake. Let us plus this thing up, get the regs out,
and move this thing.'' Because the prison wardens will never
want to do this. They will give you reasons over and over. And
the Bureau of Prisons will give you the fifteen reasons why it
is a problem. And the prison director in X state will give it
to you, and the locality will give it to you. But during all
that time, and there has even been stories of people that have
been told if they do not cooperate they are going to be put in
a cell with this big guy or something. And I just do not
understand it. So I think the best thing you can do is just to
go back and say, ``We made a mistake. We had a hearing today
and Mr. Wolf raised it again. And I think we have got to put
those regs out, get them implemented. We do not care what the
prisons say, the wardens say anymore. We are going to deal with
this issue.'' And I just do not understand it.
The Attorney General docked it the last time. But is that
evidence-based? And you do not have to answer this, because it
is not evidence-based. Because the evidence-based is that
prison rape is a growing problem, a bigger problem, and yet
this administration is doing nothing about it.
Ms. Robinson. Can I just share with you that today we are
putting out from OJP a solicitation for a prison rape resource
center, with our current year money. We are very committed to
putting out resource guides and toolkits to provide the states
with information about how to deal with this problem. We are
very committed to working on this.
Mr. Wolf. Somebody once said if you really want to know a
person's priorities, look at the checkbook. Not at their
language, but look at the checkbook. And if you look at the
checkbook, your checkbook is showing you are putting resources
in money and other areas and not in this. Spin and good words
and things like that and press releases, but you are reducing
this. And your reduction, I forget what it was. It was fairly
significant.
This administration will never live this one down. Never,
ever will it ever live it down. And I tell you, every time it
takes place, and Holder hears a story, and I assume you have
got reports going into the Attorney General, he should know
because of his inaction this is continuing to take place. Now
these are defenseless and helpless people. I mean, they have no
advocacy. Other than Pat Nolan, and Prison Fellowship, and a
handful of other people, they do not have any advocacy. You
should be their advocate. Holder should be their advocate. And
frankly, I think the Justice Department and Holder is not. So
every time I get a report and see, I think automatically I go
to the fact, ``Holder, Attorney General does nothing, it is his
fault.''

HUMAN TRAFFICKING

The second issue that I want to get to, this sort of is
along the same lines with regard to the whole victim issue.
Human trafficking, are you reducing funding for human sexual
trafficking?
Ms. Robinson. There is a $2.5 million reduction.
Mr. Wolf. Reduction?
Ms. Robinson. Yes, there is.
Mr. Wolf. People tell me that sometimes when you pick up
the newspapers around the country and see some of the ads, they
are basically brothels whereby people are sexually trafficked.
Sexually trafficked by MS-13, by violent gangs. And probably in
this area the reports that we get, and we just had a group come
in the other day, in some of the embassies and some of the
world banks and international groups, why would an
administration reduce funding for human sexual trafficking?
Ms. Robinson. Well, Mr. Wolf, I will tell you that this
does remain a strong priority. There was an increase last year
and this does remain a very strong priority not only for the
Justice Department, but for the State Department, and for the
Department of Homeland Security. We are holding a major
conference on this issue for front line prosecutors, law
enforcement, and victim services just in two weeks. One of my
chief aides, Marlene Beckman, is the chief planner for that
conference. We have the Secretary of Labor, Eric Holder
speaking at that conference, 600 people coming to that.
Mr. Wolf. But if Eric Holder is speaking, will the
conferees be told that at the same time he is speaking he is
also reducing the funding? Again, back to the checkbook issue.
People can say what they want to say and give great speeches.
But you really look to see where people put their money. Money
is explaining something. And I read the report, Project Hope,
we have 150,000 or more domestic women and young children the
problem, and we are going to do something with regard to what I
am getting, two groups came in last week, in this very, very
region that is taking place that many people, you and others in
the City, are going by, are passing by places whereby it has
taken place. And the administration reduces the funding for it.
I mean, in the stimulus there was funding for green
technology to build solar panels and they gave the money to
China. Whereas American citizens that are being sexually
trafficked, and I had a report of a young person out in
Northern Virginia the other day. And I do not know that when I
talked to the FBI, I do not know it is a priority with the FBI
because I do not think they have ever heard the Attorney
General ever speak about it. I do not think it is a priority
with U.S. attorneys around the country, because U.S. attorneys
literally take their marching orders from the Attorney General.
And when I chat with them I am not getting any message that
coming out of Washington they are saying, ``Sexual trafficking
is a priority of the Justice Department, and we want you to
prosecute and aggressively go after it.'' If you know these
facilities are here, and here, and here, and young women are
being trafficked in it, and if you know maybe that some World
Bank people, and the administration does not do anything in its
own region. And so they cut their money for that.
I mean so I do think, and I think there is a truth as
people can say how interested they are in something. But I
think you really want to see where the dollars go. Because
without the dollars I do not think you really you really, what
can be done immediately to institute a greater cooperation
between state and local governments, the FBI, and U.S.
attorneys to close down sites where trafficking is taking
place, remove the victims of trafficking, and prosecute the
offenders? What can be done?
Ms. Robinson. I actually do think that this is a strong
priority. There is a great deal of attention that is being
given to this issue in the Department. The Civil Rights
Division has the lead on this but the Criminal Division is very
involved. There are regular meetings. I see the coordination
going on. There are regular sessions on this----
Mr. Wolf. But I have these groups come in to tell me the
problem is flourishing unbelievably in this region. They said
it is out of control.
Ms. Robinson. It is a very big problem and it requires----

HUMAN TRAFFICKING

Mr. Wolf. Well who is the one person responsible in the
Justice Department for it?
Ms. Robinson. Well ultimately the Attorney General, of
course.
Mr. Wolf. Well he is not doing much. So who is his person
that he is saying, ``I want you Mister or Misses to deal with
this issue of sexual trafficking. I want to clean up the
Washington, D.C. area, the Northern Virginia area, the Maryland
area, the metropolitan area, so that we demonstrate here. And
then I want it to be a priority for the FBI, the SACs all
around that are involved, and I want it to be a priority with
the U.S. attorneys.'' Who is the person to do that?
Ms. Robinson. I will get back to you because I do not know
who that one person would be. But we will certainly get back to
you about that.
[The information follows:]

Who Is the One Person To Handle the Sexual Trafficking Issue in the DC
Area?

The Department has appointed a National Coordinator for Child
Exploitation Prevention and Interdiction who is situated in the Office
of the Deputy Attorney General, and who is tasked with overseeing all
the Department's efforts with respect to the sexual exploitation of
children. The Department has many resources directed to attacking the
problem of the forced domestic prostitution, or commercial sexual
exploitation, of children, and the sex trafficking of adults, both
foreign and domestic. With respect to the commercial sexual
exploitation of children within the United States, the U.S. Attorney's
Offices and the Child Exploitation and Obscenity Section in the
Criminal Division take the lead on prosecuting these cases. They are
investigated primarily by the FBI through the Innocence Lost Task
Initiative. Cases of the sexual trafficking of adults, on the other
hand, are prosecuted by the U.S. Attorney's Offices and the Criminal
Section of the Civil Rights Division and its specialized Human
Trafficking Prosecution Unit. These cases are investigated by FBI and/
or ICE, although ICE frequently takes the lead on these cases involving
foreign victims. There is a Task Force funded by the Department's
Bureau of Justice Assistance and chaired by the U.S. Attorney's Office
for the District of Columbia to combat human trafficking in the D.C.
metropolitan area.

Mr. Wolf. Well I am going to hold you all accountable here.
Because we are going to do something in this area. And even if
we have to write the landlords who are running these businesses
and begin to sort of, and put the pressure. But frankly, with
the lack of funding that I see I find it hard to believe. Where
is this conference going to be?
Ms. Robinson. It is going to be right here in Northern
Virginia.
Mr. Wolf. Well you know, that is interesting, I am
interested in the issue and nobody ever told me until just now.
How long has it been planned?
Ms. Robinson. I think it has been in planning for a couple
of months. We will be delighted to have you come.
Mr. Wolf. Well I will have a staff person go if I cannot
go.
Ms. Robinson. Of course, of course.
Mr. Wolf. But we did not know about it.
Ms. Robinson. Well, that is not good. I apologize.
Mr. Wolf. It could not be because I am a Republican member
on the other side?
Ms. Robinson. Of course not, of course not.
Mr. Wolf. I did not think so, and I know----
Ms. Robinson. I can assure that is not the reason.
Mr. Wolf. Interestingly enough you know when I was Chairman
of this Committee we funded two conferences, an international
conference and a domestic conference.
Ms. Robinson. Mm-hmm, mm-hmm. I do apologize. That is bad
that we did not invite you.
Mr. Wolf. I will have someone go.
Ms. Robinson. I would love to have you come. Would you
come?
Mr. Wolf. Well, I may or may not, I do not know what my
schedule is. But I will have someone there.
Ms. Robinson. Okay, great.
Mr. Wolf. Mr. Chairman, I have other questions but I will
just kind of yield back for now.
Mr. Mollohan. Okay. Mr. Schiff.
Mr. Schiff. Thank you, Mr. Chairman. Thank you for being
here.
Mr. Mollohan. Good morning.
Mr. Schiff. I appreciate your work and your testimony. And
at the outset I want to say you have a superb Director of the
COPS Office in Chief Melekian. And I say that not just because
we had a chance to work together in his previous capacity, but
he is enormously well thought of and just a superb choice for
that job.

DNA RAPE KIT BACKLOG IN LOS ANGELES

I wanted to raise a couple of issues with you. One of the
areas of my particular interest is in the use of DNA evidence.
And as you, I am sure, are familiar we have a tremendous
backlog problem in L.A. County and L.A. City. Thousands of rape
kits that are still in the process of being analyzed, many of
them bumping up or exceeding the statue of limitations. L.A.
City and the County are struggling with their resources to get
through that backlog. The Chairman has been very supportive in
helping to provide funding to that region as well as the rest
of the country in terms of DNA.
In L.A. City now there is a second backlog, and that is
what the City has done, what the County is doing to some
degree, is sending these rape kits out to private labs because
they do not have the capacity necessarily to hire the people
internally to do the work on short order. The labs have done
their analysis. But before they can be uploaded into CODIS they
have to have 100 percent technical review. So there is a second
backlog as the second review is waited to be undertaken.
NIJ a couple of years ago, I think, recommended analyzing
whether in some cases, or subcategory of cases, or all cases,
to do away with the necessity of that second technical review.
This is something I raised with the Attorney General as well as
the Director of the FBI. I understand they are taking another
look at this.
But I would urge the DOJ to strongly consider doing away
with the necessity of this second technical review by the
government lab of the work of the private lab. And here is how
I think it ought to work. There has never yet been a case, that
I am aware of, where the government review of the private lab
has turned out a problem with the DNA analysis of the private
lab. What I would suggest is therefore rather than require the
expense and the continuing backlog of this second review, is
allow these certified private labs that have been checked out
by the government to, once they conclude their results, to have
those samples uploaded into CODIS. When there is a match, then
require the second review. So when there is a match and you are
actually going to utilize the results for something, then
require the second review. That in and of itself would do a
lot, at no cost, to get rid of the backlog.
Now one of my colleagues in the Senate, I have seen from a
hearing recently, has raised an issue with this as some effort
by the private labs to, I do not know, if it is to get more
work, or what the concern is. But this is not coming from the
private labs. This is something that, in L.A. for example, is
of great interest. With the L.A. Police Chief, with the Sheriff
of L.A. County, this is something that will help law
enforcement to get through their backlogs and also deal with
their budgetary problems. So I would urge you to follow up on
now a couple of year old, if not more, recommendation of NIJ,
but also what we are hearing from law enforcement. And I wanted
to begin by urging you to work with the FBI and see if we can
do away with this unnecessary and expensive second review.
I do not know if you want to comment on that. I have some
other topics I want to raise to you also.
Ms. Robinson. Okay. Well, first of all it is good to see
you, Congressman. Actually, I do not think NIJ had ever made a
formal recommendation on that. But we have been asked to work
with the FBI as it is looking at this question and we are happy
to do that. I know this is an issue that is under review and it
is a question on the table. So we are happy to participate in
that and I know it is an issue that is now being looked at. So
we are very happy to participate in that review.
Mr. Schiff. And I just want to add a sense urgency to it,
and I do not know how strong the language was at NIJ a couple
of years ago. It may have been a suggestion rather than a
formal recommendation. But, you know, as some of these cases
are bumping up on the statute of limitations and the cities and
counties are in no financial position right now, there is a
real sense of urgency. The quicker those samples can be
uploaded into CODIS the quicker we can take some dangerous
people off the street.
Ms. Robinson. Oh, absolutely.

HOPE PROGRAM

Mr. Schiff. So if I could just encourage you to move
expeditiously on that I would appreciate it.
The other issue I wanted to raise with you is a program
that you are probably familiar with. It is the HOPE Program out
of Hawaii, Steven Alm, Judge Alm out there, has done some great
work in this program of graduated sanctions. I have introduced
legislation to promote and expand this model to give a number
of jurisdictions the opportunity to create this with a
dedicated grant program. I introduced the legislation with one
of my Republican colleagues, Ted Poe. And we would like to work
with our Chairman and Ranking Member to see if we can address
the issue in this CJS bill. Namely to create a dedicated pot of
funding for grants for state and local courts to establish
these kind of probation programs to reduce drug use, recidivism
by requiring swift, predictable, and graduated sanctions. Would
your office support such an effort? And will you take a look at
this legislation and provide us with your feedback and the
feedback of the Department?
Ms. Robinson. Well, first of all, let me say I am a great,
great fan of the Hawaii HOPE program, so I am delighted to hear
that you have introduced this. Of course the Administration has
not taken a formal position but I will tell you we are very
strong supporters of that program. And it is an evidence-based
program, as you know. NIJ has evaluated that program and found
that it has terrific results in reducing future arrests. And so
we would be very supportive of that.
Mr. Schiff. Okay. Thank you very much. Thank you, Mr.
Chairman.

COMPREHENSIVE PLANNING

Mr. Mollohan. Thank you, Mr. Schiff. You have testified
here that your Byrne JAG program is your kind of flagship
program to help state, local, and tribal communities. And you
are looking for planning, more planning. What are you looking
for differently from local, state, tribal communities in your
budget requests that is not happening now?
Ms. Robinson. Mr. Chairman, thinking back again on history,
in the original LEAA program there was a requirement for
comprehensive planning from the states under LEAA. And we think
there is a lot of virtue in that, particularly in tighter
fiscal times, to bringing all of the players to the table as
states are thinking through how that money is spent. That there
is a virtue in that, to have everyone sit down and think
through kind of strategic planning with a comprehensive look at
what the needs are. So there is just a virtue in that. And of
course to think about, as they can, research-based approaches.
Mr. Mollohan. Well, you know, we do not deal with this
every day like you deal with it. So was that a success? Was the
LEAA approach a success? And what are some examples of it being
successful? And what are we doing differently today? Did we
lose that? And is your recommendation, or your testimony here,
reemphasizing it? Or reintroducing this comprehensive planning,
fact-based approach?
Ms. Robinson. Yes, it was a success back in the seventies
and eighties. And I think one reason for that, for those of us
old enough to remember back that far, at that time there really
was not a strong sense that there was a criminal justice
system. So it was actually kind of an unusual concept at the
time. I think we did lose some of that moving forward, when
LEAA was abolished, and when there was less funding going to
the states. So I think, that as budgets have become tighter,
there is a more general recognition that there is a usefulness
to doing this.
Our partner organization, the National Criminal Justice
Association, which is the association of the state
administering agencies, which has a representative here in the
room, actually feels as we do, that this is a step in the right
direction, to encourage the states to do this. Many of them
already do it. So I think there is an opportunity here for
peer-to-peer encouragement and learning.
Mr. Mollohan. What federal assistance is available to
state, local, and tribal communities to assist in this
comprehensive planning process?
Ms. Robinson. Oh, we actually have given, late last year,
at the end of the last fiscal year, a grant to the National
Criminal Justice Association to provide technical assistance to
the state agencies in this. And they are doing now regional
training on a quarterly basis with those agencies along this
line.
Mr. Mollohan. Does that include every state in the nation?
And to what extent are they assisting, and how comprehensively,
tribal communities?
Ms. Robinson. Yes, they are assisting tribal communities,
as well, in this. Some of this is done through webinars. So it
is pretty cost effective.
Mr. Mollohan. And is every state participating in this
process?
Ms. Robinson. I know every state has been offered it. I do
not know for sure if every state has taken advantage of it.
Mr. Mollohan. What kind of information does OJP collect
from grantees on how they actually use grant funding? And at
what level of detail?
Ms. Robinson. We collect a lot of information from them,
obviously some of it is financial. But we collect programmatic
information, as well. For example, BJA collects through a
system information on performance measures in addition to more
narrative information. So that we can see on a quarterly basis,
for example with drug courts, how many offenders went through,
what kind of drug tests came back, so that we have success
measures from that.
Mr. Mollohan. Just on that topic?
Ms. Robinson. Yes.

