[Senate Hearing 111-]
[From the U.S. Government Publishing Office]
COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS FOR
FISCAL YEAR 2011
----------
THURSDAY, MAY 6, 2010
U.S. Senate,
Subcommittee of the Committee on Appropriations,
Washington, DC.
The subcommittee met at 10:17 a.m., in room SD-192, Dirksen
Senate Office Building, Hon. Barbara A. Mikulski (chairwoman)
presiding.
Present: Senators Mikulski, Leahy, Feinstein, Lautenberg,
and Murkowski.
DEPARTMENT OF JUSTICE
Attorney General
STATEMENT OF HON. ERIC H. HOLDER, JR., ATTORNEY GENERAL
OPENING STATEMENT OF SENATOR BARBARA A. MIKULSKI
Senator Mikulski. Good morning, everybody.
This is the Commerce, Justice and Science Subcommittee on
Appropriations and we will come to order. Today, we review the
budget for the Department of Justice and take testimony from
the very able Attorney General Eric Holder. After Mr. Holder
completes his remarks and we have our questioning, we will also
hear from the Inspector General Glenn Fine. As everyone knows,
it is the practice now of this subcommittee at every hearing to
listen to the Inspector General.
I want to note the fact that though Senator Shelby is not
here, it is because the Banking Committee is deliberating the
financial service reform on the floor. Because he is the
ranking member, he is required to be there. With unanimous
consent, we will put the Shelby statement into the record.
[The statement follows:]
Prepared Statement of Senator Richard C. Shelby
Thank you, Madam Chairwoman. And thank you, Attorney General
Holder, for joining us to discuss the Department of Justice and its
fiscal year 2011 budget request.
First, I want to recognize and extend my appreciation and support
to the men and women of the Department of Justice who protect this
country from crime and terrorism. We owe them all a debt of gratitude.
The fiscal year 2011 budget request for the Department of Justice
is $29 billion. This is a $1.5 billion, or 5 percent increase, over the
fiscal year 2010 request. Via the Second Chance Act, the Department of
Justice is requesting $140 million to educate and mentor terrorists,
pedophiles and career criminals--while requesting minimal funds for
reducing the DNA backlog and tracking the monsters that abducted and
sexually assaulted Adam Walsh, Elizabeth Smart, Dru Sjodin, Polly
Klaas, Jessica Lunsford, and others like them.
Minimal progress has been made in funding and implementing the Adam
Walsh Act and a long term and efficient plan for reducing the DNA
backlog by increasing public crime lab capacity is nonexistent.
How can we look into the eyes of the parents of these children and
tell them DOJ and the administration are prioritizing criminals' re-
entry into society over funding the Adam Walsh Act?
In a perfect world flush with resources I would be supportive of
funding the Second Chance Act, but the very idea of taking money from
victims and law enforcement officers to educate and comfort terrorists,
pedophiles, and career criminals is once again, an abomination.
General Holder, on March 6 of this year, President Obama appeared
on the 1,000th episode of America's Most Wanted and told John Walsh,
``We're going to do everything in our power, as long as I'm in the
White House and as long as I'm the father of two girls, to make sure
that we're providing the States the support they need to make this
happen.''
The President went on to tell Mr. Walsh that the White House had
increased the number of Deputy U.S. Marshals dedicated to Adam Walsh
cases from 300 to 400, increased AWA funding by 23 percent, and how
important it is for the administration to build up the Marshals Service
as it was something we want to do in our Federal budget.
I regret to say that the President misinformed John Walsh. In
reality, the Marshals Service will have a total of 177 operational and
support personnel solely dedicated to Adam Walsh Act enforcement in
fiscal year 2010, which is the most they've ever had. This
subcommittee, not the White House, added the 105 dedicated personnel
that the president credited himself with.
In addition to the 177 personnel, 237 Marshals Service
investigators support Walsh Act implementation on a collateral basis.
This means Walsh activities are only a portion of their many duties as
they are also responsible for protecting judges, tracking down non-sex
crime fugitives, and transporting prisoners. In my 6 years of being on
this subcommittee, the administration has never requested an increase
for the Marshals Service purely dedicated to this mission.
In 2008, Senator Mikulski and I included the first ever funding of
$17 million for Adam Walsh enforcement in a war supplemental funding
bill. In 2009, we increased this funding by another $5 million. In
2010, the President simply requested funding to keep Deputy Marshals on
board, with no increase. We said that is not good enough, and provided
a $27.5 million increase above the President's extremely modest request
of $15 million in 2010. The President has not requested an increase for
Adam Walsh Act enforcement, but instead is taking credit where the
Congress saw the need and provided the resources. I would hope that the
White House would correct the record and take the initiative to provide
more funding for the Marshals Service to protect children from
predators, instead of taking credit for the job Congress has done. I
would suspect Mr. Walsh hasn't heard a word from anyone in the
administration since the President used him for lip service and
airtime.
One issue it seems that both the Department and the subcommittee
agree on is the importance of the National Center for Missing and
Exploited Children (NCMEC) and their continuing leadership in combating
the exploitation of children. DOJ continues to support NCMEC thru the
Missing Children grants we have appropriated and, by all accounts,
there continues to be a strong and unique partnership serving the
interests of our most innocent victims of crime. I am concerned,
however, that the administration's budget reduces the Missing
Children's account--the pool from which NCMEC and other child safety
nonprofits must compete--by $10 million. I hope we can work together to
increase that level of funding to insure that NCMEC receives the
continued support it needs and that we are able to also help others in
this area. We should be growing the pie for helping organizations that
combat missing and exploited children rather than shrinking it.
The President also told John Walsh he wanted to provide support to
State and local officials for DNA testing because they are strapped for
some of the basic resources. Saying, ``that we're going to get support,
bipartisan support from Congress on this issue, because it's so
important to every family across America and there are just too many
horror stories reminding us that we're not doing enough.''
Mr. Attorney General, I would first start this initiative by having
senior program managers at the National Institute of Justice who are
responsible for DNA solicitations and being accessible to State and
local crime labs to show up for work more than 3 days a week. I would
also direct NIJ to stop writing grant solicitations catering to their
for-profit DNA vendor friends that have had carte blanche access to NIJ
for too long. DOJ should be more diligent in ensuring that components
serving State and local law enforcement agencies have representatives
that are accessible and accountable to the State and local labs they
are entrusted to support.
Our Government forensic labs need to continue to build their
capacity to adequately serve the justice system, and have used NIJ
funding to make great strides in decreasing backlogs. I know that in my
State, the Alabama Department of Forensic Sciences has continued to
make it a focus of theirs to build capacity in an effort to ensure
backlogs don't recur once they're addressed--and they have been very
successful. They have erased the backlogs in drug chemistry and
toxicology analyses, and consistently reduced the DNA backlog, even as
they have expanded their services. By building their capacity,
Government labs can process cases efficiently, expand their services,
and start to test evidence from unsolved petty and property crimes, as
ours has in Alabama.
Recently in my hometown of Tuscaloosa, a cold case violent sexual
predator was identified almost 20 years later as a rapist of a
University of Alabama graduate student. This case would never have been
solved without DNA and a dedicated lab which focused on building their
capacity to efficiently analyze unsolved cold cases. The long term
solution to forensic backlogs is building capacity for Government labs
and not in the continual outsourcing to private companies who incite
victims and victims groups and mislead law enforcement agencies, for
the sake of a profit.
The perceived atmosphere of cronyism with private vender labs at
NIJ is retaliatory and do as I say. If State and local crime labs
disagree with NIJ on DNA policy, they should not be fearful of
retaliatory actions by NIJ because they expressed their expert
opinions. I have expressed this sentiment before to you and the
previous administration about this unethical behavior yet no concrete
actions to address this injustice have occurred. The culture of NIJ
succumbing to influence and policy suggestions by for-profit labs began
almost a decade ago with NIJ employees wanting to graduate into the
private sector to double and triple their salaries. Evidence quality is
paramount in forensics and the highest quality work is done in
Government labs.
Continual outsourcing to private labs creates a residual holding
pattern. While the seemingly quick fixes of loosening DNA technical
review standards and private labs having access to the DNA database
sounds like a quick fix to the backlog solution, the long term results
could be detrimental to the integrity of cases, the database and the
welfare of victims and law enforcement. NIJ funding should be focused
on building the capacity of Government labs to address the current
backlogs, and more importantly, to provide the Government lab with the
infrastructure to insure these backlogs don't recur. NIJ should not be
focused on providing a bailout or setting up a welfare system for the
private DNA labs at the taxpayer's expense.
Lastly about DNA, I wrote a letter to the FBI director expressing
concern about undue pressure being put on the FBI to change existing
DNA policy, citing correspondence from private vendor labs. I am told
that as recently as this week, a Member of Congress mentioned multiple
times by the DNA vendor in that correspondence, threatened to change
the FBI's DNA policy by legislation if the FBI didn't do so on their
own.
Mr. Attorney General, for the sake of the integrity of the criminal
justice system and the Department of Justice, it would behoove you to
heed the concerns and needs State and local crime lab directors who are
actual DNA experts--not Members of Congress, their staff, for-profit
DNA company sales executives, lobbyists, former NIJ employees, movies
stars, and group advocates who have no DNA training or experience. The
President's fiscal year 2011 budget fails to fund the critical needs
that the Attorney General identified and requested funding for in his
request to the Office of Management and Budget during the budget
process.
For example, the budget proposes over $300 million in enhancements
for national security--but that amount is substantially less than the
$478 million the Department requested from OMB. In fact, OMB initially
recommended only $173 million for national security, a mere 36 percent
of the Department's request.
When Director Mueller of the Federal Bureau of Investigation
testified 3 weeks ago, he verified that the President's fiscal year
2011 budget would cut their terrorism fighting capabilities. For every
new dollar proposed by the White House for the FBI to fight terrorists,
$6 of current counterterrorism fighting capability are cut.
Additionally, the White House does not believe the assessment of
its own Department of Homeland Security that terrorist use of
improvised explosive devices--IEDs--remains the greatest threat to the
United States. If the White House believed that assessment, it would
not have proposed to cancel $99 million Congress appropriated to the
FBI for the construction of necessary facilities to forensically and
technically exploit IEDs and terrorist bomb-making materials.
Terrorist use of explosive devices continues to be a key threat to
the United States. In just the past few months, we have seen an attempt
to blow up a Northwest Airlines flight, a plot to blow up bombs in New
York City subways, and plots to blow up Federal buildings in Texas and
Illinois. This past weekend alone in New York's Time Square
demonstrates terrorists' abilities to use explosive devices in major
metropolitan U.S. cities. On an almost daily basis, we read about
terrorists and insurgents using improvised explosive devices to injure
and kill U.S. and coalition troops in Afghanistan and Iraq. Our
embassies and consulates in Pakistan, Yemen, and other countries have
been targeted by terrorist bombers.
As Director Mueller stated in a letter to you Mr. Attorney General,
dated December 2, 2009:
``The OMB recommendation does not recognize the value of biometric
information gleaned from recovered and seized IEDs and related
materials to the intelligence and homeland security communities. In one
recent instance, a TEDAC latent print examiner enhanced and then
searched a latent fingerprint initially developed by DOD examiners in
theater from an IED/weapons cache and determined the individual had
since been legally admitted to the United States. Previous searches of
the latent print image by DOD examiners failed to associate the print
with any individual. TEDAC is responsible for and uniquely positioned
to provide both tactical support to the war fighter and strategic
support to homeland security. Given the President's renewed commitment
to Afghanistan, it makes more sense to act to quickly establish a
permanent TEDAC facility that can serve as the hub for tactical in
theater forensic and technical exploitation capacity in support of the
war fighter and as a strategic homeland security resource to protect
against terrorist use of explosives at home''.
I believe the administration is putting you, Mr. Attorney General,
in a no-win situation, by having you defend their inept decision--a
decision made by non-accountable bureaucrats at OMB. I know that
cancelling TEDAC funding was not your decision. I also know that both
you, and Director Mueller, appealed that decision, yet the
administration cut the very funding that the FBI Director said he
believed was necessary to ensure that the FBI has the tools and the
facilities necessary to respond to the terrorist threat this Nation
faces. It is clear from the request that OMB is not relying on the
people who actually have to fight terrorism when it is making decisions
regarding the threat this country faces.
Today, the Quantico TEDAC is overwhelmed. For the 56,000 boxes of
IEDs and materials received since 2004, 37,000 are awaiting processing.
The FBI estimates that 86 percent of the backlog contains critical
information like biometric intelligence, fingerprints, DNA, and so
forth that would assist the U.S. military, the intelligence community,
and the Federal law enforcement in identifying terrorists.
The United States needs to prepare for this threat and the proposed
rescission of these funds only tells me--and this subcommittee--about
the lack of understanding by the administration of the terrorist
threat. While the administration may choose to look the other way
combating the terrorist explosives threat, we will not.
TEDAC would ensure that the tactical information and intelligence
gained from analysis of improvised explosive devices and the biometric
identification data obtained from fingerprints and DNA is shared with
U.S. intelligence, homeland security, and law enforcement agencies.
This funding would have mitigated the impacts of the TEDAC workload
on the FBI laboratory--both the workload of today and for future
conflicts. What we do know is that there is not enough capacity at the
current laboratory facility to support both the criminal functions of
the FBI lab and the TEDAC mission. As a result, turnaround times for
completing examinations have grown and more and more FBI field offices
are submitting evidence to State and local labs for processing.
The FBI laboratory should have the capacity needed to support its
traditional forensic mission in support of law enforcement and support
TEDAC. This is not a choice of doing one or the other; both must be
done.
The TEDAC forensic capability will satisfy the needs for an
enduring U.S. Government capability, as well as provide a ``surge''
capacity for the FBI laboratory in the event of a major domestic
incident or crime problem.
Finally, the TEDAC facility will also provide the FBI with a back-
up forensic capability in the event the Quantico facility is ever
rendered inoperable. The current FBI laboratory at Quantico is a single
point of failure within the FBI; there is no current back up location
to perform that critical work.
I believe the record shows that the proposal by OMB to cancel TEDAC
funding is unwise, and I think it is very ill-timed. The threat from
terrorist use of explosives is significant, real, and I believe
enduring.
Unfortunately national security and terrorism are not the only
areas where the President's budget fails the Department of Justice. The
Bureau of Prisons, through the Department, sought $875 million in
additional funding for prisons and incarceration. The President's
budget proposes $422 million but $237 million, not requested by the
Department but included in the OMB passback, was added to the
Department's budget to buy and renovate a prison in Illinois to
potentially house the terrorists currently incarcerated at the
perfectly functioning Guantanamo Bay Detention Facility.
Apparently, OMB believes over-paying the State of Illinois for a
vacant, decade-old, facility is a higher priority than providing the
FBI with the forensic and technical capabilities necessary to combat
terrorist use of explosives. If ever we needed an example of misguided
priorities, this ranks near the top of the list.
The administration would like communities to believe it is
committed to eliminating gangs and gang violence, yet OMB proposed
eliminating the FBI's National Gang Intelligence Center and reducing
the number of FBI Safe Streets task forces, DEA mobile enforcement
teams, ATF violent crime impact teams, and U.S. Marshals task forces
focusing on arresting fugitives.
At a time when drug cartels infiltrate the ranks of foreign law
enforcement--thus risking joint U.S. and foreign efforts to stem the
flow of drugs into our country--OMB even proposed reducing DEA's
program to vet and train foreign police officers so we have trusted
partners to work with overseas. I find this unconscionable, given the
current border violence in Mexico.
Thankfully, many of these misguided OMB proposals and suggestions
were successfully appealed by you Mr. Attorney General, and for that we
are all grateful, but, those proposals should never have been on the
table in the first place. OMB should rightfully be embarrassed to have
even put them forward.
Basically, the President's budget request for the Department of
Justice is lacking all of the critical needs that the Department
identified and proposed to OMB. I believe it is important and necessary
for the subcommittee to bring those unfilled needs from out of the
shadows and into the light. If we are to enact a budget that meets the
Department's critical requirements, we must be able to consider their
needs outside the President's budget. To do less would be a disservice
to our constituents and to the Department.
I will close with a further quote from the FBI Director that I
believe sums up this request accurately, ``At a time when the Nation
remains engaged in a long-term conflict with those who advocate the use
of terror against the United States, the OMB policy guidance and
funding recommendations for fiscal year 2011 simply do not make sense.
Even in a constrained budgetary environment, the administration must
ensure adequate funding for one of its most basic responsibilities--
that of protecting the country and its citizens from hostile attack.''
Our role is not to rubber stamp the President's budget--we did not
do that for President Bush and we will not do that for President Obama.
Given the tight budget situation we face, these budgets decisions will
not be an easy task. But, I believe the subcommittee is up to meeting
that challenge and I look forward to working with you Madam Chairwoman
to undo the damage done to the Department's budget by the bureaucrats
at OMB.
Senator Mikulski. We will ensure that Senator Shelby's
questions will be forwarded to you, Mr. Holder, and we will
protect all the rights that Senator Shelby has as the ranking
member.
This morning, we are going to discuss the Justice
Department's 2011 budget request, and we will be examining how
we strengthen national security, counterterrorism, and also
protect the safety and security of U.S. citizens and prudent
use of the taxpayers' dollars.
We welcome Mr. Holder, who brings the experience of a
career prosecutor, experience in the private sector, but also
he, himself, has worked diligently on the protection of the
public from terrorism and violent crime as an Assistant U.S.
Attorney.
I have three priorities that I will be examining with the
Justice Department today. No. 1, national security, which is
how the Department of Justice is keeping America safe; also,
community security, or what the Department of Justice is doing
to keep our communities safe from violent crime, gangs, and
drug dealers, and what the Department of Justice is doing to
keep our families safe, whether it is against mortgage fraud or
the despicable stalking of sexual predators.
As the Chair of the Commerce, Justice, and Science
Subcommittee, I want to make sure the Department of Justice has
what it needs to carry out its mission and its mandate to
protect the country from predatory attacks, whether they occur
by terrorists in Times Square or in our neighborhoods. And hey,
in Times Square, it was in both. We have worked to put dollars
in the Federal checkbook to be able to do that.
As we review President Obama's request, we note that the
request is for $29.2 billion, a $1.5 billion increase over the
2010 omnibus level. The five highlights of the budget include
safeguarding our Southwest border for $584 million. That is
pursuing and dismantling the drug cartels and the smuggling of
illegal narcotics, guns, and human beings.
The other is the funding for State and local law
enforcement, where we worry that the blue line is getting
thinner and needs all the help it can get in the local
communities, because all crime fighting begins with the locals.
And I must say, as we will be hearing about the Times
Square incident this morning, the fact that local vendors
cooperated--``see something, say something.'' Also, the New
York Police Department [NYPD] was right there on the job,
moving as swiftly as they could because they were there and
they had the right training and the right equipment and then
were backed up by Federal agents. It worked, I think, the way
it should, and we look forward to hearing about that.
But also there is the rise of white collar crime, and this
subcommittee believes that that crime, too, needs to be
followed through with investigation and prosecution and jail,
if necessary, particularly in the area of mortgage fraud and
the financial scheming and scams that goes on.
Last, but not at all least, we are here to also look out
for the civil rights of our people and that enforcement.
Previous administrations have cut funding for local law
enforcement by 50 percent. We don't want to do that. We want to
make sure that the crime rates don't rise. We want to get crime
rates down. We want to get unemployment rates down, and this
subcommittee wants to do its part.
This budget invests $3.4 billion in State and local and
tribal partners and looks forward to working with our local
communities. Last month, we heard about the partnership with
the FBI, and we reviewed this extensively with the FBI
Director. We believe those joint task forces, whether it is on
violent crime, terrorism, or mortgage fraud, are the way to go.
We look forward to your budget on that.
I know we have started late, and I just want to make one
other emphasis, which is on protecting women and children. We
really salute the Obama administration for increasing funds in
the Violence Against Women programs. We know that when the
hotline was created in the Judiciary Committee, and Senator
Leahy played such an important part in that, along with our
Vice President--we now know over 1 million women have called
that hotline, and they have either been saved from death or
danger. That is as important as standing sentry against any
other attack.
And the protection of children--as a former child abuse
social worker, there is nothing as vile as a crime against a
child. So we want to make sure we have the right resources for
you to be able to do the job.
There are other issues related to Guantanamo Bay, the
purchase of the Illinois prison, the detention of prisoners.
But we are fortunate this morning to also have the Chair of the
Judiciary Committee, and I know he will have his own particular
questions--he is someone who has been very vigorous in the area
of the Justice Department--Senator Leahy.
I am going to ask unanimous consent that my full statement
go into the record.
[The statement follows:]
Prepared Statement of Senator Barbara A. Mikulski
Good morning and welcome the fifth hearing of 2010 of the Commerce,
Justice and Science (CJS) Subcommittee. Today, the CJS Subcommittee
will continue our fiscal year 2011 oversight hearings by welcoming
Attorney General Eric Holder and Justice Inspector General Glenn Fine,
who will be speaking to the subcommittee a little later. Thank you both
for joining us today.
We have a very positive relationship with Attorney General Holder.
He brings to the Department the experience of a career prosecutor and
is dedicated to protecting the American public from terrorism and
violent crime.
Today, we will discuss how the Justice Department's fiscal year
2011 budget request strengthens national security and counterterrorism;
protects the safety, security and rights of U.S. citizens; and how the
Department ensures that it uses taxpayer dollars wisely.
As chairwoman, I have three priorities when examining the Justice
Department. The first is community security. What is the Department of
Justice doing to keep our families and communities safe? The second is
national security. How is the Justice Department keeping America safe?
And third are oversight and accountability. How is the Department of
Justice ensuring our tax dollars are spent wisely?
As chairwoman of CJS, I want to make sure that the Department of
Justice has what it needs to carry out its mission and mandate to
uphold the rule of law, and to protect this country from predatory
attacks by terrorists and in our neighborhoods. I have fought to put
dollars in the Federal checkbook to support the Department's efforts to
combat terrorism and violent crime. I also want to make sure that the
hard working, dedicated individuals who are responsible for carrying
out this mission have the resources and support they need.
The President's budget request for the Department of Justice in
fiscal year 2011 is $29.2 billion, a $1.5 billion, or 4.6 percent,
increase above the 2010 omnibus level. Highlights of this new budget
request include: $535 million to fight mortgage fraud and white collar
crime by targeting the scammers and schemers who prey on hard working,
middle class families; $3.4 billion to make sure State and local law
enforcement are not walking a thin blue line and have a full force to
fight violent crime and drug trafficking; $584 million to safeguard our
Southwest border by pursuing and dismantling drug cartels that smuggle
illegal narcotics, guns and humans along the border; $387 million to
tackle civil rights abuses and discrimination, and go after criminals
who are motivated by hatred and bigotry; and $1.7 billion to strengthen
national security and counter terrorism threats, which includes
stopping cyber crooks from hacking into U.S. networks and identifying,
tracking and defeating terrorist sleeper cells operating in the United
States and overseas.
We can't have strong, economically vibrant communities unless they
are safe. So I want to know how the Justice Department is protecting
Americans at home. The previous administration cut funding for local
law enforcement by 50 percent. Local communities were left scrambling
to fill public safety funding gaps, and crime rates began to rise for
the first time in 12 years.
This subcommittee and the current Justice Department have locked
arms to reinvest resources in our State, local and tribal partners, and
are committed to making sure violent crime rates drop. This budget
request invests $3.4 billion in our State, local and tribal partners.
It supports both proven and innovative crime prevention strategies that
help communities with police recruiting, hiring and training; task
forces to target drugs, gangs and violent crime; and to combat sexual
assault and violence against women. We need to make sure our police
have a full team to combat increased violence in communities so they
can target crime hot spots and focus on gangs, gun violence, assault
and drug rings.
I want to know if the fiscal year 2011 request is enough to protect
hard-working families and their homes against the outrageous predatory
practices and deceptive lending schemes that have swept across the
country. Last month we heard from FBI Director Robert Mueller, who
testified that during 2009 over 60,000 cases of mortgage fraud were
reported in the United States, nearly 10 times as many in 2002. During
that same period, financial institutions wrote off $500 billion in
losses because of fraud in the sub-prime mortgage industry. But the FBI
is not the only agency at Justice tackling these cases.
The Justice Department's fiscal year 2011 request has $535 million
to combat financial fraud, which is $97 million above the fiscal year
2010 level of $438 million. It provides funding to hire 143 new FBI
agents, 157 new attorneys and 45 new specialized staff to bring the
total number to over 2,000 agents, 2,600 attorneys and 150 specialized
support staff at the Justice Department dedicated to investigating and
prosecuting complex financial cases. I want to know how this funding
and coordination will better help law enforcement catch the scammers
who have caused Americans to lose their homes, life savings and
dignity.
Attorney General Holder, I know you are committed to keep children
safe from abuse, sexual predators and cyber stalkers. The Justice
Department's request of $336 million focuses resources of the Federal
Government on child predators like a laser to catch sexual deviants who
use the Internet to stalk children, break up child pornography and
prostitution rings, and track down, arrest and prosecute child
molesters.
However, the U.S. Marshals Service plays a critical part of the
Adam Walsh Act but received no additional funding in the fiscal year
2011 request for this purpose. The Marshals arrest the worst of the
worst sexual predators and track down over 100,000 unregistered
fugitive sex offenders. Last year, our subcommittee provided $72
million for the Marshals, which included $27.5 million to hire 150 new
Deputy U.S. Marshals to track down and arrest fugitive sex offenders. I
want to learn why the Department's fiscal year 2011 request does not
include additional funds for the Marshals Service to hire more deputies
for this work.
We are waging a global war on narcotics and violence on four
fronts: the U.S.-Mexico border, Afghanistan, Colombia and our own
neighborhoods. The most immediate danger is the drug gangs operating
along the U.S.-Mexico border. These gangs are fighting for control of
drug trafficking routes into the United States and now maintain drug
distribution networks in more than 230 cities in 45 States. Every day
we hear reports of deaths and violence seeping across the U.S. border
and spreading outward to the rest of the country. Last year, over 7,000
drug-related homicides occurred along the Southwest border.
The Justice Department's fiscal year 2011 request includes $584
million, a $122 million increase over fiscal year 2010 level of $462
million, to hire 29 new agents and 58 attorneys. These resources will
be used to target and dismantle drug cartels that smuggle illegal
narcotics, guns and humans along the border, and terrorize citizens and
neighborhoods with fear and intimidation. I want to know if the funds
requested are sufficient to support tough work of the DEA, ATF,
Marshals, FBI and Federal prosecutors in shutting down the flow of
firearms into Mexico and stop drugs coming into the United States from
Columbia and Mexico.
The major area of controversy in this budget request is how the
Department implements President Obama's plan to close down the
Guantanamo Bay detention facility and determine the fate of roughly 200
detainees currently held in U.S. military custody there. The fiscal
year 2011 budget includes two major requests for post-Guantanamo
activities: $73 million for security costs to hold civilian trials on
U.S. soil for the five detainees who are proposed to be tried in
Federal courts; and $237 million to buy, renovate and open a prison
facility in Thomson, Illinois, which President Obama has designated as
the preferred location to house detainees. It is worth noting, however,
that Congress will first have to change restrictions to allow detainees
to be transferred for detention.
I want to know how the Justice Department will address the
additional risk for these high threat trials on U.S. soil and what
unique costs are associated. Are these costs sufficient to keep
communities safe wherever trials are held? And I want to know more
about the Department's plans for the Thomson prison, even if Congress
does not make changes to allow detainees to be housed there.
Finally, I want to know how the Justice Department is improving
accountability of taxpayer dollars so that every dollar spent to secure
our communities is a dollar well spent. Both Senator Shelby and I have
required that the Justice Department have internal checks to combat
waste, fraud and abuse by prohibiting funds for lavish banquets,
controlling cost overruns and requiring the Inspector General to do
random audits of grantees. I want to know what steps you have taken to
put these guidelines into practice to restore fiscal responsibility and
accountability. As chairwoman of CJS, it is my responsibility to act as
a good steward of taxpayer dollars. Spending excesses will not be
tolerated.