RECIDIVISM AND PRISONER REENTRY

Mr. Mollohan. As I mentioned in opening comments, we have
spent a good bit of time on this Committee with hearings,
informational hearings on recidivism, reentry issues, and how
to do that well. What progress are we making with regard to
devising different models, and proofing those models, and
testing the success of different approaches to the issue of
recidivism and successful reentry in different geographical and
demographic areas?
Ms. Robinson. I think we have a ways to go on it, to be
candid. As I came back to OJP I asked for and was given
briefings on what we now know about reentry. And I have to say,
candidly, I was a little disappointed. I do not think that we
have learned as much as I would have hoped we would have
learned from the research today. I think from the generosity of
what Congress has appropriated in the current fiscal year, with
the $10 million that you gave us under the Second Chance Act,
we have the opportunity to learn a great deal more. And we now
have four solicitations on the street under that $10 million
which will allow us to do some randomized controlled trials,
which is the gold standard for research. This will help us to
really learn much more definitively what really can make a
difference in reintegrating offenders back into the community.
Because I think, to date, we do not have the most definitive
knowledge.
And one of the reasons for this is because, to be honest,
this is a very messy business, to state it somewhat in the
vernacular. We have offenders moving back in very, very
different circumstances, with very, very different backgrounds,
with very, very different kinds of problems. So you do not have
one type of offender moving back into one setting with only one
type of issue. And some of the research to date is very unclear
about what kind of interventions make a difference.
Mr. Mollohan. This solicitation, is it out?
Ms. Robinson. Yes, there are four of them.
Mr. Mollohan. Just briefly describe what they are
requesting?
Ms. Robinson. Of course. Well, one of them is an evaluation
of the demonstration programs that went out this past year
under the 2009 solicitation. One of them is an evaluation of
the reentry courts solicitation. One of them is an evaluation
of the National Institute of Corrections work that is now out
there about reentry, which is a very good program. And then one
is a field experiment, this randomized controlled trial, which
is the most rigorous part of this. And that is the one that
will be longer and yield the most information.
Mr. Mollohan. How long will that be? Five years? Ten years?
Ms. Robinson. No, no, I think it is probably three to four
years.
Mr. Mollohan. Well, we would be interested in looking at
that. I will look forward to following up with you on that.
Ms. Robinson. Excellent.
[The information follows:]

What is the Administration Prepared To Do With Regard to the Prison
Industries Program?

The Administration regards Federal Prisons Industries (FPI) as one
of the Bureau of Prisons' (BOP) most important correctional programs,
both because it reduces recidivism and because it assists in managing
crowded federal prisons. The Administration is aware that FPI has
suffered significant reductions in earnings over the past few years
and, as a result has substantially reduced the number of inmate
participants. To guard against future losses, the FPI began
reorganizing operations in FY 2009 to further reduce overhead expenses,
including: reducing inmate employment; delaying factory activations at
new federal prison facilities; consolidating operations; and closing a
few existing factories. Despite these efforts to create additional
savings and efficiencies, it is possible that there may be additional
measures taken. Currently, the FPI is assessing whether additional
closures. reorganizations, or other measures are necessary. To ensure
that FPI remains a viable and self-sustaining corrections program in
the long-term that employs substantial numbers of federal inmates, FPI
and BOP will be working with the Department of Justice to develop
legislative proposals that would allow FPI to expand its market
opportunities.

Mr. Mollohan. Mr. Wolf.

WORK PROGRAMS IN PRISONS

Mr. Wolf. Thank you, Mr. Chairman. I think that the
administration should be aggressive, and again it has not, on
the issue of work in prisons. The failure to push aggressively
the Congress to give prisoners work and dignity. Fewer than one
in ten are now working. And, you know, we have had prisons for
234 years in the country. And I would urge you to be working
with the Pew Foundation, too.
Ms. Robinson. Mm-hmm.
Mr. Wolf. And Mr. Schiff mentioned the HOPE Project. I
think it is a great project. We had the judge in, and he was
part of that conference that we had.
Ms. Robinson. Mm-hmm, right.
Mr. Wolf. But work. I have a proposal we are going to try
to put on this bill, if we can. I talked to Mr. Conyers, he led
me to believe that he was in support of it, that reinstitutes a
significant work program in the prisons whereby prisoners are
allowed to work on products that are no longer made in the
United States. It is kind of a repatriation, if you will. If we
no longer make televisions, and I am not sure television is the
place to go. But if we no longer make televisions we would
start making televisions in prisons. But I would urge you, and
if you could get back to us, what is the administration
prepared to do with regard to the prison industries program?
Because you can study the reentries, and the problems, but
everyone will tell you if a man or a woman is not given work,
both dignity, skill, money that they earn whereby they can send
some money to their family while they are in prison to maintain
that continuity. And lastly, when they get out. I talked to a
young prisoner who was released from a federal halfway house in
Southeast Washington at 10 on a Saturday night with almost no
money in his pocket. Now to be released in that neighborhood at
10 at night with almost no money and no skills, having never
worked a day, and he was in two different federal prisons. So I
think if you really want to do something dramatic it would be
to use the political influence of the administration to push a
work program, and work with the Chairman and others, to sort of
get it in this bill. Because I do not think you are going to be
able to solve the reentry problem. You cannot put a man or a
woman in jail for ten years and not give him any skills, work,
money, and then release him or her and have, and the continuity
of the family, and everything else.
So I would hope if you could give us some sense of what the
administration would do, and if they would support. I was
surprised, you know, you told Mr. Schiff you support Project
HOPE, the HOPE Project. In the previous administration people
were told never to tell what the administration's position was.
And you were very open. That was very courageous, I commend
that.
Ms. Robinson. Yeah, no, remember I said the
Administration----
Mr. Wolf. No, I thought you endorsed it and I thought that
was very commendable. I was very impressed.
Ms. Robinson. Well I said the Administration did not
support it but I liked it.
Mr. Wolf. Well you are very courageous, so I would hope
that you would tell me the same thing. That while you do not
know if the administration supports it you do support----
Ms. Robinson. Yes, well I will tell you on the prison work
thing I have visited a lot of prisons and I can, I, Laurie
Robinson, completely agree with you. I do not know what the
Administration's position is on this. But I completely agree
with you because it absolutely restores an individual's sense
of their own self-worth. And it also gives them a sense that
they are going to contribute to their own family, which builds
that family tie. Which, as you know from the work that you
personally have done I know, can build their own tie with their
own roots. And that is so critical.
Mr. Wolf. Well we will get you the language, then, if you
could take a look at it and see. And we will see where the
Chairman is. And I did have a conversation with Mr. Conyers on
the floor about a month ago, and he seemed to be supportive of
the idea.
Ms. Robinson. Now you may have to help me when I go back to
the Department. They may not like me after I am sitting up here
endorsing these things!
Mr. Wolf. No I think the Bureau of Prisons, though, really
would like this. I think the problem has been with the chamber
of commerce and organized labor.
Ms. Robinson. Right.
Mr. Wolf. And where they have been. But yet everyone is
concerned with the recidivism issue. And I do not think this
would be a threat, I mean I can understand how a company or a
union would be concerned that you have prisoners competing with
people outside. But if you are not competing with any current
company, or any workers here in the United States, you are
actually creating the jobs. For instance, the teamsters would
drop the wire off at the factory so you would be creating a job
for a labor union member or you would be creating a job for the
private sector. Because who is going to manufacture that wire,
would have to give it to the teamster to drop by, or whatever
the equipment. So you are really not completing with the
furniture manufacturers or anybody else because you would only
be working on a product that is no longer made in the U.S. And
that would almost be the defining thing. If there was
competition in the U.S. you would not do it. But if it was
something that was not being made, and then a wiring skill, we
had once asked Emerson to look at coming in the D.C. prison,
Lorton, and then there was opposition and they pushed back.
They were interested. Now there are not American television
manufacturers now. Emerson went south of the border and
everybody else is gone.

DRUG, MENTAL HEALTH AND PROBLEM-SOLVING COURTS

Following up on that, you propose combining funding for
drug courts, mental health courts, and other problem solving
courts. The problem with that is that it could dilute the
funding. Former Congressman Jim Ramstad was by yesterday to
explain, and I think the Chairman has been a great supporter of
the drug courts, and I think everybody on the Committee is. But
are you concerned, and I remember the Attorney General, I guess
she was the Chief Justice of the Alabama Supreme Court? Yeah.
She had, she had been at the Pew conference, too. She had
expressed concern that the language would dilute and take away
from the drug courts. And Congressman Ramstad really made a
compelling case on you may have need for these other courts,
but if you dilute the funding and the funding stays about the
same, does it? Does it stay the same? So if it stays about the
same, and there is not enough for drug courts now, I think he
said something like 20 percent of the population is in areas
whereby they are, that you could just toss this thing up
dramatically. And our governor, who is a good strong, strong
supporter of it.
You may, as commendable as it may be for the mental health
courts and other courts, I think there is a legitimate concern
that if you have the same funding and you are adding in you are
going to be in essence taking away from the drug courts. And I
do not know if you want to comment about that?
Ms. Robinson. Yes, well first of all let me just say from
my own background I am an incredibly strong supporter, as is
the Department of Justice, of drug courts. I was the person who
set up the initial Drug Court Program Office at the Department
of Justice in 1994 when the Crime Bill passed Congress back
then and was instrumental in helping fund the initial National
Association of Drug Court Professionals. So I go way back with
that group and have visited more than a dozen drug courts
around the country, probably many more than that. So the last
thing that I or we at OJP want to do in any way is harm drug
courts.
I think the effort here, or the thought, was simply to
provide more flexibility to jurisdictions if they wanted to do
a community court, a mental health court, or something else.
And that was our only thought. We do not in any way want to
undercut drug courts.
Mr. Wolf. But you can see their concern is if the level of
funding is about the same and you add in that they were
concerned that they would be taken away.
Ms. Robinson. Yes, I can understand their concern.
Mr. Wolf. And you might take a look at the testimony of the
Chief Justice of the Alabama Supreme Court. And she was also on
the program at, where the Chairman spoke at the Pew conference.
Ms. Robinson. Right, I remember meeting her there. She is
very impressive.

PRESCRIPTION DRUG MONITORING

Mr. Wolf. The last question is according to the National
Drug Threat Assessment for 2010, it says, ``an increasing
number of law enforcement agencies are reporting that
pharmaceutical diversion and abuse pose the greatest drug
threat to their areas, in part because of increases in
associated crime and gang involvement.'' Because this puts an
additional strain on agency budgets and assets it is critical
that we help increase the capacity of law enforcement agencies
to collect and analyze controlled substance prescription data.
Thirty-four states have prescription drug monitoring programs
and ten more are in the process of establishing them. Yet the
administration's budget proposes to eliminate funding that
assists these efforts.
Ms. Robinson. Shall I comment?
Mr. Wolf. Yes, ma'am.
Ms. Robinson. Yes, well Mr. Wolf, as you see the budget
includes a number of offsets. And it was a tight budget year.
There are a number of things in here that have been proposed I
know people are, many of you, unhappy about. And all I can say
is that these were very tough decisions to make. They are not
areas that any of us were particularly happy about the
Administration having to make. And it does not mean that they
were not priorities, because obviously they have been funded
and supported for a number of years. But they were areas that
were proposed by the Administration for cuts.
Mr. Wolf. Well that, that does create a problem, as you
know. And now you are finding down in Broward County and places
like that that people are just chartering airplanes and flying
down there, and going to all these pain clinics, and getting
all of this. And we are hearing these stories. And I think the
federal government is really the only one that can be the
solution here because each state, it is kind of fragmented. And
I think the program, I think it began, I was not on the
Committee then I think, but I think it began in this Committee.
Ms. Robinson. Yes, that is correct, with Harold Rogers.
Because I remember it was a couple of years after I left. He
had talked about it, actually, when he was Chair of the
Committee.
Mr. Wolf. And so, okay. Okay, Mr. Chairman. Thank you, Mr.
Chairman.
Mr. Mollohan. Mr. Schiff.

JUSTICE REINVESTMENT PROGRAM

Mr. Schiff. Thank you, Mr. Chairman. A recent Pew study
shows that one in thirty-one adults is currently under
correctional control, up from one in seventy-seven back in
1982. Over the last two decades corrections have been the
second fastest growing area of state expenditure, second only
to Medicaid. State corrections now cost over $50 billion,
consuming one in every fifteen discretionary dollars. Budget
cuts and prison overcrowding are creating a crisis in many
states. In my home State of California prisons house over
170,000 inmates, nearly twice their operating capacity. State
spending on corrections accounts for over $10 billion annually,
almost 10 percent of the general fund, greater than average for
the nation. And we are now faced with a judicial order to
release about a quarter of our prison population and recidivism
numbers are going to go up dramatically because they are being
effectively released without supervision.
Despite these increasing corrections expenditures
recidivism rates remain very high. We are not making much
progress on it. I have also introduced legislation on this
subject, justice reinvestment legislation. We found that policy
makers often have insufficient access to detailed, data-driven
explanations for changes in crime, arrest, conviction, and
prison and jail population trends.
These reinvestment strategies recognize that in every state
there are a handful of high stakes communities into which most
people released from prisons and jails return. State community
agencies, however, often lack the, or provide uncoordinated,
often costly services to these same neighborhoods and families
without successful outcomes. Justice reinvestment experts work
closely with state policy makers to advance fiscally sound,
data-driven criminal justice policies to break the cycle of
recidivism, avert prison expenditures, and make communities
safer. We have seen promising results from these kind of
strategies in Texas, Kansas, and other jurisdictions where they
have been implemented.
Our Chairman, Mr. Mollohan, and Ranking Member Mr. Wolf
have been really ahead of the game on this issue. It was the
focus of Subcommittee hearings, as Mr. Wolf pointed out, and I
hope to work with them to promote and expand this work. Mr.
Mollohan's and Mr. Wolf's leadership on the issue culminated in
provided $10 million in fiscal year 2010 for activities related
to criminal justice reform and recidivism reduction by states.
The administration's budget for this year, though, requests
no funding for this program for the upcoming year. I just
wanted to find out, are you familiar with the reinvestment
efforts? What are your thoughts on them? What is your current
plan with regard to the fiscal year 2010 funds that were
provided? And can you shed some thoughts on why the
administration has not asked for funds in fiscal year 2011?
Ms. Robinson. Yes. Of course, Mr. Schiff. First of all, let
me congratulate you and the Chairman and Mr. Wolf for your
leadership on this. I think it is tremendous. The Attorney
General and I are very familiar with justice reinvestment, very
strong support of your leadership on this, and are very
supportive of the efforts going forward on this.
BJA, as you probably know, has been supportive of this work
and I congratulate the Council of State Governments, and the
Pew Trust, and others for the work that has gone forward in the
states. It is tremendously promising. I think we will look back
in ten years and see this as one of the breakthrough movements
in criminal justice in this country.
I think to zero in on your question as to why this was not
in the budget, speaking very candidly it is a question of the
cycle of how budgets are put together. Right now we are putting
together the 2012 budget at the OJP level. This was added
fairly late in the budget cycle. And so at the time that this
was put into your budget for fiscal year 2010 our budget had
long since left the OJP/DOJ level and was already at OMB. That
is the candid answer. So if we could have put it in we would
have, but it had long since left our hands.
Mr. Schiff. Can you share with us a little bit about how
you are using the 2010 funds?
Ms. Robinson. Of course. Our plan is to follow the model
that you all have set here. And so we have been consulting with
the groups that are already working in this area and we are
putting together a solicitation that we will be issuing that
will follow that model of the data-driven assessment, and then
the implementation, and the way that the states are already
moving forward on this. We are looking to have a solicitation
that would look for an organization to do overall coordination,
and then to have funding for state participation,
implementation work, and then also for localities and tribes.
So it will be a three-part solicitation.
Mr. Schiff. Thank you. And I take it from your comments
that it will receive at least a favorable recommendation from
Justice to OMB for the 2012 budget?
Ms. Robinson. Well, of course, I cannot comment on the 2012
budget. But let us just say the Attorney General and I are very
favorably disposed toward working on justice reinvestment.

INTELLECTUAL PROPERTY ENFORCEMENT

Mr. Schiff. One other issue I just wanted to mention
quickly is, I just wanted to express appreciation for the work
that you have been doing with the funds we provided on
intellectual property enforcement.
Ms. Robinson. Oh, wonderful.
Mr. Schiff. So we look forward to continuing our work
together on that. I am very pleased that $4 million was made
available for the program in 2010, and I want to work with you
to ensure that the program is funded, and administered
effectively. This is a key issue to many of the people I
represent in California.

REAUTHORIZATION OF COPS AND OJJDP

And finally, you know, I just want to put on your radar
screen something that I have been working on regarding the
reauthorization of OJJDP and related programs, as well as the
COPS program. This may be a long term project. But I would love
to see us at the federal level do what we did in California,
which I would love to see us do a joint reauthorization of
OJJDP as well as COPS, and try to provide equivalent funding in
both programs. So that we make an equal investment in
prevention as we do in suppression. And so I am working with
the Chairs of Education and Labor, as well as the Judiciary
Committee, to investigate this concept. I have introduced it in
legislative form, but I think it will take a while to congeal.
But I wanted to put that on your radar screen.
Ms. Robinson. Wonderful. Thank you so much.
Mr. Schiff. Thank you. Thank you, Mr. Chairman.

TRIBAL GRANTS

Mr. Mollohan. I would like to ask you some questions with
regard to tribal grants. This Subcommittee doubled OJP's Tribal
Assistance Grant Program from $25 million to $50 million in
2010. And so I am very happy to see the attention that the
Department has been giving to Indian country in the last
several months, including the establishment of the Tribal
Nations Leadership Council and the release of the Coordinated
Travel Assistance solicitation in March. I know the Attorney
General was personally interested and involved in this and I
think that is tremendous. And he knows and I want to reaffirm
here today that we are very supportive of paying attention to
this in specific ways, which I want to get to in a second.
But how does the coordinated grant solicitation work? And
how are you collaborating with the COPS program and the Office
of Violence Against Women to ensure that the most important
needs, the most focused needs, of the tribes are being
addressed?
Ms. Robinson. Of course. Well Mr. Chairman, as you alluded
to, this is very high priority for the Attorney General, and
also for the Associate Attorney General to whom I directly
report. And for this coordinated solicitation, the Associate
Attorney General has one of his deputies working directly with
the Director of the COPS Office, with me, and with the Director
of the Office on Violence Against Women. So our staff have
worked hand in hand in putting together this coordinated
solicitation. With that we have ten separate programs, all of
the tribal programs, combined underneath that. That will allow
the tribes, and the solicitation is, as I think your staff
knows, is now on the street, due in May. It will allow the
tribes to have one application rather than ten separate
applications. They can file one problem statement, one
description of their tribal needs, and then, in essence, just
make a check mark for the areas where they need funding. They
can then have one budget submission. And it greatly streamlines
their application process.
We have had very favorable response to this. And we did a
great deal of outreach to the tribes, both to let them know
about this and also to answer questions. Because there were a
lot of questions. It is a very different process for them.
There were some concerns about it at first, because any time
you start doing something in a different way, you know, they
wanted to know whether this was going to disadvantage them in
some way, whether there were going to be some issues or
problems. So we answered those questions, we did a lot of
consultation, and it seems to be going smoothly.
Mr. Mollohan. Were they consulted in fashioning the
structure of this, and the changes, and making
recommendations----
Ms. Robinson. Yes.
Mr. Mollohan [continuing]. At the front end of it?
Ms. Robinson. Yes, they were. The idea came from Tom
Perrelli, the Associate Attorney General--the overall idea. And
then we consulted with the tribal representatives about exactly
how we might do it. The technical sides of it we had to come up
with. But then we bounced those ideas off of them. So it seems
to be going pretty well.
Mr. Mollohan. Well we want to work with you and work
together on making this as effective as possible.
Ms. Robinson. Thank you.
Mr. Mollohan. And I know from the Attorney General on down
you are really leaning forward on this and that is tremendous.
The Bureau of Indian Affairs provides money in a lot of
these areas. To what extent are they involved or not involved
in the process that you just described?
Ms. Robinson. Well, especially BJA works very closely with
them on a number of these areas. For example, anything relating
to the correctional detention facilities, those kinds of
things. So we have kept in close touch with them.
Mr. Mollohan. But in this process you are talking about,
the grants process, the needs process?
Ms. Robinson. Oh, yes.
Mr. Mollohan. I would not think you could actually, and
maybe you cannot, I do not know. Maybe there are two separate
processes and they achieved two separate goals. I will learn
more about that and understand that better in the future. But
were they consulted in this solicitation work that you are
doing, and setting up the Tribal Nations Leadership Council,
for example?

TRIBAL GRANTS

Ms. Robinson. Oh, yes.
Mr. Mollohan. Will they be participating----
Ms. Robinson. Yes, they have certainly been consulted about
that. I thought you meant more specifically about the process
of the solicitation. That I do not know. But certainly on the
substantive side----
Mr. Mollohan. In coordinating needs and resource
applications----
Ms. Robinson. Correct.
Mr. Mollohan [continuing]. Is more of what I am talking
about, I think.
Ms. Robinson. Correct. Yes, indeed. Yes, they have.
Mr. Mollohan. Okay. Well, we will learn more about that.
What kind of feedback are you getting from the tribes on the
solicitation so far?
Ms. Robinson. Oh, very good. Very good feedback. We had
some questions early on about, you know, I would say some
questions, a little wariness because it was different, and it
was new. But we scheduled a number of conference calls with
tribal leaders. We scheduled separate individual conference
calls, and----
Mr. Mollohan. Any unresolved concerns coming from any
direction?
Ms. Robinson. No, not at this point.
Mr. Mollohan. When do you anticipate awards being made?
Ms. Robinson. By the end of the fiscal year.
Mr. Mollohan. In your request, you have proposed a carve
out from OJP programs across the board rather than funding
tribal programs separately.
Ms. Robinson. Right.
Mr. Mollohan. I want to give you an opportunity to talk
about that, to justify your request and the approach, and tell
us how you think it is better.
Ms. Robinson. Our thinking there, Mr. Chairman, was as
follows: That first of all, that this, as I have said before,
was such a high priority for the Attorney General from the
standpoint that this is an area that has long been neglected by
the federal government, and where it is clear that crime is
such a serious problem in Indian country, and a long neglected
problem. And that some areas such as sexual assault and crime
against Indian women are just incredibly severe. And that the
way to do this would be to look across OJP programs broadly
rather than to look at them individually. To look broadly
across OJP programs and in a tight fiscal year to do it as a
set aside. So that was our thinking.
Mr. Mollohan. Have you done the math as to what would be
the----
Ms. Robinson. The bottom line?
Mr. Mollohan. Yes, the bottom line outcome?
Ms. Robinson. Yes. $139 million.
Mr. Mollohan. I mean what is the comparison to what we
funded in 2010?
Ms. Robinson. I do not remember that figure offhand. I
think it was around $50 million.
Mr. Mollohan. $50 million in additional resources for
Indian country?
Ms. Robinson. I am just thinking that that was the amount
that we had funded last year.
Mr. Mollohan. No, I am asking you does this result in more
resources going for Indian programs? Or less resources and how
much? Have you done that math?
Ms. Robinson. Oh, well I think it is about $80 million.
Mr. Mollohan. Mr. Wolf.
Mr. Wolf. I have no questions.

SEX OFFENDER REGISTRATION NOTIFICATION ACT

Mr. Mollohan. I do. Let me talk a little bit about the Sex
Offender Registration Notification Act. OJP's Office of Sex
Offender Sentencing, Monitoring, Apprehending, Registering, and
Tracking, SMART, is responsible for administering the national
standards for sex offender registration and notification under
the Sex Offender Registration and Notification Act, or SORNA.
SMART also provides assistance to state, local, tribal, and
territorial jurisdictions in implementing those standards. The
original deadline for jurisdictions to comply with the
standards, July 27, 2009, was extended by the Attorney General
to July 27, 2010. Congress provided $11 million for sex
offender management assistance in 2010 along with $1 million
for the National Sex Offender Website. For fiscal year 2011,
OJP has proposed $25 million for SMART office activities, along
with one million for continued operation of the National Sex
Offender Website. How are all these jurisdictions progressing
in their compliance with the requirements of SORNA?
Ms. Robinson. Mr. Chairman, as you know to date only three
jurisdictions have complied. One is Ohio and two are Indian
tribes, the Umatilla and the Yakama Confederated Tribes.
Approximately five more are close to compliance. But we are not
certain that any additional jurisdictions will be in full
compliance by this summer.
However, the Department is offering an additional
extension, which by law we can, to any jurisdictions that are
requesting it beyond this July. And that is available by law.
So they have until July of 2011 to comply.
Mr. Mollohan. What is causing the delays?
Ms. Robinson. There are really two reasons. One is
implementation costs, because it takes time and effort and
money to set up registration and notification systems. And the
second are a variety of policy issues, which include the
juvenile registration and notification issues, issues about
substantial implementation and what that really means,
retroactivity questions, and the issue about risk assessment
versus offense tier issues. So it is a variety of pretty
technical questions about what is required under SORNA.
When I came to OJP, Mr. Chairman, I had worked on the Obama
transition in the fall of 2008 and I heard a great deal during
the outreach that we did to the groups during the transition
about the difficulties in complying with Adam Walsh and SORNA.
So when I came to OJP I met right away with our SMART Office
staff. And I said to them, ``Let us do everything that we can
to make the Adam Walsh Act a success. Let us work with the
states in every way that we can to be as flexible as we can
within the four corners of the SORNA statute to work and see
where we can help the states in complying.'' The SORNA staff
have been terrific in that. And they have issued better, I
think, and more clarity in their guidance now.
We are also working on some additional guidelines that are
going through clearance at OMB now. And I am optimistic that we
will get there.
Mr. Mollohan. Well, jurisdictions that are unable to meet
the extended deadline, will they have the opportunity to have
additional extensions?
Ms. Robinson. Tribes by law will be able to have an
additional extension. But under the statute states will not so
they will be penalized. However, they can use that money, it
can go back to the state to work on implementing the SORNA
guidelines.

ICACS

Mr. Mollohan. The Committee last year provided $70 million
for the Missing and Exploited Children Program and $30 million
was culled out for the ICACs. You do not do that in your
request?
Ms. Robinson. No, we did not.
Mr. Mollohan. I am not asking you why, exactly. But what I
would like for you to do is really just talk about the ICACs,
what you think about them, how they are working. Give us some
sense of the resources we would need if we were to address this
problem adequately.
Ms. Robinson. Yes, I think actually that the ICACs are
tremendously important. And the funding last year under the
Recovery Act, the $50 million, was tremendously helpful to
them. We met recently in something called the Executive Working
Group with representatives from the state attorneys general and
they talked to us extensively about the important work of the
ICACs.
Mr. Mollohan. And successful.
Ms. Robinson. Successful, absolutely. For the Deputy
Attorney General, for Gary Grindler, the Acting Deputy, we are
meeting next week on child exploitation issues. The ICAC work
is, if we could with--again, this is the question of the
limited budget. If we could quadruple that money, I am speaking
only in the hypothetical here, but it is extremely well spent
funding. Because there is tremendous need here. And the work
that they do is heroic. It is tremendously important. And the
state AGs just underscored that tremendously.
Mr. Mollohan. It is so easy to get into all these issues
that the Subcommittee funds and that your Department deals
with, and want to have all the resources in the world to get
out there and fix all these problems.
Ms. Robinson. Yes, and that is why I say only
hypothetically.
Mr. Mollohan. No, it is true. You know, and we work against
a countervailing effort here. You know, as Mr. Wolf raises
questions about the benefit of incarcerated persons having work
experiences, not only just to have a useful experience while
incarcerated but also to develop skills and capabilities
necessary to be successful when they get out. We all recognize
that works on recidivism. But at the same time we all say that,
well we do not all say that is a good, is the truth about it.
There are a lot of people that say just lock them up and forget
about them. Throw the key away and forget about them. But at
the same time we have elements within the Congress that really
work against that. And I think that we need to work within the
Congress, Frank. And I certainly would be pleased to work
together on that within the Congress on our colleagues, and to
achieve some progress because I think that is extremely
important. Equally with Missing and Exploited Children.
But I think there is some real promise on the technology
horizons with regard to ICAC. I do not know if, you are
probably very familiar with that. But to what extent are you
looking at that? The computer capability of identifying and
apprehending perpetrators of these kinds of horrible crimes?
Ms. Robinson. Yes, again I am not the technology person at
all. But we have some very, very capable staff and people
within the investigative parts of the Department that are
extremely expert at that and looking at those very questions.
Mr. Mollohan. Yes, it would seem like almost by definition
that would be an area where resources would have a real payoff.
Well we are extremely supportive of that. And perhaps when
you work in your 2012 budget you will cull it out. There is a
lot of support in the Congress----
Ms. Robinson. Excellent.
Mr. Mollohan [continuing]. For that program and we would
certainly be receptive to that.
I have a number of other questions that I will submit for
the record in a number of other important areas. Mr. Wolf has
no additional questions. I think the majority of the Committee
recognizes the excellent work you are doing and the attitude
that you are bringing to the job, not to mention the
experience. And we are especially pleased to work with you. I
appreciate your testimony here today. And we will, as this
process moves forward, get down to the detail and see how we
can support your work the best we can. Thank you very much for
your testimony. Thank you, Ms. Robinson.
Ms. Robinson. Thank you so much.
Mr. Mollohan. The hearing is adjourned.

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Wednesday, February 24, 2010.

LEGAL SERVICES CORPORATION

WITNESSES

VICTOR M. FORTUNO, LSC INTERIM PRESIDENT AND GENERAL COUNSEL
FRANK B. STRICKLAND, CHAIRMAN, LSC BOARD OF DIRECTORS

Opening Remarks

Mr. Mollohan. The hearing will come to order. Good morning.
The Subcommittee would like to welcome Victor Fortuno, Interim President of the Legal Services Corporation,
and Frank Strickland, the current Chairman of the LSC Board of
Directors, to discuss LSC's 2011 budget request and other
issues relating to civil legal aid.
We are pleased to have you both. Thank you for your
appearance here today and your good work for this cause.
LSC is now in its 35th year of existence and in many ways,
this will be one of your most challenging years. More than 53
million Americans, including more than 18 million children, are
now eligible for LSC's services.
That is an increase of three million over previous
estimates, and the number of eligible clients will only
increase as we continue to receive data on 2009, when the
impacts of the recession were being felt by many.
I think it is important that we not forget what it means to
be eligible for LSC's services. It means that you are living at
or below 125 percent of the poverty rate, which was $27,563 for
a family of four in 2009.
The idea of trying to support a family of four on less than
$28,000 is challenging enough. When you throw in the burden of
dealing with an unexpected and significant legal crisis, it is
easy to see what a crucial life line LSC extends by providing
high-quality, free legal assistance.
Unfortunately, the availability of that life line to many
has been challenged by budget problems at all levels. Federal
and state support for legal services have not kept pace with
the demand, and the recession and its related effects have
severely reduced charitable donations and other sources of
legal aid funds.
The inadequacy of funding has led to a situation in which
one out of every two people seeking assistance from an LSC-
funded program is turned away and left to deal with their
divorce or their foreclosure-related eviction or their appeal
for disability benefits on their own.
With this as context, I would like to use this hearing to
discuss your proposed budget for fiscal year 2011 and to hear
your thoughts on how that budget will help to alleviate the
severe shortage of legal services available to LSC clients.
I also hope to use this hearing to address some criticisms
of LSC that have become perennial favorites of the small group
of members who do not support your program.
I firmly and enthusiastically support any efforts that will
improve your program management and reduce instances of waste
or abuse, and I will continue to hold you to a high standard in
both of these areas. However, I want to make sure that our
consideration of those issues is fair, accurate, and, most
importantly, productive.
Before we invite you to begin with your prepared remarks, I
would like to turn to our Ranking Member, Mr. Wolf, for his
opening statement.
Mr. Wolf.
Mr. Wolf. Thank you, Mr. Chairman.
Welcome, welcome to the hearing. I want to join the
Chairman in welcoming both of you today testifying before the
Subcommittee regarding your 2011 budget.
The Act that created the Legal Services Corporation
provided you with a pass-through budget authority and,
therefore, you can provide the Appropriations Committee with an
independent assessment of your funding needs without OMB
approval.
You are requesting $516.6 million, which is $96.6 million
or 23 percent above the fiscal year 2010 enacted level.
However, the President's budget requested a lower amount of
$435 million, which is $15 million above the fiscal year 2010.
I think you can see the potential problem.
With that, I will just yield back.
Mr. Mollohan. Gentlemen, your written statements will be
made a part of the record. If you would summarize them for us,
we will proceed.
Mr. Strickland, please.
Mr. Strickland. Thank you, sir.