Given all of the Justice Department's important roles and
responsibilities, we must ensure that it has the resources it needs to
protect the lives of 300 million Americans. But we also want to make
sure that the Justice Department is a good steward of taxpayer dollars
and that every dollar we spend to keep our Nation safe is a dollar well
spent.
Attorney General Holder, I thank you for your leadership and I look
forward to continuing our work together to make a safer, stronger
America.
Senator Mikulski. And I would like to turn to the Attorney
General.
STATEMENT OF HON. ERIC H. HOLDER, JR.
Attorney General Holder. Well, good morning, Chairwoman
Mikulski, Senator Leahy, Senator Lautenberg.
Thank you for this opportunity to discuss the President's
fiscal year 2011 budget for the Department of Justice and to
provide an update on the Department's progress, its key
priorities, and also our future plans. I appreciate your
recognition of the Department's critical mission, and I look
forward to your continued partnership and support.
When I appeared before this subcommittee last May, I set
forth several goals for the Department--to protect our Nation's
security, to reinvigorate the Department's traditional
missions, and to restore integrity and transparency at every
level of the Department's work. I also pledged that under my
leadership, all decisions and policies would be based on the
facts, the law, and the best interests of the American people,
regardless of political pressures or political consequences.
Almost 1 year later, I am pleased to report that the
Department has made, I believe, historic progress in meeting
these goals. Although new challenges and demands have emerged,
the thousands of men and women who serve the Department have
advanced efforts to protect our country, to enforce our laws in
a nonpartisan manner, to defend our interests in court, and to
ensure the strength and the fairness of our justice system.
The President's fiscal year 2011 budget request for the
Department of Justice, which totals, as you said, $29 billion
and includes $2 billion in program enhancements, will enable
the Department to build on the progress that has been achieved
over the last 15 months.
Now during this time, we have enhanced our national
security programs and capabilities. We have strengthened
efforts to support our most vulnerable communities, safeguard
civil rights in our workplaces, housing markets, voting booths,
our border areas, and also to protect our environment.
In light of last week's oil spill in the Gulf of Mexico, I
want to note that the Justice Department stands ready to
vigorously enforce the laws that protect the people who work
and reside near the gulf, the local wildlife, the environment,
and the American taxpayers. I recently dispatched a team of
attorneys to New Orleans to monitor the oil spill, and the
Department will continue to provide critical legal advice and
support for the agencies that are involved in the Federal
response.
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. And in collaboration with
the Department of Health and Human Services, we have made
meaningful progress in combating and deterring healthcare fraud
through the Healthcare Fraud Prevention and Enforcement Action
Teams, also called the HEAT teams.
Through this initiative, we have brought the full resources
of our agencies to bear against individuals and corporations
who illegally divert taxpayer resources for their own profits.
Just last week, this work resulted in a $520 million
settlement, the largest-ever amount paid by a company in a
civil-only settlement of off-label pharmaceutical marketing
claims. And over the past 15 months, the Justice Department has
recouped more than $2.8 billion in healthcare fraud cases
through the use of the False Claims Act, money that will be fed
back into the Federal coffers.
Now, the President's budget request will enable the
Department to build on these achievements and to continue
making progress in meeting its responsibilities. 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 and transparency, just as we have in
managing the billions of dollars that have recently been
recovered.
The investments requested in the President's budget would
allow us to continue aggressively pursuing and prosecuting
financial and healthcare fraud; to expand the Community
Oriented Policing Services hiring program, the COPS program; to
reduce violent crime and drug trafficking; to assist our State
and local and tribal law enforcement partners; to ensure that
detention programs are adequately funded and that effective
prison and jail reentry programs are available; to protect
civil rights; to combat international organized crime; and to
enforce immigration laws.
Now, as you all know, the Department is currently working
with agencies across the Federal Government and with Congress
to support comprehensive immigration reform in a way that keeps
faith, as President Obama has said, with our heritage as both a
Nation of immigrants and a Nation of laws.
The budget would also allow the Department to strengthen
its critical national security work. As you have seen, $300
million in program increases have been requested 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 repeatedly in
identifying and averting nascent plots. On Monday, Faisal
Shahzad, a naturalized United States citizen born in Pakistan,
was arrested in connection with his alleged role in last
Saturday's attempted car bombing in Times Square. On Tuesday,
he was charged with acts of terrorism transcending national
boundaries, attempted use of a weapon of mass destruction, and
other Federal crimes. If convicted, he faces a potential life
sentence in prison.
During ongoing questioning by Federal agents, Shahzad has
provided useful information, and we will continue to pursue a
number of leads as we gather intelligence relating to this
attempted attack. Although this car bomb failed to properly
detonate, this plot was yet another reminder that terrorists
are still plotting to kill Americans.
In February, Najibullah Zazi, a key participant in the plot
to bomb New York City's subway system, pleaded guilty to
terrorism violations. Less than 2 weeks ago, we secured another
guilty plea from one of Zazi's co-conspirators and revealed the
role of senior Al-Qaeda leaders in ordering the plot. Three
others have also been charged as a result of our investigation.
These attempted attacks are stark reminders of the threats
that we face as a Nation and that we must confront. For the
Department of Justice and our partners in the national security
community, there is simply no higher priority than disrupting
potential attacks and bringing those who plot them to justice.
In the Shahzad and Zazi cases, that is exactly what the
dedicated Federal agents, law enforcement officers, and Justice
Department prosecutors, along with their State and local
partners, and particularly the NYPD, what we achieved through
exemplary investigative efforts. It is in America's best
interest to ensure that these public servants have the
resources necessary to continue their outstanding work.
In this time of unprecedented challenges and new threats
and ongoing war, your support will be critical in helping the
Department meet its goals and our obligations. As we move
forward, I look forward to working with all of you as well.
Once again, I thank you for inviting me here today, and I
am now happy to answer any questions that you might have.
[The statement follows:]
Prepared Statement of Hon. Eric H. Holder, Jr.
Good morning Chairwoman Mikulski, Ranking Member Shelby, and
members of the subcommittee. Thank you for the opportunity to meet with
you today to discuss the President's fiscal year 2011 budget for the
U.S. Department of Justice (Department) and the Department's key
priorities. I appreciate your recognition of the Department's mission,
and I look forward to your continued support of the important work that
we do.
When I appeared before this subcommittee last May, I set forth
several goals for the Department: to protect the security of the
American people, restore the integrity of the Department of Justice,
and reinvigorate the Department's traditional missions. Most
importantly, I made a commitment to make decisions based on the facts
and the law, regardless of politics.
Almost 1 year later, I'm pleased to report that we are on the right
path to achieving these goals. Although unprecedented challenges and
new demands have emerged, the Department remains committed to the
promises that I made to this subcommittee and to the American people.
The President's fiscal year 2011 budget request for the Department
of Justice, which totals $29.2 billion and includes $2 billion in
program enhancements, will enable the Department to continue its
progress in fulfilling our key objectives. The budget provides the
Department with the resources necessary to protect our national
security, bolster our traditional missions, and prevent and reduce
crime in tandem with our State, local, tribal and community partners.
These investments would support and enhance the Department's essential
national security and counterintelligence programs, our vigorous
efforts to prevent, investigate and prosecute financial, mortgage and
healthcare fraud, and our prosecutor-led, intelligence-driven strategy
to protect our Southwest border.
The budget would also provide funding for an expansion of the
Community Oriented Policing Services (COPS) hiring program and
resources for the Department's efforts to ensure that prison and
detention programs are adequately funded and effective prisoner re-
entry programs are available.
STRENGTHEN NATIONAL SECURITY
The budget requests $300.6 million in program increases to help
strengthen national security and counter the threat of terrorism. The
request includes $219.3 million in increases for the FBI and $7.8
million in increases for the National Security Division (NSD).
We are working day and night to protect the American people. Due to
the vigilance of Department of Justice professionals, working in
partnership with other law enforcement and intelligence agencies, we
have uncovered and averted a number of serious threats to domestic and
international security. Recent arrests in New York, Chicago,
Springfield, Dallas and Philadelphia are evidence of our success in
identifying nascent plots and stopping would-be attackers before they
strike.
One of the most serious terrorist threats to our Nation since
September 11, 2001, was the attempted attack by Najibullah Zazi, who
recently pled guilty to three criminal charges in connection with a
plan to bomb New York City's subway system in September 2009. In
addition to Zazi, four others have been charged in connection with this
plot. This attempted attack on our homeland was real, it was in motion,
and it would have been deadly. Because of careful analysis by our
intelligence agents and prompt actions by law enforcement, we were able
to thwart this potentially devastating plot.
AGGRESSIVE PURSUIT OF FINANCIAL FRAUD
As we reinvigorate our traditional law enforcement mission, the
Department has placed a distinct focus on financial crimes. The Justice
Department is engaged in an aggressive effort to combat financial fraud
and market manipulation. The President's fiscal year 2011 budget
requests an increase of $234.6 million to restore confidence in our
markets, protect the Federal treasury and defend the interests of the
U.S. Government.
In addition, the Department of Health and Human Services (HHS)
requests an increase of $60.2 million specifically for DOJ components
involved in the investigation and litigation of healthcare fraud cases.
This increase will further the efforts of the Health Care Fraud
Prevention and Enforcement Action Team (HEAT) initiative.
The budget request would improve the Department's ability to
collect debts, enforce tax laws and prosecute fraud and will maximize
the benefits of the Federal Government's investment of resources
through the American Recovery and Reinvestment Act of 2009. It would
also continue to enhance the Department's efforts to help protect
American savers and investors, the national financial market, and the
U.S. Treasury.
REDUCE VIOLENT CRIME AND DRUG TRAFFICKING
Violent crime and drug trafficking continue to demand a significant
Federal response. Although violent crime has not increased in recent
years, the share of crimes that require Federal resources continues to
grow as regional street gangs increase their involvement with national
and international gangs and drug trafficking organizations. The
Department requires significant resources to meet these challenges
through its prosecutor-led, intelligence-driven strategy to address the
interrelated threats of violent crime and drug trafficking. This budget
requests an increase of $121.9 million to reduce the threat, incidence
and prevalence of violent crime and drug trafficking. For fiscal year
2011, a total of approximately $5 billion is dedicated to target these
problems, including $1 billion for Federal law enforcement to help
address violent crime and $4 billion for Federal drug enforcement and
prosecution efforts.
We remain committed to eliminating the threat posed by Mexican drug
cartels plaguing our Southwest border and will continue to coordinate
with the Department of Homeland Security and international, Federal,
State and local agencies to ensure that we effectively and efficiently
reduce the influence and violence of these cartels.
In addition, this budget supports several programs in place to
protect the Southwest border, including a significant expansion of and
investment in the Organized Crime Drug Enforcement Task Force program,
which is a centerpiece of the Department's drug enforcement and
counternarcotics efforts. The budget includes resources for Project
Gunrunner, the Bureau of Alcohol, Tobacco, Firearms and Explosives'
(ATF) Southwest Border Firearms Trafficking Enforcement program, as
well as forensic support for law enforcement activities in tribal
communities. Further, the budget will expand operational capabilities
at the Drug Enforcement Administration's (DEA) multi-agency El Paso
Intelligence Center (EPIC) by enlarging the facility to accommodate
additional participating agency personnel and by improving intelligence
exploitation abilities along the Southwest border.
In addition, resources to assist DOJ's State, local and tribal law
enforcement partners combat violent crime and drugs are requested
within the Department's grant programs.
ASSIST STATE, LOCAL AND TRIBAL LAW ENFORCEMENT
The budget requests a $722.5 million increase for State, local and
tribal law enforcement assistance programs, bringing total grant
program funding to $3.4 billion. The Department continues to maintain
key partnerships with State, local and tribal officials and community
members. These partnerships include the COPS hiring grant program,
which enables State, local and tribal police agencies to increase the
number of officers available to advance community policing, with a goal
to prevent and reduce crime. In addition, many grant programs are
provided through the Office on Violence Against Women (OVW), such as
the Sexual Assault Services program and the Legal Assistance for
Victims program, which provide communities with the opportunity to
combat sexual assault and other forms of violence against women.
Several new programs are requested in fiscal year 2011 for the
Office of Justice Programs (OJP), including the new Byrne Criminal
Justice Innovation program, smart policing, and smart probation
initiatives. The budget includes funding to continue the implementation
of the Adam Walsh Act of 2006, which established national standards for
sex offender registration and notification. Resources are also
requested to assist children exposed to violence, as well as
enhancements to expand criminal justice research and statistical data
gathering efforts.
PROTECT CIVIL RIGHTS
Throughout its history, the Department of Justice has helped
safeguard the civil rights of all Americans by targeting discrimination
through investigation, litigation, outreach, technical assistance and
training efforts, and by providing guidance to Federal, State, local
and tribal agencies. The President and I have recommitted the
Department to performing this historic role. In fiscal year 2011, we
will build on the progress made in fiscal year 2010 to restore the
Department's unparalleled role in protecting civil and constitutional
rights.
The fiscal year 2011 budget requests an increase of $19.8 million
to protect civil rights and vulnerable populations. This increase will
allow the Department to strengthen its focus on enforcing fair lending
and housing laws, preventing employment discrimination, protecting
voting rights, and prosecuting hate crimes. It will also expand
resources for protecting children from exploitation, tracking convicted
sex offenders, recovering missing and abducted children, and combating
human trafficking and sex tourism.
COMBAT INTERNATIONAL ORGANIZED CRIME
International organized crime poses unprecedented threats to our
country's national and economic security. These threats include
attempts by organized criminals to exploit our energy and other
strategic sectors, support for terrorists and hostile governments,
orchestration of cyber and intellectual property crimes, and efforts to
manipulate our financial, securities, and commodities markets.
The budget includes $15 million in program increases that will
allow the Department of Justice to continue implementing the Law
Enforcement Strategy to Combat International Organized Crime (``IOC
Strategy''), which the Attorney General's Organized Crime Council
adopted in April 2008 to modernize law enforcement's approach to
international organized crime. This funding will support a unified
strategy to dismantle international crime organizations that have
become exponentially more sophisticated and provide for expansion of
the OCDETF Fusion Center to accommodate the International Organized
Crime Intelligence and Operations Center (IOC-2).
MAINTAIN PRISONS, DETENTION, PAROLE AND JUDICIAL AND COURTHOUSE
SECURITY
As a result of successful law enforcement policies, the number of
criminal suspects appearing in Federal court continues to grow, as does
the number of individuals ordered detained and ultimately incarcerated.
The budget requests $527.5 million in program increases that will allow
the Bureau of Prisons (BOP), Office of the Federal Detention Trustee
(OFDT), U.S. Parole Commission (USPC) and U.S. Marshals Service (USMS)
to continue to protect society by confining offenders in the controlled
environments of prisons and contract- or community-based facilities as
well as by offering self-improvement opportunities to offenders that
will assist them in becoming law-abiding citizens and reduce the
likelihood of recidivism. Additional resources are also requested to
acquire and activate high- and medium-security beds to manage the most
challenging inmates in our custody.
The BOP operates 115 Federal prisons and contracts for low security
prison beds to confine more than 215,000 inmates in fiscal year 2010;
BOP projects that the Federal prison population will increase by
approximately 7,000 inmates in fiscal year 2011. Therefore, program
enhancements included in the fiscal year 2011 budget provide $523.2
million in new program funding to support increases in BOP and OFDT
operations. These additional funds will allow OFDT in particular to
support an average daily detention population of approximately 62,100,
to increase detention bed space in the Southwest border region, and for
increased prisoner transportation and medical costs associated with the
rise in average daily detention population.
In addition, these program enhancements increase funding to support
Second Chance Act initiatives and re-entry programs, including expanded
re-entry transitional housing, BOP inmate correctional programs, and
the District of Columbia Recidivism Reduction and Re-entry Enhancement,
a new program that will be implemented by the USPC in fiscal year 2011.
Finally, resources are requested to enhance the law enforcement
efforts of the USMS, primarily its Special Operations Group (SOG),
which supports USMS and other agencies with a rapidly deployable force
of tactically trained officers. SOG provides tactical support for any
incident involving the judiciary, district operations and witness
security operations. The President's budget also annualizes into the
USMS base additional positions approved in fiscal year 2009 (201
positions) and fiscal year 2010 (700 positions) to support immigration
enforcement, particularly along the Southwest border. The positions
will also be used to expand Adam Walsh Act enforcement.
ENFORCE IMMIGRATION LAWS
The Department maintains substantial responsibilities with respect
to immigration, including enforcement, detention, judicial functions,
administrative hearings and litigation, among others. The Department's
Executive Office for Immigration Review (EOIR) serves as the front-line
presence nationwide in immigration matters overseeing the immigration
court and appeals process.
In recent years, however, the Department's resource enhancements
have not kept pace with those received by the various immigration
components of DHS. EOIR's immigration court caseload continues to
increase to unsustainable levels as a result of DHS' heightened
enforcement efforts. The caseload grew 30 percent between fiscal year
2004 and fiscal year 2009--from 300,000 to 390,000 new matters coming
to EOIR for resolution each year. The number of new cases is expected
to exceed 400,000 annually by 2011.
An additional $11 million requested in 2011 is therefore needed to
address the caseload increases emanating from DHS programs, including
the Secure Communities Initiative and the Criminal Alien Program. These
resources are necessary to improve the current immigration system and
to ensure that the Nation's approach to immigration enforcement is
balanced, reasonable, effective, and humane.
Similarly, the Civil Division's Office of Immigration Litigation
(OIL) also plays a crucial role in upholding the enforcement actions of
DHS and EOIR. OIL provides the Government with the best possible
defense in district court cases and challenges to removal orders filed
in circuit courts by illegal aliens, many of whom are criminals. As DHS
enforcement activities expand with the implementation of the Secure
Communities Initiative, OIL can expect aliens to continue to petition
their removal decisions in circuit courts. The fiscal year 2011 budget
maintains the current staffing levels for OIL.
ENSURE PUBLIC SAFETY IN TRIBAL COMMUNITIES
The Department of Justice is deeply committed to working with
tribal governments to improve public safety in tribal communities.
We are working to put resources in place quickly and efficiently to
help American Indian and Alaska Native communities help themselves. The
budget requests $448.8 million in total resources to assist tribal
communities. It maintains the increased number of Assistant U.S.
Attorneys in Indian Country that the Department is adding in 2010 as a
result of the support of members of this subcommittee. In addition, the
President's fiscal year 2011 budget includes funds (provided by the
Department of the Interior) for 45 new FBI agents to support law
enforcement efforts in Indian Country. The President's fiscal year 2011
budget provides $67 million under the COPS Office, $140.7 million under
the Office of Justice Programs, and $47.9 million under OVW for tribal
initiatives. Within this amount, the President's budget includes a 7
percent set-aside--$42 million--from the COPS hiring program to support
the hiring of tribal law enforcement personnel; a 7 percent set-aside--
$139.5 million--from OJP for Indian Country efforts; and statutory set-
asides totaling $42.9 million for certain OVW programs. These set-
asides, combined with numerous Department of Justice programs designed
exclusively for tribal communities result in a total request of $255.6
million for Department of Justice grant programs in tribal communities.
There are over 56 million acres of Indian Country and more than 560
Federally-recognized Indian tribes. The Major Crimes Act provides
Federal criminal jurisdiction over certain specified major crimes if
the offender is Indian, while tribal courts retain jurisdiction for
conduct that might constitute a lesser offense. Federal investigation
and prosecution of felonies in Indian Country cannot be deferred to a
local jurisdiction and therefore Federal law enforcement is both the
first and only avenue of protection for the victims of these crimes.
CONCLUSION
Chairwoman Mikulski, Ranking Member Shelby, and members of the
subcommittee, I want to thank you for this opportunity to discuss the
Department's priorities and detail new investments sought for fiscal
year 2011.
Today I have highlighted critical areas that require attention and
resources so that the Department can fulfill its mission to enforce the
Nation's laws and protect our national security. I hope you will
support me in the execution of these worthy efforts. As always, we are
aware that there are tough decisions and challenges ahead, and I look
forward to working with you as we move forward.
Once again, thank you for inviting me here today. I am pleased to
answer any questions you might have.
Senator Mikulski. Thank you very much, Mr. Attorney
General.
We are going to proceed this morning in terms of arrival.
We also note the chair of the Judiciary Committee. I am going
to ask some questions and reserve my right for a second round
to be sure that members who have really demanding schedules
have their opportunity.
Obviously, the Times Square bombing attempt is in the news.
There are those who will raise issues related to the reading of
Miranda rights and so on. That is not my focus. My focus is the
questions to you related to the way it worked and the way you
feel you have the resources for it to continue to work.
As press accounts report, vendors saw a smoking car. They
said something. NYPD arrived. They took the actions they were
supposed to. Then Federal officials came in. You can relay that
story.
My question to you is, is that the correct way? You can't
have an FBI agent on every corner, but you can have police
officers on many corners. First of all, I think it is amazing
that this man was apprehended in 53 hours and 24 minutes.
Attorney General Holder. Yes, that was.
Senator Mikulski. I think we really have to congratulate
law enforcement for that. The watch list is a different bag.
Talking to me about the watch list is like fingernails on a
blackboard. But let us talk about what our law enforcement did,
both State and local, up the chain, and then, what did it take
to do that? And do you have the resources to make sure, whether
it is in Los Angeles or Baltimore, et cetera, that we have
these security mechanisms and people?
Attorney General Holder. I think that the success of that
effort is a direct result of the joint efforts that we have
between the Federal Government and our State and local
partners. The work that the FBI did in New York with the New
York Police Department, as well as our counterparts at the
Department of Homeland Security--I think all of that combined
for making our attempts to disrupt that plan successful.
And that is why the budget focuses on getting money to
these joint terrorism task forces and getting money to our
State and local partners. I think what you said is exactly
right. We have to use our State and local counterparts as force
multipliers. They are the people who are going to be most
familiar with the communities in which they operate. There are
far more of them than there are Federal law enforcement
officials. And without their assistance, without their
partnership, we will not be as successful as we were in foiling
this plot.
COPS PROGRAM
Senator Mikulski. So what is it then, do you feel--do you
want to elaborate on your Community Oriented Policing Services
[COPS] program, your Edward Byrne Memorial State and Local Law
Enforcement Assistance Grant Program [Byrne grants]? Do you
feel that it is because of this? Or do you feel that police
departments, where there is high risk of threat, New York
obviously being one, L.A.--we know the list--Washington, DC,
that there needs to be specialized training? What do we need to
do, to put in the budget, so that we can deploy people in
communities and ensure that they have the right training and
the right equipment?
Attorney General Holder. Well, I think we have to----
Senator Mikulski. Because it is just not putting somebody
in a uniform on the street. It is like boots on the ground in
urban neighborhoods. They have to be trained and equipped.
Attorney General Holder. Right. There are a number of
steps. We have to certainly first support the hiring of State
and local law enforcement officials. For the COPS hiring
program, we have a fiscal year 2011 request for $600 million.
That is up $297 million from this year. So that is the first
step, to get these people on the force.
But the point you make is an excellent one--that simply
having them there is not sufficient. They have to be adequately
trained. They are interacting with their Federal counterparts
in these joint terrorism task forces. The training
opportunities that we can make available, and the knowledge
that we can glean from them in the interaction that we have
during training, are invaluable.
We have built upon the $1 billion that was in the Recovery
Act that was dedicated to the COPS program to try to make sure
that we have a constant level of support for our State and
local partners, both in terms of hiring, and with regard to the
specialized training that is needed in dealing with these
terrorism cases.
Senator Mikulski. Aren't you cutting the COPS program by
$100 million in the President's request?
Attorney General Holder. I am not----
Senator Mikulski. The fiscal 2011 budget request provides
for $690 million. In 2010, there were $792 million. Mr. Holder,
why don't you check that out with your team?
Because I know this subcommittee--on a bipartisan effort,
if there is one thing we really do support it is the COPS
program and the Byrne grants. I think, as we look at the
Justice Department, that is where everyone is on either side of
the aisle, because every community needs it. Why don't we take
a look at that and see and come back to it?
Attorney General Holder. Yes. The numbers that I have show
us increasing the amount pretty substantially from about $298
million to $600 million in terms of COPS money, COPS hiring.
Again, as I said, that is built on top of the $1 billion in
money that was dedicated from the Recovery Act.
But we will certainly work through those numbers and share
them with you.
[The information follows:]
The COPS fiscal year 2010 enacted budget includes four programs
(Sex Offender Management Assistance, the National Sex Offender
Registry, the Bulletproof Vest Program, and the DNA Backlog Program)
administered by the Office of Justice Programs (OJP) that are being
requested under OJP's appropriation in fiscal year 2011. If the amounts
requested for these four programs totaling $186 million are added to
the $690 million requested for COPS in the fiscal year 2011 President's
budget, it results in an adjusted total of $876 million, or an increase
of $84 million above the fiscal year 2010 COPS enacted level. It is
important to make this comparison for the same array of programs to
appropriately evaluate the COPS fiscal year 2010 enacted budget versus
the fiscal year 2011 request.
Senator Mikulski. Right. Because I think the point that I
am making is, let us make certain that there is no reduction of
support for the COPS program and also for the Byrne grants,
which allows them to get what they need, depending on the needs
of the local communities.
But I want to be sure that we accommodate as many people as
we can. I will come back to my questions.
Senator Leahy, we are so glad to have the chair of the
Judiciary Committee here.
TIMES SQUARE BOMBING
Senator Leahy. Thank you. Thank you and I apologize that I
am going to have to leave because the committee is going to be
having a mark-up.
Attorney General, I called Commissioner Ray Kelly to
applaud the New York Police Department for their work on the
Times Square bombing, and I have spoken to you. I applaud you
and the Department of Justice and the FBI for what they have
done. It is one of those things where it is nice to see
everybody working together.
I should also applaud the citizens who--in this case, the
vendor--who saw something suspicious and reported it to the
police. The police reacted immediately, and we won't go into
all the things you were able to do in tracking phones and
everything else in this hearing. It was pretty remarkable to
see all the pieces come together.
I was rather surprised to hear Members of Congress
criticize law enforcement for doing what law enforcement has
always done since the Miranda decision came down in giving
Miranda warning to the suspect. Now the fact that you had to
give Miranda warnings, which is required, did that, in any way,
hinder your investigation?
Attorney General Holder. No, it did not. As we have seen in
prior investigations, the giving of Miranda warnings has not
deterred people from talking to us. And Mr. Shahzad is, in
fact, continuing to cooperate with us.
Senator Leahy. In fact, wouldn't it be safe to say--and you
can rely on your own experience as a prosecutor even before you
were Attorney General. Certainly, I rely on mine. Isn't it safe
to say that there are many, many, many cases where a person has
given a great deal of information about a crime they have
committed after they have been given the Miranda warning?
Attorney General Holder. That is absolutely correct. It is
not conferring a right on somebody or treating them in a
special way. It is allowing us to make sure that statements
that they give to us are going to be admissible in court.
If you look at what we have done in the recent past, the
following people have been given their Miranda warnings and
have, after that, continued to cooperate--David Headley,
Colleen LaRose, Jamie Paulin-Ramirez, Bryant Neal Vinas, Daniel
Boyd, Dylan Boyd, and Zakariya Boyd. Even after getting Miranda
warnings, Mr. Zazi and his co-conspirator, Umar Farouk
Abdulmutallab, ultimately cooperated. All of these people
received Miranda warnings and still ultimately decided to speak
with the Government.
Senator Leahy. Again, I can think back even to murder cases
where I prosecuted, and now you are dealing with far more
serious cases where, again, people are given a Miranda warning,
and they went ahead and gave the information. But you also have
then, as you said, the ability to use the statements in court.
Now since taking office, I believe, and Madam Chair,
wearing my hat as chair of the Judiciary Committee, I have seen
you use all the options available to try terrorist suspects,
including Federal criminal courts, military commissions. Since
September 11, there have been over 400 terrorism-related
convictions in Federal court. There are hundreds of terrorists
locked up in our prisons, over 400.