Statement of LSC Board Chairman Frank Strickland

Chairman Mollohan, Congressman Wolf, and other members of
the Subcommittee, I want to begin by thanking you for holding
this important hearing today.
The Legal Services Corporation is on the front lines of
ensuring equal justice under law in this country. And I
consider it an honor to have served as the Board's Chairman
since being confirmed in 2003.
I also want to thank you for providing our programs with a
$30 million increase this year. At a time when there is a
substantial increase in the demand for services and a crisis in
non-federal sources of funding, this increase will go a long
way in keeping our programs afloat.
We expect this crisis to continue and more funding is
required to support the critical work of LSC programs. For
fiscal year 2011, we are requesting a total of $516\1/2\
million.
I am joined today by Victor Fortuno, the long-
time General Counsel at LSC, who is now also serving as the
corporation's interim President. Mr. Fortuno has been
with the Corporation in various capacities for 27 years.
The Board greatly appreciates the counsel and support he
provides to the Board and LSC management. He will speak
directly on our 2011 budget request.
2009 was an eventful year for the corporation and LSC
programs across the nation that strived to meet the challenge
of providing civil legal assistance to the poor.
In July, LSC celebrated its 35th anniversary and was
honored with commemorative statements from Congress and the
President.
In September, LSC released a new report on the justice gap
showing that LSC programs, because of insufficient resources,
continue to turn away about one million low-income Americans
each year.
2009 also marked the beginning of a leadership transition
for the corporation. President Helaine Barnett stepped down
after serving six years, leading to the appointment of Mr.
Fortuno as our interim President.
We are awaiting the completion of the appointment and
confirmation process of a new Board and it will be their
responsibility to select a new LSC President.
Ensuring a smooth Board transition has been one of my
priorities as the outgoing Board Chairman. So far, we have held
two orientation sessions, the last on January 28, for the White
House nominees. To use a time-honored phrase, I believe these
nominees will hit the ground running.
One of the core responsibilities of the Board is good
stewardship of the funds that you provide each year. Prompted
by two reports from the Government Accountability Office, we
have taken steps to more sharply focus Board oversight on LSC's
financial and compliance responsibilities and to focus the
corporation's attention on improved internal cooperation and
better management practices.
We are making great progress. All 17 of the recommendations
made in those two reports were accepted by the Board and LSC
management.
Last year, the Board's Vice Chairman testified about our
progress. And since then, the GAO has asked for additional
information in five areas and the LSC staff is at work
responding to these more recent requests. I am fully confident
that LSC will carry through on the completion of the GAO
recommendations.
I believe strongly in the obligation of attorneys to
volunteer their services to legal aid programs. I have done
that as a lawyer in Atlanta.
Three years ago, the Board adopted a resolution in support
of increasing pro bono services. And today 109 of our 136
programs have adopted similar resolutions.
Private lawyers who volunteer their time are an invaluable
resource for LSC programs and an important part of the overall
effort to provide equal access to justice for the nation's
poor.
LSC also is reaching out to judges, the private bar, law
schools, businesses, state access to justice commissions, other
funders and other supporters of legal aid, but pro bono efforts
alone cannot meet the legal needs of the poor. Government has a
vital role to provide the funding, the leadership, and the
oversight to fulfill our national pledge of equal justice for
all.
I know that LSC can count on this Subcommittee as we strive
to close the justice gap in our nation. I am happy to answer
any questions you have at the appropriate time. Thank you.
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Mr. Mollohan. Thank you, Mr. Strickland.
Mr. Fortuno.

Statement of LSC Interim President Victor Fortuno

Mr. Fortuno. Chairman Mollohan, Mr. Wolf, thank
you for holding this hearing and giving us an opportunity to
testify on the fiscal year 2011 budget request.
First I want to convey my deep appreciation to the
Subcommittee for the bipartisan support provided to the
corporation and its mission of ensuring that our nation's poor
are provided equal access to justice.
The Corporation is most grateful for the $30-million
funding increase in fiscal year 2010 and for the increased
funding provided over the last four years.
It is my privilege to appear here before you today with
Chairman Strickland who is a long-time champion of pro bono
legal services for low-income Americans and is a champion for
the legal rights of the poor. It has been an honor to know him
and to work with him.
Mr. Chairman, while the legal aid community understands the
difficult funding choices that the Subcommittee faces, the
justice gap is a harsh reality in our nation and the downturn
in our economy has dramatically increased the number of people
needing civil legal services.
Millions of Americans are at risk of falling deeper into
poverty and many are in danger of slipping into poverty for the
first time. The numbers of people coming to our offices seeking
help with foreclosures and unemployment benefits have
understandably increased across the country.
We have 54 million Americans who are eligible for LSC
funded civil legal assistance. Eighteen million and a half of
them are children.
For low-income Americans, legal aid greatly improves their
chances of keeping their homes rather than moving into a
shelter, holding jobs rather than going on to public
assistance, retaining custody of their children rather than
losing them to foster care, receiving early medical care rather
than costly hospitalization, and escaping abusive relationships
rather than suffering injury and even death.
Nearly three out of four of our clients are women, many of
them struggling to keep their families together and their
children safe.
Just as the weak economy has severely impacted our clients,
it has placed a great strain on the resources that support
legal aid programs. Our programs are concerned about their
ability to provide increased services in 2010 and 2011.
For years, interest on lawyers' trust accounts--or IOLTA--
was a growing and significant part of the non-federal funding
received by LSC programs. That funding is tied to short-term
interest rates, which are now at unprecedented lows.
At the same time, most state and local governments have
experienced revenue shortfalls and they, too, are likely to
reduce their support of legal aid.
For fiscal year 2011, LSC requests an appropriation of
$516.5 million. This is a request that clearly and aggressively
reflects the Board's view that the need is critical and has to
be communicated in any way possible, but especially in our
request for funding.
The request is the result of a determined effort by our
bipartisan Board of Directors to help eliminate the justice gap
in four years.
Ninety-four percent of our requested appropriation--or $485
million--would be distributed directly to the LSC programs as
basic field grants to fund civil legal aid to the poor.
Our request also provides for a continuation of our student
loan repayment assistance program, which helps our programs
recruit and retain talented lawyers, and it includes a proposal
to expand our program of technology initiative grants to
leverage the federal investment in civil legal aid.
We are also requesting additional funding for management
and grants oversight. The additional funds would help us
deliver new web-based training on compliance, governance,
fiscal operations, and best practices.
In particular, we want to ensure the ability of LSC
programs and their Boards of Directors to fully meet
requirements and strictly comply with restrictions.
In the past, management and grants oversight has
represented approximately four percent of our appropriation.
This year, we are in line with that. The request would be just
under four percent. Our budget would also provide for some
additional funding for the Office of Inspector General. These
oversight efforts will help us be faithful stewards of federal
funds.
Chairman Strickland provided you with an update of our work
with the Government Accountability Office, so I will not repeat
the points made by him.
But I do want to underscore that I fully share his
sentiments on improving governance and operations, and our
sincere commitment to implementing the recommendations to GAO.
And at this point, I have concluded my prepared remarks and
would be happy to answer any questions you might have.
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UPDATING THE JUSTICE GAP REPORT

Mr. Mollohan. I would like to start by again commending the
Legal Services Corporation for its good work and by reaffirming
this Subcommittee's support. I can certainly speak for a good
majority of the Subcommittee, and we support funding for Legal
Services to provide legal aid to those who need it and are
disappointed that there are so many people out there who make
up this justice gap that we all talk about.
I would like to point out that last year the House funded
Legal Services at five million dollars above the President's
request. That was considerably below your request, but five
million dollars above the President's request.
We also removed one of the restrictions having to do with
fees, which may or may not help you in regard to your
financing.
We thought that we were in as good a position as we could
be going into conference, whatever the Senate decided to do.
The Senate, of course, came in with a number considerably
lower. And it turned out that because of some of the issues
with regard to the restrictions, we really were not in as good
a position. That put us in a compromising position.
Perhaps as we move into this year, we will be equally well
positioned and we hope that it can move forward in a different
way. My goal would be to preserve our funding level regardless
of what the Senate's happens to be, which would create a base
off of which we would be in a better position to help you in
future years. The Administration would also be, I think,
working off a different baseline.
If our funding had been put in place, you would be working
off a baseline of $440 million, and hopefully the
Administration would have come in with some increase above
that, which would have put you in a better position. If you do
that year after year, it amounts to real money.
LSC is not close to the funding levels and real services
that it had at its high point. While that might be a reach,
certainly in the short term and in the kind of budgetary
environment we find ourselves, this path forward would at least
put us in a better position to achieve the funding levels on
the federal level that we would like to achieve. Just a comment
as we begin our hearing.
As you have described in your testimony, LSC recently
updated its justice gap report to measure changes since 2005 in
the unmet need for legal aid services. Given the state of the
economy, pressures on grantee budgets and the fact that the
eligible client population has increased by three million
people, I would have expected to see the gap widening
significantly. Instead, findings of your new 2009 report are
extremely consistent with the findings of both your 2005 report
and a 1994 report by the American Bar Association.
Why do you think that the documented gap did not increase
despite such anecdotal evidence that implies a greater unmet
need?
Mr. Fortuno. We, too, were surprised that the
report did not show higher numbers being turned away. We were
certainly aware of a number of very compelling state legal need
studies that suggest that our justice gap report represents a
significant undercount. We, however, thought it was best to
take a very conservative approach.
And while we believe that, in fact, it is an undercount and
have the state legal need studies that indicate that, in fact,
the unmet legal need is much greater, possibly as high as 90
percent. But in the case of our justice gap report, any number
of factors could have gone into that.
One of the things that we have learned anecdotally is that
our grantees reach full capacity. And once they reach full
capacity and are unable to take on any additional cases, that
then results in folks not getting in and being processed
unless, of course, it is an emergency case.
What normally happens is someone walks in, program has
reached capacity and is unable to take on any new cases, those
folks would not go through the intake process and would be told
to come back. So there would be no determination as to
eligibility at that point, so they would not be factored into
our numbers. And only emergency cases would be picked up at
that point.
Mr. Mollohan. Well, the numbers are meaningless. If I
understand you correctly, because you are at capacity and just
cannot handle any more folks, you turn them away at the door
and you do not count them. Unless you process them for
eligibility, how would you know how many people you are
actually turning away?
Mr. Fortuno. And it would vary from program to
program. But I respectfully submit that the numbers would not
be meaningless. They are certainly not as meaningful as they
could be, but they give us at the very least a low-end number
of what the gap is.
And that is what I meant by I think we have taken a
conservative approach and that is why the state legal need
studies that have been published come in at so much higher a
figure in terms of individuals who are in need of a lawyer
being unable to get one.
Mr. Mollohan. Say that again. That is why the state studies
comes in with a higher number of unmet needs?
Mr. Fortuno. Yes. The state legal need studies
suggest that the actual need is greater than is reflected in
our justice gap report which has the one turned away for every
one represented.
Mr. Mollohan. What is the difference in their methodology
that makes them more accurate?
Mr. Fortuno. It is going to vary from state to
state and survey to survey. I think that they are not
necessarily as conservative as we are. They are not limiting
their count to the number of people who actually make it in the
door and are screened for purposes of determining eligibility.
What we are looking at in our survey is the number of
individuals who are eligible for services and would be
represented but for the lack of resources.
That screening may not have occurred in some of the
studies. There are different methodologies. They come to
different results. The one thing that seems to be consistent is
they all come in with results of higher unmet need.
I think that the numbers in 2009 justice gap report remain
consistent with those of the 2005 report and reflect that we
still have a one-to-one.
We also have another factor to consider which is that when
our programs do reach capacity and are unable to take any new
cases, we have anecdotal information from our grantees that the
word in the legal services community spreads and folks are
discouraged from coming in. When they learn that the program is
unable to take new cases, folks do not even attempt to be seen.
But we do have, again referring to anecdotal information
from our grantees, that, for example, our Tennessee programs
turned away 75 percent. Our Arizona program turned away 38 and
a half percent.
Mr. Mollohan. So they had a process. Was that a more
careful process?
Mr. Fortuno. In addition to the information they
provide to us for our survey, grantees do measure the need in
their own ways. They may have a different methodology. They do
so because it is important for their individual----
Mr. Mollohan. So the justice gap is based on information,
but it is also based on a lot of intuition and extrapolation
and maybe a little bit of lag here and there.
Mr. Fortuno. Well, in our case, I think some of
the--some other studies maybe--I think ours does not involve
much speculation. It involves hard and fast numbers, that is
people who actually get through the door who are screened for
eligibility, who are found to be eligible, they are not
disqualified on the basis of----
Mr. Mollohan. But just to be clear, that is inconsistent
from program to program. It also does not include folks that
come to the door and are told, ``we cannot handle any more
people and we are not even screening you?''
Mr. Fortuno. That is right.
Mr. Mollohan. So it is definitely a low number.
Mr. Fortuno. Yes.
Mr. Strickland. It is also----
Mr. Mollohan. I must say that I always assumed it was
little more rigorous process to achieve that gap number.
Mr. Strickland. I was going to say it is also very hard to
measure, following on Mr. Fortuno's point about when
the word gets around that a program is at capacity and a person
simply does not come forward, it is very hard to measure the
number of people who do not come forward and, therefore, will
not be surveyed under any methodology.
Mr. Mollohan. It is an important number because you use it
pretty effectively to inform appropriators and policymakers as
to what the need is out there. But you have been reassuring
that whatever you are coming forward with is conservative.
Thank you.
Mr. Wolf.
Mr. Wolf. Thank you, Mr. Chairman.

PRIVATE ATTORNEY INVOLVEMENT

With respect to the justice gap, what activity is LSC
currently undertaking in order to increase the involvement of
private attorneys in pro bono efforts aimed at serving a
greater number of lower-income Americans? Just what are the
overall efforts and how successful and how deep is the pool?
What percentage do you have participating? What is the
potential percentage if all the law firms were to participate?
Mr. Fortuno. Currently ten percent of the cases
closed by LSC programs are closed by attorneys participating in
the PAI Program of individual programs. So we do have a figure
as to current involvement. We----
Mr. Wolf. What is the number of attorneys around the
country?
Mr. Fortuno. I do not have but we can certainly
get that information for you and provide it to the Committee. I
do not know the number of individual attorneys participating in
PAI programs offhand. I only know that ten percent of the
900,000 cases a year that we close----
Mr. Wolf. But that is not the question. The question is,
how many attorneys are participating and----
Mr. Fortuno. And what percentage of the legal
profession?
Mr. Wolf [continuing]. And what percentage of the pool are
you now being successful with?
Mr. Fortuno. I do not have those figures on hand.
I can certainly check to see if we have those and provide them
to the Committee.
[The information follows:]

Number of Private Attorneys Participating in LSC Activities

In 2009, 34,000 private attorneys handled 103,753 cases for LSC-
funded programs--an increase of 11 percent from the previous year and
over 11 percent of the total cases closed in 2009. We do not have any
information about how many pro bono attorneys provide assistance at
non-LSC programs, state bar projects, law school clinics, church and
other non-profit pro-bono assistance, and other areas of pro bono
assistance.

Mr. Wolf. How aggressive are you out there asking others?
Coming in today----
Mr. Fortuno. We----
Mr. Wolf [continuing]. Listening to the news, the story
broke that at the Justice Department, there are a number of
lawyers in the Administration, some with political jobs, others
not, who were with very good law firms around the country and
the pro bono work they were doing--one was the lawyer for Osama
bin Laden's driver. And I just wondered maybe if that lawyer's
time could have been to help people from the United States that
really need the help.
And I just wonder how aggressive are you and I would I
would like to see the Committee ask for, if we can, Mr.
Chairman, an in-depth analysis.
Do you have a formal program? Have you hired people to go
out and to encourage the Bar? I think most lawyers if asked and
presented--it is sort of like I remember once hearing or
reading the story about Tip O'Neill. He said that a lady across
the street had voted for the other person and he said to her,
Mrs. McGillicuddy, or whatever her name was, why did you vote
for the other person. And she said Tip, he asked, he asked me
for the vote.
And I think sometimes you have to ask. And if you actually
ask the average lawyer who I think would probably say yes, and
I just wondered how aggressive is it and what formal program do
you have? Have you gone outside to perhaps hire some people to
actually--do you have a formal program with people on the staff
that actually----
Mr. Fortuno. We----
Mr. Wolf [continuing]. Go out and encourage----
Mr. Fortuno. Actually, what we have is, among
other things, we have a requirement, a formal requirement that
our grantees expend at least 12 and a half percent of their LSC
funds or an amount equal to 12 and a half percent of their LSC
grant on private attorney involvement which would involve
recruitment, training, oversight.
So there is a fairly substantial program out there that is
mandated by regulation.
Mr. Wolf. But is there a best practices that you have?
Mr. Fortuno. We are----
Mr. Wolf. The Memphis office has done the greatest job
whereas the Nashville office has not? Do you have best
practice?
Mr. Fortuno. We are providing resources of that
type, where information on best practices is made available so
that successful experiences that some grantees have and can
serve as----
Mr. Wolf. Should it not be a formal best practices that you
go out to every Director of every office saying here is what
was done around the country and we know this has been
successful, they did this type of program, they had a Saturday
morning training program, they did a letter to every law firm?
Should it not be a formal best practices? Would you submit that
for the record what you do have?
Mr. Fortuno. Oh, certainly.
Mr. Wolf. But should that not be sort of standard?
Mr. Fortuno. And I think a good deal of that, in
fact maybe most of that is, but we would be glad to submit
detailed information on the program that we have and how our
grantees use that information and how they go about enlisting
the aid of private attorneys.
[The information follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

I know that our Board of Directors, in fact, has become
very involved in that. And I do not know if the Chairman would
like to speak to that or----
Mr. Strickland. I would like to address that just briefly,
Mr. Wolf.
In 2007, the Board of Directors adopted a concept called
help close the justice gap, unleash the power of pro bono. And
we encouraged all of our grantee programs, we currently have
136 grantee programs, we encouraged every one of those programs
to adopt a similar resolution that is modeled after the one
that our Board adopted in April of 2007.
And to date, we are pleased to say that 109 out of 136
programs have adopted a similar resolution that is designed to
stimulate activity at the program level to encourage more pro
bono work.
That is more of a subjective approach as opposed to
objective as we were not looking for particular numbers. We
were just trying to stir the pot, if you will.
Mr. Wolf. But should not--excuse me.
Mr. Fortuno. And LSC does recognize its
responsibility to use its national voice to further encourage a
culture of private attorney involvement.
I think that following up on what the Chairman was
referring to, the Board of Directors when it meets away from
Washington makes it a point of, at every away meeting, having
the local grantees identify the leading pro bono providers so
that they can be formally and publicly acknowledged and
thanked. We prepare certificates of appreciation that are
distributed at formal public events.
Mr. Wolf. I understood. The question is, what number are
participating and how does the participation level differ now
both up or down than it was, say, five years ago and ten years
ago?
We are in a tight budget situation and when I was Chairman
of this Committee, we always supported the legal services at
the good rate, so we did not have in a sense a controversy. I
think the poor need this. It is very, very necessary.
We are also faced with a situation in the country, this
Congress is somewhat numb to it on both sides of the aisle, but
we have a situation that we have $37 trillion of unfunded
obligations. We have $12 trillion of debt.
And on that same news show, it said that the Chinese are
ready to move its paper around. Moody says we lose our Triple A
bond rating perhaps in 2013. We see the government agrees this
is on the edge having lost its Triple A rating and the
Government of Dubai in the same category, the government of
Portugal, the government of Spain, and the government of
Ireland, and there are people on both sides of the aisle that
believe we are facing a fundamental crisis.
And Dietrich Bonhoeffer who was the Lutheran pastor who
stood up to the Nazis made the comment that a test of a moral
society is how it treats its future generation. I have five
children. My wife and I have a large sum of grandchildren. What
are we transferring? And so this important.
I stipulate the legal services, if my memory serves me
right, the Congressman that I used to work for, Congressman
Biester, Pete Biester, was very active with regard to in
setting it up.
But I just think from a reality point of view, the figures
that I heard today were that in the year 2028, but the number
was dropping, so it could be 2026, 2025, that every dollar that
comes into the federal government will go out for four things,
Medicare, Medicaid, Social Security, and interest on the debt.
That does not cover legal services. It does not cover something
that I think is important, to find a cure for cancer or to find
a cure for autism or to find a cure for Alzheimer's or to find
a cure for Parkinson's or to have the best education system in
the country.
And I appreciate the Chairman. Math and science and physics
and chemistry and biology, none of them are entitlements. And
so I am not really differing with what you are doing. God bless
you. I think it is very, very important.
But I think this has to be an area that is not just kind of
a--I am disappointed. Even the number. The number ought to be
right up here. You need to know Memphis has the best job. They
have been out there. They have every lawyer in DeKalb County or
whatever that is over there or in Atlanta. Every lawyer is
participating.
We have contacted every lawyer. We put in 15 different
sessions because to bring them in--and I really believe, and to
say something kind about lawyers, I believe that if asked to
participate to be there, not just with a flyer, but with a
visit and everything else, I think a large number will
participate. So I think that is really where you are going to
have to go in order that you can meet what is a necessary need.
But when I look at the numbers that you have asked for
here, there would be some that were saying this Administration
is spending too much. The deficit this year will be $1.6
trillion. You are actually asking $516 million which is $96.6
million or 23 percent above fiscal year 2010 enacted level. And
the President's budget is $435 million which is $15 million
above.
So you are above this Administration's request that many
people believe is high--so I think you really have to make a
major effort to reach out to the legal community and I believe
if challenged and asked, I think they will participate.
So I would like to know what you are really going to do
rather than just say you have a resolution or----
Mr. Fortuno. Well, certainly. And we will get
back to you with concrete numbers and information.
I think that what you will find is that a good deal of that
12 and a half percent that grantees are required to expend on
generating pro bono involvement goes to outreach, goes to that
kind of making the ask.
I think that because of the economic downturn, lawyers like
everyone else have been impacted and so we may be seeing less
of that, but we will have some specific numbers for you. We
certainly believe----
Mr. Wolf. You could contact some of the lawyers that are
representing Osama bin Laden's driver and people who helped
kill Americans in the 9/11 attack.
And, I mean, the Administration was actually going to bring
Khalid Sheikh Mohammed to New York City. The cost of trying
Khalid Sheikh Mohammed in New York City would be over a cost of
four to four and a half years, about a billion dollars.

RESTRICTIONS ON FUNDS

So let me ask you this other question here. The
restrictions on LSC grantees, the Administration's budget
request proposes to lift the restrictions on the use of LSC
funds for involvement in class action lawsuits.
One common problem with class action lawsuits is that
personal injury class actions, which are often settled, for
example, offer lawyers huge fees while individual class members
get only a few dollars each. As a result, lifting the
restriction on fee collection while permitting the LSC funded
attorneys to pursue class action cases could be very
controversial.
What are your comments about that?
Mr. Fortuno. The Corporation has consistently
expressed the view that we do not take positions--substantive
positions--on restrictions. We simply implement the will of the
Congress. We recognize that there are arguments that can be
made for and against. Our Board has not authorized us to take
any substantive position other than, as I said, enforcement of
the will of Congress.
And that is seen as recently as when the attorneys' fees'
restriction was lifted. That occurred with our appropriation in
the middle of December and the Board, within days, met to
discuss the issue and then at its annual meeting in January
proceeded with instructions that we publish an interim final
regulation which brings our regulation in compliance with the
rollback of that restriction.
But whatever the requirement or restriction may be at any
point in time, our position is that we faithfully implement the
will of Congress.
Mr. Wolf. And you are not seeking to change?
Mr. Fortuno. We are here asking for funding. We
are focused on the appropriation amount, not on specific
restrictions, no.
Mr. Wolf. I think that is important because John Erlenborn,
who I thought was a fine person, did a great job in taking this
whole issue out of the political involvement to see that LSC
get back into the political involvement and some of things, I
think, takes away, for instance, the controversy.
So you are not asking the Committee to lift anything?
Mr. Fortuno. No. We are not making any request
with respect to restrictions, only as to funding.
Mr. Wolf. What about the Administration's request here with
regard to participating in class action suits? Do you have----
Mr. Fortuno. We do not take a position as to
that, no.
Mr. Wolf. Thank you.
Mr. Mollohan. Thank you, Mr. Wolf.
Mr. Schiff.
Mr. Schiff. Thank you, Mr. Chairman.
And I know you are, I think, precluded from taking a
position, but that does not mean you do not have an opinion.
And I may ask you about that opinion in a little bit.
Mr. Fortuno. My one concern about that, though,
is that if I express a personal opinion that--sitting here in
my official capacity as I do today--that that can be confused
for the institutional view and so there is, I think, an
overriding danger, whatever my opinion may be. So I would
respectfully seek to answer the question without taking a
position.
Mr. Schiff. And you can do that, you know, by discussing
the impact of the policies. And let me start by asking you
about the policy that has just changed in terms of the attorney
fees.
Do you have any sense yet, have there been any analysis
about what kind of additional revenue that may bring into the
LSCs? And the second part of that question is, because there
will be revenues coming in via attorney fees, will that create
a pressure to take on more cases which can result in attorney
fees as opposed to other cases which have a lesser capability
of doing that?
Mr. Strickland. Let me make a comment on that.
Mr. Schiff, I want to give you some information I gleaned
from the Executive Director of the Atlanta Legal Aid Society on
the point of the lifting of the attorneys' fees' restriction.
And he has been in his job for 25 years and in my view is one
of the best Executive Directors of any of our programs.
What he told me was this, that the dollars are not as
important as the leverage. In other words, if you file a case
and you have the right to claim attorneys' fees and you can put
that in your complaint, that is a leverage factor that has been
missing in terms of representation of the poor. Now it is back
in play.
In other words, his view was the leverage factor was
considerably more important than dollars. So we do not have any
numbers on what dollars might be at play, but leverage was his
main interest.
Mr. Schiff. Are you going to undertake an analysis to
figure out what this will mean revenue-wise?
Mr. Fortuno. Yes. Well, it is too early to say.
We do not have numbers on which to base any kind of assessment.
We are collecting that information and do hope to have that
kind of information and assessment and analysis available come
this time next year.
Mr. Schiff. The only thing I would also suggest, and I
think it is a positive change and one that I supported, is I
think we do need to keep an eye on making sure that it does not
distort the type of cases that LSCs take on given the
financially strapped times so that there is a movement towards
taking on the cases where you can get fees and shying away from
others where you cannot, where there may be a more pressing
need.
I wanted to ask you about one of the other restrictions
bearing in mind your caveat. This is one that I think I differ
from Mr. Wolf on and that is the restrictions on the use of
state and private funds.
And I would be happy to defer to my colleague because I am
surprised really that there is as much opposition to this as
there is given that those that are usually very solicitous of
the rights of states I would think would want, more want to
have states decide how state funds can be used. But I want to
understand the issue a little better.
Mr. Wolf. Would the gentleman yield?
Mr. Schiff. I would be happy to yield.
Mr. Wolf. That was kind of a cheap shot to a certain
extent. I have been a strong supporter of legal services. As
legal services gets into these controversial issues, it begins
to weaken it here in this body.
As you begin to weaken--and when I was Chairman of this
Committee, we protected legal services and I went against my
party to make sure we brought it out with integrity. And so as
you begin to add these controversies, and I do favor the
states' rights. It was sort of an elbow there and I personally
took it that way.
That is not the purpose. The purpose is to help legal
services and to remove all the controversy--there was a lot of
controversy before you were even elected to Congress. So what
we are trying to do is to go back whereby it is a
noncontroversial, a good program that really helps the poor.
Mr. Schiff. Reclaiming my time, Mr. Wolf, I do not consider
it a cheap shot to say that there is inconsistency with people
who advocate for states' rights when it is convenient and do
not when it is not convenient. And that, I think, is the issue
here. I have the time right now, Mr. Wolf. That, I think, is
the issue here because we can disagree on a policy and that is
fine, but do not claim that you are consistently a state right
supporter here and that you are doing this to protect legal
services because you can protect legal services in your state
if your state legislator does not want these funds used in a
certain way. So that is, I think, where we disagree.
So what I would like to ask is how you see these state
restrictions affecting the resources available to you to do
your work?
Mr. Fortuno. We can only speak to what we hear
anecdotally from our grantees and it is what you would expect
to hear which is that restrictions on non-LSC funds have an
impact, have a tendency to depress private contributions
because the funders may not want to have their contributions,
their grants, their donations so limited.
So what we hear anecdotally, we have not done any
systematic study, but what we hear anecdotally and do not have
any reason to question is that it has a suppressing impact on
private and other non-government--well, actually, even
government contributions.
We have certainly seen the issue you are referring to. We
have litigated against the state of Oregon. I personally have
been deeply involved in the defense of the challenges against
the restrictions since 1996. So we have had to defend these
challenges coast to coast, with success coast to coast,
including interestingly a challenge by a state, the state of
Oregon, which was litigated and resolved in our favor--in our
favor meaning in defense of the restriction.
Mr. Schiff. Well, let me ask you this in an effort to see
if there is a way to bridge the gulf between Mr. Wolf and
myself.
As I understand it now, all of the federal restrictions
apply regardless of what the state of California says,
regardless of what the state of Virginia says. They apply to
the funds that the states put in and they apply to the funds
that private parties put in.
Are you aware of any circumstance in which states have
imposed greater restrictions than the federal government has?
Mr. Fortuno. Different may be greater. I do not
know. We could certainly check and get back to you once we have
looked for that. Offhand I do not happen to know of instances
where the state restrictions have been greater than the
federal.
Mr. Schiff. And are there some states that have put in
parallel restrictions, in other words, that have said that in
this particular state, the funds that were provided LSCs cannot
be used for any of the purposes for which the federal law
prohibits federal contributions?
Mr. Fortuno. I think there is not a need for them
to do that because by federal law, that is, in fact, the case.
And it may be that it is just because it is unnecessary, they
have not been crafted that way.
In fact, we have a regulation which is intended to create
avenues for that alternative use, that is affiliated
organizations, and that is where we get into the question of
program integrity and whether there is sufficient separation.
But you can have an LSC grantee, for example, in Oregon and
an affiliate that does work that would not be permitted with
LSC grant funds and that our grantee would not be permitted to
undertake because they do receive LSC grant funds and so the
restrictions apply to all their other funds.
But there is that possibility. The dispute there focuses
around whether that is a cost effective, efficient way of doing
it. But there are means through which the state can tap some of
the expertise and resources that are available out there in the
legal services community to accomplish what they want to do.
It is just that currently, under the existing structure,
they cannot just funnel all the money into the grantee and
expect that the grantee is going to be able to do everything,
including things that are prohibited to the federal funds.
Mr. Schiff. Would it put us on any better legal ground as
well as help the financial situation of the LSCs if by way of
bridging this difference in opinion we gave states the
authority to impose whatever restrictions they deemed on the
use of state as well as private funds so the federal
restrictions would apply to the use of federal funds, but they
would not apply to the state or private funds, but the state
would be--each state would be empowered to set its own
restrictions on the use of its funds as well as private funds?
Mr. Fortuno. I think that is a matter of policy
and drafting. I think it can certainly be accomplished, but it
is not something that we would take a position on in terms of
should it or should it not be----
Mr. Schiff. But the impact of that, if I am articulating
correctly, is if you repeal the prohibition on state and local,
state and private funds, then the states would be empowered to
set whatever restrictions they want on state funds, right? They
would still retain that power----
Mr. Fortuno. Yes.
Mr. Schiff [continuing]. As long as you did not preclude
them from doing that? So the additional impact, the sort of
bridging of the divide here would be you could empower states
to control private funds as well as their own state public
funds; could you not? In other words, if you----
Mr. Fortuno. LSC could not, but the Congress
certainly could and we would implement that. But certainly
something could be done. Again, it is a matter of policy and
drafting and the legislation.
But whether it is--the states having final say on what can
be done with their funds or on LSC limiting the reach of our
restrictions to federal and private funds but not state--those,
again, are policy issues that we have not been authorized by
our Board to address. But certainly it seems from a standpoint
of can it be done, yes, it can be done.
Mr. Schiff. The last question is, given the changes in the
economy, what type of cases in particular have escalated? You
probably have across-the-board increases, but has it been more
in the area of foreclosure or in what areas have you seen the
greatest rise?
Mr. Fortuno. We have seen the justice gap report,
the 2009 report, while it shows to one-to-one, in the area of
foreclosure is showing two persons who are qualified--that is
financially and otherwise qualified for services by a grantee--
who have to be turned away because of no other reason but lack
of resources. So we are turning away two for every one that is
represented. Clearly that is a significant increase.
And in the employment area, we see more of that. So there
are increases. But I think the more pronounced has been in the
area of foreclosures and predatory lending.
Mr. Schiff. Thank you.
I yield back, Mr. Chairman.
Mr. Mollohan. Thank you, Mr. Schiff.
Mr. Honda.
Mr. Honda. Thank you very much, Mr. Chairman.
Again, welcome. Good to see you guys. You do good work
and----
Mr. Fortuno. Thank you.
Mr. Honda [continuing]. I think that the state of
California has benefitted by your work, but I think that the
state of California and perhaps other states have suffered
because of the impositions that Congress has placed upon you.
I just want to state for the record that I recognize the
position that sometimes we place you in with our questions. So
I think, I am not an attorney, I am just a simple school
teacher, and so I think I have to rephrase my questions in a
way that would, you know, reflect our desires for you to do the
kind of work that we see that is necessary.
And so in my humble opinion, some of the restrictions that
we have placed upon LSC has been counterproductive in terms of
us being able to provide services that some of the folks and
many of the folks in California has needed in the past.
And I guess it is going to be dependent upon our judgment
and our leadership and our direction to you in order for us to
be able to articulate that which needs to be done and then
cover it with the appropriate amount of money.
And so having said that, my sense is that we need to allow
the LSC to operate on behalf of Congress with the understanding
that--I have the trust that you would do so with the full
spirit of what we define as justice for all and that folks need
representation as part of our value system regardless of their
standing in our society. And so I would be working in that
direction.
I think that the ability of what I have seen in the past
what our folks were able to do to leverage certain kinds of
folks that are already in the community that wants to help and
leverage on behalf of our clients that you are helping by
lifting some of the restrictions, I think, does make sense
because I do not want to send a gunfighter into a gunfight with
a muzzle loading rifle when everybody else has automatic
weapons. And I think that it does not set up things for a fair
fight where justice needs to be served.
So I really do appreciate this. I think I know how to
answer my own questions. But just to express, and it took me a
couple years to understand, the frustration I had when I was
asking a lot of questions and I was trying to elicit, you know,
responses from you that I wanted to hear, but you consistently
say, you know, whatever you guys say.
Mr. Fortuno. And I think we are here in our
official capacities, so we present the institutional view. I
know that----
Mr. Honda. Yes.
Mr. Fortuno [continuing]. You know, we all have
personal views, although my wife tells me what mine are. But we
do have our own personal views. But when we sit here, we sit
here as representatives of the institution-presenting their
views.
And as I said earlier, my concern is that the expression of
a personal view, whatever it may be, might be mistaken for the
view of the institution. And if we had not been authorized to
communicate that, I think it would be inappropriate for us to
answer.
Mr. Honda. Yeah. And I appreciate your high level of
professionalism and self-discipline.
Mr. Fortuno. Thank you.
Mr. Honda. And I guess it really tells me that I have to
tell you what I really want and why. And so I guess I met the
enemy and it was me.
Mr. Chairman, thank you very much for this opportunity.
Mr. Fortuno. Thank you.
Mr. Mollohan. Thank you, Mr. Honda.
Mr. Fattah.
Mr. Fattah. Thank you, Mr. Chairman.
Let me welcome both of you before the Committee. And to the
Chairman, I know through your information provided, you are a
former Commander in the United States Coast Guard and you were
formerly involved in a lot of activities, including General
Counsel to the Republican party in Georgia and head of the
Republican Lawyers Association.
So it is good to see that there are Republicans and
Democrats alike who find it appropriate under our Constitution
to work to ensure that everyone has the opportunity to seek
justice under our legal system.
And to our Director here, Philadelphia, I mean, I think the
best place to find people to lead major----
Mr. Fortuno. I could not agree more.
Mr. Fattah [continuing]. You look to Philadelphia.
Mr. Fortuno. I could not agree more.
Mr. Fattah. And so Community Legal Services is where you
got your start in the District Attorney's Office. And I am glad
my colleague who is actually a former Philadelphian has
returned to the room, Chairman Wolf, Representative Wolf.
And I just want to clear up some things that were said and
I have no intentions of throwing any elbows. I do want to get
the record straight.
Legal Services Corporation is not providing any lawyers on
behalf of drivers, cooks, bottle watchers for Osama bin Laden
under any circumstances, right?
Mr. Fortuno. That is my understanding, yes.
Mr. Fattah. Put that on the record because sometimes you
hear this, you know, a lot of what is said around here, and
people who are not paying attention can get the wrong
impression, right? So we can clarify that in no way, shape, or
form.
Secondly, as a former Assistant District Attorney in
Philadelphia, I do want to say something. There is going to be
an announcement apparently today that the Administration has
worked something out and there is not going to be this big
trial in New York of Khalid Sheikh Mohammed. If someone had
conducted a crime of such a horrendous nature in Philadelphia
and thousands of our citizens were killed, we would be proud to
host a trial to go and make sure that justice was served,
assuming the guy could live long enough to get to trial. All
right?
So this notion that America should be afraid of putting
people on trial or hosting a trial somewhere to get a bad guy I
think is nonsense. And it is a disservice to many, many people
in our country who are not afraid to--you know, and I'm glad
this Administration is killing and capturing bad guys all over
the world. And we shouldn't be afraid to use our judicial
system as one of the tools to go after them.
But I do want to thank Legal Services for the work that you
are doing on behalf of millions of Americans. You know, when
Dr. King had the great march on Washington he said that, you
know, ``Let us not be told that there are insufficient in the
vaults of justice in this country.''
And what he was really saying in the Poor People's Campaign
was that poor people need to have access to the court. And
class actions is a good example. If you have an entity that
is--you know, we had this problem with proprietary on higher
education institutions ripping off poor people all over the
country with false educational opportunities, accessing
millions of dollars of federally guaranteed student loans. If
you couldn't go in on a class action, you would have to go upon
each individual student and go after each individual situation.
So class actions have an--you know, both can provide the
taxpayers a protection when Legal Services operates and also
help many, many more people.