Now there have been three people convicted in military
commissions. I think the new manual for military commissions
was issued last week. Without putting words in your mouth, is
it safe to say that Federal courts know what they are doing
when they are handling these kinds of cases?
Attorney General Holder. I will use those words. We want to
make sure that we use all the tools that we have available to
us in trying to prosecute this war. If you were to take from us
the ability to use the Federal courts, you will weaken our
ability to win this war. You will weaken the strength of this
Nation.
We have to have the ability to use the Article III courts,
the reformed military commissions, our military power, and our
diplomatic power. We need to have all of these tools so that we
are successful in this fight against Al-Qaeda and others who
would do this Nation harm.
BP OIL SPILL
Senator Leahy. In an entirely different thing, in the wake
of the recent disastrous oil spill in the Gulf of Mexico, there
are reports that BP was requiring that fishermen who
volunteered to help clean up the spill to waive their right to
sue BP. These fishermen are out of work because of the BP
spill.
There are also reports that BP was offering settlements
capped at $5,000 to residents facing damage from the spill if
they give up their right to sue. These are people facing
financial ruin, a lifetime of building up their fishing
operations being wiped out. Are there ways the Government might
make the fishermen, the small business owners, the residents,
and other victims of the oil spill whole immediately, while
still holding those responsible for the spill, like BP and
Halliburton and what not, holding them ultimately liable?
Attorney General Holder. Well, that is one of the reasons
why I dispatched a task force of lawyers--the head of our Civil
Division, the head of our Environmental and Natural Resources
Division, along with other lawyers--to get down there to make
sure that we protect the Federal Government's rights with
regard to the costs that will potentially be incurred in this
cleanup and to make sure those costs are borne by BP. But also
to ensure that the residents in that area, the business people
in that area, maximize their opportunities for recovering
whatever monies they can. It is my understanding that BP has
backed off on that effort to get people to sign waivers, and I
think that is the appropriate thing to do. Trying to get people
to sign away their rights for a mere $5,000 when the damage
that they might have would far exceed that is clearly the wrong
thing to do.
Senator Leahy. Thank you very much.
Thank you, Madam Chair. And I apologize for having to
leave.
Senator Mikulski. I think we are very fortunate to have the
chair of the authorizing committee of Judiciary and the Intel
Committee here because of the work of the FBI, so much now
because of the anti-terrorism issues. And we are going to
really ask our two authorizing chairs to look at this budget,
and we welcome their advice and their insight as we put this
together.
Senator Lautenberg, you were the second to arrive.
Senator Lautenberg. Thank you, Madam Chairwoman.
Senator Mikulski. And then we will go to Senators Murkowski
and Feinstein.
Senator Lautenberg. Thank you, Madam Chairwoman.
And welcome, Attorney General Holder. I say thank you for
the leadership that you have provided to the AG's operation.
Everyone knows how energetic and positive your leadership has
been, and we are grateful to you.
One of the things that have happened in the world that we
live in now is with the internationalization of everything,
with the instant communications, electronic access to data has
changed the world. We are ever more threatened, in my view, by
terrorist attack, and confirmed by, though a bumbling one last
week, the fact of the matter is that--and it is posed as a
question as well as a statement. And that is, you know, the
State of New Jersey. You know it very well; it has a 2-mile
stretch from the airport to the harbor deemed to be the most
dangerous 2-mile stretch in the country as a target for
terrorist attacks.
And yet we are so lean. I wish we could be mean. But we are
lacking in resources. And the fact that we have an expansion of
the COPS program, Attorney General, is terrific. It is very
helpful to us. My State, like so many, is without--almost
without resources. In Atlantic City, New Jersey, a prominent
place, we dropped, terminated 59 cops, 59 cops out of the
police force, a huge number. And some part of that can be
redeemed by the COPS program that we have here, have seen here
today.
Mr. Holder, this suspect spent around 5 months recently in
Pakistan, came back, and talked about bomb making, training in
Waziristan. Were DOJ and FBI looking at this fellow at all
times prior to the attempted bombing?
TIMES SQUARE BOMBER
Attorney General Holder. This is an ongoing investigation
and we are in the process of looking at indices and files to
see exactly what we knew about this gentleman and when we knew
it. I am a little at a disadvantage, because this is an ongoing
investigation, and there are leads that we are still pursuing,
so I'm constrained from getting into too much detail about what
we know at this point. Some of that serves as the basis for
things that are in the process and that are ongoing.
But, in answer to your question, we are in the process of
trying to determine exactly what we knew about him and when.
Senator Lautenberg. Well, I want to get to a key issue as
far as my agenda is concerned, and I ask this. It was reported
that the Times Square bomber left a loaded handgun in his car
at JFK as he tried to make his escape. The State of Georgia,
the State legislature recently passed a bill that would allow
people to carry a loaded gun into an airport.
Do you support allowing people to carry loaded guns into an
American airport, this one happening to be the largest in the
world?
Attorney General Holder. We certainly have the Supreme
Court's decision in Heller that says that the Second Amendment
is an individual right. We have to respect the Supreme Court's
decision in that regard.
That doesn't mean, however, that that right is one that is
absolute, and we have to balance that individual right against
our collective security. And there has to be a way in which if
there is a tension, we try to resolve that tension.
The notion that people could bring guns to airports,
especially given the Al-Qaeda focus on the use of airplanes as
terrorist tools, is one that, to me, is very worrisome. I would
hope that we would try to keep guns away from the very
instruments that Al-Qaeda and other organizations successfully
used on September 11 and continue to try to use in the present,
and I suspect will seek to use in the future as well.
Senator Lautenberg. Mr. Holder, last month, John Bedell
wounded two Pentagon police officers before he was shot and
killed. At least one of the handguns was linked to a private
gun show sale.
I brought the legislation to the Senate when Vice President
Gore was in that position, and he broke a tie, 51-50, for us to
close the gun show loophole, to shut down these dealers that
don't have to ask your name, who you are, where you are,
anything. Would you recommend Congress acting to close the gun
show loophole once and for all?
FIREARM BACKGROUND CHECKS
Attorney General Holder. We are committed to keeping guns
out of the hands of people who should not have them. We know
that people who have access to these guns have committed any
manner of crimes. We have certainly seen a disproportionate
number of gun crimes in our inner cities and in other places,
the incident that you described being among them.
We want to make sure that we take advantage of the tools
and make sure that, as I said, we are keeping guns out of the
hands of people who should not have them.
Senator Lautenberg. Thank you for that ``yes'' answer.
I authored the juvenile mentoring program. It created one-
on-one mentoring for a modest cost for at-risk youth. During a
brief hiatus that I had away from the Senate, the program was
de-authorized. Now I plan to reintroduce that legislation for
authorization of this program in coming weeks.
Do you see any value to that program, to the mentoring? I
don't know how familiar you are with the results that we had in
terms of crime prevention and giving our youth an alternative
to gangs.
JUVENILE MENTORING
Attorney General Holder. That is exactly the approach that
we have to take. We have to understand that crime fighting
happens not only by police officers and by prosecutors. Crime
fighting happens in schools. It happens through mentoring.
There is a direct correlation between schools that work,
between mentoring efforts and between high levels of
employment. All those things counter crime and are good crime
fighting measures.
We have to get beyond the notion that crime fighting only
happens through people in uniform or through people who are
lawyers who act as prosecutors. We have look at the social
conditions that tend to breed crime, and if we want to keep the
crime rate down, we have to deal with those underlying social
conditions. Mentoring is one of the key ways in which you do
that.
I saw this when I was a judge here in the D.C. Superior
Court. There were too many young people, especially young men,
who came before me who had no man in their life. Women did a
great job in trying to raise these young guys, but I think that
mentoring, especially of young men, is a critical thing in our
successful crime fighting efforts.
Senator Lautenberg. Thank you.
Thank you, Madam Chairwoman.
Senator Mikulski. Thank you, Senator.
Next I will call on Senator Murkowski, and then Senator
Feinstein.
Senator Murkowski. Thank you, Madam Chairwoman. Thank you.
And welcome, Attorney General Holder.
Attorney General Holder. Good morning.
9TH CIRCUIT VACANCY
Senator Murkowski. Good morning to you. I have a question
for you about a vacancy that we are looking at in the 9th
Circuit. Andrew Kleinfeld, who has been Alaska's sole judge on
the 9th Circuit, has notified the President that he is going to
be retiring from active service in mid June, June 12.
Now, by my reading, that will place the 9th Circuit out of
compliance with the U.S. Code, 28 U.S.C. 44(c), which requires
that there shall be one circuit judge in regular active service
appointed from the residents of each State in a circuit. So my
question to you is whether or not you understand, as I do, that
this requirement under 28 U.S.C., that Judge Kleinfeld's seat
must, in fact, be filled by another resident of the State of
Alaska.
And if you agree with that, can you tell me how the process
to fill that vacancy is moving ahead?
Attorney General Holder. We are trying to fill vacancies
that exist in all of the circuit courts, as well as the
district courts, as quickly as we can, working with elected
officials in all of those States, including reaching across the
aisle to our Republican colleagues to get names of qualified
people. This President is committed to appointing and putting
on the bench qualified people who are non-ideological in their
views.
One of the things I will certainly look at, having just had
it brought to my attention, is that vacancy. We will interact
with you if there are suggestions that you have. The White
House counsel is chiefly responsible for the organization of
our effort on judicial nominations. The Justice Department
works with the White House counsel's office in vetting and
identifying possible candidates. We will do that as quickly as
we can to ensure we fill that seat as quickly as we can.
Senator Murkowski. Well, we appreciate the expediency. But
again, I just will remind you that that is the only seat that
is occupied by an Alaskan, and as I read the U.S. Code, it does
require that there be an appointment from the resident of each
State. So we would like to work with you on that not only
ensuring that it is filled quickly, but in consultation with
members of the Alaska delegation. We appreciate that.
We also have a U.S. district judge who has announced that
he is going to be taking senior status next year, and I will
assume, but I guess I should ask it by way of a question that
the administration's plan to consult with the Alaska delegation
will be very similar to what we are talking about with the 9th
Circuit vacancy?
Attorney General Holder. Yes. That is the way in which we
have operated. We have talked to the Senators in the States
where those vacancies have occurred. As I said, we have reached
across the aisle. We are always open to suggestions that
Senators have, be they Republican or Democrat, and we try to
get the best people that we can for these vacancies.
I am troubled that, in at least some of our district courts
and some of our circuit courts, the number of vacancies is
getting alarmingly high. We need to move as quickly as we can
both in nominating people and getting them confirmed in the
Senate. There are a number of judges, I think, who have kind of
lingered in the Senate, either in the Judiciary Committee or on
the floor--I think mainly on the floor--awaiting votes.
And so, I would hope that, in a spirit of bipartisanship,
we can get those people votes and get them on the bench so they
can serve the American people.
Senator Murkowski. We appreciate that. I want to talk just
a little bit more about the 9th Circuit. I have long been of
the opinion that the 9th Circuit covers far too much territory.
Its caseload is too heavy. It is understaffed. The judges of
the 9th Circuit are being asked to spend a lot of time away
from their families to hear cases in far-flung States that make
up the circuit, and I have long supported a split of the 9th
Circuit into two circuits.
The question to you this morning is whether or not you see
any justification in maintaining the 9th Circuit in its present
form, and what is the administration's view on the legislation
to split the 9th Circuit. Senator Ensign had legislation
introduced this year. We have worked with him in the past. If
you could just address the workload and the situation as to how
the 9th Circuit could best and most efficiently operate?
Attorney General Holder. I think the 9th Circuit does
present unique problems, both in its geographic size and the
workload that it has. I think we want to look at those two
issues, and make a determination about whether there is any
need for some reconstruction or some reconfiguring.
This is something that I have not really focused on in the
recent past, but I know I have certainly read articles and had
conversations about that possibility. We will certainly want to
work with Congress in looking at the workload and the
geographic dispersion of the 9th Circuit in making the
appropriate determination.
Senator Murkowski. Appreciate that.
Thank you, Madam Chair.
Senator Mikulski. Senator Feinstein. Senator Feinstein is
the chair of the Intelligence Committee and also is an
outspoken person on the funding for the Office of the Federal
Detention Trustee fund [detainee trust fund] that is often
skimpy and spartan. We ask local jurisdictions to hold the
prisoners that are Federal and then don't pay the bill. So I
hope you ask some of those questions.
Senator Feinstein. Well, thank you very much, Madam
Chairwoman. I appreciate it.
NARCOTICS CONTROL
I want to ask a question in my capacity of Chairman of the
Senate Caucus on International Narcotics Control, and we have
been spending some time looking at both Afghanistan and Mexico
and the cartels. And you could say that there is eruption in
Mexico in the cartels, and you could say that there is major
eruption in Afghanistan with the Taliban increasingly taking
over drug lab activities, transportation of narcotics, and in
effect, transforming themselves into a narco-cartel, which I
happen to believe will be the result.
We have found that as much as $169 million comes from a
single heroin trafficker in a 10-month period in Afghanistan.
At present, the Drug Enforcement Administration [DEA], which
has units to address this type of narco-terrorism, does not
have the manpower to stand up or devote full-time operations in
Afghanistan.
I think they have been very effective. I have talked with
former agents, Mr. Braun, others, about operations in southern
Afghanistan and believe that for a fraction of our national
investment in that country, a DEA unit could, in fact, be
dedicated to removing narco-terrorists from the battlefield in
direct support of the administration's top priority.
So I am asking the distinguished chairman to add money
either in this bill or to try to put it in a 2010 supplemental
to stand up a new terrorism investigations unit at DEA's
Special Operations Division to focus on Afghanistan. Would you
support such an effort?
Attorney General Holder. Yes, the DEA has been particularly
effective in Afghanistan. At the end of fiscal year 2010, we
expect to have a permanent staff of about 81 DEA positions in
Afghanistan.
The reality is that, given the nature of the problem that
you accurately describe, additional DEA agents, prosecutors,
and people from the Marshals Service could all help with regard
to the fight against the narcotics trade--which helps fuel the
Taliban--and also help that nation in its efforts to adhere to
the rule of law.
We have to view this comprehensively. The point that you
make about the need for expanded DEA resources in Afghanistan
is exactly right.
Senator Feinstein. Second question. Yesterday, at the
request of Senator Cornyn, I chaired a hearing of the Caucus on
International Narcotics Control, particularly on drug violence
in Mexico and the implications for the United States. And what
appears to me is that kidnappings in the last 3 years are up
substantially. They are in southern California. They are in
Arizona. Stash houses are up, and home invasions are up.
And I think that has really fueled the Arizona law, which I
think is an unfortunate law, but nonetheless, I understand the
fear that people have. The question becomes, have you looked at
beefing up even more the law enforcement effort in these
particular areas, and if so, what is Justice prepared to do?
Attorney General Holder. We have deployed Justice
Department resources from the Bureau of Alcohol, Tobacco,
Firearms and Explosives [ATF], from the DEA, from the FBI along
the border. I am concerned about the level of violence that we
have seen increase pretty dramatically, even in the last 3 to 4
weeks. We are going to make sure that we keep a sufficient
presence both in Mexico and along the border and that we work
with our State and local partners in those affected areas along
the border to keep the violence level as low as we can.
The efforts that our Mexican colleagues and President
Calderon have taken are heroic. We have to make sure that we
are supportive of those efforts. We have to, as I said, make
sure that we maintain and increase our presence within Mexico,
but also maintain that presence along the border.
We have deployed ATF agents there on a rotating basis. And
I think one of the things we are going to have to consider,
given the violence level that we see in Mexico and a concern
about that spilling over, is to perhaps make that presence
permanent.
Senator Feinstein. Just one of the things that came up
yesterday, a captain by the name of Martinez, 24 years
experience, Chula Vista Police Department. They got a grant,
and what they began to do is really develop intelligence. A lot
of these kidnappings in Mexico related to somebody in the
United States, the person in the United States won't call up
and say, ``My relative has been kidnapped,'' but they will talk
about it.
They pick up this talk, so they are able to go in and make
an arrest in concert with Mexican police or prevent something
from happening, and I think that is a very good effort.
Additionally, the El Paso Intelligence Center [EPIC], my
understanding is that DEA has requested funding for an
expansion and renovation project to enlarge the existing EPIC
facility since 22 of the agencies are planning on adding
personnel. Is that something that is critical, in your view?
Attorney General Holder. Yes, I think it is. For us to be
successful in this effort, we need to gather as much
intelligence as we can. We need to be able to process that
intelligence. We need to have the enforcement agencies co-
located so that they can all make use of that intelligence and
then efficiently deploy the resources that they have.
The Department's request for fiscal year 2011 seeks really
significant resources to combat violence along the Southwest
border, and one of the ways in which we can do that is by
supporting EPIC, which is a critical part in our efforts.
Senator Feinstein. Would you allow me one more question,
Madam Chairwoman?
Senator Mikulski. Absolutely. I think this is absolutely
critical and was going to be part of my second round. Please.
Senator Feinstein. Thank you. You are a good sport. I
appreciate it.
Let me ask a couple of Miranda questions because I am
seeing and reading----
Senator Mikulski. Oh.
Senator Feinstein [continuing]. Everything that is going
on.
Senator Mikulski. We'll, wait a minute.
MIRANDA RIGHTS
Senator Feinstein. Is it true that every American has the
right under the Fifth Amendment to a Miranda warning?
Attorney General Holder. Yes. The Supreme Court in the
Dickerson case, Dickerson v. United States, when Chief Judge
Rehnquist was alive, in a 7-2 decision, said that the Miranda
warnings were of constitutional dimension and struck down a
Federal statute that tried to get around the earlier Miranda
ruling that was first established by the Warren court. The
Rehnquist court said that the Miranda warnings were of
constitutional dimension.
Senator Feinstein. So this is now well established, that
every American, under the Fifth Amendment, has this right?
Attorney General Holder. That is the way in which the
Supreme Court has interpreted it.
Senator Feinstein. Is there any exception?
Attorney General Holder. Yes. There are exceptions to
Miranda, and that is one of the ways in which we conduct our
interrogations of terrorism suspects. It is what we did with
Abdulmutallab, and it is what we did with Shahzad.
Senator Feinstein. Could you concentrate on the national
security exception?
Attorney General Holder. Yes. It is called the public
safety exception. It comes from the Quarles case, New York v.
Quarles and allows a police officer or a Federal agent to
question a suspect, a potential defendant, or a terrorist, in
order to protect the public safety, and ask questions such as,
``Are you acting alone? Are there other bombs that we need to
be worried about? Are there other people flying in who are
going to be helping you?''
To ensure the public safety, we are allowed to ask those
questions without giving Miranda warnings. With Abdulmutallab
and Shahzad, we made extensive use of the public safety
exception before a decision was made to give them the Miranda
warnings.
Senator Feinstein. Now, a difficult question. According to
process and precedent, about what is the vicinity of time that
that--you call it the public safety, I call it a national
security--exception can last?
Attorney General Holder. That has not really been defined
by the courts. It is not a prolonged period of time. I will
say, without getting into too much detail, that it has been
publicly reported that with Abdulmutallab, there was a 1 hour
interrogation period under the public safety exception. Useful,
valuable intelligence was gained in that 1 hour.
A lot of people have said you only spoke to him for about
an hour, they say 50 minutes, without recognizing that in that
period of time, qualified, experienced FBI agents can elicit
really substantial amounts of information. Again, without
getting into too much detail, with regard to Shahzad, the
questioning under the public safety exception far exceeded the
amount of time that we had with Abdulmutallab.
Senator Feinstein. Is it fair to say that process and
precedent take that to around 3 to 6 hours?
Attorney General Holder. The courts have never said
exactly.
Senator Feinstein. The courts have not said.
Attorney General Holder. They have not said how far you can
go.
Senator Feinstein. Prior use?
Attorney General Holder. I think that as long as you are
asking questions, appropriate questions, probing about public
safety issues, I think the courts are generally going to be
supportive. And we have asked those questions, I think,
appropriately, minding the dictates of the Supreme Court in the
Quarles case. And as I said, with regard to Shahzad, we really
made use of that exception to elicit a very substantial amount
of information from him before the decision was made to give
him his Miranda warnings.
SHAHZAD INTERROGATION
Senator Feinstein. Could Shahzad be declared an enemy
combatant, and if that were to be the case, could he retain
counsel and overturn the decision?
Attorney General Holder. He could certainly retain counsel
in whatever forum he was in to try to challenge the decision to
not give him his Miranda warnings.
Senator Feinstein. What would be the likelihood of his
succeeding?
Attorney General Holder. I am obviously an advocate here,
but on the basis of the way in which the interrogation was done
here and the care with which it was done, I don't think he
would be very successful.
Senator Feinstein. You do not?
Attorney General Holder. No.
Senator Feinstein. Everything I have seen says he would
have a high chance at being successful in--because he is an
American, and that seems to me to be a heavier prior right.
Attorney General Holder. Oh, I am sorry. I didn't hear the
question. No, what I was saying is that he would not be
successful in trying to say that the interrogation that was
done was done inappropriately. That is what I was saying. He
would not be successful in that.
Senator Feinstein. Oh, all right. But in other words,
declaring him an enemy combatant would not void his basic
rights?
Attorney General Holder. Again, the courts have not totally
weighed in on all of these areas, but the courts have indicated
that there are certain basic rights that are going to apply no
matter what forum you are in. There was a very big
misconception that somehow or other terrorists have far greater
rights in the Article III courts than they would in the
military commissions.
Under the reformed Military Commissions Act, there are
substantial procedural rights that defendants have. It is one
of the reasons why this administration feels comfortable using
either military commissions or the Article III courts. There is
not a distinct advantage that people get if they are in the
Article III courts. We have successfully prosecuted close to
400 people who were charged with terrorist offenses in the
Article III venue.
Senator Feinstein. All right. Thank you, General.
Thank you, Madam Chairwoman.
Senator Mikulski. Absolutely. We could pursue this line of
questioning, but we have another witness, and I have one other
substantive question and then something related to Maryland.
Then we will go to the inspector general.
Mr. Attorney General, one of the issues that we are deeply
involved in, whether it is the Judiciary Committee, the Intel
Committee, or Appropriations, is cybersecurity. And we regard
this as one of the greatest threats facing the United States of
America. And as we examine it, for example, in the task force
that I am on, we are looking at governance, technology
development to maintain the cyber shield, the development of a
workforce to be able to be involved in this, and the issue of
civil liberties.
My question goes to the Justice Department. In the area of
governance and civil liberties, there are new definitions that
are going to have to be developed because, essentially, the
mother ship of most knowledge on protection lies with the
National Security Agency whose job is to protect .mil and our
military assets. But there is .gov. There is .com. There are
the financial services. There is the power grid.
I am not going to go into the policies today. That will be
a subject of other hearings in other fora. But has the Justice
Department been tasked by the White House to begin to look at
what are some of the laws pertaining to governance and also the
laws of civil liberties, where we have defined Foreign
Intelligence Surveillance Act [FISA] rules, we have defined
firewalls, which the military can't. What about the role of the
private sector seeking help from Government? Do they go to
Homeland Security, which doesn't have a lot to offer right this
minute? If they do, are they getting it, really, from the .mil.
So could you share with us what you have been tasked to do?
CYBERSECURITY
Attorney General Holder. Well, we certainly are tasked with
the responsibility of making sure that the Internet, which is a
great tool, is used in appropriate ways. One of the things that
we are tasked with is making sure that it is not used in a
criminal way by people who would perpetrate frauds, or by
terrorists who would use it to spread their ideology and
potentially radicalize people, or in an operational way.
We are also tasked with the responsibility of making sure
that we do this in such a way that people who are on the
Internet are protected.
Senator Mikulski. Mr. Attorney General, I am not asking
that. I am asking about the law and the fact that every report
that has been issued says the law is now either gray, dated, or
nonexistent on this. We have Mr. Schmidt, a very capable
professional, the White House czar. We don't know who in the
hell is in charge. That is No. 1.
No. 2, there are these issues where the private sector is
really apprehensive about the ongoing attacks on them. Google
comes to the National Security Agency. That is really new
ground. So we want to, as we look at this, protect. We have to
have a kind of legal framework, also, to be able to define what
the parameters are for various sectors in our Government, how
do we maintain the current structure? Do we look at it? Have
you been tasked to examine this in a comprehensive way?
Attorney General Holder. We are working with our
counterparts in various parts of the executive branch and with
the White House to deal with the issues that you have raised.
We are concerned about intrusions. We are concerned about
privacy, for corporations, as well as individuals. We also want
to make sure that the laws that we have on the books are up to
date to deal with this new reality that we confront.
Senator Mikulski. That is right.
Attorney General Holder. Many of these laws that we try to
apply in this cyber age are not necessarily consistent with the
threats that we face in a variety of contexts. What we have
tried to do is to look at the laws as they exist. We have
people within the Justice Department, in our Criminal Division
and in other parts of the Department, who are always coming up
with suggestions that we take to the White House. We would
obviously work with Congress.
Senator Mikulski. I will be honest, Mr. Holder. I am not
looking for suggestions. I am looking for a comprehensive
effort tasked by the White House to the Attorney General's
office that says you have got to put a team together and look
at this and give the White House a report and give the Congress
a report to see if we have to move in a direction. I don't want
to get lost in semantics.
Or is it kind of, we look at it in one area and we look at
it in another, because that has been the problem.
Attorney General Holder. Well, again, I would say that
there is a comprehensive effort, run through the White House
and in conjunction with the other branches.
Senator Mikulski. But you are the President's lawyer. You
are America's lawyer. Any new legal framework must come from
the advice, counsel, legal memos, et cetera, from the Attorney
General's office, or am I wrong?
Attorney General Holder. No. We certainly play a
substantial role in that. Bills that go through, suggestions
that are made, all have to be vetted in the Justice Department
to make sure that they are legal, and our Office of Legal
Counsel looks at proposed legislation in that regard.
Senator Mikulski. Well, I would like your team to talk more
extensively to Senator Feinstein and me and about something we
might ask of the President. I don't want a line item and an
appropriations committee directing it. But there needs to be
clarification of governance, and there has to be clarification
and perhaps a new law in this new world that we have to protect
the American people.
You did a great job. When I say ``you,'' I mean everyone
that got the Times Square bomber. There could be somebody out
there right now that has got their eyes on the grid or any
number of other things. We have to have our legal framework.
Meeting with entrepreneurs, they are stealing our secrets
from the Patent Office. They are raiding our ideas. I mean, the
private sector needs all the help that it can get, and we have
certain constrictions that have served us well in the past. So
we want to maintain privacy. We want to maintain civil
liberties, but we also don't want to be operating in an area
where, in our desire to protect the people, we have
inadvertently made them or our entrepreneurial enterprises
vulnerable.
So why don't we talk more about that, involving the Intel
and Judiciary Committee on this?
Attorney General Holder. That is fine.
Senator Mikulski. Senator Murkowski, I understand you have
another question?
Senator Murkowski. I do, Madam Chairwoman, just one
question. And this follows up on some of the comments that have
been made about the Times Square bomber, the recognition that
in conjunction with the Federal, the State, and the local law
enforcement individuals on the scene. It was an effort that we
recognize and kind of in view of the fact that we have got
National Police Week beginning next week, I think that it is a
testament to the work and the coordinated efforts that go on.
We appreciate that.
But as good as that was, I think there is a lot of concern
out there about why the suspect was not apprehended until the
jet has pulled away from the gate. I come from a State where we
all fly, and we have got a level of scrutiny at our little
airports in some pretty remote and out of the way places where
people feel like the level of scrutiny and surveillance is just
over the top, and they look then at an individual that has
all--has triggered all the flags.
You know, you have purchased the ticket with cash. You
purchased it just immediately before the flight, international
flight, all of the indicators. One really has to wonder, where
was the failing here? What happened with this watch list? And
Senator Mikulski has used the terminology the watch list is
like nails on a blackboard. I think that gets all of us charged
up as we talk about that.