MANAGEMENT AND ADMINISTRATION OF PROGRAMS

So I just want to thank you for what you are doing. I do
have some particular questions. The costs in your budget now,
Legal Services, can you tell us a little bit about healthcare
and what is happening with your premiums over the last 12 to 24
months?
Mr. Fortuno. Meaning the premiums of our
grantees? I don't have specific information here at hand but
can provide that. I think that what--I would be surprised if it
was anything other than increasing. I know that there has been
an increase in the premiums for our own staff. That is, the
staff at the corporation.
Mr. Fattah. Right.
Mr. Fortuno. But I don't have the specific
numbers on what it is across the country in our various
programs. But we should be able to acquire that information for
you.
Mr. Fattah. Okay. Now your request this year is--and the
Chairman worked very hard. And I do want to compliment our
former Chair, Congressman Wolf. I was on the Committee when he
chaired this. And he worked very hard against a lot of
obstacles in his own party who didn't see the wisdom of
continuing to support Legal Services. So I do want to thank
him.
But in your request for an increase, I noticed a
significant amount is in the management and oversight area,
which is, you know, obviously you get--most of our interest is
in your management and oversight. And you need to find an
ability, because grantees are operating as independent agents
all over the country.
So this 80-plus million in increases is the most
significant part thereof of your request; is that correct?
Mr. Fortuno. The most significant increase would
be to basic field. In terms of management and grants
administration, we are asking for an increase of over $2
million over what we got for 2010.
That is for purposes of increasing and stepping up
oversight. The board of directors has authorized a hiring of 15
persons to go into that part of the operation--that is, grantee
oversight.
The two-plus million would be salary to accommodate that--
annualize it--and account for corresponding increased costs.
But the largest component of the increase is clearly oversight.
It is to step up and improve oversight of and guidance to
grantees.
But we also have a training component there where we talk
about having web-based training that would provide training to
grantees and to their boards of directors with a focus on the
boards being oversight, internal controls, and proper oversight
of grantees.
Mr. Fattah. Okay. Well let me thank you, and let me thank
the Chairman for the time. And I think that you know, given the
work of this Committee and the leadership of our Chairman, that
we are very interested in trying to make sure that Legal
Services can continue and improve to close this justice gap.
And, again, with the leadership of someone from the
greatest city anywhere in the world at the helm, I am feeling
even more confident that we are going to find room to be
favorable about working towards your requests.
So thank you, Mr. Chairman.
Mr. Mollohan. Thank you, Mr. Fattah.

TRENDS IN FEDERAL AND NON-FEDERAL SUPPORT

Gentlemen, I would like to walk through your funding file
and understand more clearly where your money actually comes
from and how much of it is contributed by the federal
government, recognizing that in every program and every state
it is different.
But give us some idea of where dollars are coming from and
at the end of the day how much of the resources used by Legal
Services across the country come from the federal government.
Could you do that for me, please?
Mr. Fortuno. I can certainly give you some of
that information. I think that non-LSC funding has steadily
increased from 1996 through 2008. We went from 41 percent to
almost 60 percent.
Mr. Mollohan. Forty-one percent of what? Sixty percent of
what?
Mr. Fortuno. That is our grantee's funding back
in 1996 was 41 percent non-LSC nationwide. We are talking
national averages. So 41 percent of what our grantees--the
funding they had--was from non-LSC sources.
That was in 1996. In 2008, we were up to just under 60
percent. I am told it was 59.8 in 2008. Now, as might be
expected because of the economic downturn, we have seen a
dramatic decrease in those non-federal funds.
Mr. Mollohan. That trend you just described would have as
much to do with the decrease in the federal funding as it would
with an increase of the non-federal funding?
Mr. Fortuno. I think that if federal funding were
to go down, then certainly that would impact on the percentage.
Mr. Mollohan. Right. It surely did between 1996 and 2008.
Based on the fact that you are going down, one could conclude
that LSC funding remained constant, maybe in real dollars.
But you had a real increase in non-LSC contributions. Is
that the case, or did you have both? Did you have a decrease in
LSC funding and an increase in outside funding? That is quite a
dramatic shift, actually, from 40 to 60 percent. Maybe it was
both.
Mr. Fortuno. Yes. And I think that--this from our
2008 book. I was just handed a page that has some figures on
funding type, amount, and percentage. I think that, again, this
wouldn't respond to the question of--since LSC funding is not a
constant, since there are variations there, it is difficult to
glean terribly much from the percentage rise in non-LSC
funding.
Mr. Mollohan. Well, we are going to get to the current time
period. I just want to understand a little bit more about the
1996 to 2008 history.
Let me lead you through it a little bit.
Mr. Fortuno. Okay.
Mr. Mollohan. Then you tell me where I am leading in the
wrong direction. In 1996, you say non-LSC funding was 41
percent of your overall--legal services programming funding.
And LSC funding decreased pretty dramatically from 1996 to
2008; did it not?
Mr. Fortuno. Yes. There were decreases. The last
four years have certainly been better. But prior to that there
were decreases.
Mr. Mollohan. Well in 2006 then maybe, sir. So now 60
percent of the resources are non-LSC funding, correct?
Mr. Fortuno. That was as of 2008. The percentage
has decreased since then.
Mr. Mollohan. Is that because federal funding has
increased, or outside funding has decreased, or both?
Mr. Fortuno. I think it is a combination of both.
I think that federal funding has increased. And that would
impact on the relative percentages.
Mr. Mollohan. Well then let us take them one at a time. LSC
funding has increased. We know that. What is happening to non-
LSC funding?
Mr. Fortuno. Non-LSC funding----
Mr. Mollohan. In real dollars.
Mr. Fortuno [continuing]. We have, for example,
IOLTA. We don't yet have the final numbers. But from the
figures we do have, one thing that is clear is that there is a
very sharp decline. We estimate that there will be a drop from
33 to 50 percent in IOLTA and similar drops in----
Mr. Mollohan. You already had a drop in IOLTA. Do you mean
a further drop?
Mr. Fortuno. A further drop. That is between--
from 2009--from 2008 to 2009, there was this drop we are
estimating to be 33 to 50 percent. And we are expecting a like
decline in 2010-2011.
There had been a similar decline in local government
funding.
Mr. Mollohan. You mean another 50 percent decline?
Mr. Fortuno. Yes.
Mr. Mollohan. On top of the first 50 percent?
Mr. Fortuno. That is correct.
The state government support has not suffered as much as
the local government and IOLTA. But those two are major sources
of non-LSC funding. And they clearly have been impacted
adversely.
Mr. Mollohan. So state government support is going down.
Mr. Fortuno. Yes.
Mr. Mollohan. Okay.
Mr. Fortuno. All three, state less than local.
But certainly local going down about as much as IOLTA.
Mr. Mollohan. Well no matter what the federal government
does then it doesn't look----
Mr. Fortuno. It doesn't look good.
Mr. Mollohan [continuing]. Sanguine.
Mr. Fortuno. Which is why we have come to you
with an aggressive budget request. It's because I think that
when our nation encounters a hardship, I think it is the poor
that are generally the first and worst affected by it. And I
think this one has been no different. I think that the poor
have been disproportionately impacted by it. I think that the
need is increasing.
And so we have an increasing need. And at the same time
these other sources of funding are dwindling. So that is why we
have come to you with what clearly is an aggressive funding
request.
Mr. Mollohan. Yes, and you should. You should be
aggressive. You are aggressive here today with us. What are you
doing outside of LSC funding to try to correct this or to check
this trend, if not to reverse it?
Mr. Fortuno. What is LSC doing outside of its
request to the federal government?
Mr. Mollohan. Absolutely.
Mr. Fortuno. We certainly are encouraging our
grantees to be aggressive about fundraising. We are trying to
help them with information that can be valuable to them, that
can be used by them, with guidance, with best practices.
Mr. Mollohan. Well I hear you saying all those things. I
want to understand how much energy is behind them. How much
real effort is out there? Do you have a program out there to
encourage your grantees to develop other sources of funding or
to be more successful in their conventional sources of funding?
Mr. Fortuno. We don't have--we don't have a
program----
Mr. Mollohan. Should you?
Mr. Fortuno [continuing]. That is specifically
staffed for that purpose. The same way that we don't have a PAI
office that is staffed exclusively for that purpose.
Mr. Mollohan. Yes.
Mr. Fortuno. Some of our grantees do. And that is
part of what they use to----
Mr. Mollohan. Yes, I know. But nationally should you be
ringing the bell? Tell me what you should be doing, or could
you be doing more in this area?
Mr. Fortuno. We recognize that this is a complex
issue and that funding has to involve a multi-faceted approach.
So we certainly recognize that there are a number of different
dimensions to this that need to be explored and that are not
fully exploited right now.
But we are doing things along the lines that have been
asked about here. Maybe not in the structured, have a specific
unit set aside to come up with innovation, to generate
innovation, to do more in the way of communicating best
practices and to develop the----
Mr. Mollohan. Well, the Committee would like for you to
submit for the record in a reasonable time frame, which you can
work out with staff, a plan that addresses enhancing your non-
LSC resources.
Mr. Fortuno. We would be happy to.
Mr. Mollohan. If you would.
Mr. Fortuno. Yes.
Mr. Mollohan. I would think if you needed someone to take
on that mission full time, we would want an estimate of whether
that would be money well spent.
Mr. Fortuno. Mm-hmm.
[The information follows:]

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Mr. Mollohan. There is an irony here, a couple of them.
However hard Chairman Wolf fought for LSC during the time he
was Chairman, he was still up against a less favorable
political and philosophical environment.
You are in a very favorable political environment from the
executives through the Congress but what I am hearing is you
are actually going to have less resources to address legal
needs of the poor than we have had in the past, during a time
when those needs are increasing because of the economic
circumstances.
I don't think when the President asked two years in a row
for the same requests, and I would like for him to have been
working off another baseline, just to put that in there again,
that doesn't look really encouraging. Especially given the
overall budgetary situation we are facing.
So wanting to do as much as we can to get those resources,
I would like to see how you are working harder outside LSC
funding to achieve that with the programs across the country.