But we really do have to wonder, okay, why was he not taken
into custody at the screening point, at the gate, or in the
jetway? It makes you wonder whether or not there is a lapse in
communication then between the FBI and the Transportation
Security Administration [TSA] or perhaps between the FBI and
other law enforcement agencies that are working at the airport.
So the question to you this morning is whether or not you
are satisfied with the way that this take-down went or whether
there are ways that we can improve on this? And then, secondly,
whether the take-down of a fugitive onboard an aircraft
presented safety risk to the other passengers on the airplane?
So if you can just speak to that end of this issue.
TIMES SQUARE BOMBER ARREST
Attorney General Holder. In direct response to your
question, I am never satisfied, even with an operation like
this one, which I think we all have to understand was
successful. The person who was responsible for placing that
bomb in Times Square was apprehended in a relatively short
period of time.
Now I don't take too much from that. We were successful
here. That does not mean that we don't have to continue to be
vigilant. There are going to be other attempts, and we are
going to have to make sure that we are up to the task.
We were successful here, but am I satisfied? No. We have to
always look at our failures, our successes, and figure out ways
in which we can, in the next occasion, be even better. The TSA
has already announced that it is going to make changes with
regard to how often airlines are required to look at changes
that are made on the no fly list. It was 12 hours. They are
going to move it down to 2 hours. If that change had been in
effect, it is possible that he would have been caught before he
got on the plane.
Senator Murkowski. Can I ask you about that, though?
Because I have been one, you know, you purchase a ticket at the
last minute to go home. I purchase it on my credit card. It is
not cash, and yet I am subjected, even as a United States
Senator, I am subjected to the full-on screening because I have
purchased a one-way ticket at the last minute.
Tell me why, given all of the red flags again, in this
particular instance, why we were relying only on that watch
list, on that no fly list? Was there not sufficient information
to cause further questioning?
I mean, I think people are really concerned about how he
was able to board that aircraft and have that aircraft actually
leave the jetway before we were successful in apprehending him.
And we are pleased that he was stopped, but we all have to
wonder, how did he get on that airplane?
Attorney General Holder. As I said, we have to look at this
successful operation and determine how we can do it better the
next time. But again, I go back to the fact that the foundation
here is the effort to determine who was responsible for the
placement of that bomb and his apprehension. We were successful
in doing that in a relatively short period of time.
With the screening that people go through, he was not
necessarily a danger while on the plane. He went through all of
the metal detectors. The information that was passed to TSA was
done under a system that is now in the process of being
changed, in recognition of the fact that as we look, even
preliminarily, back on what happened with regard to him, we
already have noticed that there are things that we need to
calibrate in a different way. Those changes have already been
announced and are being instituted.
Senator Mikulski. I would like to help the Senator from
Alaska out. We are really grouchy about the watch list and what
happened. We are really proud of law enforcement because they
knew where to go. But when you have a bomber that we know is
loose in America, we often presume they want to get out of
America. So there should have been a significant kind of red
alert for the methods for leaving the United States of America,
particularly when you are in New York. You either go north or
you get on an airplane.
So the northern border should have gone on red alert. TSA
should have gone on red alert. Some of these questions,
Senator, I think are also appropriate for the Secretary of
Homeland Security. That is the TSA part.
But the President of the United States was volcanic after
the Christmas Day bomber and ordered significant reforms. Once
again, the watch lists seem to be dysfunctional. Are you in
charge--who is in charge of the watch--who is in charge of
watching the watch lists, that they really do watch? And who is
in charge of the watch list, making sure we use the watch list?
Attorney General Holder. The information that we were
concerned about him was shared many hours before he actually
got to the airport. What I would say is this. As I indicated to
Senator Murkowski, we learned from the experiences that we have
had. Changes have already been instituted with regard to the
watch list. If we were faced with a similar situation again, I
suspect that we would detect him earlier than we did.
But as I said at the press conference, I was never worried
about whether or not we were going to apprehend him, given all
that had been done, the surveillance we had of him, and the
advance notice we gave to the airports to look out for him. As
a result of that notification, or those notifications, he
ultimately was apprehended before he left the country.
Senator Murkowski. Madam Chair, can I just ask?
Senator Mikulski. Yes, because I do have to move on to the
inspector general.
Senator Murkowski. And this is just very quickly, and it is
promptly from something that you have said. We have instituted
in this country this AMBER Alert when a child goes missing, and
there is a network around the Nation----
Senator Mikulski. Right, and it has worked well.
Senator Murkowski. And it has worked very successfully
well. It would seem to me that if we can have a system like
that when a child is missing, that when an incident happens in
New York, that instantaneously there is an alert that goes out
again to all of the exits, whether it is the border exits or
the airports, and it just seems to me that we can be doing
more.
So I look forward to working with you, Attorney General,
and certainly you, Chairwoman.
Senator Mikulski. First of all, I want to thank you for the
question. Second, the President has got to give us a TSA
nominee that we can confirm, and then we have to stop screwing
around with holds so that we can confirm them. I think it would
go a long way. TSA needs permanent, vigorous leadership. You
are not the head of TSA.
But I bet the President is pretty proud of one group of
Government, but after the Christmas Day bomber, he did order
significant reforms. And the watch list issue and the TSA issue
do not seem to have been one of the areas that have quite
clicked in. But that is not for today.
We are going to excuse you. We have so much to talk about,
from the ``third war'' border on our Southwest border to the
war that is going on against our children. We have a terrible
situation in Maryland with another violent death on a college
campus. All these things we could talk about. But your Justice
Department is working hard with locals on so many fronts, and
we want to say thank you.
I do want to raise an issue specific to Baltimore and to
Maryland. You might recall, Mr. Attorney General, that a young
police city fire cadet, Rachael Wilson, died tragically in a
training exercise 2\1/2\ years ago. They have filed for the
appropriate Federal benefit, and the Public Safety Officers
Benefit Program, it took a long time to even get a hearing and
to get the AG's attention.
Now, there was a hearing on January 20. There was
additional information. It has now been 90 days since the
hearing. The family has had no contact. They are really
frustrated. It is one thing to lose someone you love in a
training accident. The government failed her then, and we
cannot let government fail her now.
I am not commenting on the outcome of the decision, but I
would like a well-paced decisionmaking process and contact with
the family. Could I have your assurances that you will look
into that?
RACHAEL WILSON
Attorney General Holder. You have my personal assurance
that I will look into that. The concerns that you have raised
are ones that worry me as well. People who put their life on
the line in order to protect the rest of us are owed a special
obligation, and the families, the survivors of those people,
are deserving of special attention.
I will make sure that I examine where that case is, and, to
the extent that I can speed it along, I will do so, or work
with you if there are legislative ways in which this matter
might be ultimately resolved. However we can do it, I pledge to
work with you.
Senator Mikulski. Thank you. And I appreciate that. I know
you will bring sensitivity and expedition to this.
Thank you very much. And you are excused.
Attorney General Holder. Thank you.
Senator Mikulski. And we look forward to working with your
team.
We are now going to call up Mr. Glenn Fine. As Mr. Fine
comes to the table, we want to note he is the inspector general
of the Department of Justice. He was confirmed in December 15,
the year 2000. He has worked there and has an extensive
history.
He has worked in the Office of the Inspector General [OIG]
ever since 1995. So we just want to thank him, first of all,
for his service, and as you could see, there was so much we had
to go over, and the vote also delayed it.
But Mr. Fine, it is the hope of this subcommittee that we
function in a very fiscally prudent way. And we look forward to
your testimony in terms of what you think are things the
subcommittee needs to be aware of in the area of management
that we could encourage management reforms, if appropriate, and
then also where you think we could have better spending.
STATEMENT OF HON. GLENN A. FINE, INSPECTOR GENERAL
Mr. Fine. Thank you, Chairwoman Mikulski and members of the
subcommittee.
I appreciate your inviting me to testify about the Office
of the Inspector General's oversight work related to the
Department of Justice. In my testimony today, I will focus on
significant challenges facing the Department as you consider
its fiscal year 201l budget request.
Overall, I believe the Department has made progress in
addressing many of its top challenges, but improvement is
needed in important areas. First, the Department has made
progress in its highest priority--counterterrorism. But the
Department continues to face challenges in this area.
For example, last year, the OIG issued an audit report
examining the FBI's practices for making nominations to the
consolidated terrorist watch list. A failure to place
appropriate individuals on the watch list or a failure to place
them on the watch list in a timely manner increases the risk
that these individuals are able to enter or move freely within
the United States.
Our review assessed the accuracy of the watch list and the
timeliness of entries made to the watch list. We found that the
FBI did not consistently nominate known or suspected terrorists
to the consolidated terrorist watch list and did not update or
remove watch list records, as required by FBI policy. In
response, the FBI has made progress in addressing our
recommendations, including the development of a training course
to ensure that all FBI counterterrorism personnel are familiar
with current FBI watch list procedures, improving internal
controls to ensure that known or suspected terrorists are
nominated to the watch list, and also ensuring that watch list
records are modified or removed as required.
While the Department's highest priority is
counterterrorism, it must also focus attention on its
traditional law enforcement functions, including the
investigation and prosecution of financial crimes, cyber
crimes, and violent crimes. One critical issue for the
department is how to allocate its resources among these
competing demands.
For example, the OIG has regularly reviewed how the FBI
allocates and utilizes its personnel resources. An audit we
issued last month determined that in 2009, the FBI had used 26
percent of its field agents on counterterrorism matters while
it used 51 percent on criminal matters.
Our review determined that the FBI actually used its field
agents in line with the allocations it had made to its highest
national priority, including counterterrorism. However, we
found that the FBI used fewer field agents than it had
allocated to some other national priorities, including gangs
and criminal enterprises, white collar crime, and violent
crime.
In order to maximize the effect of its resources in
counterterrorism and in other areas, it is important that the
Department components coordinate effectively with each other.
One of our recent reviews found that jurisdictional disputes
occurred between the FBI and ATF in explosives investigations
and that both maintained separate and uncoordinated explosives-
related databases and training programs.
In pursuing its counterterrorism and law enforcement
missions, the Department must also balance its responsibility
to protect individual civil rights and civil liberties. This
issue was highlighted by several reviews we conducted regarding
the FBI's widespread misuse of national security letters. In
response to our recommendations, the FBI and the Department
have taken action to seek to ensure that such misuse does not
recur.
Restoring confidence in the Department is also an ongoing
challenge. In the past several years, the Department of Justice
has faced significant criticism for alleged misconduct in
prosecutions, the dismissal of certain U.S. attorneys, and
politicization in the hiring of career attorneys. While these
issues involve a small number of the many important
responsibilities the Department handles, they can affect public
confidence in the objectivity of the Department.
The Department also faces challenges each year in managing
the award of more than $3 billion in grant funds. This
challenge was heightened when the Recovery Act provided the
Department an additional $4 billion in grant funding. The
Department must distribute this large amount of grant funding
quickly and effectively monitor the use of these grant funds
while continuing to manage its other grant programs.
The Department also has ongoing challenges in managing
information technology systems and in ensuring that its IT
planning, development, and security measures maximize the
effectiveness of these expenditures. A major challenge in this
area has been the FBI's development of its Sentinel case
management project.
The OIG has issued a series of reports examining the FBI's
ongoing development of Sentinel. In our latest report, we
identified significant concerns about the progress of Sentinel.
The cost of the project is rising, and the completion of
Sentinel has been delayed. While we believe that Sentinel can
succeed, it will take close scrutiny and careful oversight by
the FBI to minimize any further schedule delays and budget
increases and to ensure that the final product meets users'
needs.
My testimony also discusses other challenges for the
Department, such as safely and economically managing the Bureau
of Prisons' rising Federal inmate population.
In conclusion, the Department has made progress in
addressing many of its top management challenges, but further
improvements are needed in important areas. The Department must
maintain its focus on counterterrorism while effectively
pursuing its traditional law enforcement duties, protecting
civil rights and civil liberties, restoring public confidence
in the Department, providing effective oversight of the
billions of dollars in grant awards each year, ensuring safe
and economic detention facilities, and effectively managing
information technology and financial management systems.
PREPARED STATEMENT
These are difficult tasks which require constant attention
and strong leadership by the Department. To aid in this effort,
the OIG will continue to conduct vigorous oversight of
Department programs and provide recommendations for
improvement.
That concludes my prepared statement, and I would be
pleased to answer any questions.
[The statement follows:]
Prepared Statement of Hon. Glenn A. Fine
Madame Chairwoman, Senator Shelby, and members of the subcommittee:
Thank you for inviting me to testify about the Office of the Inspector
General's (OIG) oversight work related to the Department of Justice
(Department). In my testimony today, I will discuss some of the top
challenges facing the Department as you consider its fiscal year 2011
budget request. My comments are based on the many reviews the OIG has
conducted during recent years and on the general insight we have gained
through our work in the Department.
Overall, I believe the Department has made progress in addressing
many of its top challenges, but improvement is needed in some areas.
COUNTERTERRORISM
Over the years, the Department has made progress in addressing its
highest priority--counterterrorism. The Department underwent a
transformation following the September 11 terrorist attacks, when its
highest priority shifted from traditional law enforcement concerns to
counterterrorism. While the Department has been effective at
reorienting its priorities to focus on counterterrorism, the Department
continues to face challenges in this area.
For example, last year the OIG issued an audit report examining the
FBI's practices for making nominations to the consolidated terrorist
watchlist. This watchlist is used by frontline Government screening
personnel to determine how to respond when a known or suspected
terrorist requests entry into the United States. A failure either to
place appropriate individuals on the watchlist or to place them on the
watchlist in a timely manner increases the risk that they are able to
enter and move freely within the United States. Our review of the
consolidated watchlist was the third in a series of audits assessing
the accuracy of the watchlist and the timeliness of entries made to the
watchlist. Our audit concluded that the FBI did not consistently
nominate known or suspected terrorists to the consolidated terrorist
watchlist and did not update or remove watchlist records, as required
by FBI policy.
In our audit report, we made 16 recommendations to the FBI to
improve its administration of the watchlist, and the FBI concurred with
all of the recommendations. The FBI has made progress in addressing the
recommendations, fully implementing 9 of the 16, including the
development of a web-based refresher training course to ensure all FBI
counterterrorism personnel are familiar with current FBI watchlist
procedures and the establishment of additional internal controls within
the watchlist process to ensure that known or suspected terrorists are
nominated to the watchlist and that existing records are modified or
removed as required. The FBI is in the process of implementing the
other recommendations.
Another issue we have reviewed regularly is the FBI's allocation
and utilization of its personnel resources. In past reviews, we found
that the FBI was using significantly more field agent resources than it
had allocated for counterterrorism matters, and was using significantly
fewer field agent resources than it had allocated for non-terrorism
matters.
In a follow-up review we released this month, we again assessed the
FBI's allocation and management of its personnel resources. Our audit
determined that in fiscal year 2009, the FBI had used 26 percent of its
field agents on counterterrorism matters, while it used 51 percent on
criminal matters. This is a significant change from fiscal year 2001
when the FBI used 13 percent of its field agents on counterterrorism
matters and 72 percent on criminal matters.
Our review determined that between fiscal years 2005 and 2009, the
FBI used field agents in line with the allocations it made to its
highest national priorities, including counterterrorism,
counterintelligence, cyber crime, and civil rights. However, we found
that the FBI used fewer field agents than it had allocated to some
other national priorities, including gangs and criminal enterprises,
white collar crime, and violent crime.
We also determined that the FBI continued to experience substantial
gaps between the number of intelligence analyst positions allocated and
utilized between fiscal years 2005 and 2009. FBI officials stated the
rate of attrition and time it takes to hire applicants affected the
FBI's ability to fill vacant intelligence analyst positions.
In addition, our audit determined that the FBI had improved in how
it managed its personnel resources. For example, the FBI established a
Resource Planning Office to oversee the allocation and utilization of
personnel resources and established other initiatives to manage its
resources. However, the FBI had not formalized all of the policies and
procedures related to its resource management initiatives and did not
fully integrate them into FBI operational practices. This contributed
to inconsistent execution of some initiatives by FBI operational
divisions and field offices.
The OIG report provided 10 recommendations to assist the FBI in its
resource planning and allocation decisions, including recommendations
that the FBI require operational divisions to regularly examine
resource utilization and that the FBI establish policies, procedures,
and guidelines that formalize resource management initiatives. The FBI
agreed to implement these recommendations.
Another area that affects national security is the FBI's ability to
timely translate the large amount of foreign language materials it
regularly collects. In previous audit reports on the FBI's foreign
language translation program, we found that large amounts of audio
material collected for FBI counterterrorism and counterintelligence
operations were awaiting translation. In a follow-up audit issued in
October 2009, we concluded that the FBI continued to have significant
amounts of unreviewed foreign language materials in counterterrorism
and counterintelligence matters. However, data on the exact quantity of
unreviewed material is imprecise, partly because the FBI still does not
have an automated means for accurately assessing the amount of material
it collects for translation. In addition, we found that the FBI
continues to fall short in meeting its linguist hiring goals, resulting
in a decrease in the number of FBI linguists since 2005, at the same
time there has been an increase in the amount of material collected for
translation.
The OIG made 24 recommendations to assist the FBI in improving the
management of its foreign language translation program. The FBI agreed
with our recommendations and is taking steps to implement them, and the
OIG will continue to monitor the FBI's performance in this important
area.
Counterterrorism efforts can also be affected by coordination
issues between Department components. We conducted a review of
coordination between the FBI and the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF) in responding to explosive incidents. In
our October 2009 audit, we found that jurisdictional disputes continued
to occur between the FBI and ATF in explosives investigations. Despite
an Attorney General memorandum in August 2004 and a 2008 Memorandum of
Understanding between the FBI and ATF, the allocation of investigative
authority between the two agencies remains unclear, and disputes
between the agencies have continued regarding which agency should be
the lead agency on explosives investigations.
For example, our audit found that FBI and ATF investigators
sometimes raced to be the first Federal agency on the scene of an
explosives incident, and disputes have occurred when one agency arrived
first and the other agency believed the explosives incident fell within
its lead agency authority. These disputes can delay investigations,
interviews, and crime scene processing; confuse local first responders
about which Federal agency is the Federal lead on explosives matters;
and undermine Federal and local relationships.
We also found that the FBI and ATF still maintain separate
explosives-related databases to manage laboratory forensic reports,
incident reporting, and technical explosives-related information and
intelligence, and the FBI and ATF separately operate their explosives-
training facilities and programs. In addition, ATF does not participate
in the majority of Joint Terrorism Task Forces led by the FBI.
Likewise, the FBI does not fully participate in ATF-led Arson and
Explosives Task Forces.
Our audit made 15 recommendations to the Department, FBI, and ATF
to improve explosives-related coordination. The Department appears
committed to implementing these recommendations, and has established
four working groups, composed of representatives from the Deputy
Attorney General's Office, the FBI, and ATF, to address the
recommendations and to resolve jurisdictional disputes.
We are currently conducting several reviews that involve other
aspects of the Department's efforts to address counterterrorism
challenges. For example, we are assessing whether the Department is
prepared to fulfill its responsibilities in response to a weapons of
mass destruction attack, including whether Department field offices are
prepared to carry out a coordinated response if such an attack occurs
in the Washington, DC area.
PROTECTING CIVIL RIGHTS AND CIVIL LIBERTIES
Meeting the Department's counterterrorism responsibilities is a
difficult task, but in this mission the Department must also balance
its responsibility to protect individual civil rights and civil
liberties.
The need for the Department to pursue the appropriate balance was
highlighted by several reviews we conducted on the FBI's use of
national security letters. We first reported on the FBI's widespread
misuse of national security letters in 2007 and issued a second review
in March 2008. Our third report, issued in January 2010, examined in
detail the FBI's use of so called ``exigent letters'' and other
informal requests to obtain telephone records without legal process. We
found widespread misuse of these exigent letters and other informal
requests for telephone records.
For example, contrary to the statements in the exigent letters,
many of the FBI investigations for which the letters were used did not
involve emergency circumstances and subpoenas had not been sought for
the records. In addition, the FBI engaged in widespread use of other
more informal requests for telephone records from communication service
providers, in lieu of appropriate legal process or a qualifying
emergency. The FBI asked for and obtained telephone records through
requests made by e-mail, face-to-face, on post-it notes, and by
telephone. The FBI also obtained telephone records using a practice
referred to by the FBI and the providers as ``sneak peeks.'' Our report
described other troubling practices regarding FBI requests for
telephone records, including improper requests for reporters' telephone
records, inaccurate statements made by the FBI to the Foreign
Intelligence Surveillance Act (FISA) Court, and improper use of
administrative subpoenas.
In addition, our report analyzed the various attempts made by the
FBI to address the misuse of exigent letters. We concluded that from
2003 to March 2007 when we issued our first report, the FBI repeatedly
failed to ensure that it complied with the law, Attorney General
Guidelines, and FBI policy when obtaining telephone records from the
on-site communications service providers.
By contrast, we found that after we issued our first report in
March 2007 the FBI took appropriate steps to address the difficult
problems that its exigent letters practice had created. For example,
the FBI ended the use of exigent letters, issued clear guidance on the
use of national security letters and on the proper procedures for
requesting such records, and provided training on this guidance.
Our report also assessed the accountability of FBI employees for
these improper practices and made 13 recommendations to ensure that
past abuses do not recur. We believe that the FBI is taking the
recommendations seriously, but additional work remains in this area.
For example, the FBI's Office of Integrity and Compliance was
established after issuance of the OIG's March 2007 national security
letters report to detect and correct non-compliance with the rules
governing FBI investigative authorities. The OIG intends to review the
work of this office to determine whether it is operating effectively.
In addition, the Department has yet to issue final minimization
procedures concerning the retention of information obtained through
national security letters. While a Department Working Group has
developed recommendations for minimization procedures, the procedures
have not yet been issued in final form.
In short, while the Department's counterterrorism responsibilities
are its highest priority, the Department faces the ongoing challenge of
balancing individual civil rights and civil liberties as it seeks to
protect national security.
RESTORING CONFIDENCE IN THE DEPARTMENT
In the past several years, the Department of Justice has faced
significant criticism for alleged misconduct in prosecutions, the
dismissal of certain U.S. Attorneys, and politicization in the hiring
of career officials. While these issues involve a small number of the
many important responsibilities the Department handles and involve only
a small percentage of the Department's dedicated workforce, they can
affect confidence in the objectivity and non-partisanship of the
Department as a whole. Restoring confidence in the Department is an
important and ongoing challenge.
In 2008 and 2009, the OIG and the Department's Office of
Professional Responsibility (OPR) issued three joint reports which
substantiated serious allegations of improper politicization in the
hiring processes for career attorney positions in the Department's
Honors Program and Summer Law Intern Program, in hiring for career
positions by staff in the Office of the Attorney General, and in hiring
lawyers for career positions and making other personnel decisions in
the Civil Rights Division. Another joint OIG/OPR report issued in 2008
concluded that the process used to remove certain U.S. Attorneys in
2006 was fundamentally flawed, and the oversight and implementation of
the removal process by the Department's most senior leaders was
significantly lacking.
In response, the Department has taken steps to address the problems
we found in these reviews. For example, the Department returned the
responsibility for hiring career attorneys from politically appointed
officials to the Department's career management officials, and the
Department has provided training to these selecting officials on
inappropriate considerations in hiring. The Department also developed
new briefing and training materials for Department political appointees
which emphasized that the process for hiring career attorneys must be
merit based.
In addition, the Department has faced criticism about the conduct
of its prosecutors in several recent prosecutions, including the
prosecution of former Alaska Senator Ted Stevens. After a jury trial,
the Department moved to dismiss the indictment of Senator Stevens
because the Department had concluded that certain information should
have been disclosed to the defense for use at trial. The Department's
handling of this case created concern about the prosecutors' conduct,
and Federal judges in other districts also have questioned whether the
Department is adequately adhering to professional standards of conduct
and addressing concerns of prosecutorial misconduct.
In response to the concerns about attorney conduct, the Department
has taken a variety of actions. In June 2009, a Department working
group appointed by the Deputy Attorney General produced a report
reviewing the Department's discovery and case management policies,
procedures, and training, and made recommendations for improvement. In
response to that report, the Department conducted a training conference
at the National Advocacy Center in October 2009 on criminal case
management and discovery for newly designated ``discovery trainers''
from all United States Attorneys' Offices. The discovery trainers were
required to present mandatory training to all Assistant U.S. Attorneys
in their districts on discovery issues. In January 2010, the Department
provided guidance to prosecutors concerning best practices on discovery
in criminal cases. The guidance set forth an approach for prosecutors
to follow in gathering, reviewing, and producing discoverable
information in a timely manner. In addition, the Department created the
position of National Criminal Discovery Coordinator to oversee the
ongoing training process for prosecutors on discovery issues, to assess
the need for additional improvements, and to ensure continued
implementation of the reforms.
In short, we believe that restoring confidence is a continuing
challenge for the Department. The Department needs to ensure that the
diligence, hard work, and sound ethics of the overwhelming majority of
Department employees are not undermined by the few but highly visible
incidents of potential misconduct. While the Department's leadership,
both at the end of the past administration and during this
administration, has taken important steps to confront this challenge,
the Department must remain focused on this important issue.
FINANCIAL CRIMES, VIOLENT CRIME AND CYBER CRIME
While the Department's highest priority is counterterrorism, it
must also focus attention on its traditional law enforcement functions,
including the investigation and prosecution of financial crimes, cyber
crimes, and violent crimes.
The investigation of financial crimes, including mortgage fraud,
white collar crimes, healthcare fraud, and grant and procurement fraud,
is an important priority. The Department recently created the Financial
Fraud Enforcement Task Force, an inter-agency initiative aimed at
implementing a coordinated and proactive approach to investigating and
prosecuting financial crimes. The Task Force is composed of
representatives from a broad range of Federal agencies, regulatory
authorities, Inspectors General, and State and local law enforcement.
For the Task Force to be effective, the Department needs to ensure
effective collaboration with these partners, with private industry, and
with consumers.
In addition to the growing problem of financial crimes, the
Department faces significant new challenges in combating cyber crime.
Rapid technological advances and the widespread use of the Internet
make cyber crime more challenging to detect and deter. For example,
recent estimates suggest that identity theft is one of the fastest
growing crimes in the United States and that it affects an estimated 10
million Americans annually. In addition to financial losses, identity
theft victims suffer tremendous inconvenience and emotional trauma when
attempting to repair damage to their names or credit histories.
The OIG recently assessed the Department's efforts to combat
identity theft. Our audit found that the Department had not adequately
coordinated its efforts to combat identity theft, and that to some
extent identity theft initiatives had faded as a Department priority.
We determined that the Department did not have its own internal
strategy to combat identity theft and had not appointed any individual
or office to have responsibility for coordinating the Department's
overall identity theft efforts. We also identified problems with the
Department's data collection efforts on identity theft investigations
and with the notification of victims of identity theft. Our audit
concluded that additional leadership is needed to ensure that the
Department's efforts to combat identity theft are coordinated and given
greater priority.
The Department must also ensure that it places appropriate emphasis
on combating violent crime, and that it coordinates its efforts in this
area. For example, as noted previously in my testimony, we found that
the FBI and ATF are not adequately coordinating their explosives-
related investigations and operations.
Similarly, a review we issued in November 2009 concluded that two
Department gang intelligence and coordination centers have not
significantly improved the coordination and execution of the
Department's anti-gang initiatives. Administered by the FBI, the
National Gang Intelligence Center (NGIC) is a multi-agency center that
develops and shares gang-related information. However, NGIC has not
established a centralized gang information database as directed by
statute due to technological limitations and operational problems, and
has not shared gang intelligence and information effectively with other
law enforcement organizations. The National Gang Targeting,
Enforcement, and Coordination Center (GangTECC), administered by the
Criminal Division, is a coordination center for multi-jurisdictional
gang investigations, but we found that the lack of an operating budget
prevents GangTECC from providing essential coordination and outreach.