ACTIVITIES OF AFFILIATE ORGANIZATION

With respect to your activities and the activities of your
grantees, am I correct to some extent, and tell me if I am not,
that a lot of the things that the restrictions address are
being done in separately stood up organizations? Is that
correct or incorrect?
Mr. Fortuno. Yes. Affiliate organizations are, as
are organizations that are not affiliated. But, yes, there are
other channels through which those activities can be
undertaken.
Mr. Mollohan. Well it can be, but I'm asking are they? That
is my question.
Mr. Fortuno. Yes.
Mr. Mollohan. I know it could be. Could you give us an
example or two? How does that work?
Mr. Fortuno. We receive requests for guidance
from grantees on a periodic basis where they ask whether there
is sufficient separation between them and an affiliate. I can
certainly put together numbers as to how many of those we are
aware of. There may be any number that we are unaware of. But
we can certainly share with you the information concerning any
of those that we are aware of and provide some detail on that.
[The information follows:]

Use of Affiliate Organizations

At present, LSC is aware of approximately 30 affiliate
organizations. For LSC purposes, affiliate organizations are entities
that closely coordinate with an LSC grantee in a variety of ways. These
include: sharing overlapping board members and part-time staff, and
providing other services such as intake, advice and transfer of non-LSC
funds to the affiliate. Affiliated entities usually work outside of the
restrictions, but LSC has strict requirements that grantees maintain
Part 1610 program integrity--objective integrity and independence--from
any entity engaging in restricted activities. Program integrity
requires legal, physical and financial separation, and no provision of
LSC funds to the other entity or subsidies of restricted activities.

Mr. Mollohan. Well I guess my point is that, in an
imperfect world, this activity would appropriately be
undertaken by LSC grantees if it were not for these
restrictions. But those desires are actually being met by
organizations, however inefficient it might be, by setting up a
fire walled sort of arrangement or structure; is that not
correct?
Mr. Fortuno. Yes. I think it is largely not an
issue of whether the work can be undertaken. It is an issue of
by whom and whether it is efficient.
Mr. Mollohan. Yes. Democracy and conflicting philosophies
sometimes are inefficient. We pay a price through the
inefficiency to accommodate all of those interests and to
achieve the consensus goal, which Mr. Wolf represents, of
getting funding for LSC up. So those are the choices sometimes
we have to make.

GOVERNANCE AND MANAGEMENT

I would like to try to update the record with regard to the
governance and management issues that GAO raised. First of all,
let me compliment you on working on them.
I understood that it was represented here last year that
everything was okay. But I learned this year that perhaps, and
maybe it is a technicality, while significant progress has been
made, all of these issues have not been completed.
So just one more time for the record, if you will: Could
you clarify for us how many of the GAO recommendations you have
completed, how many have already been submitted to GAO for
final review, and how many might be outstanding?
Mr. Fortuno. I believe there were two in recent
years, two GAO reports. The first was on governance. The second
was on grants oversight. I think we had a total of 17--if I'm
not mistaken, 17 recommendations of which nine have been
fully--the Corporation has accepted all of them--the
recommendations as to nine have been fully implemented.
What remains is the other eight now. My understanding is
that as to three of those eight, it is a matter of whether
sufficient documentation is available so that the Corporation
is confident that the documentation that is being made
available will satisfy the GAO. That at least those three have
also been fully implemented, which would take us to 12.
Leaving five yet to be implemented. They revolve around
things like oversight of management processes. So what is
happening is at the April board of directors meeting, one of
the items that is going to be taken up is how to do that. We
have a part-time board that meets four to six times a year.
So how do they accomplish this oversight of management
processes--whether they delegate that to a committee, whether
someone on that committee spends a couple of days at the
corporation every six months or so, whether they hire a
consultant? Whatever the process may be, that is what will be
discussed by the board in April.
So steps are being taken to implement the remaining
recommendations. As I said, nine of the seventeen. GAO, in
fact, has already testified before our Senate Subcommittee, the
Judiciary Committee, that they have been implemented. And that
we have made real progress. And that we are on the road to
resolving the others.
In addition to those nine, we think we have another three
done for a total of twelve. And then what remains are five,
which we are still working on.
Mr. Mollohan. Do you have an estimate of when you might be
finished implementing?
Mr. Fortuno. I don't know that----
Mr. Constance. All will be done this year.
Mr. Fortuno. I think we are confident that----
Mr. Mollohan. This calendar year, fiscal year?
Mr. Fortuno. Calendar year.
Mr. Mollohan. Okay. Understand that these questions are in
the spirit of trying to get these things off the table, so we
take away any criticisms of those who might be less supportive
of the program.
Mr. Fortuno. And I might add that the
recommendations have been taken very seriously. It is not just
paying lip service.
You know, examples the board--GAO recommended the adoption
of specific charters, something more substantial than in fact
was in place up until then. The board has done that and, in
fact, started looking at whether things like the requirement of
an audit committee. The board established an audit committee,
which it didn't have heretofore. And is actually looking at
whether that is advisable in the context of our grantees and
has had some discussion about that.
So clearly the recommendations made by GAO have not only
been accepted but have been embraced. And in addition to
implementing them for LSC, LSC is looking at how else they can
be of value and used, because I think LSC's experience has been
that those were good, helpful recommendations.
Mr. Mollohan. Okay. Can you formally respond to the
separate allegations that were made in the Washington Times
last summer about improper expenditures by grantees? Have you
finished your investigations? Do you have recommendations?
Mr. Fortuno. That may be. If I am not mistaken,
that is probably what has sometimes been referred to as the
natural stone on one of our grantees building.
A grantee in Texas built an office. And there was some
imported natural stone that was used. The matter was
investigated by our OIG. They reported to management.
Management initiated--questioned cost proceedings. In fact,
succeeded in having--the program agreed, I should say, to
having the cost of that born by some other source so that no
LSC funds were used.
In fact, it is actually an example of how the system works
and can work, which is as you might expect. We are all human,
and we are talking about a lot of people in the program. On
occasion mistakes in judgement are made.
We like to think that we have a system in place that will
help not just deter but when mistakes in judgement occur,
identify them and then trigger the system as it did in this
case. And ultimately what happened was no LSC funds went into
the purchase of that stone that was used on the exterior of the
building.
That is the one I can think of from last summer. I am not
sure if there is another.
Mr. Constance. We can respond on the record for the rest.
Mr. Fortuno. We would be happy to respond.
[The information follows:]

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Mr. Mollohan. That is fine. Respond for the record.
Mr. Fortuno. Yes.
Mr. Mollohan. Yes. Do you feel scrutinized?
Mr. Fortuno. No. I think it is appropriate.
Mr. Mollohan. I didn't say it was inappropriate. I said do
you feel scrutinized?
Mr. Fortuno. Yes. But I would expect no less.
Mr. Wolf. Thank you, Mr. Chairman.
Before I get into a couple of questions, and my good friend
Mr. Fattah, I just want to kind of respond back. I am from
Philadelphia. You are from Philly. I was out there with some
constituents.
Mr. Fortuno. Yes. I was with a Legal Services
program, an LSC funded program in Philadelphia and then with
the DA's office back when----
Mr. Wolf. Where in Philadelphia?
Mr. Fortuno. Where in Philadelphia? I lived in
Center City. I am originally from New York. I was born and
raised in Hell's Kitchen. But I spent my first seven-eight
years practicing law in Philadelphia.
Mr. Wolf. I was born in South Philadelphia and raised in
South Philadelphia.
Mr. Fortuno. I know South Philly well.
Mr. Wolf. But the comment that Mr. Fattah made, what I was
inferring to was the report today and not inferring that Legal
Services was involved in that.
But there was the comment that the person who was
representing Osama bin Laden's driver was working in the
Justice Department. And 35 of the top 50 law firms in the
country have done pro bono work representing Guantanamo Bay
people. And I would be interested if you would, for the record,
let me know if these 50 law firms are also participating in the
Legal Services. So if we could get that answer.
[The information follows:]

Pro Bono Work by Firms Who Represented Guantanamo Bay Detainees

LSC does not have any information on the national law firms who
have represented Guantanamo detainees and if they have also done pro
bono work at LSC grantees. While many LSC grantees have relationships
with large law firms in their state to encourage private attorney
assistance, we do not know whether they have also represented detainees
at Guantanamo.

The other question that he was raising about not being
afraid, and I feel an obligation on behalf of the families,
there were 30 people from my District who died in the attack on
9/11.
In 1998, I had come back from Algeria where 175,000 people
were killed. And I introduced a bill to create the National
Commission on Terror. Both sides of the aisle ridiculed me, my
side and the other side.
I said when I introduced the bill that Osama bin Laden
lived in Sudan where I had been a number of times for five
years. In the end we passed the bill. It was the Bremer
Commission. And both the Bush Administration ignored the
recommendations, as did the Clinton Administration.
No one is afraid of this trial. The reasons the concern
about--particularly many of the families who have lost loved
ones is they see the cost of trying Khalid Sheikh Mohammed in
New York City would be roughly a billion dollars. The City of
New York was asking for $206 million a year.
And Moussaoui was tried, if you recall--the 20th hijacker
was tried in Alexandria. Tried before there was the Patent
Trademark Office, before there was the hotel across the street,
before the condominium, and it tied up the area. He was there
for four and a half years.
So if Khalid Sheikh Mohammed is in New York City for four
and a half years, the cost would be over a billion dollars.
Secondly, Khalid Sheikh Mohammed is not an American
citizen. If you are in the military, as you know, and you do
something wrong, you go through the military system. I think to
give Khalid Sheikh Mohammed greater rights than we give an
American man or woman who serves in the military is wrong.
Thirdly, he acknowledged that Khalid Sheikh Mohammed
beheaded Daniel Pearl. I mean, does anyone care about the pain
and agony of Daniel Pearl's wife and his family? He has
acknowledged too that he was the mastermind of the 9/11, which
resulted in death for a number of people from my area.
Fourth, no one is afraid of course. But Sheikh Rahman, who
was convicted for the 1993 World Trade Center attack, was
sending things out through his lawyer if you recall. And she
was later prosecuted. Also incarcerate terrorists stabbed
Officer Pepe in the eye. And there are many other
ramifications. And if you talk to people who were guards down
in Guantanamo Bay, they wear a blank name tag over their name
tags so their names are not there. And so the ramifications,
and then you can take it into traffic and take it into many
other areas.
So I have the bill in the House; Lindsay Graham has it in
the Senate. There are Democratic members on the bill that I
have that says basically do not try him in a civilian court.
Try him in a military court, either in Guantanamo Bay or a
military base in a remote area somewhere in the United States.
I just felt an obligation to kind of put that into
perspective. And also lastly, to think of the pain, and the
suffering, and the agony of those policemen. My dad was a
Philadelphia policemen, the policemen, the firemen, Deborah
Burlingame who is the sister of a fellow from my District who
was the pilot of the airplane that went into the Pentagon. And
the hurt and the pain that they have gone through. I wanted to
put it into context of what my concerns are.

WORKING WITH BAR ASSOCIATIONS

The two questions in addition to the list of the top 50
firms, there are two questions. I will ask them together. One,
when you are paying your bar dues, does any of that go to Legal
Services? I think that would be a very appropriate thing. I pay
my bar dues. I am not practicing, but I have kept a portion of
it. Does any of that go?
Secondly, I had a bill in that gives a tax credit for
doctors who participate in helping people who don't have
healthcare. We have some free clinics in my area. We encourage
doctors to come in. And so we put it in such a way that if you
are a doctor and you participate in the free clinic, you will
get a tax credit because your time, and as a lawyer your time
is valuable.
And so the two questions are, one, has that ever been
looked at with regard to a tax credit for a lawyer or an
individual who participates and gives his or her time. Although
fitting it to the IRS regulations that obviously that they
have.
And secondly, does any of the money that goes into the bar
dues, for instance, when you pay into the D.C. Bar or the
Virginia Bar, whatever bar it is, is there any that goes to
Legal Services?
Mr. Fortuno. I can maybe take that in reverse
order. Whether the tax credit approach has been explored, not
to my knowledge. Although I like the idea and--certainly keep
lawyers in mind when exploring that kind of approach.
As to the bar dues, obviously that is a matter of local
control, and it can vary. It does vary from state to state and
the purposes to which they put the dues. In some instances, it
is to the regulation of the lawyers in that jurisdiction. But
whether any portion of dues goes to Legal Services, I don't
know that there is a specific set-aside.
Although in some instances they do have--the Bar
Association may have a foundation which provides funding. We
certainly do receive funding from the organized bar. There has
been a significant drop this past year along with all the other
sources of non-LSC funding. There has been a significant drop
in contributions from the Bar.
But whether any given state devotes any of the revenue
received from bar dues to Legal Services would be a matter of
local control.
Mr. Strickland. Let me comment. May I comment on that also,
Mr. Wolf?
In many states, as you know, you have what is called a
mandatory bar and Georgia being one of those states. And there
was a case coming out of California known generally as the
Keller case, having to do with what you can do with dues
derived from a mandatory bar. For example, you can't do any
legislative lobbying with mandatory bar dues.
I say that just to comment on your question. There are some
limitations on what can be done with mandatory bar dues.
Mr. Wolf. Could there be a possibility of in the Bar
Associations of having a check that you can add $5.00, $10.00,
whatever the case may be, to Legal Services?
Mr. Strickland. We had an experience on that in Georgia. We
had both good and bad results. But I need to tell the whole
story.
One year the Board of Governors, on which I have served for
25 years, voted to do a checkoff such as you are describing for
the Georgia Legal Services Program. And it generated $800,000.
So the following year--but it did so at the expense of another
checkoff program for the legislative fund.
As I said a moment ago, you can't use mandatory bar dues
for legislative lobbying. Well the following year, a proposal
came before the Board of Governors to flip that. In other
words, it was such an overwhelming success and at the same time
a penalty if you will to the legislative work.
I thought it was really a sorry day for the Board of
Governors for the State Bar of Georgia, which voted exactly
that way. In my view, in favor of legislative lobbying and to
the detriment of the following years raise for Georgia Legal
Services.
I don't remember the precise numbers. I do remember the
800,000 number, because it was more than twice as much as had
ever been raised for Georgia Legal Services in a fundraising
effort as opposed to a dues checkoff.
So that has been--I don't want to leave you with a
completely negative impression of the State Bar of Georgia.
However, there is a Bar Foundation, as Mr. Fortuno
mentioned, that people do contribute do on a voluntary basis
that generated probably in the neighborhood of a half million
dollars a year for direct allocation to Legal Services in our
state.
Mr. Wolf. Well I think it would be a good idea. My sense is
that if perhaps we could approach, you know, maybe the
different Bar Associations to see if you could do a pilot
program that way, because there are many attorneys. I think it
is sort of never asked. I am not really quite sure what way to
go. But if given the opportunity, they may very well be anxious
to participate.
And you would like the idea with regard to the tax credit?
Is that what you were saying?
Mr. Strickland. I think that is a real interesting concept
that we should look into.
Mr. Fortuno. I think both are good ideas. You
know, there are any number of others. I know I have always been
particularly partial to, although I am not sure how well it
would be received, to a set-aside from punitive damages. You
know, that is sometimes done at the federal level or the state
level by state law. I don't think it exists at the federal
level. But I have always been interested in that. Although it
is not something we have formally explored, and it may not have
anything to offer.
Mr. Wolf. Well, let us look at these, and we will see. And,
again, thank you.
Mr. Mollohan. Okay. Thank you, Mr. Wolf.
Mr. Strickland. One more thing for the record----
Mr. Mollohan. Yes, sir.
Mr. Strickland [continuing]. On my comments on the State
Bar of Georgia.
Mr. Wolf. You are running for presidency of that Bar.
Mr. Mollohan. We are moving up to votes.
Mr. Strickland. Okay, I'm sorry. I was just going to say my
law firm stopped contributing to the legislative program. That
is all. Thank you.
Mr. Mollohan. Okay. That is commendable.
Mr. Schiff.
Mr. Schiff. Thank you, Mr. Chairman.
A couple of questions. But I, you know, want to put one
last coat on the private funds, state funds, issue. And that is
express the view of my constituents in California who put up
half the funds for LSC. We are big supporters of LSC.
You know, our constituents of California don't support the
restrictions. They can't understand the restrictions on the use
of federal funds. It is a national body. They can understand a
national Congress deciding on how federal funds ought to be
used. But they have a very difficult time understanding why the
Congress is deciding how they should do state funds or how that
is somehow to their advantage.
And as you point out, and as they have pointed out to me
repeatedly, it has a real effect on their fundraising,
notwithstanding the separate entities that have been set up.
They have a lot of donors who will not give to them because of
the restrictions. So I do want to take the opportunity to let
you know how my constituents feel about it.
And I think the idea of looking for other sources of
revenue that are more stable is a good one. I don't know
whether the bar dues or a checkoff is. I have some experience
with that as well and see the feast or famine quality of the
checkoff.
But the IOLTA funds I know are running very low because of
interest rates, and that is not ideal either. I was curious
about how the IOLTA fund provision was established. Is that a
state by state thing, or is that a--it is a state by state
thing. I see some nodding heads.
I don't know if there is a mechanism like that, which has
been a relatively consistent source of funding, just not in a
consistent amount. If there is something--a mechanism like that
that might have a more consistent revenue stream.