We recommended that the Department consider merging the two centers or
ensure that their activities are better integrated. Because of the
prevalence of gang violence, it is critical that the Department of
Justice take swift action to improve the coordination of its anti-gang
initiatives. The Department has recently informed us that it is
progressing toward establishing a formal working agreement to collocate
NGIC at the Organized Crime Drug Task Force fusion center and GangTECC
at the Special Operations Division, and may begin moving personnel in
early summer. We will continue to monitor the Department's actions to
improve the coordination and effectiveness of its anti-gang operations.
Another area of increasing concern is violent crime along the
Southwest border. The OIG is reviewing ATF's implementation of Project
Gunrunner, ATF's initiative to reduce firearms trafficking to Mexico
and associated violence along the Southwest border. Our review follows
another OIG review, completed in September 2009, which examined ATF's
planning, hiring, staffing, and allocation of resources for Project
Gunrunner.
Apprehending violent fugitives is critical in the effort to address
violent crime. The United States Marshals Service (USMS) is the Federal
Government's primary agency for apprehending violent fugitives. In July
2005, the OIG reported that the USMS had increased its apprehension of
violent fugitives by 51 percent from fiscal year 2001 to fiscal year
2004 and also increased the efficiency of its apprehension efforts.
However, the increase in violent Federal fugitives at large outpaced
the USMS's progress, rising 3 percent from fiscal year 2001 through
fiscal year 2004. In response to recommendations in the OIG report, the
USMS increased the number of regional fugitive task forces (there are
now seven); established performance measures and goals related to the
apprehension of violent fugitives; and established requirements to
ensure that warrants for violent offenders are entered into the Warrant
Information Network within one business day.
Another aspect of the challenge of addressing violent crimes
relates to the Department's efforts to implement the requirements of
the Sex Offender Registration and Notification Act to help identify,
arrest, and prosecute sex offenders who violate registration laws, and
to help improve the quality of information available to law enforcement
and the public about registered, non-compliant, and fugitive sex
offenders. In a report issued in December 2008, we found that the
Department's efforts have led to more investigations and arrests of
fugitive sex offenders. However, the registries that make up the
national sex offender registration system were missing records;
existing records often failed to identify known fugitives; and the
records often did not contain sufficient information to enable law
enforcement or the public to accurately identify registered, non-
compliant, or fugitive sex offenders. Since our report, the FBI has
modified the National Sex Offender Registry so that it now reflects the
fugitive status of registered sex offenders, initiated quality control
audits of the State sex offender registries that contribute records to
the registry, and started providing the USMS with data from the
registry for use in USMS fugitive sex offender investigations.
It is also important that the Department ensures that it is taking
full advantage of forensics tools available for the investigation and
prosecution of violent crime. To that end, the OIG is examining the
FBI's efforts to reduce its backlog in the forensic analysis of DNA
samples. We are finding a continuing backlog that can affect the
investigation of violent crimes.
RECOVERY ACT FUNDING AND GRANT MANAGEMENT
The Department faces challenges each year in managing the award of
more than $3 billion in grant funds. In addition to these grants, the
American Recovery and Reinvestment Act of 2009 (the Recovery Act)
provided the Department an additional $4 billion in grant funds to
award. The management and oversight of these Recovery Act funds is a
significant challenge for the Department which must distribute this
large amount of grant funding quickly, monitor the use of these funds,
and continue to manage its annual grant programs at the same time.
Moreover, despite the significant influx of Recovery Act money and the
expansion of the Department's grant programs, the number of grant
administrators who award and oversee grant programs has not
significantly increased.
Effective monitoring by each of the Department's grant-making
agencies is crucial to the early identification and correction of
problems among the Recovery Act grant recipients.
The OIG is conducting a series of audits of the Department's
Recovery Act grant award programs. For example, we reviewed the Office
of Justice Program's (OJP) selection of grants in the Edward Byrne
Memorial Justice Assistance Grant Program, and found that the
Department generally awarded these grants in a timely and transparent
manner. In addition, the OIG is completing reviews of the
administration of Recovery awards for the Office of Community Oriented
Policing Services (COPS) Hiring Recovery Program, Office of Violence
Against Women (OVW) programs, the Office for Victims of Crime programs,
and Bureau of Justice Assistance Grants for Correctional Facilities on
tribal lands. These programs represent $3.8 billion of the Department's
approximately $4 billion in Recovery Act grant funding. As each of
these audits progressed, we issued interim reports and informed the
Department of any concerns related to transparency of the grant
process, allocation of grant funds, interagency coordination, and
improving grant management. We intend to continue to monitor and issue
reports on these grant programs.
At the same time the Department faces the challenge of overseeing
the infusion of Recovery Act funding, it must continue to focus on
making timely awards of its regularly appropriated grant funds and in
maintaining proper oversight over grantees to ensure the funds are used
as intended. Several recent OIG reviews demonstrate the difficulties
the Department has faced in the past in ensuring proper management of
its grant funds. In September 2009 the OIG issued a report that raised
concerns about the fairness and openness of OJP's National Institute of
Justice's (NIJ) practices for awarding tens of millions of dollars in
grants and contracts from fiscal year 2005 through fiscal year 2007.
Our audit, which was requested by this subcommittee, found that the
NIJ's process for reviewing grant applications--including initial
program office reviews, peer reviews, documentation of program office
recommendations, and documentation of NIJ Director selections--raised
concerns about the fairness and openness of the competition process.
In addition, we found that several NIJ staff involved in the grant
award process had potential conflicts of interest when participating in
the approval process for certain grants. We also determined that the
NIJ did not adequately justify the sole-source basis for some non-
competitively awarded contracts and could not demonstrate that these
contracts were exempt from the competitive process. We made nine
recommendations in this report to improve NIJ's grant process, and the
Department agreed to implement them.
We believe that the Department has taken some significant steps
toward improving its grant management process during the past 2 years.
For example, in May 2008 the Department issued a memorandum directing
OJP, COPS, and OVW to document all discretionary funding
recommendations and decisions. In addition, OJP has made progress in
staffing its Office of Audit, Assessment, and Management (OAAM), a unit
intended to improve internal controls and streamline and standardize
grant management policies and procedures. However, we believe that OJP
needs to ensure that our audit recommendations regarding a particular
grant program will be implemented throughout all applicable Department
programs, rather than only in the specific program the OIG audited.
To help the Department meet its grant management challenges, the
OIG drafted a guide entitled, ``Improving the Grant Management
Process.'' This document, which was based on our prior work regarding
grant management issues throughout the Department, provides 43
recommendations and examples of best practices that granting agencies
should consider adopting to minimize opportunities for fraud, waste,
and abuse in awarding and overseeing both Recovery Act and non-Recovery
Act grant funds. The Department has taken positive steps in response to
the recommendations in this document. For example, OJP is more
aggressively identifying and working to mitigate risks among individual
grantees by assessing each potential grantee's risk during the grant-
award process and imposing on high-risk grantees special conditions
that provide a range of potential sanctions, including the withholding
of funds. OJP also is working more closely with the OIG and now meets
with the OIG on a quarterly basis to discuss grant issues.
We believe that the Department is demonstrating a commitment to
improving the grant management process, and we have seen significant
signs of improvement. However, considerable work remains in ensuring
effective grant management of the Recovery Act funds and the billions
of dollars awarded annually in Department grants.
INFORMATION TECHNOLOGY SYSTEMS PLANNING, IMPLEMENTATION, AND SECURITY
UPGRADES AND SECURITY
The Department faces ongoing challenges in managing the more than
$2 billion it annually spends on information technology (IT) systems
and in ensuring that its IT planning, development, and security
measures maximize the effectiveness of these expenditures.
One of the major challenges in this area has been the FBI's ongoing
development of its Sentinel case management project. This project is
intended to upgrade the FBI's electronic case management system and
provide the FBI with automated workflow processes. The OIG has issued a
series of reports examining the FBI's ongoing development of Sentinel.
In March 2010, we issued our sixth report in this series.
In this latest report, we identified significant concerns about the
progress of the FBI's Sentinel project. Specifically, because of
continuing issues regarding the usability, performance, and quality of
Phase 2 of the Sentinel project that was delivered by Lockheed Martin
to the FBI, on March 3, 2010, the FBI issued a partial stop work order
to Lockheed Martin for portions of Phase 3 and all of Phase 4. In
addition, the stop work order returned Phase 2 of the project from an
operations and maintenance phase to a development phase.
As a result, the cost of the Sentinel project is rising and the
completion of Sentinel has been delayed. In a previous report, we had
noted that Sentinel's overall completion date had already been
postponed to September 2010, which was 9 months later than originally
planned, and the total projected cost was $451 million, $26 million
more than originally planned. Because of the recent problems with Phase
2 of Sentinel and the stop work order, the FBI currently does not have
official cost or schedule estimates for completing Sentinel. But the
FBI has now acknowledged that Sentinel will cost more than $451 million
and that Sentinel will likely not be completed until 2011.
Our report noted that the FBI has taken several steps to improve
Sentinel's chances for success, including the use of independent
assessments, performed by other contractors of the primary contractor's
deliverables. However, our report identified major issues that the FBI
needs to address. For example, the FBI does not have a documented
strategic plan outlining how it will transfer remaining case file data
from its Automated Case Support system to Sentinel. We also noted our
concern that the FBI has either discontinued or delayed some of the
internal assessments of Sentinel's progress that it previously was
performing on a routine basis, which could compromise the FBI's ability
to perform real-time evaluations of the project's development and apply
appropriate risk management strategies.
Given the importance of Sentinel to the future of FBI operations,
our recent report concluded that the FBI must ensure that its revisions
to Sentinel's budget, schedule, and requirements are realistic,
achievable, and satisfactory to its users. The FBI must also ensure
that users' concerns and perspectives are integrated into all phases of
the remaining development of Sentinel. While we believe that Sentinel
can succeed, it will take close scrutiny and careful oversight by the
FBI to minimize any further schedule delays and budget increases and to
ensure that the final product meets users needs.
We believe that the Department has made some progress in planning
for other new IT systems, but it still faces challenges of delayed
implementation, deficient functionality, and cost overruns in IT
systems. Historically, the Department's components have resisted
centralized control or oversight of major IT projects, and the
Department's Chief Information Officer (CIO) does not have direct
operational control of Department components' IT management. We believe
the Department should enhance the CIO's oversight of the development of
high-risk IT systems throughout the Department.
Several of our audits identified concerns about the development of
critical Department IT systems. For example, last year an OIG audit
report examined the Department's progress toward developing the
Litigation Case Management System (LCMS). The LCMS project was intended
to develop an IT infrastructure for storing case information, managing
it centrally, and making it available to the approximately 14,500
authorized users in the Department's 7 litigating divisions. Our audit
found that the LCMS project, which the Department began in 2004, was
more than 2 years behind schedule, approximately $20 million over
budget, and at significant risk of not meeting the Department's
requirements for litigation case management.
Our audit concluded that both the Department and its contractor
shared responsibility for the significant delays and budget overruns in
this project. We urged better oversight of this project to minimize or
avoid further schedule and cost overruns. In response to our report,
the Department has expressed a strong commitment to implementing the
LCMS and to fully adopting our recommendations. However, the
implementation of LCMS is still struggling.
Another example of delays in implementing a new IT system involves
the FBI's efforts to implement a Laboratory Information Management
System for the FBI Laboratory, which the FBI has been working on since
1998.
As the Department develops its new IT systems, it also must ensure
the security of those systems and the information they contain. The
Department must balance the need to share intelligence and law
enforcement information with the need to ensure that such information
sharing meets appropriate security standards.
A December 2008 OIG audit found that the Department lacked
effective methodologies for tracking the remediation of identified IT
vulnerabilities. Our report made four recommendations to assist the
Department in its efforts to address such vulnerabilities. Since the
issuance of our report, the Justice Security Operations Center (JSOC),
which provides real-time monitoring of the Department's networks to
detect vulnerabilities and threats, became fully functional, and now
covers all of the Department's components. The JSOC mitigates threats
and vulnerabilities by blocking known threats from accessing the
Department's systems and creating real-time alerts to components for
immediate remediation as issues arise. In addition, the Department has
developed an inventory of all IT devices on the Department's networks,
updated annually, to ensure that monthly scans adequately cover the
Department's entire IT environment. As part of our follow-up efforts,
we intend to initiate an audit of the JSOC that will review its
capabilities to detect and respond to intrusion incidents and
communicate computer-intrusion efforts.
Portable IT media continues to pose IT security risks in the
Department and across Government. In an effort to assess the
Department's efforts to safeguard information stored on portable
devices, the OIG recently conducted audits of both the Civil Division's
and the Criminal Division's laptop computer encryption program and
practices. These audits found that a significant percentage of the
laptop computers owned by contractors working with the Civil Division
and the Criminal Division were not encrypted, and the contractors were
not notified of Department laptop encryption requirements. In addition,
we found that 25 percent of the Criminal Division laptops that we
tested had sensitive data but did not have encryption software
installed and did not have operating system passwords enabled. We asked
the Department to ensure that all components are aware of the findings
of our reports and also ensure that laptops are properly encrypted,
even though our audit findings were directed at the Civil and Criminal
Divisions.
In sum, the Department must closely manage its IT projects to
ensure the systems are cost-effective, well-run, secure, and able to
achieve their objectives.
DETENTION AND INCARCERATION
The Department's responsibility to safely and economically manage
its rising Federal inmate and detainee populations is a challenge that
has significant budget implications. The Federal inmate population has
dramatically increased over the past 30 years, from fewer than 25,000
inmates in the Federal Bureau of Prisons' (BOP) custody in 1980 to more
than 210,000 inmates in 2010. Approximately 83 percent of these inmates
are confined in BOP-operated facilities, with the balance housed in
privately managed or community-based facilities and local jails.
Overcrowding continues to be a serious concern in BOP facilities.
In addition to issues presented by overcrowding, the BOP must
address other safety threats, including staff sexual abuse of
prisoners. Staff sexual abuse has severe consequences for victims,
undermines the safety and security of prisons, and in some cases leads
to other crimes. For example, Federal correctional workers who are
sexually involved with prisoners have been subject to extortion demands
and may be more easily pressured to violate other prison rules and
Federal laws. Compromised personnel who have sexually abused prisoners
also have been found to have provided contraband to prisoners, accepted
bribes, and committed other serious crimes in an effort to conceal
their sexual involvement with Federal prisoners.
In a September 2009 review, we concluded that the Department and
the BOP both need to take additional steps to effectively deter,
detect, investigate, and prosecute staff sexual abuse of Federal
prisoners. Allegations of criminal sexual abuse and non-criminal sexual
misconduct at BOP institutions more than doubled from fiscal year 2001
through fiscal year 2008. Yet, our review found that deterrence and
detection of staff sexual abuse are hampered by the practice at some
BOP prisons of automatically isolating, segregating, or transferring
victims, which inmates often regard as punitive. We also concluded the
BOP needs to improve staff training, inmate education, and program
oversight on sexual abuse of inmates. In addition, we found that some
Department prosecutors have a general reluctance to prosecute certain
staff sexual abuse cases, and we concluded that training Federal
prosecutors on the detrimental impact of staff sexual abuse on inmates,
other prison staff, and prison security would improve the Department's
effectiveness in prosecuting these cases.
The Prison Rape Elimination Act of 2003 requires the Department to
promulgate national standards for the detection, prevention, reduction,
and punishment of sexual abuse in detention facilities by June 2010.
The Department is now engaged in creating these standards.
The OIG is also reviewing other aspects of the BOP's efforts to
handle its difficult mission of housing inmates in safe, secure, and
cost-efficient facilities. For example, the OIG is currently examining
the BOP's strategies and procedures for hiring correctional officers.
In another review, we are investigating allegations that the BOP failed
to adequately address concerns that staff and inmates at several BOP
institutions were exposed to unsafe levels of lead, cadmium, and other
hazardous materials in computer recycling operations. We also are
conducting a follow-up audit of the BOP's efforts to manage inmate
healthcare.
In addition to the BOP's challenges, the Department must also
provide adequate and economical housing for the increasing number of
Federal detainees taken into custody by the USMS. Over 50,000 Federal
detainees awaiting trial or sentencing are housed each day by the USMS,
primarily in jails under contract with the USMS. The Department's
Office of the Federal Detention Trustee (OFDT) oversees the USMS's
detention activities and manages the budget for housing USMS detainees.
For fiscal year 2011, the OFDT is requesting over $1.5 billion to pay
for housing, transporting, and providing medical care for detainees.
The USMS places the majority of its Federal detainees in space
leased from State and local governments, with the remaining detainees
housed in BOP facilities or in private correctional facilities. The
USMS maintains contracts, known as Intergovernmental Agreements (IGA),
with about 1,800 State and local facilities to house its detainees.
Over the years we have found problems with the manner in which the per
diem charges that the Department pays for each detainee (also known as
a jail-day rate) are determined and with the Department's monitoring of
the charges. Increases in these charges can have an enormous affect on
the OFDT's budget. We are now conducting another audit of OFDT's
process for identifying and negotiating fair and reasonable per diem
rates.
In addition, the Department plays an important role in integrating
released inmates back into society and attempting to reduce recidivism
by providing grants to State and local agencies, law enforcement, and
community groups for prisoner re-entry programs. We currently are
auditing the Department's design and management of its prisoner re-
entry initiative grant programs. This audit will assess whether the
Department has an effective system for monitoring grantees and for
determining whether the grantees are meeting program goals.
FINANCIAL MANAGEMENT
Our audits have found that the Department has made significant
improvements in its financial reporting. At the same time, there is an
increasing demand for financial accountability and transparency
throughout the Federal Government, and the need for accurate, near
real-time financial information continues to present a significant
management challenge for the Department.
In fiscal year 2009, the Department again earned an unqualified
opinion and improved its financial reporting. For the 3rd straight
year, the financial statement audit did not identify any material
weaknesses in the Department's consolidated financial statements.
Additionally, Department components reduced significant deficiencies in
their financial statements from 14 in fiscal year 2008 to 8 in fiscal
year 2009. The Department deserves significant credit for these
efforts.
Similar to past years, however, much of this success was achieved
through heavy reliance on contractor assistance, manual processes, and
protracted reconciliations done for quarterly and year-end statements.
We remain concerned about the sustainability of these ad hoc and costly
manual efforts.
The decentralized structure of the Department also presents a major
challenge to obtaining current, detailed, and accurate financial
information about the Department as a whole because there is no one
single source for the financial data. The Department currently uses six
major accounting systems that are not integrated with each other. In
some cases, the Department components' outdated financial management
systems are not integrated with all of their own subsidiary systems and
therefore do not provide automated information necessary to support the
need for timely and accurate financial information throughout the year.
As a result, many financial tasks must be performed manually at interim
periods and at year end. These costly and time-intensive efforts will
continue to be necessary to produce financial statements and to satisfy
other financial requirements until automated, integrated systems are
implemented that readily produce financial information throughout the
year.
The Department has placed great reliance on the implementation of
the Unified Financial Management System (UFMS), which is intended to
replace the six major accounting systems currently used throughout the
Department. This unified system is expected to address many of the
Department's financial management automation issues. The UFMS is
intended to standardize and integrate financial processes and systems
to more efficiently support accounting operations, facilitate
preparation of financial statements, and streamline audit processes. It
also will enable the Department to exercise real-time, centralized
financial management oversight. We support the Department's
implementation of the UFMS and believe the system can help eliminate
the weaknesses in the Department's current disparate financial
management systems.
CONCLUSION
In sum, the Department has made progress in addressing many of its
top management challenges, but improvements are needed in important
areas. The Department must maintain its focus on counterterrorism while
effectively pursuing its traditional law enforcement duties, protecting
civil rights and civil liberties, restoring public confidence in the
Department, providing effective oversight of the billions of dollars in
grant awards each year, ensuring safe and economic detention
facilities, and effectively managing information technology and
financial management systems.
These are difficult tasks which require constant attention and
strong leadership by the Department. To aid in this effort, the OIG
will continue to conduct vigorous oversight of Department programs and
provide recommendations for improvement.
This concludes my prepared statement, and I would be pleased to
answer any questions.
Senator Mikulski. Well, thank you very much, Mr. Fine. And
as I said earlier when we welcomed you to the table, you have
been at Justice since 1995. Am I correct, sir?
Mr. Fine. That is correct, yes.
Senator Mikulski. So we really want to thank you for your
service, and we would like to thank the entire staff of the
inspector general's office for the work that they do. As you
can see, I intend to be a watchdog and a reformer in terms of
the administration.
You know, it is not whether you are for big government or
small government, but are you for smart government? And I think
we are in alignment here.
I am not going to ask questions about Sentinel, but I am
going to thank you for bringing that forward as an issue. Well
before this hearing, this Chair and staff have been actively
involved with both the Director of the FBI, the contractor, and
so on to make sure that the original purpose--that Sentinel
does happen and happens the way it is supposed to happen,
within appropriate budget parameters. We are not going to go
back to the boondoggle that we had with the previous attempt.
Now you heard today from the exchange by Senator Murkowski,
and even me, with the Attorney General, about this watch list
issue. In your testimony, you say that the FBI needs to do
more. You talk about in your audit report that you had made 16
recommendations to the FBI, and they have improved 9. But we
are all deeply troubled by this watch list, and the watch lists
don't seem to be working the way they were intended.
And you know the story. In this case, this man got on this
plane when there was actually active hot pursuit going on. At
the same time, I know in my own State, there is a prominent
business man who travels to the west coast every single week at
the same time, getting on the same plane. Everybody knows him
because of the regularity of his habits. Because of his last
name, he is on a list, and he has to go through it like he just
arrived in the country and is paying cash for every single
thing in the world.
So those are two sides of the coin. Do you have any further
thoughts on how we could make this more effective, or, in light
of what has happened over the last couple of days, where some
things work well in a spectacular way and others really raise
some flashing yellow lights, like the watch list?
WATCH LIST REFORM
Mr. Fine. We have done a series of reviews on the watch
list, and we have had concerns about it. Both areas that you
talk about, making sure that people, appropriately, are put on
the watch list in a timely fashion, in an accurate way, and
also that people who shouldn't be on the watch lists are taken
off.
We found problems with the FBI getting people on quickly
and also accurately putting them on. In fact, our review found
that 15 percent of the FBI terrorism investigations we reviewed
had failed to nominate terrorism suspects to the consolidated
watch list. That is unacceptable because it increases the risk
that these people can move about freely. So we think that needs
to be done more quickly.
We think, also, the information needs to get to the front-
line screeners who need it in a quicker fashion, both the
Customs and Border Patrol people and the individuals at the
airport. And one of the things that we looked at a long time
ago was the issue of secure flight and who was going to
actually be doing the screening of the people on the manifest
of the airplanes.
And now it is with the airlines. My understanding, it is
moving toward the TSA who will take over that responsibility.
And hopefully, with that, there will be more expeditious,
quicker, and effective screening of those passengers before
they get on a plane.
GRANT DISBURSEMENT
Senator Mikulski. Well, in light of what has happened, I
think there are going to be a lot of recommendations, and we
would welcome your views on that.
Let us go to the issue of grant disbursement. We want it to
be fair, meet criteria, and be done in a timely way. We have
asked them to do, what--I think you said $3 billion?
Mr. Fine. It is $3 billion each year for the Department.
Senator Mikulski. That is like 10 percent of the
Government's funding. And I know at another hearing, our
colleague Senator McCaskill raised issues about how, in the
previous administration, the Byrne grants were handled and so
on. So I am not here to finger point. I am here to pinpoint.
Are there things that we need to encourage through the
appropriation process, a way that to improve the grant
disbursal, the grant management process?
Mr. Fine. I think there are some things that the Department
can do to improve and that this subcommittee can spur the
Department to do. I think it is important to get that money
out, but it has to be used effectively, and there has to be
monitoring of where that money goes.
So we need to have a fair and open process. There has to be
documentation about why we are giving it to one person or the
other, not simply discretionary, subjective views, and that
when it goes out there, there has to be training to how it is
to be used. There also has to be an assessment of whether there
are high-risk grantees that need extra monitoring and extra
training to ensure that that money is used appropriately.
OJP, the Office of Justice Programs, has an office audit
assessment management. That should be an internal screening
mechanism to go out and do monitoring to make sure the
financial reports are in, to make sure that the money is used
for its intended purposes and it is being effective, and I
believe OJP has made progress in beefing up that office. But it
ought to do more of that.
It shouldn't wait for the OIG to come in and find problems.
It ought to prevent the problems in the first place, find
problems on their own, and not wait for an outside entity like
the OIG to find problems. So I think that is a critical area--
--
Senator Mikulski. Could I chime in? Do you think it is an
issue related to staffing, training, or culture?
Mr. Fine. I think it is all of the above, all of those. It
has not been staffed up adequately, I don't think. I think the
culture has been, in the past, to get that money out quickly,
but not to ensure that it is being used appropriately. I think
that is changing with the new head of OJP. But I also think
that there needs to be training on that money as well, to not
simply expect that it will be used appropriately.
Senator Mikulski. You know what I have found, and you heard
me raise some of the issues with making sure we have law
enforcement that is not only putting ``boots on the ground.''
We often in Congress will provide money for staff, but then not
for training or for technology that maximizes the efficacy of
what they are doing. Would you say that this is an area we
should focus on, which is not only the adequacy of people, but
that we really look at training and the--well, of course, the
technology issues in the Government are a whole other one. But
would you concur with that?
TRAINING AND OVERSIGHT
Mr. Fine. Yes. I think there does need to be adequate
training, and I think that is a core function of what these
grant-making entities need to do. Not simply to get that money
out there, but to train people on how it is to be used and how
it is to be used effectively.
It only takes a small percentage of that $3 billion to be
held back for adequate management and oversight to have
effective use of it, and I think there ought to be a small
percentage of that to go for effective management, to go for
training, to go for adequate oversight internally by the
Department of Justice and also by the Office of the Inspector
General. So I think that is an important thing that should be
considered in the appropriations and makeup of those grant
programs.
Senator Mikulski. Well, thank you. There are other issues
that we want to talk about as well with you, particularly in
the area of the detention of prisoners. And you very rightfully
brought forward that when we have the responsibility of holding
people in an incarcerated situation, the issue of violence
against prisoners, and then concurrently also violence against
prison officers is deeply troubling. I am going to ask my staff
to talk with you in more detail about that.
But you know, I want to ask a question where it sounds like
Senator Barb Mikulski meets Senator Tom Coburn. One of the
areas where we absolutely agree is where the Federal Government
provides funds, but we end up in conferences where it is 66
bucks per person to provide bagels. And I was at a community
fair, and there was something that someone gave me a little
plastic shopping bag with the name of an agency, not a Federal
agency head, and said, ``Here, enjoy it. You paid for it.''
Well, that is not what I go to my taxpayers to ask them to
do. There are a lot of--and that is where we get a bad rep. You
know, that is where, quite frankly, some of the folks who are
cranky with government have every right to be cranky.
You know the famous $4 Swedish meatball? I think there was
some extravagant spending at conferences and so on. How does
the inspector general see getting a grip on that?
I mean, I do believe in conferences. Gosh, you go to the
gang conference that we have in Maryland with the support of
the U.S. Attorney and all of us at the local level, and they
really do share information and further those important
relationships that are so critical in law enforcement for rapid
response and so on. But you know, 66 bucks for a bagel
breakfast is a little high.
Mr. Fine. You are absolutely right, and I think at the
request of this subcommittee, I believe, we did a review of
conference expenditures of the Department and found those
abuses. And you don't need lavish spreads to have an effective
conference, and we were very concerned by that.
We found, as you point out, a cost of $4 meatballs. We
found cost of sodas; a can of soda would cost $4.55 that they
would charge for one can of Coke. And it was just over the top.
As a result of our review, the Department has implemented
oversight procedures. They make sure that the funding for meals
is at a reasonable level. They make sure that there are
alternative locations sought to see that it is done in an
economic fashion. They look at the per diem cost. You have to
get Department approval for non-Federal facilities.
So I think there have been reforms made as a result of the
issues that were brought to the table. But you are absolutely
right. You don't need that kind of funding or that kind of
excess to have an effective conference, and I think the
Department of Justice understands that and has gotten a handle
on that. We are actually continuing to--we are doing a follow-
up review, actually about to initiate one right now to see what
reforms have been made. Have they been effective, and do they
have a handle on this?
Senator Mikulski. Well, we estimate that we won't be
marking up our bill, of course, until June, waiting for the
House. But we will look forward to your report, if it comes
again, and that is all part of our smart government
initiatives, and again, I am for conferences or the kinds of
meetings that occur. I think that is the only way you can do
training, and--I think you would concur in your many years at
Justice--where law enforcement, particularly at the State and
local level, can come together and forge those relationships
that work so well.
After the terrible events of 9/11, our local law
enforcement around the Beltway, meaning Maryland, Virginia, and
the District, I think developed much closer relationships. And
then, along comes something like the terrible sniper case.
Remember that?
Mr. Fine. Absolutely.
Senator Mikulski. You are a local guy. But because they
knew each other, talked with each other, trusted each other, we
didn't have to Federalize our response. Because they had been
trained, equipped, and trusted, we were able to bring that
sniper to justice.
And so, I believe in the training and the camaraderie that
comes from collaboration and training, but we have to be
prudent.
So I am going to say thank you, and we want to have ongoing
other conversations with you, and please, you have to know we
really do appreciate the work of the Attorney General, and if
you could convey that to your staff, I, and speaking for
Senator Shelby, who himself is a watchdog on these issues, we
would very much appreciate it.
Thank you.
Mr. Fine. Thank you very much.
Senator Mikulski. Before I conclude, I want to reiterate
the fact that Senator Shelby wanted very much to be here, and
he, too, sir, might have additional questions for you. And we
invite his staff, if there are any others.
ADDITIONAL COMMITTEE QUESTIONS
If there are no further questions, the Senators may submit
additional questions to the subcommittee. We request the
Department of Justice's response within 30 days. Now because of
so many controversial issues in the subcommittee pertaining to
both the administration of justice, the space committee, we
reserve the right to hold ongoing hearings as we do our due
diligence on this year's appropriation.
[The following questions were not asked at the hearing, but
were submitted to the Department for response subsequent to the
hearing:]
Questions Submitted to Hon. Eric H. Holder, Jr.
Questions Submitted by Senator Barbara A. Mikulski
FINANCIAL FRAUD--PREDATORY LENDING
Question. The collapse of the subprime mortgage market has brought
about an explosion of mortgage fraud cases all across the United
States. Predatory lenders destroy families and communities, and
undermine faith in financial systems. The Justice Dept's financial
fraud workload is sure to increase as more predatory lenders are
exposed.
Last year, this subcommittee gave you $438 million to hire 54 new
agents, 165 new attorneys and 142 new professional support staff
dedicated to investigating financial fraud, bringing the total number
working on this problem to over 4,000 Federal personnel. We need to
continue this surge in financial fraud investigations.
How many more agents, forensic accountants and analysts will you
need to address the mortgage fraud workload?
Answer. Congressional support in prior fiscal years has greatly
enhanced the FBI's ability and capacity to address mortgage fraud. In
the 12 month period between October 1, 2008 and September 30, 2009, the
FBI obtained 494 mortgage fraud convictions. On June 18, 2010,
Operation Stolen Dreams, a 3\1/2\ month sweep was concluded which, with
the assistance of 7 participating Federal agencies, has thus far
resulted in 863 indictments and information and 391 convictions.
However, the scope of the criminal threat, as well as the resources
available to address it, continues to require the prioritization of
investigations. In fiscal year 2010, over 68 percent of the FBI's 3,045
mortgage fraud cases involved losses exceeding $1 million per case. In
addition, the FBI anticipates it will receive over 75,000 Suspicious
Activity Reports (SARS) in fiscal year 2010, an increase of over 241
percent since 2005. FBI intelligence, industry sources such as the
Mortgage Asset Research Institute (MARI), and recent reports by the
special inspector general of the Troubled Asset Relief Program
(SIGTARP) predict an increase in foreclosures, financial institution
failures, regulatory agency/independent auditor fraud referrals, and
governmental housing relief fraud. These risk-based indicators of
mortgage fraud indicate that even prioritized investigations will
persist or grow in fiscal year 2011 and beyond. Therefore, the nature
of the criminal problem, the prolonged economic downturn, increased
foreclosures, and continued profitability of mortgage fraud may
increase mortgage fraud workload, which may, in turn, require the
investment of FBI resources to address the threat.
The FBI has approximately 358 Special Agents, 26 Intelligence
Analysts and 39 Forensic Accountants/Financial Analysts devoted to
investigating mortgage fraud matters in fiscal year 2010. The
administration's fiscal year 2011 request includes another $75 million
for 367 positions (143 agents) to combat white collar crime and
mortgage fraud. Like all criminal matters, the FBI makes every effort
to implement new and innovative methods to detect and combat mortgage
fraud, and focuses on the most egregious cases to address mortgage
fraud crimes.
Question. Will you be able to add agents to conduct these
investigations, even as you lose criminal agents to counterterrorism
work?
Answer. While it is accurate that the FBI moved criminal
investigative resources to counterterrorism in the months and years
immediately following September 11, 2001, more recently the FBI has
reallocated resources from lower priority white collar criminal
programs to address the growing mortgage fraud problem. The FBI has
more than 358 Special Agents addressing mortgage fraud, and many of
those resources have come from other lower priority white collar crime
investigations. For example, since fiscal year 2007, the FBI has
doubled the number of mortgage fraud investigators, leaving only 106
Special Agents available to investigate the approximately 1,900
remaining financial institution fraud cases. As previously mentioned,
congressional support, specifically for mortgage fraud, in prior fiscal
years has greatly enhanced our capability; however, the scope of the
criminal threat, as well as the resources available to address it,
continues to require the prioritization of investigations.
Question. What new training will you need to give agents and
analysts to investigate predatory lenders?
Answer. Predatory lending occurs primarily during the loan
origination process, and the FBI is continuing to investigate loan
origination fraud. Therefore, the FBI will continue to educate
analysts, investigators, and accountants on ways to identify and
investigate schemes where industry insiders target vulnerable
populations, and how to address this and other loan origination
schemes. Successfully addressing the problem will require understanding
the ways to identify where origination fraud has occurred, what factors
leave a community vulnerable, and which techniques can be best employed
to mitigate the threat. In addition to new training that will be
developed, the FBI continues to provide regular training to new and
experienced agents and regularly shares information on best practices,
emerging trends, and successful sophisticated techniques with its law
enforcement partners. For example, the mortgage fraud training courses
focus on proactive intelligence, basic mortgage fraud investigative
tools and resources, and enforcement measures that can be used to
efficiently and effectively combat mortgage fraud. The training also
provides an understanding of the mortgage lending process, including
the entities, paperwork, and regulatory agencies involved. These
training classes include industry and law enforcement experts, such as
the Department of Housing and Urban Development--Office of the
Inspector General and the Federal Deposit Insurance Corporation, to
educate agents, analysts, and forensic accountants on the various types
of mortgage fraud schemes, including predatory lenders.
Question. How can you better help State and local officials
investigate predatory lenders?
Answer. As mentioned previously, addressing loan origination fraud
where a vulnerable population is exploited by industry insiders is
largely a matter of identifying and understanding who is vulnerable,
how they are targeted, and the best means of mitigating that
vulnerability. The FBI uses its 23 mortgage fraud task forces and 67
mortgage fraud working groups not only to pool resources to investigate
the crime problem, but also to share valuable intelligence. By
expanding these partnerships and building on our current successes, the
FBI can continue to work with state and local officials to address this
crime problem.
HEALTH CARE FRAUD
Question. Now that the historic healthcare reform legislation is
law, we must do more to combat healthcare and insurance fraud that cost
U.S. citizens more than $60 billion annually.
We need to make sure law enforcement has the resources it needs to
investigate these crimes and prosecute the scammers.
What roles is the Justice Department already playing in healthcare
fraud investigations and prosecutions?
Answer. The Department of Justice (DOJ) has been both investigating
and prosecuting healthcare fraud for many years, working with the
Department of Health and Human Services (HHS) to root out waste, fraud,
and abuse from the Federal healthcare system.
While the FBI does the majority of the criminal investigative work,
the Department's Civil Division investigates qui tam relator cases and
the Civil Rights Division investigates violations of the Civil Rights
of Institutionalized Persons Act (CRIPA), 42 U.S.C. Sec. 1997. In
addition to these investigatory roles, the Civil Division, Criminal
Division, Civil Rights Division, and U.S. Attorneys Offices all
prosecute healthcare fraud.
Specifically, the Department's efforts to combat healthcare fraud
are as follows:
United States Attorneys
The 93 United States Attorneys and their assistants, or AUSAs, are
the Nation's principal prosecutors of Federal crimes, including
healthcare fraud, and each district has a designated Criminal Health
Care Fraud Coordinator and a Civil Health Care Fraud Coordinator. Civil
and criminal healthcare fraud referrals are often made to United States
Attorney's Offices (USAOs) through the law enforcement network
described herein, and these cases are usually handled primarily by the
USAOs, although civil cases are sometimes handled jointly with the
Civil Division. The other principal source of referrals of civil cases
for USAOs is through the filing of qui tam (or whistleblower)
complaints. These cases are often handled jointly with trial attorneys
within the Civil Division, but may be handled solely by the USAO. USAOs
also handle most criminal and civil Federal appeals.
The Executive Office for United States Attorneys' Office of Legal
Education (OLE) trains AUSAs and other Department attorneys, as well as
paralegals, investigators, and auditors in the investigation and
prosecution of healthcare fraud. For example, in 2009, OLE offered a
Health Car Fraud Seminar for AUSAs and Department attorneys, which was
attended by over 100 attorneys, as well as a Medicare Fraud Strike
Force Seminar and an Affirmative Civil Enforcement Conference,
including healthcare fraud issues, for paralegals, auditors and
investigators.
USAOs play a major role in healthcare fraud enforcement by bringing
affirmative civil cases to recover funds wrongfully taken from the
Medicare Trust Funds and other taxpayer-funded healthcare systems as a
result of fraud, waste, an abuse. Civil AUSAs, similar to their
criminal counterparts, litigate a wide variety of healthcare fraud
matters including false billings by doctors and other providers of
medical services, overcharges by hospitals, Medicaid fraud, and
kickbacks to induce referrals of Medicare or Medicaid patients, fraud
by pharmaceutical companies, and failure of care allegations against
nursing home owners.
Civil Division
Civil Division attorneys pursue civil remedies in healthcare fraud
matters, working closely with the USAOs, the HHS/Office of Inspector
General (OIG), the FBI, the Department of Defense, and other Federal
and State law enforcement agencies. Civil Division attorneys
investigate and litigate a wide range of healthcare fraud matters,
including allegations that Medicare and Medicaid providers and
suppliers (e.g., hospitals, doctors, skilled nursing facilities,
pharmaceutical and device manufacturers) overcharged the Government for
healthcare services or goods, or, that they billed for goods and
services that were not provided or not medically necessary. Oftentimes,
these allegations are linked to allegations that the doctors and others
were paid kickbacks or other remuneration to induce referrals of
Medicare or Medicaid patients in violation of the Anti-Kickback Act and
Physician Self-Referral laws. The Civil Division also investigates a
wide range of pharmaceutical and device fraud, including allegations of
drug price manipulation and illegal marketing activity that caused the
Medicare and Medicaid programs to pay for drug uses that were not
medically accepted indications (i.e., they were neither approved by the
FDA nor supported by applicable drug compendia, medical literature, or
accepted standards of medical practice).
In addition to its recovery efforts, the Civil Division provides
training and guidance in connection with pharmaceutical and device
fraud matters. Given the nationwide scope of the defendants' conduct,
as well as the complex legal and factual issues in these cases, the
Civil Division plays a critical role in coordinating both investigative
efforts and the legal positions taken by the Department.
Lastly, the Elder Justice and Nursing Home Initiative coordinates
and supports law enforcement efforts to combat elder abuse, neglect,
and financial exploitation. The Initiative supports law enforcement
efforts by maintaining an information bank of Elder Justice related
materials (including briefs, opinions, indictments, plea agreements,
subpoenas templates); funding medical reviewers, auditors, and other
consultants to assist Department attorneys and AUSAs in their nursing
home and/or long term care facility cases; hosting quarterly
teleconferences with Department attorneys and AUSAs across the country
to discuss issues or developments in connection with our nursing home
and failure of care cases; and coordinating nationwide investigations
of skilled nursing facilities.
Criminal Division
The Criminal Division supports criminal healthcare fraud litigation
and interagency coordination, which is carried out primarily by two of
its sections: the Fraud Section and the Organized Crime and
Racketeering Section (OCRS).
The Fraud Section initiates and coordinates complex healthcare
fraud prosecutions and supports the USAOs with legal and investigative
guidance and training, and trial attorneys to prosecute healthcare
fraud cases. Beginning in March 2007, the Criminal Division's Fraud
Section working with the local USAOs, the FBI, law enforcement partners
in HHS, and State and local law enforcement agencies launched the
Medicare Fraud Strike Force in Miami-Dade County, Florida to prosecute
individuals and entities that do not provide legitimate healthcare
services, but exist solely to defraud Medicare and other Government
healthcare programs. Since 2007, the Department and HHS have expanded
the Strike Force to seven locations.
In addition to healthcare fraud litigation, the Fraud Section also
provided legal guidance to FBI and HHS agents, health program agency
staff, AUSAs and other Criminal Division attorneys on criminal, civil
and administrative tools to combat healthcare fraud; provided advice
and written materials on patient medical record confidentiality and
disclosure issues, and coordinated referrals of possible criminal HIPAA
privacy violations from the HHS Office for Civil Rights; monitored and
coordinated Department responses to legislative proposals, major
regulatory initiatives, and enforcement policy matters; reviewed and
commented on healthcare provider requests to the HHS/OIG for advisory
opinions, and consulted with the HHS/OIG on draft advisory opinions;
worked with CMS to improve Medicare contractors' fraud detection,
referrals to law enforcement for investigation, and case development
work; and prepared and distributed to all USAOs and FBI field offices
periodic summaries of recent and significant healthcare fraud cases.
The Criminal Division's Organized Crime and Racketeering Section
(OCRS) supports investigations and prosecutions of fraud and abuse
targeting the 2.8 million private sector health plans sponsored by
employers and/or unions, including schemes by corrupt entities that
sell insurance products. Such private sector group health plans are the
leading source of healthcare coverage for individuals not covered by
Medicare or Medicaid. OCRS also provides strategic coordination in the
identification and prosecution of domestic and international organized
crime groups engaged in sophisticated fraud posing a threat to the
healthcare industry.
Civil Rights Division
The Civil Rights Division pursues relief affecting public,
residential healthcare facilities, and has established an initiative to
eliminate abuse and grossly substandard care in public, Medicare and
Medicaid funded nursing homes and other long-term care facilities.
The Special Litigation Section of the Civil Rights Division is the
sole Department of Justice component responsible for enforcing the
Civil Rights of Institutionalized Persons Act (CRIPA). CRIPA authorizes
the investigation of conditions of confinement at State an local
residential institutions (including facilities for persons with
developmental disabilities or mental illness, and nursing homes) and
initiation of a civil action for injunctive relief to remedy a pattern
or practice of violations of the Constitution or Federal statutory
rights. The review of conditions in facilities for persons who have
mental illness, facilities for persons with developmental disabilities,
and nursing homes comprises a significant portion of the program. The
Special Litigation Section works collaboratively with the USAOs and
HHS.
Federal Bureau of Investigation
The FBI is the primary investigative agency involved in the fight
against healthcare fraud that has jurisdiction over both the Federal
and private insurance programs. With healthcare expenditures rising at
three times the rate of inflation, it is especially important to
coordinate all investigative efforts to combat fraud within the
healthcare system. More than $1 trillion is spent in the private sector
on healthcare and its related services and the FBI's efforts are
crucial to the overall success of the program. The FBI leverages its
resources in both the private and public arenas through investigative
partnerships with the HHS/OIG, the FDA, the DEA, the Defense Criminal
Investigative Service, the Office of Personnel Management, the Internal
Revenue Service and various State and local agencies.
On the private side, the FBI is actively involved with national
groups, such a the National Health Care Anti Fraud Association (NHCAA),
the Blue Cross and Blue Shield Association and the National Insurance
Crime Bureau, as well as many other professional and fundamental
efforts to expose and investigate fraud within the system.
Healthcare fraud investigations are a priority within the White
Collar Crime Program Plan. FBI field offices throughout the United
States have proactively addressed significant healthcare fraud through
coordinated initiatives, task forces, and undercover operations to
identify and pursue investigations against the most egregious
offenders, which may include organized criminal activity and criminal
enterprises. Organized criminal activity has been identified in the
operation of medical clinics, independent diagnostic testing
facilities, durable medical equipment companies and other healthcare
facilities. The FBI is committed to addressing this criminal activity
through disruption, dismantlement and prosecution of criminal
organizations.
Question. What new responsibilities does the historic Patient
Protection and Affordable Care Act place on the Justice Department when
it comes to healthcare fraud?
Answer. The Affordable Care Act did not place additional
responsibilities on the Department of Justice as it relates to
enforcement. However, the act did provide additional tools for the
Department of Justice and made the following changes to existing
Federal law which will assist the Department's efforts to prosecute
healthcare fraud:
--Directs the Sentencing Commission to increase the Federal
sentencing guidelines for healthcare fraud offenses, by 20-50
percent for crimes that involve more than $1,000,000 in losses;
--Updates the definition of ``healthcare fraud offense'' in the
Federal criminal code (18 U.S.C. Sec. 24(a)) to include
violations of the anti-kickback statute, the Food, Drug and
Cosmetic Act, and certain provisions of the Employee Retirement
Income Security Act, allowing these important healthcare
offenses to be more vigorously enforced. These changes will:
--Make the proceeds of these offenses subject to criminal
forfeiture,
--Render obstruction of an investigation of these offenses a crime,
--Include these offenses as specified unlawful activity for
purposes of money laundering, and
--Authorize the use of administrative subpoenas for the production
of documents;
--Clarifies that a violation of the anti-kickback statute constitutes
a violation of the False Claims Act. This will ensure that all
false claims resulting from illegal kickbacks are themselves
illegal, even if the claims are submitted by an innocent third-
party and not directly by the wrongdoers themselves;
--Revises the False Claims Act public disclosure bar narrowing the
categories of public disclosures, revising the definition of an
original source, and eliminating the jurisdictional nature of
the bar;
--Clarifies that the term ``willful'' under the healthcare fraud
statute (18 U.S.C. Sec. 1347) does not require proof that
defendants either had knowledge of that particular statute or
had specific intent to violate that law. The act clarifies that
``willful conduct'' in this context does not require proof that
the defendant had actual knowledge of the law in question or
specific intent to violate that law;
--Provides the Department of Justice with subpoena authority for
investigations conducted pursuant to the Civil Rights of
Institutionalized Persons Act, allowing the Government to
better protect the health and civil rights of individuals
living in institutional facilities;
--Amends a key obstruction statute (18 U.S.C. Sec. 1510) so that
obstruction of criminal investigations involving administrative
subpoenas under the Health Insurance Portability and
Accountability Act of 1996 is treated in the same manner as
obstruction of criminal investigations involving grand jury
subpoenas;
--Directs the Attorney General or designee to participate in the
Elder Justice Coordinating Council, Chaired by the Secretary of
HHS;
--And appropriates additional HCFAC mandatory funds.
Question. What is the Health Care Fraud Prevention and Enforcement
Action Team (HEAT) initiative and what role does the Department of
Justice play in it?
Answer. On May 20, 2009, Attorney General Holder and Secretary
Sebelius announced the Health Care Fraud Prevention and Enforcement
Action Team (HEAT), a new effort with increased tools and resources,
and a sustained focus by senior level leadership to enhance the
collaboration levels between the Departments of Justice and Health and
Human Services. With the creation of the new HEAT effort, the
Department of Justice and HHS enhanced our commitment to fighting
Medicare Fraud as a Cabinet-level priority for both this Department and
HHS. HEAT, which is jointly led by the Deputy Attorney General and HHS
Deputy Secretary, is comprised of top level law enforcement agents,
prosecutors and staff from the Justice Department and HHS and their
operating divisions, and is dedicated to joint efforts across
Government to both prevent healthcare fraud and enforce current anti-
fraud laws around the country.
The mission of HEAT is:
--To marshal significant resources across Government to prevent
waste, fraud and abuse in the Medicare and Medicaid programs
and crack down on the fraud perpetrators who are abusing the
system and costing us all billions of dollars.
--To reduce skyrocketing healthcare costs and improve the quality of
care by ridding the system of perpetrators who are preying on
Medicare and Medicaid beneficiaries.
--To highlight best practices by providers and public sector
employees who are dedicated to ending waste, fraud and abuse in
Medicare.
--To build upon existing partnerships that already exist between DOJ
and HHS like our Medicare Fraud Strike Forces to reduce fraud
and recover taxpayer dollars.
Another key HEAT objective is to improve and expand information and
data sharing procedures between HHS and the Justice Department so that
law enforcement has access to critical data and information on a near
``real-time'' basis in order to identify patterns of fraud and abuse
more rapidly, increase efficiency in investigating and prosecuting
complex healthcare fraud cases, and turn off funding and profits to
those who may be defrauding the system.
The Attorney General and HHS Secretary have instigated several HEAT
initiatives.
Significantly, the Medicare Fraud Strike Force has been expanded to
a total of seven cities. The HHS/OIG implemented cutting-edge
electronic discovery tools to maximize investigative efficiency in the
processing and review of voluminous electronic evidence obtained during
the course of our healthcare fraud investigations. The Centers for
Medicare and Medicaid Services (CMS) launched several projects designed
to improve the Durable Medical Equipment (DME) provider enrollment
process, Medicare Parts C and D compliance and enforcement activities,
and compliance training for providers to prevent honest mistakes and
help stop potential fraud before it happens. Finally, the CMS has
several new authorities to help State Medicaid officials conduct
audits, monitor activities and detect fraud. One example is the
authority to establish a Medicaid Recovery Audit Contractor (RAC)
program.
In addition, CMS and law enforcement agency representatives, such
as members of the Civil and Criminal Divisions, the United States
Attorneys' Offices (USAOs) and Executive Office for the United States
Attorneys (EOUSA), the FBI and HHS/OIG, meet on a periodic basis
through numerous local or regional healthcare fraud working groups and
task forces. EOUSA and CMS also sponsor a monthly national conference
call during which Assistant United States Attorneys from all districts
have the opportunity to interact directly with CMS representatives,
receive timely reports on CMS operations, and obtain answers to
questions related to specific issues regarding current investigations.
The Departments also convene interagency staff-level working groups as
needed to develop mutual proposals for improving our healthcare fraud
fighting capabilities.
Each Department routinely enlists senior staff from the other to
participate in staff training programs, thereby encouraging the free-
flow of shared expertise and accessibility. Since 2007, the Department
of Justice's Criminal Division and HHS/OIG have provided an opportunity
for HHS/OIG counsel to serve 6 month details to gain experience
managing criminal healthcare fraud investigations and trial experience
in Federal court with Criminal Division colleagues. In addition,
attorneys from HHS/OIG have been detailed to U.S. Attorneys' Offices as
Special Assistant U.S. Attorneys to provide USAOs with additional
prosecutorial resources.
Question. The Department's efforts to combat healthcare fraud are
funded by the Health Care Fraud and Abuse Control account, administered
by HHS. The fiscal year 2011 request is $272 million for these
activities.
Do you believe more funding is needed to stop fraud in Medicare,
Medicaid and other healthcare benefits programs?
Answer. As it relates to healthcare fraud enforcement, the
Department has received sufficient increases in recent years to allow
it to adequately investigate and prosecute healthcare fraud.
The fiscal year 2011 President's budget request includes a
discretionary increase of $250 million for the Health Care Fraud Abuse
and Control account. The Department of Justices portion of this
increase is $60 million, which will provide a total of $90 million in
discretionary resources for the Department in fiscal year 2011. In
addition to the fiscal year 2011 discretionary increase, the Department
will also receive $61.9 million in mandatory funding, provided through
the Health Care Fraud Abuse and Control Account. This amount includes
$6.7 million in additional funding provided through the recently
enacted healthcare legislation.
In fiscal year 2011, the FBI will receive $128.8 million in
mandatory funding made available through the Health Insurance
Portability and Accountability Act of 1996.
In sum, the Department will receive $280.7 million in fiscal year
2011 in reimbursable funding to support healthcare fraud investigations
and prosecution, if Congress funds the discretionary HCFAC request.
This represents a 33 percent increase over the Department's fiscal year
2010 efforts, and will allow the Department to deploy additional
Medicare Strike Force Task Forces, fund additional pharmaceutical and
False Claims Act litigation, and address civil rights violations as
they relate to healthcare fraud.
TASK FORCES--STATE AND LOCAL LAW ENFORCEMENT
Question. Joint Terrorism Task Forces (JTTFs) are teams of Federal,
State and local law enforcement and intelligence agencies working
together to identify and respond to terrorist threats at the local
level. There are now more than 100 JTTFs led by the FBI, with over
4,500 task force participants.
The crucial work done by these teams has been front and center this
week to investigate this past weekend's failed bombing attempt in Times
Square. Their efforts, along with the New York Police Department and
other Federal law enforcement and intelligence agencies, led to the
swift capture of the suspect responsible for what could have been a
deadly attack on Americans.
How beneficial are the Task Forces in responding to terrorist
threats? What unique role do they play in terrorism investigations?
Answer. The participation of State, local, and Federal law
enforcement partners on JTTFs creates a ``force multiplier'' benefit.
By having State and local officers and participants from other Federal,
State, and local agencies, the JTTFs are able to address many more
cases than the FBI could handle alone.
The FBI is faced with a formidable task that experience has shown
is best achieved through the utilization of the vast resources and
personnel dedicated to task forces. The JTTFs cover thousands of leads
in response to calls regarding counterterrorism-related issues. These
leads address potential threats to national security and require a
significant amount of coordination and resources.
Overall, greater interaction and cooperation between FBI Special
Agents and their counterparts exist due to the task force concept,
which has led to a more focused, integrated and resource-conscious
approach to counterterrorism investigations.
Question. Will their role be expanded in the future?
Answer. In recent years, the FBI has expanded the number of JTTFs
within the United States to promote interoperability and better
leverage Federal, State, and local agencies and their resources. There
are currently 104 JTTFs across the United States in 56 FBI field
offices and 48 FBI Resident Agencies. The total national staffing level
of Federal, State and local officers, including FBI personnel, is
4,492. Currently, there are 656 State and local agencies that
participate on JTTFs nationwide. In addition, JTTFs include
representatives from the U.S. Intelligence Community, Departments of
Homeland Security, Defense, Justice, Treasury, Transportation,
Commerce, Energy, State, Interior, and others. The FBI anticipates that
the level of Federal, State, and local participation on the JTTFs will
grow in the future to more effectively and efficiently address emerging
threats.
Question. What additional resources would you need to expand the
program?
Answer. The FBI anticipates that the level of Federal, State, and
local participation in the JTTFs will continue to grow in the future.
This growth will result in the need for an increased allocation of
funding to reimburse Federal agencies for their participation on the
JTTFs, as well as to State and local agencies for overtime costs,
funding for equipment, funding to lease additional vehicles, and rent
and renovation funding required in connection with the assignment of
additional personnel to the FBI JTTF locations.
STOPPING CHILD PREDATORS
Question. The Adam Walsh Act gives the U.S. Marshals Service the
authority to treat convicted sex offenders as fugitives if they fail to
register. It also directs the Marshals to assist jurisdictions locate
and apprehend these individuals. There are roughly 135,000 non-
compliant offenders in the United States. The Marshals Service
estimates they need a dedicated force of 500 deputies to fully
implement the Adam Walsh Act.