CONFIRMATION OF A NEW BOARD OF DIRECTORS

I would like to get your thoughts on that. And the only
other question I had was on the board itself, through your
testimony, written testimony, I gather there is still eight
nominees that are sort of in the wings? And I am curious to how
long they have been waiting for confirmation, and how you are
handling that when you have sort of a current board and a
shadow board. I know you have been doing orientations. But are
they more involved in the decision making than just sort of
being kept in the loop?
Mr. Strickland. One of the nominees for the new board was
seated in July to fill a vacancy, so Laurie Mikva of Chicago is
already serving on the board. Leaving five Democrat nominees
who have--my understanding is have cleared the committee. Three
of the five Republican nominees are before the committee but
are not out of the committee at this point. And that leaves two
Republican nominees who have not yet been announced.
But in response to your question about involvement,
thinking back to my own time as a nominee, I don't mean this
critically, but we didn't really have any orientation. We were
nominees for a year. I don't know that we were controversial. I
think there was some disagreement on some of the other
nominees. So until we were all together as a group, no one was
confirmed.
By contrast, early on I made a direct contact with a member
of the group of nominees who may well be the next board
chairman to talk about a transition. And that led to the
orientation program that you heard described a few moments ago
in January. And we have immediately and continuously invited
the nominees to attend our meetings. And they do have to do
that as observers however.
So far though we have had I think a very good working
relationship with the group of nominees that have already been
identified.

IOLTA FUNDING

Mr. Schiff. Thank you. Any other thoughts? I don't know if
there is a way to--within IOLTA to float as a percentage of--
well to float with interest rates in a way that keeps it a more
consistent source of funds or whether there are other
mechanisms like IOLTA that would be a better candidate.
Mr. Fortuno. We do work with the local--with the
State IOLTA commissions and the national body. So there is a
flow of information back and forth. And certainly we would like
to have a more consistent revenue streams, so that it is not as
dependent on interest rates.
But, unfortunately, it is the interest on lawyer's trust
accounts. So long as we are talking interest rates, they are
going to fluctuate.
Mr. Schiff. I wonder though. I mean, this may not be
workable at all. But you could have a situation where when
interest rates go above a certain point, that a, for lack of a
better term, rainy day fund is created.
Mr. Fortuno. In fact, they do have reserves,
which is why the--in 2008--in part in 2008 we didn't feel as
big a pinch. I think that the reserves were tapped. And now
what concerns us is that not only are the rates down, but the
reserves have been depleted.
But they do establish reserves so that when they need to
tap into them, those rainy day funds are available.
Mr. Schiff. Thank you, Mr. Chairman.
Mr. Mollohan. Thank you, Mr. Schiff.
Gentlemen, thank you very much for your testimony here
today. I am going to submit a few questions for the record.
There may be some questions other members might wish to submit
for the record.
I would like to get some cost effectiveness information in
the record justifying Legal Services in economic terms. I think
you probably can address that effectively.
I want to thank you very much for your appearance here
today, for the expertise, for the time that you have given the
program.
And, Mr. Strickland, if you are not going to be here next
year, we very much appreciate your service.
Mr. Strickland. This may very well be my final appearance
before your Committee. Thank you very much, Mr. Chairman.
Mr. Mollohan. Thank you.
Hearing is adjourned.

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W I T N E S S E S

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Page
Fortuno, V. M.......................................... 653
Glover, Phil..................................................... 529
Holder, Hon. E. H., Jr........................................... 1
Lappin, H. G..................................................... 361
Lowry, Bryan..................................................... 529
Melson, Kenneth.................................................. 273
Mueller, Robert.................................................. 185
Robinson, Laurie................................................. 567
Strickland, F. B................................................. 653

I N D E X

----------

Department of Justice FY2011 Budget Overview
Witness: Eric H. Holder, Jr., Attorney General of the United States

2010 Census...................................................... 35
Adam Walsh Act..................................................57, 117
Balancing Security and Justice in Terrorism Trials............... 39
Budget Request for Holding Civilian Terrorist Trials............. 17
Civilian Terrorism Trials........................................ 26
Delays in the Implementation of the Prison Rape Elimination Act..23, 44
Disposition of Guantanamo Detainees.............................. 13
DNA Analysis Backlog............................................. 27
Drug Court....................................................... 98
Drug, Mental Health and Problem-Solving Courts................... 126
Firearms Trafficking and Related Violence........................ 38
Gangs...........................................................94, 111
Guantanamo as a Recruiting Tool..................................41, 45
Guantanamo Detainee Review Task Force............................ 120
Guantanamo....................................................... 100
Hate Crimes against Immigrants................................... 53
Holding 9/11 Trials in New York City............................. 51
Human Rights Watch Report on Prison Rape......................... 59
Immigration Case Reviews......................................... 37
Intellectual Property Enforcement................................ 88
Interrogation of Abdulmutallab...............................42, 54, 58
Interrogation Policy............................................. 102
John Adams Project............................................... 22
Legal Technicalities in Terrorism Trials......................... 59
Letters from Ranking Member Wolf to Attorne132, 136, 146, 147, 150, 152
Letters from Ranking Member Wolf to Attorney General Holder,
continued................................154, 158, 159, 163, 164, 165
Letters from Ranking Member Wolf to Attorney General Holder,
continued................................168, 172, 175, 176, 178, 180
Letters from Ranking Member Wolf to Attorney General Holder,
continued....................................................181, 183
Medical Marijuana................................................ 121
Mexican Firearms Trafficking..................................... 46
Opening Statement of Chairman Mollohan........................... 1
Opening Statement of Mr. Wolf.................................... 3
Past Provision of Miranda Warnings to Terrorist Suspects......... 46
Potential Trial of Osama Bin Laden............................... 43
Previous Terrorist Trials in Civilian Court...................... 56
Prosecutions of Human Rights Violators........................... 43
Protection of National Security Information in Civilian Trials... 32
Questions for the Record, Chairman Alan Mollohan................. 64
Questions for the Record, Ranking Member Frank R. Wolf........... 100
Questions for the Record, Representative Adam Schiff............. 88
Questions for the Record, Representative C.A. ``Dutch''
Ruppersberger.................................................. 91
Questions for the Record, Representative Jerry Lewis............. 126
Questions for the Record, Representative Robert B. Aderholt...... 128
Reinstituting the 9/11 Commission................................ 20
Resources for Indian Country..................................... 36
Rights Afforded to Defendants in Civilian Trials................. 29
Rights of Detainees in Civilian Trials, Continued................ 40
State Criminal Alien Assistance Program (SCAAP).................. 126
Statement of Eric H. Holder, Jr., Attorney General of the United
States......................................................... 6
TARP and Stimulus Fraud.......................................... 119
Testimony of Attorney General Holder............................. 3
The High Value Detainee Interrogation Group...................... 21
Trials of the 9/11 Perpetrators.................................. 18
Use of Civilian Trials as a Tool in the War on Terrorism......... 49
Use of the Civilian Trial System To Reinforce the Rule of Law.... 33
White Collar Crime............................................... 56

Federal Bureau of Investigation
Director Robert S. Mueller

Answer on Fix for the DNA Technical Review Problem............... 231
Article by Michael B. Mukasey.................................... 213
Big Budget Numbers............................................... 219
Civilian Trials for Terrorism Suspects........................... 228
Comparison of Agent Coverage in Indian Country to Coverage in
Comparability-Sized Rural Areas................................ 235
Comparison of Agent Coverage in Indian Country to Coverage in
Comparability-Sized Crime Rates................................ 236
Development of the National Security Branch...................... 219
DNA and Fingerprint Analysis..................................... 229
Firearms Trafficking............................................. 244
Follow-up on the Robert Hanssen Case............................. 244
Gang Enforcement................................................. 240
Hate Crimes Enforcement.......................................... 225
High-Value Detainee Interrogation Group.......................... 262
Homegrown Terrorists............................................. 221
Interrogation of Terrorism Suspects in the U.S................... 205
Jurisdictional Issues Between FBI and DHS........................ 220
Lab-Wide Average Evidence Processing Turnaround Time............. 237
Law Enforcement in Indian Country................................ 233
Legat Program/Overseas Presence.................................. 271
License Plate on Car Driven by Consular Employee Murdered in
Juarez......................................................... 241
New Agents Visiting the Holocaust Museum......................... 223
Official Response on why the Indian Country Agents are Being
Funded Though BIA.............................................. 237
Opening Statement of Chairman Mollohan........................... 185
Opening Statement of Mr. Wolf.................................... 187
Oral Remarks of Director Mueller................................. 187
Overseas Contingency Operations.................................. 268
Progress in Responding to IG Report on Hanssen Follow-up......... 245
Questions for the Record, Chairman Alan Mollohan................. 246
Questions for the Record, Ranking Member Frank R. Wolf........... 262
Questions for the Record, Representative Adam Schiff............. 259
Records Management............................................... 272
Recruitment in Diverse Communities............................... 226
Sentinel.......................................................238, 267
Statement of Robert S. Mueller, III.............................. 190
Terrorism Interrogations, Continued.............................. 227
Terrorist Radicalization......................................... 241
Threats from Gangs............................................... 222
Training......................................................... 269
Trends in the Level and Types of Crimes Committed in Indian
Country........................................................ 234
Update on DNA Backlog............................................ 232
Views on the Child Protection Improvement Act.................... 231
Violent Crime/Gangs.............................................. 264
White Collar Crime............................................... 224

Bureau of Alcohol, Tobacco, Firearms, and Explosives
Witness: Kenneth Melson, Deputy Director, Bureau of Alcohol, Tobacco,
Firearms, and Explosives

Anti-Gang Coordination........................................... 299
ATF Activities in Iraq and Afghanistan........................... 300
ATF/FBI Explosives Enforcement Efforts........................... 301
ATF'S ETRACE System.............................................. 301
Ballistics Information........................................... 344
Biography of Kenneth E. Melson................................... 283
Coordination with FBI on Explosives Investigations............... 343
Emergency Support Function #13................................... 302
Gangs--Violent Crime Impact Teams (VCIT)......................... 336
Gun Dealer Compliance............................................ 287
International Nexus to Gangs..................................... 291
Introductory Remarks by Mr. Culberson............................ 274
Opening Remarks of Deputy Director Melson........................ 274
Opening Statement of Chairman Mollohan........................... 273
Project Gunrunner..............................................284, 328
Questions for the Record, Chairman Alan Mollohan................. 308
Questions for the Record, Representative Adam Schiff............. 316
Questions for the Record, Representative Frank R. Wolf........... 328
Questions for the Record, Representative Mike Honda.............. 324
Questions for the Record, Representative Robert B. Aderholt...... 348
Recovery Act Expenditures per Project Gunrunner.................. 304
Regulatory Backlog............................................... 297
Spanish ETRACE................................................... 295
Statement of Kenneth E. Melson................................... 277
Violent Crime Impact Teams....................................... 290

Bureau of Prisons FY2011 Budget Overview
Witness: Harley G. Lappin, Director, Bureau of Prisons

Anti-Craving Medication.......................................... 431
Budget Gaps...................................................... 420
Classification/Segregating Groups of Inmates..................... 412
Counterterrorism...............................................396, 510
Crowding/Inmate-to-Staff Ratios...........................385, 508, 515
Federal Prison Industries (FPI).................................. 407
Federal Prison Industries (FPI).................................. 415
Federal Prison Industries (FPI)................................424, 517
Federal Prison Industries........................................ 395
Future Prison Changes..........................................410, 516
FY 2011 Budget................................................... 387
Gangs..........................................................397, 511
GAO Review of BOP's Budgeting.................................... 386
Guantanamo Bay................................................... 427
Incarcerated Women............................................... 414
Inmate Assaults on Staff......................................... 425
Inmate Assaults on Staff......................................... 430
Inmate Per Capita................................................ 409
Inmate Population Increases...................................... 383
Life Sentences................................................... 409
Modernization and Repair (M&R)................................... 421
Modernization and Repair......................................... 521
Need for New Prison Beds......................................... 423
Non-Returnable Criminal Aliens................................... 398
Non-U.S. Citizens................................................ 409
Opening Remarks.................................................. 361
Opening Statement................................................ 362
Prison Industries Enhancement.................................... 425
Prison Population Increases...................................... 414
Prison Radicalization............................................ 397
Prison Rape Elimination Act (PREA)............................... 399
Questions for the Record, Chairman Alan Mollohan................. 433
Questions for the Record, Ranking Member Frank R. Wolf........... 510
Questions for the Record, Representative C.A. ``Dutch''
Rupperseberger................................................. 508
Questions for the Record, Representative Robert B. Aderholt...... 523
Re-entry Programs..............................................408, 519
Sexual Abuse of Inmates.......................................... 426
Special Management Units (SMUS).................................. 429
Staffing......................................................... 388
State and Local Prison Populations............................... 394
Statement of Harley G. Lappin, Director of Federal Bureau of
Prisons........................................................ 365
Thomson Facility...............................................426, 512
U.S. Budget and State and Local.................................. 394
Veterans......................................................... 413

American Federation of Government Employees--Council of Prison Locals
Witnesses: Bryan Lowry, President, Council of Prison Locals, AFGE, AFL-
CIO; Phil Glover, National Legislative Coordinator Council of Prison
Locals, AFGE, AFL-CIO

Biography of Bryan Lowry, President of AFL-CIO................... 549
Biography of Philip W. Glover, Legislative Director of AFL-CIO... 550
Drug Treatment................................................... 564
Emails of Inmates................................................ 565
Gangs............................................................ 557
Monitoring of Inmates Communications............................. 565
Opening Statement of Chairman Mollohan........................... 529
Opening Statement of the Witnesses............................... 529
Overcrowding..................................................... 562
Radicalization of Inmates........................................ 558
Rape in Prisons.................................................. 558
Reentry and Restitution.......................................... 557
Staffing Levels.................................................. 552
Statements of Bryan Lowry, President and Phil Glover, Legislative
Coordinator of AFL-CIO......................................... 531
Violence in Prisons.............................................. 559
Work Opportunities for Inmates................................... 556

Office of Justice Programs (OJP) FY 2011 Budget
Witness: Hon. Laurie Robinson, Assistant Attorney General

Comprehensive Planning........................................... 597
Diagnostic Center................................................ 588
DNA Rape Kit Backlog in Los Angeles.............................. 596
Drug, Mental Health and Problem-Solving Courts................... 602
Evidence-Based Approaches........................................ 586
Evidence-Based Solutions......................................... 590
FY 2011 Budget Request........................................... 568
FY 2011 Budget Request........................................... 569
Gangs and Youth Violence Prevention.............................. 647
Hope Program..................................................... 597
Human Trafficking..............................................593, 645
ICACS............................................................ 609
Intellectual Property Enforcement................................ 605
Justice Reinvestment Program..................................... 603
Prescription and Drug Monitoring................................. 603
Prison Rape Elimination/Prosecution Program....................591, 642
Program Cuts and Eliminations.................................... 591
Questions for the Record, Chairman Alan Mollohan................. 612
Questions for the Record, Ranking Member Frank R. Wolf........... 641
Questions for the Record, Representative Jo Bonner............... 651
Reauthorization of Cops and OJJDP................................ 605
Recidivism and Prisoner Reentry.................................. 599
Regional Information Sharing Systems (RISS) Program.............. 641
Second Chance Act................................................ 649
Sex Offender Registration Notification Act....................... 608
State Criminal Alien Assistance Program (SCAAP).................. 650
Statement of Hon. Laurie Robinson, Assistant Attorney General.... 570
The Purpose of Justice Grants.................................... 586
Tribal Grants.................................................... 606
What Works Clearinghouse......................................... 589
Work Programs in Prisons......................................... 600

Legal Services Corporation
Witnesses: Victor M. Fortuno, LSC Interim President and
General Counsel; Frank B. Strickland, Chairman, LSC Board of Directors

Activities of Affiliate Organization............................. 692
Basic Field Grants............................................... 711
Confirmation of a New Board of Directors......................... 702
Foreclosure Crisis/Unemployment.................................. 713
Governance and Management........................................ 693
IOLTA Funding..................................................702, 711
Management and Administration of Programs........................ 686
Opening Remarks.................................................. 653
Private Attorney Involvement..................................... 674
Questions for the Record, Chairman Alan Mollohan................. 704
Questions for the Record, Ranking Member Frank R. Wolf........... 711
Statement of LSC Board Chairman Frank Strickland................. 654
Statement of LSC Interim President Victor Fortuno...... 662
Technology Initiative Grants Program............................. 712
Trends in Federal and Non-Federal Support........................ 687
Updating the Justice Gap Report.................................. 672
Working with Bar Associations.................................... 699