In March, President Obama appeared on ``America's Most Wanted'' to
pledge increased funding and personnel for enforcement of the Adam
Walsh Act. The President highlighted that ``it is very important for us
to build up U.S. Marshals' capacity. That is something we want to do in
the Federal budget . . . my expectation is that we will get support,
bipartisan support, from Congress on this issue because it is so
important to every family across America.''
How many Deputy U.S. Marshals are currently dedicated full-time to
Adam Walsh Act enforcement?
Answer. In fiscal year 2010, the USMS had 177 positions dedicated
full-time to Adam Walsh Act (AWA) enforcement (132 of the positions are
Deputy U.S. Marshals (DUSM). When USMS received the fiscal year 2010
appropriation, USMS revaluated the current Adam Walsh Act positions and
increased the number of DUSMs for AWA enforcement. Of the 177
positions, the USMS placed 66 new and reassigned 20 existing Senior
Deputy U.S. Marshals to districts throughout the United States to
coordinate AWA enforcement activities.
Question. Why didn't DOJ seek additional resources in the fiscal
year 2011 budget request for the Marshals Service to hire more deputies
for this work?
Answer. The Adam Walsh Child Protection and Safety Act is landmark
legislation that considerably enhances the Department's ability to
respond to crimes against children and vulnerable adults and prevent
sex offenders who have been released back into the community from
victimizing other people. In fiscal year 2011, the administration is
requesting $336 million for Adam Walsh Act related activities, an
increase of $20 million (6.3 percent) to support implementation of the
act. The fiscal year 2011 funding will enable the Department to
continue existing base operations; manage expanding program workloads;
provide grants to States to offset costs associated with implementing
the act; and provide administrative, policy, and technical assistance
for State and local government.
The Department appreciates the recent statement by the President on
``America's Most Wanted'' pledging increased funding and personnel for
enforcement of the Adam Walsh Act. President Obama highlighted that
``it is very important for us to build up U.S. Marshals' capacity. That
is something we want to do in the Federal budget . . . my expectation
is that we will get support, bipartisan support, from Congress on this
issue because it is so important to every family across America.''
Question. Do you plan to stand behind President Obama's commitment
for more resources for Adam Walsh Act enforcement in the upcoming
fiscal year? If so, will the fiscal year 2011 budget request be amended
to include this support?
Answer. The Department and the USMS fully support the mandates of
the Adam Walsh Act and appreciate its importance to this subcommittee.
We stand ready to use the resources, both monetary and nonmonetary, to
ensure the safety of the public.
The fiscal year 2011 President's budget requests $336 million for
the Department to implement Adam Walsh Act related activities, an
increase of 6.3 percent over the prior year. The Department is not
aware of any pending supplemental requests or budget amendments that
would direct additional resources to the Department specifically to
enforce the Adam Walsh Act. However, most of the activities authorized
by the act are already performed as part of the Justice Department's
traditional mission. In most instances, for programs where the act
authorized specific funding levels, the Department is spending at or
above those levels.
SECOND CHANCE ACT
Question. We have to look at the whole crime problem in a holistic
way. We need to look at what ways can we prevent people from becoming
criminals and we need to figure out how to make prisoner re-entry into
regular society more successful than it has been in the past.
The Second Chance Act became law in 2008. Since then, our
subcommittee has provided $125 million for State and local offender re-
entry programs with the goal of reducing criminal recidivism. President
Obama's fiscal year 2011 request includes another $100 million for
Second Chance Act programs, but does not specify which of those
programs it intends to fund.
Last year, this subcommittee specified funding for several
different Second Chance Act areas, like adult and juvenile offender
reentry, family-based substance abuse treatment, and grants for
mentoring and transitional services. What specific programs authorized
by that law do you propose to fund in fiscal year 2011?
Answer. The President's fiscal year 2011 budget request includes
$100 million for the Second Chance Act, which is the same amount
appropriated in fiscal year 2010. The fiscal year 2011 request
specifies three allocations from the $100 million:
--$9.0 million to implement section 111, Reentry Courts, which
authorizes the creation of State, local, and tribal reentry
courts to oversee the reentry process--including monitoring,
supervision, case management, service provision, and community
involvement.
--$10.0 million under section 112, Prosecution Drug Treatment
Alternatives to Prison (DTAP), to provide grants to State and
local prosecutors to develop, implement, or expand qualified
drug treatment programs that are alternatives to imprisonment.
--$1.7 million under section 245, Reentry Research, to develop and
implement an ongoing reentry and recidivism statistics program.
Of the remaining $79.3 million from the fiscal year 2011
President's budget request, OJP plans to continue support for
priorities such as adult and juvenile demonstration programming, pre-
and post-release mentoring programs, and targeting risk factors for
recidivism through treatment strategies such as family treatment and
treatment of offenders with co-occurring disorders. Funding will also
provide ongoing support for the National Reentry Resource Center. OJP
will continue to seek input from stakeholder groups and to consider
guidance from Congress to determine the allocation of the funds.
Question. What benefits do you as a law enforcement officer see in
providing robust funding for re-entry programs?
Answer. The Department sees tremendous benefit in providing funding
for reentry programs because the aim is to ensure that those returning
to our communities have an opportunity to contribute to the success of
society and do not commit additional crimes. The challenges associated
with offenders' reentry from jails and prisons are daunting; a
significant number experience substance addiction, job and housing
instability, mental illness, health problems, and a host of other
problems. The Department's approach to reentry is a research-driven
process which has shown that providing offenders a broad range of
services when they leave incarceration helps ensure their successful
transition to the community. Successful reintegration strategies
translate into public safety gains in the form of reduced recidivism
and victimization, improved community safety, and the long-term
reintegration of formerly incarcerated individuals as productive
members of their families and their communities.
TIMES SQUARE BOMBING ATTEMPT
Question. Just 53 hours passed from the time Faisal Shahzad's
(pronounced Fi-zel Sha-zod) car was smoking in Times Square until he
was arrested. Press reports indicate Mr. Shahzad was cooperating both
before and after he was read his Miranda rights.
First, is he still cooperating with investigators and what new
information are we learning?
Answer. Faisal Shahzad is no longer cooperating with investigators.
He pled guilty and has been sentenced to life in prison.
Question. How were the FBI, DOJ, and NYPD able to turn this around
in such a remarkably short period of time? In other words, why was this
investigation and arrest so successful?
Answer. The investigation of the Times Square bombing attempt was
able to come to a swift conclusion due to the dedication and
professionalism of all agencies involved. Specifically, the New York
Police Department and FBI's New York Field Division were able to
quickly obtain the Vehicle Identification Number of the SUV, despite
efforts by Shahzad to obscure the number.
Investigative leads were sent to various divisions to identify the
last known owner of the vehicle. The results of these efforts provided
a series of additional leads which ultimately led to the identification
of the last owner of the vehicle used in the Times Square attack. Using
information provided by this individual, FBI's New Haven Field Division
was able to conduct toll analysis to ultimately identify Faisal Shahzad
from Department of Homeland Security's Customs and Border Protection
(CBP) records.
In addition to this effort, a canvass of New York fireworks
distributors linked Shahzad to a location where he purchased fireworks
used to construct the vehicle-borne improvised explosive device.
Investigators obtained computerized records from this location, which
showed that Shahzad made the purchase of several large fireworks and
used his Connecticut driver's license to verify his age. This driver's
license photograph was subsequently shown to the previous owner of the
SUV used in the attack, and she verified that Shahzad had purchased the
vehicle.
Based on this timely information, the FBI's investigators were able
to quickly refine their search and focus on Shahzad as the perpetrator
of the attempted attack in Times Square.
Question. Press reports also indicate that Mr. Shahzad was
nominated for the ``No-Fly'' list on Sunday, yet he was still able to
board a flight to Dubai on Monday. What caused this to happen? Has the
U.S. Government still not learned its watch-listing lessons from the
failed Christmas Day bombing attempt?
Answer. Faisal Shahzad was nominated for placement on the
Transportation Security Administration's ``No-Fly'' list mid-day on
Monday, May 3, 2010, and was placed on the ``No-Fly'' list shortly
thereafter. At the time Shahzad was nominated, airlines were required
to update their databases with U.S. Intelligence Community watchlisting
information every 24 hours. This update was typically performed by the
airlines at the end of each day. Emirates Airlines had not yet updated
their system with the latest watchlisting information when Shahzad
purchased his ticket and boarded the plane the evening of May 3, 2010.
An additional review of the flight manifest by the Customs and Border
Protection National Targeting Center (NTC) identified the presence of a
No-Fly subject on the plane. The NTC immediately contacted Customs and
Border Protection Officers located at JFK, and directed them to contact
the airline immediately to ensure that the aircraft did not depart
prior to their arrival at the gate. Upon arrival, CBP Officers removed
the passenger from the aircraft. As a result of this investigation,
foreign airlines are now required to update their watchlisting
information within 30 minutes of receiving a new or revised ``No-Fly''
list from TSA. Additionally, TSA anticipates that all airlines required
to implement Secure Flight will do so by the end of this calendar year.
Question. Press reports state Mr. Shahzad received some training in
Pakistan. Is there a terrorist group responsible for his training? If
so, who? When was the training provided? What cooperation have we
received from Pakistan on this investigation?
Answer. Shahzad received training from the terrorist group Tehrik-
e-Taliban Pakistan (TTP). He attended a TTP training camp in North
Waziristan from December 2009 to January 2010, where he obtained 4 to 5
days of explosives training.
The Pakistan authorities have been very helpful in this
investigation and have taken the attempted attack on the United States
very seriously.
FUNDING FOR TERRORIST TRIALS
Question. One of the major obstacles facing our bill this year is
the debate over the transfer of Guantanamo Bay detainees to the United
States to stand trial. The fiscal year 2010 CJS conference agreement
included language to restrict Guantanamo Bay detainees from coming into
the United States except for prosecution. In November 2009, you
announced your intentions to bring five 9/11 terrorist suspects to New
York City for trial. As we all know, that plan is now in limbo.
The President's fiscal year 2011 request for the Justice Department
includes what I consider now to be placeholders. The request includes
$73 million for security-related or associated with civilian trials,
but the location of the trials is now unknown.
How does the Justice Department plan to address the additional risk
for these high threat trials on U.S. soil?
Answer. The development of the funding request in the fiscal year
2011 President's budget took into account the additional security
requirements associated with these high threat trials. The request
reflects the additional law enforcement officers and infrastructure
requirements needed to manage the risk associated with these trials.
Specifically, the funding will be used to harden cell blocks,
courthouse facilities, and housing facilities, to increase electronic
surveillance capability, and to provide protection for judges and
prosecutors.
Question. What unique costs are associated with these trials
compared to other trials held in Federal courts?
Answer. The category of costs for these trials would be similar to
other trials held in Federal courts. These categories include prisoner
housing and transportation, courthouse security and litigation costs.
However, the security requirements associated with trying these
suspects are higher than most other trials, increasing the cost. For
example, for these trials, the Department anticipates needing
additional funding to harden cell blocks, courthouse facilities, and
housing facilities, to increase its electronic surveillance capability,
and to provide increased protection for judges and prosecutors.
Question. Are these costs sufficient to keep a community safe
wherever trials are held?
Answer. The funding requested in fiscal year 2011 reflects the
resources needed to address the additional security requirements
associated with these trials. The additional security requirements take
into consideration the safety of the communities.
Question. The only 9/11 terrorism case tried in U.S. courts was
that of Zacarias Moussaoui. It cost taxpayers millions of dollars and
took over 4 years to convict him. The $73 million in the budget would
only cover trial-related costs in fiscal year 2011. What costs have you
estimated for the following years? What factors would make costs
increase over the first year estimate?
Answer. As reflected in the President's budget request, the
Department anticipates the costs for future years to be similar to
fiscal year 2011, with adjustments for pay raises and other
annualization costs. In developing the fiscal year 2011 budget request,
many assumptions were made, including the location of the trials.
Question. If you decide to prosecute more Guantanamo Bay detainees
in U.S. Courts, there will an additional strain on U.S. Marshals whose
mission is to protect judges, transfer detainees and secure courtrooms.
Will this strain on resources compromise U.S. Marshal's mission? How
will this new mandate affect other Marshal priorities, such as tracking
down and arresting fugitive sex offenders?
Answer. No, these prosecutions will not compromise the USMS's
mission to protect judges, transfer detainees, and secure courtrooms.
However, resources will be needed to cover the anticipated
extraordinary costs associated with these trials, including: additional
security measures for the judiciary, the courtroom, the courthouse, and
the assistance of local law enforcement in assisting with the large
crowds and high media interest.
The Department does not anticipate that these prosecutions will
affect other USMS priorities. The fiscal year 2011 President's budget
includes $72.8 million for the Department's anticipated increases in
security and prosecutorial costs associated with high security threat
trials. The requested resources would finance a variety of functions,
including transportation and prisoner production, prisoner housing,
security, litigation, and other costs associated with high threat
trials.
COURTHOUSE SECURITY
Question. A recent inspector general's report found ``critical
deficiencies'' in the Justice Department's ability to protect Federal
judges and prosecutors as threats against them escalate. The number of
threats against court officials has more than doubled since 2003,
rising to 1,400 in the last year, but the number may be significantly
higher.
The U.S. Marshals Service has primary responsibility for ensuring
the safety and security of more than 2,000 Federal judges and 5,000
court personnel. The Executive Office for U.S. Attorneys, U.S.
Attorneys' Offices and the FBI are also involved in responding to
threats.
Are Federal judges and prosecutors counseled before a threat occurs
about the security options provided by the Marshals Service and the
Executive Office for U.S. Attorneys?
Answer. Yes, the U.S. Marshals Service (USMS) provides security
presentations for members of the Judiciary in a variety of official
forums, including Judicial Nominee Briefings, New Chief Judge
Orientations, judicial conferences, and annual judicial security
training in each district. The judiciary has also been provided with a
judicial security DVD, entitled Project 365--Security Starts with You.
This DVD clearly presents the importance of reporting of threats and
inappropriate communications on a timely basis to USMS, as well as the
ramifications of not doing so.
U.S. Attorney's Office employees are provided security information
during the annual judicial security training provided to the court
family agencies in each of the districts. The USMS also provides
security briefings at U.S. Attorney and District Office Security
Manager conferences. At these conferences, the USMS explains that
threats are not limited to judges and that any member of the court
family is susceptible to receiving a threat. In addition, the USMS
participates in interactive ``webinars'' regarding security that are
coordinated by the Executive Office for U.S. Attorneys.
Question. What is the Justice Department doing to address the
inspector general's recommendations for improved threat responses to
ensure the safety of judges, court officials and their families?
Answer. USMS has updated the training materials provided to the
Judiciary and U.S. Attorneys to further emphasize the importance of
quickly reporting threats and inappropriate communications, as well as
the ramifications of not doing so. USMS is upgrading its Threat
Management Information System (TMIS) to allow for faster searches and
searches on larger data sets.
In addition, the USMS has directed all of its district offices to
send notification letters to local law enforcement agencies informing
them if a Federal judge resides within their jurisdiction. These
notification letters request that the judges' information be added to
the local 911 system and that the local USMS office be contacted
immediately for any emergencies reported at a judge's residence.
Question. The Department requests $42 million, a $4 million
increase over last year, to hire 12 new Deputy Marshals and support
courthouse security. Are more resources needed to ensure the safety of
all employees of the Federal judiciary and U.S. Attorneys? What gaps in
security measures are still present?
Answer. In the fiscal year 2011 President's budget, the USMS
requests $42 million for Tactical Operations, a $5 million or 14
percent increase over the fiscal year 2010 appropriation. This increase
will support 14 additional positions (including 12 Deputy U.S.
Marshals) for the Special Operations Group, which supports USMS and
other agencies with rapidly deployable, highly trained law enforcement
officers. These resources will strengthen the USMS's ability to prevent
and respond to terrorist and other attacks against the Federal
judiciary and protected witness.
Question. Is there a central location for the Federal judiciary and
U.S. Attorneys to report threats? What formal protocols have you put in
place to ensure that the Executive Office for U.S. Attorneys, U.S.
Attorneys' Offices and the FBI properly coordinate investigations with
the Marshals Service? What funds are requested in their respective
budgets to carry out their roles in protecting judges and prosecutors?
Answer. The local USMS district office should receive information
on all threats. This information is then forwarded to the USMS Threat
Management Center within the Judicial Security Division at Marshals
Service headquarters. In addition, the USMS, the FBI, and EOUSA work
well together and will continue to seek ways to improve the security of
Federal judges and prosecutors. The USMS, FBI and EOUSA are in the
process of formalizing Memoranda of Understanding that will define the
roles and responsibilities of each organization in protecting Federal
judges, U.S. Attorneys, and Assistant U.S. Attorneys. The USMS fiscal
year 2011 President's budget requests $440 million for Judicial and
Courthouse Security. The request is a 3.2 percent increase over the
fiscal year 2010 enacted budget.
SOUTHWEST BORDER VIOLENCE--DEA
Question. I continue to have concerns that the current resources
for the Department of Justice to combat violence along the border are
inadequate. If the current wave of violence in the border States cannot
be contained, cartel-related crime will most likely expand to major
metropolitan areas, including areas like Atlanta, Chicago and even
Baltimore.
The explosion of violence in Mexico and along the southern border
is caused by a limited number of large, sophisticated and vicious
criminal organizations--not by isolated individual drug traffickers.
The Department's fiscal year 2011 request includes $584 million to
support investigations and prosecutions relating to border violence.
How concerned should communities along the border--and throughout
the United States as a whole--be about cartel-related violence?
Answer. To date, the cartel-related violence in Mexico has not
spilled over into the U.S. border communities. In fact, by and large,
violent crime in many of the U.S. border cities is lower now than it
has been in recent years. (See the Federal Bureau of Investigation
Uniform Crime Report).
Despite the relative safety and security in the U.S. communities,
however, the Department of Justice is acutely aware of the escalation
of violence by drug cartels, gangs, and other criminal organizations
just over our border with Mexico. This violent activity is not solely
an international threat; it is a national security issue for the United
States. The Department of Justice is firmly committed to preventing and
responding to spill-over violence as aggressively as possible.
The root cause of the explosion of violence just south of our
border is the conflicts within and among a limited number of
sophisticated, transnational criminal organizations. These
hierarchical, Mexico-based cartels are responsible for smuggling into
the United States most of our Nation's illegal drug supply. While the
cartels' primary business is drug trafficking, they also sponsor a
panoply of other crimes that support their illegal operations. These
other crimes include extortion, torture, murder, corruption of public
officials, sheltering of wanted fugitives, kidnapping and human
smuggling, laundering of illicit criminal proceeds through the existing
financial system and through bulk cash smuggling, and the illegal
acquisition, trafficking, and use of firearms and explosives.
The Merida Initiative is the administration's four-pillar strategy
to help bring security to Mexico. It focuses on: (1) Disrupting the
capacity of organized crime to operate; (2) institutionalizing capacity
to sustain rule of law; (3) creating a 21st century border structure;
and (4) building strong and resilient communities. The Department of
Justice plays a key role in implementing pillars one and two.
The Department of Justice plays a primary role and brings to bear
its special expertise in taking down Mexico's organized, multi-faceted
criminal enterprises. The Department's view--based on decades of
experience in investigating, prosecuting, and dismantling organized
criminal groups, such as the Mafia, international terrorist groups, and
domestic and transnational gangs--is that the best way to fight large
scale criminal organizations is through prosecutor-led, intelligence-
driven, multi-agency task forces that blend the strengths, resources,
and expertise of the complete spectrum of Federal, State, local, and
international investigative and prosecutorial agencies. Through their
participation in such task forces, the Department's prosecutors,
together with its component law enforcement agencies--the DEA, ATF, the
FBI, and the USMS--give the Department the capacity to carry out the
full range of activities necessary to succeed against these
organizations.
The Department has embraced a proactive model to achieve these
comprehensive goals, in which we develop priority targets through the
extensive use of intelligence. Sharing information, we build cases,
coordinating long-term, extensive investigations to identify all the
tentacles of a particular organization. Through sustained coordination
of these operations, we are able to execute a coordinated enforcement
action, arresting as many high-level members of the organization as
possible, disrupting and dismantling the domestic transportation and
distribution cells of the organization, and seizing as many of the
organization's assets as possible, whether those assets be in the form
of bank accounts, real property, cash, drugs, or weapons. Finally, we
prosecute the leaders of the cartels and their principal facilitators,
locating, arresting, and extraditing them from abroad as necessary. In
this effort, we coordinate closely with our Mexican counterparts to
achieve the goal: destruction or weakening of the drug cartels to the
point that they no longer pose a viable threat to U.S. interests and
can be dealt with by Mexican law enforcement in conjunction with a
strengthened judicial system and an improved legal framework for
fighting organized crime.
In most places, along the border and throughout the country, the
Department of Justice-led, multi-agency Organized Crime Drug
Enforcement Task Force (OCDETF) provides an effective mechanism for law
enforcement agencies from within the Department of Justice, from
elsewhere in the Federal Government (including the Departments of
Homeland Security and Treasury), and State and local law enforcement,
to combine with Federal prosecutors to form a ``virtual task force''
for the purpose of investigating and prosecuting a particular high-
value drug trafficking organization. In certain key locales, OCDETF has
established actual, brick-and-mortar co-located Strike Forces, for the
pursuit of the highest level traffickers of drugs, guns, and money. For
instance, the Department uses the OCDETF Strike Force concept to target
all the organized crime activities of the drug cartels--not just those
crimes directly related to the drug trade. By further leveraging and
coordinating the investigative expertise and jurisdiction of law
enforcement agencies outside the drug enforcement area, the Department
tasks the Strike Forces to disrupt and dismantle every area of the
cartels' infrastructures and undermine their ability to operate
successfully in any illegal activity.
On a local level, each Strike Force co-locates law enforcement
resources that are supplemented by one or more on-site Assistant United
States Attorneys. Working through the Strike Force structure,
specifically the co-location and intensive and early prosecutorial
involvement, ensures that the Department capitalizes upon the proven
synergy of these Strike Forces to maximize the effectiveness of long-
term investigations of these organizations. The synergy created by co-
locating the diverse expertise of Federal, State, local, and tribal law
enforcement agencies with prosecutors from the U.S. Attorney's Office,
has had demonstrable success against major criminal organizations
operating throughout the country. It is for this reason that the
Attorney General and Deputy Attorney General make use of the
flexibility to call upon and leverage the resources of the already
successful multi-agency task forces around the country, including the
OCDETF Strike Forces, High Intensity Drug Trafficking Area (HIDTA) Task
Forces, DEA task force groups, FBI Safe Streets Task Forces, FBI Border
Corruption Task Forces, FBI Hybrid Task Forces, ATF Violent Crime
Impact Teams (VCITs) and ATF Gunrunner Impact (GRIT) Teams, drawing
upon the expertise of all of the agencies that contribute to them.
It is for this reason that the Obama administration secured an
additional $600 million in supplemental funding for Southwest border
enforcement, including $196 million for the Department of Justice. This
money will be used to fund the most-effective, intelligence-driven law
enforcement and prosecutorial initiatives focused specifically on the
violence created by the cartels. For example, the supplemental funding
allows ATF to deploy seven new Gunrunner Impact Teams--community
focused initiatives that target and disrupt the illegal flow of
firearms across the border into Mexico; it supports the creation of
five new FBI hybrid teams--which target kidnapping and violent crime;
as well as additional DEA analysts, U.S. Marshals deputies, and
prosecutors.
These additional resources will bolster a number of enhancements to
U.S. civilian law enforcement efforts in the Southwest border region to
ensure that the United States is doing all that it can to safeguard the
population there and deter illegal flows in both directions across that
border. The Department of Justice's key recent enhancement efforts
include:
--Two new DEA Southwest Border Enforcement Groups created in El Paso
and Phoenix and 25 new DEA intelligence analyst positions added
to key cities;
--The deployment of two FBI Border Corruption Task Forces in Del Rio
and Houston;
--A surge of ATF agents to Arizona to target gun trafficking to
Mexico;
--Increased funding through the OCDETF Program to support targeted
Southwest border investigations and prosecutions through its
co-located Strike Forces, increasing the presence of ATF, FBI,
USMS, and Assistant U.S. Attorneys in those Strike Forces as
well as providing needed operational funding, and,
additionally, to hire 41 new OCDETF prosecutors to implement
the U.S. Attorneys' Offices' Southwest border Prosecutorial
Initiative;
--Two hundred new U.S. Marshal Service positions, including Deputy
U.S. Marshals and Asset Forfeiture Criminal Investigators at
the Southwest border to increase fugitive apprehension and
cross border violent crime response; to identify and seize the
financial assets of the cartels; to increase court security and
prisoner operations; and to investigate and mitigate security
threats and improve security awareness for judiciary and other
court personnel;
--The hiring of nearly 50 additional Department of Justice attorneys
to prosecute drug and arms trafficking and bulk cash smuggling
by the Mexican cartels, as well as the addition of five
Department of Justice attorneys to focus solely on extradition
requests from Mexico;
--Planned expansion of the El Paso Intelligence Center (EPIC) to
include additional staffing to collect, analyze and disseminate
intelligence and support law enforcement operations against a
broad array of transnational threats.
--Increased cooperation with United States and Mexican law
enforcement to target money laundering and bulk cash smuggling,
including $50 million in Department of Justice grants to
Federal, State, and local law enforcement and the hiring of a
Department prosecutor dedicated exclusively to targeting money
laundering cases in and to Mexico;
--The resumption of the Department's asset-sharing of forfeited
proceeds with the Mexican Government as a result of successful
bi-lateral criminal investigations; and
--Enhanced U.S. forensic analysis and support for Mexican
prosecutions of drug traffickers.
The safety of these border communities--and indeed, the impact on
cities throughout the United States--remains of paramount importance to
the Department of Justice. We look forward to partnering with Congress
to ensure that we can best contain and curtail the wave of violence
spreading throughout the border communities in Mexico.
Question. How is the Department working with the Mexican Government
to dismantle these violent cartels?
Answer. The Department of Justice is working aggressively in
partnership with the Government of Mexico on a number of fronts to
dismantle violent Mexican drug cartels through a two-prong strategy
that focuses on advancing the rule of law in Mexico, as well as
criminal investigations and prosecutions. The two sides of our work are
vital to disrupting and dismantling the cartels.
CRIMINAL INVESTIGATIONS AND PROSECUTIONS
The Department of Justice's focus on criminal investigations and
prosecutions includes U.S. based efforts targeting the cartels; work in
partnership with our Mexican counterparts; as well as extradition of
many of the worst criminals who have fled to Mexico to avoid
prosecution in the United States.
The Department's Strategy for Combating the Mexican Cartels, issued
by the Attorney General in January 2010, is premised on the notion that
a large share of the violence, drug trafficking, and other criminal
activity occurring along the Southwest border is perpetrated by a
relatively small number of hierarchical criminal organizations. The
Department believes that the most effective mechanism to attack those
organizations is the use of intelligence-driven, prosecutor-led, multi-
agency task forces, that simultaneously attack all levels of, and all
criminal activities of, the operations of the organizations. The
Department's Strategy is executed through such task forces, with the
Organized Crime Drug Enforcement Task Forces (OCDETF) Program and the
Special Operations Division (SOD) serving the primary coordinating
functions.
The key objectives of the Department's Strategy are to:
--Increase the safety and security of U.S. citizens throughout the
United States by enforcing violations of Federal law that have
a particular nexus to the threats posed by the Mexican Cartels,
i.e. drug trafficking, money laundering and bulk cash
smuggling, firearms trafficking, and corruption.
--Reduce the flow of narcotics and other contraband entering the
United States.
--Reduce the flow of illegal weapons, ammunition, explosives, and
currency exiting the United States and entering Mexico.
--Strengthen Mexico's operational capacities and enhance its law
enforcement institutions.
--Increase bilateral cooperation between Mexico and the United States
on fugitive capture and extradition activities.
--Increase intelligence and information sharing to achieve focused
targeting of the most significant criminal organizations.
--Improve case building through interagency coordination, leveraging
the expertise and authority of each investigative and
prosecutorial agency.
--Maximize the effectiveness of prosecution by locating, arresting,
extraditing, and trying all levels, including most importantly
the leadership, of these criminal organizations, and disrupting
and dismantling the organizations' domestic transportation and
distribution cells.
--Coordinate enhanced enforcement initiatives to address
``downstream'' impacts on judicial security, court and
detention operations, prison management and fugitive
apprehension.
The DEA-led, multi-agency Special Operations Division (SOD) targets
the communications devices the criminal organizations' leaders use to
communicate with each other. SOD actively supports multi-
jurisdictional, multi-national, and multi-agency electronic
surveillance investigations, coordinating overlapping investigations
and ensuring that tactical and operational intelligence is shared
between law enforcement agencies. In addition, the OCDETF task force
model, including in particular its co-located Strike Forces, is the
Department's model platform for law enforcement agencies from within
the Department of Justice, from elsewhere in the Federal Government,
and State and local law enforcement to combine with Federal prosecutors
to investigate and prosecute the largest and most dangerous Mexico-
based criminal organizations.
For example, OCDETF Strike Forces have been key participants in
some of the most successful SOD-coordinated operations responsible for
striking some of the hardest blows against the major Mexican CPOTs,
such as Operation Xcellerator, a multi-agency, multi-national effort
beginning in May 2007 that targeted the Mexican drug trafficking
organization known as the Sinaloa Cartel. This Cartel is responsible
for bringing tons of cocaine into the United States through an
extensive network of distribution cells in the United States and
Canada. Through Operation Xcellerator, Federal law enforcement--along
with law enforcement officials from the Governments of Mexico and
Canada and State and local authorities in the United States--delivered
a significant blow to the Sinaloa Cartel. In addition to the arrests of
781 persons, authorities seized more than $61 million in U.S. currency,
12,000 kilograms of cocaine, 1,200 pounds of methamphetamine, 17,000
pounds of marijuana, 1.5 million Ecstasy pills, and other illegal
drugs. Also significant was the seizure of 191 firearms, 156 vehicles,
4 aircraft, and 3 maritime vessels.
Similarly, Project Reckoning, announced in September 2008, was a
15-month, SOD-coordinated OCDETF Strike Force operation that severely
damaged the Gulf Cartel. It was one of the largest and most successful
joint law enforcement efforts ever between the United States and
Mexico. Project Reckoning resulted in 869 arrests in the United States
and Mexico, plus the seizure of more than 17,000 kilograms of cocaine,
82,000 pounds of marijuana, 1,000 pounds of methamphetamine, 960
weapons, 324 vehicles, 6 maritime vessels, and $139 million in U.S.
currency and other assets. Perhaps most importantly, Project Reckoning
led to the indictment against the three top leaders of the Gulf Cartel.
Project Coronado, announced in October 2009, was a 44-month SOD-
coordinated investigation involving multiple OCDETF Strike Forces that
targeted the violent Mexican drug trafficking organization known as La
Familia. Through Project Coronado, 1,254 persons were arrested in at
least 19 States in the United States, and law enforcement authorities
seized more than 2,000 kilograms of cocaine, 19,000 pounds of
marijuana, 3,900 pounds of methamphetamine, 269 vehicles, 5 maritime
vessels, 389 weapons, 5 clandestine drug labs, and more than $73
million in U.S. currency and other assets.
Finally, in the largest single strike to date against Mexican drug
cartels, on June 9, 2010, 429 persons were arrested in 16 States as
part of Project Deliverance, a 22-month, SOD-coordinated multi-agency
investigation involving eight OCDETF Strike Forces that targeted the
transportation infrastructure of Mexican drug trafficking organizations
in the United States, especially along the Southwest border. More than
3,000 agents and officers operated across the United States to make the
arrests, seizing $5.8 million, 17 pounds of methamphetamine, 112
kilograms of cocaine, 2,951 pounds of marijuana, 141 weapons and 85
vehicles. During the entire course of the operation, Project
Deliverance has led to the seizure of more than 74.1 tons of illegal
drugs and has inflicted a debilitating blow to the network of shadow
facilitators and transportation cells controlled by the major Mexican
drug cartels. In addition to 2,266 arrests overall, Project Deliverance
operations have resulted in the seizure of $154 million in currency and
other financial assets, and 1,262 pounds of methamphetamine, 2.5 tons
of cocaine, 1,410 pounds of heroin, 69 tons of marijuana, 501 weapons,
and 527 vehicles.
In addition to our U.S. based efforts, the Department participates
actively in the broader U.S. Government effort to provide assistance to
Mexican authorities to further their efforts to investigate, capture,
and prosecute, or extradite to the United States for prosecution,
leaders and other key members of Mexico's most dangerous and powerful
drug cartels. The Department continues to conduct bilateral
investigations with the Mexican Government, to coordinate the sharing
of intelligence information that is beneficial to both Mexico and the
United States and to provide training in investigations to Mexican law
enforcement and prosecutors. We also are assisting the Mexican
Government to establish drug enforcement institutions, such as a
nationwide intelligence center focused on organized crime, including
drug trafficking, and we are conducting training programs in a variety
of subject areas that are discussed further below. These efforts
include the establishment of a dedicated unit within our Office of
International Affairs to handle evidence requests from Mexico,
including requests pertaining to drug trafficking cases, as well as a
unit assigned to work with Mexican officials on their requests for
extradition from the United States.
Finally, the Department of Justice is aggressively seeking
extraditions of significant targets from Mexico for prosecution in the
United States. Beginning only weeks after his inauguration in December
2006, President Calderon began extraditing high-profile criminals to
face criminal prosecution here, beginning with the notorious head of
the Gulf Cartel, Osiel Cardenas-Guillen. The Calderon administration
has since extradited several other significant drug traffickers,
including large-scale marijuana trafficker Miguel Caro-Quintero (whose
brother Rafael Caro-Quintero was prosecuted in Mexico for his role in
the 1985 kidnapping, torture, and murder of DEA Special Agent Enrique
Camarena), and Vicente Zambada-Niebla. In 2009, the United States saw a
record number of extraditions from Mexico, culminating in 107 in 2009,
up from 12 in 2000.
ADVANCING THE RULE OF LAW
The Department is now also deeply involved in the rule of law work
that Mexico has undertaken under the Merida Initiative, a multi-year
program that aims to improve law enforcement capabilities to identify,
disrupt, and dismantle transnational drug trafficking organizations and
organized crime. We currently have a number of senior Federal
prosecutors stationed in Mexico City to work on rule of law issues with
their Mexican counterparts. Our work in Mexico runs the gamut from
high-level advice on criminal code reform--as Mexico moves forward on
its own decision to create a more adversarial system--to practical
training on investigations and prosecutions. To date, working with U.S.
Federal law enforcement agencies and the Department of State, we have
trained over 5,500 individuals at all ranks--at the State and Federal
level--and in the executive and judicial branches and are on target to
train over 9,000 by the end of 2010.
Mexican prosecutors, in turn, are working with our Department of
Justice prosecutors on case development, evidence collection, trial
advocacy, money laundering, and asset forfeiture. The Department of
Justice and the U.S. Agency for International Development are training
judges, prosecutors, and law schools on oral trials. We also have
engaged in specialized training, such as offering a symposium on
prosecuting complex crimes, training Mexican prosecutors and
investigators on how to meet extradition challenges in the United
States, and facilitating meetings between U.S. and Mexican prosecutors
to more efficiently and effectively prosecute sex trafficking cases
involving both countries. We are also partnering with law enforcement
and prosecutors in Colombia and have sent Mexican prosecutors and law
enforcement officers to train in tandem with their Colombian
counterparts on code reform, strengthening internal affairs and
corruption investigations, and creating effective witness protection
programs. Through this work, our primary goal is to ensure that Mexico
is a true partner in this fight.
Question. What additional resources would you need to expand
investigations and prosecutions along the Southwest border given the
escalating violence?
Answer. Funding provided in the 2010 Emergency Border Security
Supplemental Appropriations bill will allow us to increase the level of
investigations and prosecutions. With the $196 million provided, the
Department will be able to surge Federal law enforcement officers to
high crime areas in the Southwest border region by funding more than
400 new positions and temporarily deploying up to 220 personnel.
Specifically, Justice funding would increase the presence of Federal
law enforcement in the Southwest border districts by adding seven ATF
Gunrunner Teams, five FBI Hybrid Task Forces, additional DEA agents and
Deputy U.S. Marshals, equipment, operational support, and additional
attorneys and immigration judges. Justice funding also would support
additional detention and incarceration costs for criminal aliens in
coordination with DHS enforcement activities. In addition, the
supplemental provides funding to support Mexican law enforcement
operations with ballistic analysis, DNA analysis, information sharing,
technical capabilities, and technical assistance.
DHS-DOJ DISPARITY ALONG THE SOUTHWEST BORDER
Question. On April 19, Senators McCain and Kyl released a 10-point
plan to increase security along the Southwest border. The plan proposes
adding resources to the Department of Homeland Security, particularly
Border Patrol, but not for Justice Department components that share
many of the border protection responsibilities.
Many Southwest border districts are already operating at capacity,
particularly the Marshals Service and Office of Detention Trustee, in
terms of space to hold detainees. Adding more resources without
balancing the request to include DOJ agencies could lead Southwest
border districts to the breaking point.
Does the administration believe there is parity between DHS and DOJ
along the Southwest border?
Answer. The administration is working to ensure that there is
parity between DHS and DOJ on the Southwest border. Any increase in
Department of Homeland Security (DHS) enforcement activity has a
``downstream'' impact on workload and resource requirements that affect
the rest of the criminal justice system, including both DOJ and the
Judiciary. A principal area of concern along the Southwest border is
the existing capacity of the prosecutorial, judicial, detention and
incarceration components to respond to increased efforts by law
enforcement. Currently, the annual number of apprehensions outpace:
prosecutorial capacity for criminal cases involving illegal
immigration, drug trafficking, border violence and gangs; litigation
and adjudication capacity for immigration cases moving through the
Federal courts; detention capacity for the criminally accused as they
move through the criminal justice system; and incarceration capacity
for the criminally convicted after they are sentenced.
Additional funding directed at certain critical chokepoints could
make matters worse if it is provided without considering the entire
scope of Southwest border requirements. These chokepoints include:
limits in human capital, training and facilities for new personnel
(both operational and administrative); and infrastructure and other
physical constraints along the Southwest border, particularly USMS
cellblock/courthouse space, detention/incarceration beds, and tactical
support resources. Outside of the DOJ, the limited number of
courtrooms, judges, magistrates, and other members of the judiciary
further restrict the Federal Government's ability to increase
prosecutorial caseload and process larger numbers of offenders in the
justice system, despite increases in the scope and scale of criminal
threats along the Southwest border.
Question. How would DOJ component agencies (Marshals Service,
Office of Detention Trustee, U.S. Attorneys' office, etc.) be affected
if Operation Streamline is expanded to all districts along the
Southwest border?
Answer. The capacity of the criminal justice system in the
Southwest border region presents a very real impediment that needs to
be addressed before Operation Streamline can be expanded beyond its
present scope. These impediments include the physical constraints of
courthouses along the border, including the number of defendants that
can be housed and processed in a given day; the number of judges,
magistrates, and other judicial personnel; and the number of detention
beds where defendants can be housed in reasonable proximity to a given
courthouse. Presently, courthouse structures in the region are
inadequate to process large numbers of additional defendants. Moreover,
USMS and USAO would need additional resources in order to process an
increase in defendants. Even increasing the number of Deputy U.S.
Marshals and Assistant U.S. Attorneys at courthouses (particularly in
Tucson, Arizona and San Diego, California), would be insufficient to
process the increase in defendants likely to arise from expanding
Operation Streamline.
Increased Department of Homeland Security (DHS) enforcement
activity in the Southwest border region would have a ``downstream
impact'' on workload and resource requirements in other ways as well,
affecting the rest of the criminal justice system, including DOJ and
the Administrative Offices of the U.S. Courts (AOUSC). For example,
felony drug arrests and subsequent additional investigations would
likely increase, resulting in the need for additional DEA agents and
support staff, and the need for additional attorney and intelligence
analyst personnel deployed as part of the Organized Crime Drug
Enforcement Task Forces Program. Further, additional ATF personnel
would be needed to address gun trafficking arrests and investigations.
In addition, Operation Streamline would increase the fugitive warrant
workload, which in turn further impacts the USMS. The workload of other
parts of the system, including the Executive Office for Immigration
Review and the Civil Division's Office of Immigration Litigation, would
also increase. As stated previously, AOUSC would likely require
additional courthouse space, judges, magistrates, and other judicial
personnel to accommodate pressures resulting from the increased DOJ
investigative and prosecutorial workload.
Question. Can DOJ provide this subcommittee with a detailed report
about the resources needed if Operation Streamline was expanded to all
Southwest border districts?
Answer. Operation Streamline has been viewed as a consequence-based
prosecution initiative in which many U.S. Customs and Border Protection
(CBP) apprehensions are criminally prosecuted. Operation Streamline is
currently in place in some form in several sectors in the Southwest
border region. However, even in those sectors where Operation
Streamline is in place, many of the programs have a ``daily cap'' in
terms of prosecutions based on resource limitations of Department
components and Federal courts. For example, although CBP arrests
several hundred individuals each day in the Tucson, Arizona Sector,
only 70 cases per day are prosecuted under the auspices of Operation
Streamline. This number is capped at 70 cases due to resource
limitations of the U.S. Marshals Service cellblock and personnel,
courtroom space, availability of court personnel, and detention bed
space.
In order to implement Operation Streamline across the entire
Southwest border region in a true zero-tolerance form, Department
components and the Federal court system would need additional
resources, such as:
--Additional personnel would be needed by the U.S. Marshals Service,
the U.S. Attorneys Offices, and the courts.
--Additional resources for the Federal Prisoner Detention Fund would
also be required.
--Additional construction funding would be needed to exponentially
enlarge cellblock space in all Southwest border U.S.
Courthouses.
At this time, the Department cannot provide a detailed report about
the resources needed Government-wide if Operation Streamline was
expanded to all Southwest border districts. Many of the Department cost
inputs fluctuate. For example, detention costs are dependent on both
detainee population levels and per diem jail rates. These levels and
the average per diem jail rate would fluctuate as the immigration
workload shifted to other border zones with less stringent immigration
enforcement policies. Other factors impacting costs, also unknown,
include time in detention (which is at the discretion of the courts;
average sentence terms from Operation Streamline cases have not been
uniform across Operation Streamline locations) availability of bed
space, as well as courthouse and cellblock space limitations.
Funding provided in the 2010 Emergency Border Security Supplemental
Appropriations bill will allow us to expand our investigations and
prosecutions. With the $196 million provided, the Department will be
able to increase the presence of Federal law enforcement in the
Southwest border districts by adding seven ATF Gunrunner Teams, five
FBI Hybrid Task Forces, additional DEA agents and Deputy U.S. Marshals,
equipment, operational support, and additional attorneys and
immigration judges and to support additional detention and
incarceration costs for criminal aliens in coordination with DHS
enforcement activities.
AFGHANISTAN--FIGHTING NARCO-TERRORISM--DEA
Question. The Drug Enforcement Administration plays a critical role
in combating narco-terrorism in Afghanistan. It is helping the Afghan
Government establish drug enforcement institutions and capabilities
needed to enforce the rule of law. This means successfully identifying,
disrupting, and dismantling major drug trafficking organizations that
fuel the insurgency and profit from the narco-economy.
Afghanistan's heroin production is a world-wide threat, accounting
for 93 percent of global supply. As DEA expands operations in
Afghanistan, the focus will be on high value targets, including members
of the Taliban, who use the heroin trade to fund insurgents' attacks on
U.S. and coalition military forces.
What is DEA's current role in Afghanistan? How do you expect those
operations to be expanded in the future?
Answer. DEA supports U.S. national security policy goals in
Afghanistan through close partnership with the Office of National Drug
Control Policy, the Departments of State and Defense and other elements
of the interagency to carry out the U.S. Counternarcotics Strategy for
Afghanistan. DEA works directly, bilaterally, and multilaterally with
host nation and regional counterparts to identify, investigate, and
bring to justice the most significant drug traffickers in Afghanistan
and the region.
The Taliban and other insurgent groups continue to receive
substantial funding from the Afghan and regional drug trade. Their
monies fuel attacks on U.S. and coalition military personnel and
interests. The drug trade is also the major driver of corruption in
Afghanistan, and distorts the legal economy. DEA directly supports
Afghan counternarcotics efforts in the following ways:
--Advisory support for host nation counterparts through enforcement
groups in Country and Resident offices;
--Intelligence Support;
--Financial Investigations--DEA leads the interagency Afghan Threat
Finance Cell (ATFC);
--Sponsorship of a Sensitive Investigative Unit (SIU);
--Communications Intercept Program--Technical Investigative Unit
(TIU);
--Advice on legislation needed to enforce drug laws; and
--DEA's Foreign-deployed Advisory Support Team (FAST) partners with
Afghan Counternarcotics Police (CNP-A) and U.S. Special Forces
to conduct high-risk missions in southern Afghanistan to
disrupt narco-insurgent networks, deny revenue and implement
the Rule of Law.
As DEA completes its expansion in Afghanistan to nearly 100
personnel, our investigations will extend outward from Kabul to key
provinces of Afghanistan. DEA's five enforcement groups will operate
jointly with their counterparts in the CNPA's vetted units from forward
operating bases and will continue to pursue investigative and
interdiction activities in support of the U.S. Counternarcotics
Strategy.
Question. How are DEA's activities coordinated with those of the
U.S. and Afghan military?
Answer. DEA coordinates with the Departments of State and Defense
as a member of the Ambassador's Country Team, through close cooperation
with the Department of State Bureau for International Narcotics and Law
Enforcement Affairs (INL) and representation in the Interagency
Operations Coordination Center (IOCC), and by direct liaison with U.S.
Forces--Afghanistan (USFOR-A). A key point of coordination is the list
that the interagency (with DEA participation) has compiled of Afghan
High Value Targets (HVTs)--the most significant traffickers in
Afghanistan. HVT designations focus DEA's investigations and alert U.S.
military personnel to the value of such individuals. At present DEA has
identified 13 HVTs, all of whom have ties to, or are members of, the
Taliban. The HVT list is constantly reviewed and updated by DEA in
coordination with other U.S. and Coalition elements. DEA plans and
executes civilian-military operations supporting the USFOR-A's campaign
strategy together with subordinate military units under this command.
DEA does this in Kabul through the IOCC and in southern and western
Afghanistan through direct liaison at Regional Command South, the I
Marine Expeditionary Force (Forward)(I MEF (Fwd)) in Helmand, the
Combined Joint Special Operations Task Force Afghanistan (CJSOTF-A),
and through the Combined Joint Inter-Agency Task Force Nexus (CJIATF-N)
in Kandahar, Afghanistan.
Question. DEA plays the lead role in investigating and alerting
U.S. military about High Value Targets and has already identified 13
such individuals who are members of the Taliban or have close ties to
the Taliban. Does DEA have the resources it needs to continue to track
down these high value targets?
Answer. DEA's counter-narcotics activities in Afghanistan remain
closely linked to the overall Afghan security situation and capacity of
the Counternarcotics Police of Afghanistan. As these improve, so will
DEA's ability to impact high value drug traffickers.
DEA's Afghanistan expansion established the staffing and resources
needed to track down HVTs. DEA fully obligated the fiscal year 2009
supplemental expansion funding transferred from the Department of State
prior to its expiration on September 30, 2010. In September 2010, the
State Department transferred $8.5 million to DEA to support Afghanistan
operations during the first quarter of fiscal year 2011. Continued
funding of DEA's operations in Afghanistan in fiscal year 2011 will
ensure that this effort continues without interruption.
RACHAEL WILSON CASE--PUBLIC SAFETY OFFICERS' BENEFITS
Question. In February 2007, Baltimore City Fire Cadet Rachael
Wilson died tragically in a live-burn training exercise. Two and a half
years later, her children were denied compensation under DOJ's Public
Safety Officers' Benefits program. Since then, the family filed a
timely appeal, which I asked be heard and decided expeditiously. The
appeal was heard on January 20, 2010, and the independent hearing
officer asked for significant additional information, which was
provided by February 5. Now, more than 60 days after providing that
information and 90 days after the appeal hearing, the family has yet to
receive any communications from the hearing examiner, despite repeated
requests by the family's attorney and my office.
This family has already suffered so much and endured too many
delays. They deserve a timely response from the Justice Department--
something that they have never received at any point throughout this
process. It is appalling and unacceptable to treat a family in such a
cavalier and unresponsive manner. Tragic incidents like Ms. Wilson's
death should not be met with endless delays and outright bureaucratic
hostility.
What is the status of this claim? What is the Justice Department
doing to get a determination on this appeal for Ms. Wilson's family?
Answer. On October 22, 2010, the Public Safety Officers' Benefits
(PSOB) Office provided the family of fallen Fire Cadet Rachael Wilson
with notice that the claim had been approved.
Question. What are you doing to address the Office of Justice
Programs' (OJP) ability to promptly and efficiently process claims that
are on appeal?
What problems does OJP face when determining whether or not to
award benefits on appeal, and how do those add to delays?
Are the difficulties in processing claims and making determinations
for awards in the appeals process small, unrelated issues that come up
on a case by case basis, or are there signs of larger systematic
issues?
Answer. We are fully committed to finding new ways to increase the
efficiency and effectiveness of the PSOB appeals process. In fiscal
year 2010, the PSOB Office brought on-board two new paralegals to
increase the administrative support for PSOB appeals; retained a cadre
of medical reviewers to conduct medical reviews nationwide; and have
plans underway to add additional hearing officers, to prevent any wait
time for the assignment of hearing officers to new appeals.
A hearing officer's consideration of a PSOB claim is de novo,
allowing survivors the opportunity to have a hearing and submit new
information that may not have been available when the claim was
determined by the PSOB Office. Delays often arise due to claimants'
difficulty in obtaining additional information from agencies and
medical entities; in many cases, limits on claimants' availability for
hearings and their challenges encountered in obtaining counsel also
cause delays in the process. For these reasons, the hearing officers
work together with the claimants to try to move the claim forward as
expeditiously as possible, using subpoena power where necessary to help
obtain information that will assist in determining the claim. When a
hearing officer determines that the claim should be approved, the BJA
Director reviews the approval determination and, if finding no cause to
decide it differently, approves it without delay.
Difficulties in making determinations for PSOB benefits in the
appeals process arise on a case-by-case basis, based on the unique
facts and complexities of each case, and are not inherent to the
process. Many cases move very quickly, while others take longer to
resolve.
Question. Independent contractors are routinely hired by the
Department of Justice as Hearing Officers to review claims that were
initially denied and the claimant chooses to appeal, such as the Wilson
case.
What criteria does OJP use in hiring those contractors?
What oversight and review do independent hearing officers receive
from the Justice Department?
Answer. By regulation, hearing officers ``may be appointed from
time to time by the [BJA] Director, to remain on the roster of such
Officers at his pleasure.'' The BJA Director appoints qualified
individuals who have the requisite skills to fact-find and analyze
relevant information and to apply the law faithfully and fairly;
understands the PSOB program and the public safety field; and who have
the capacity to work sensitively and compassionately with survivors and
injured disability claimants.
All PSOB hearing officers are assigned an attorney from OJP's
Office of the General Counsel who serves as a legal advisor to provide
advice on all questions of law relating to the appeal. The PSOB Office
and the Office of the General Counsel together monitor the progress and
track the workflow of the appeals, reassigning cases as necessary and
providing additional administrative support, to help ensure timely
processing of the appeals. The hearing officers submit draft
determinations for review to the legal advisors to check for legal
accuracy. The hearing officers then submit their final determinations
to the BJA Director, the PSOB Office, and OJP's General Counsel. If the
hearing officer denies the claim, not only may the claimant appeal to
the BJA Director, but the BJA Director, on his own initiative, may
review the entire claim and issue a final agency decision. If the
hearing officer approves the claim, this triggers a mandatory review of
the determination by the BJA Director, who may leave the hearing
officer's determination undisturbed, or issue his own decision.
CURBING LAVISH SPENDING
Question. Under the previous administration, we were shocked and
outraged to learn of lavish spending at the Justice Department. There
was one instance when the Department spent $1.4 million to host a
single conference, and another report of spending $4 on Swedish
meatballs.
In the wake of such extravagant spending, Senator Shelby and I
required the Justice Department to create uniform guidelines on
conference spending to prevent further debacles at the Justice
Department. This requirement was right in line with the inspector
general's recommendation that internal checks were needed at the
Department to avoid such irresponsible spending.
Attorney General Holder, under your leadership, what steps have you
taken to ensure that the Justice Department is following those new
requirements to avoid lavish spending and cost overruns so that the
American people's tax dollars are not being squandered?
Answer. The Justice Management Division issued policy guidance in
April 2008 on Conference Planning, Conference Cost Reporting, and
Approvals to Use Non-Federal Facilities. The Assistant Attorney General
for Administration issued a memorandum to the Department's Component
Heads in June 2008 and the Deputy Attorney General issued a similar
memo in May 2009 highlighting the importance of fiscal responsibilities
with respect to conferences sponsored by the Department. The following
bullets were included in the Deputy Attorney General's memorandum.
--Conference locations are to be selected based on business need and
minimization of travel and other costs.
--Locations and accommodations should not be selected based on their
lavish or resort qualities. Component Heads are required to
submit written justification if the facility gives the
appearance of being lavish or is a resort location. The
Component Head approval cannot be re-delegated.
--Components must restrict the number of people traveling to
conferences to the minimum necessary to accomplish the official
purpose.
--Ensure the selected lodging location is within per diem rates.
--Meals should be provided on an infrequent basis and only as a
working meal when necessary to accomplish the purpose of the
event. Refreshments should be kept to an absolute minimum.
Grant making organizations should instruct grant recipients
that Department grant funding is not to be used for lavish
food, refreshments, or entertainment purposes.
--Ensure that travelers are aware of their responsibility to reduce
per diem when meals are provided at the conference.
--Ensure that reporting of costs for all non-Federal facility events
and conferences are submitted by Component Heads no later than
45 days following the close of each fiscal quarter.
In addition, the Attorney General is required to submit a report of
conferences held by the Department to the inspector general. The report
is submitted on a quarterly basis. The Office of the Inspector General
recently initiated an audit of the Department's fiscal year 2008 and
2009 Conference Reports.
Question. American families are tightening their belts in this
tough economy. What are other ways that the Department of Justice can
tighten its belt and clean up waste, fraud and abuse?
Answer. The Attorney General, in June 2009, issued a call for ideas
to reduce Department costs and improve efficiency, and operations.
Sixteen savings and efficiency initiatives were identified, 12
initiatives for immediate implementation and 4 initiatives that
required additional review and are in the process of being phased in
over time. The 16 initiatives address a range of efficiencies such as
contract consolidation, leveraging purchasing power, reduction of
travel, and centralizing IT functions. The identified initiatives
resulted in saving $4.7 million in fiscal year 2009. Through the third
quarter of fiscal year 2010, 13 initiatives have been implemented and
the Department recorded a savings of approximately $20.5 million for a
total to-date of $25.2 million (for fiscal year 2009 and fiscal year
2010 combined), and we are on track to meet our fiscal year 2010
savings targets. Most importantly, these savings ideas have given us a
basis for implementing a broader, more formal savings program across
the Department.
In July 2010 the Attorney General's Advisory Council for Savings
and Efficiencies (SAVE Council) was created. The SAVE Council will
institutionalize the Department's early savings efforts and pave the
way for the development of future on-going initiatives that will be
incorporated into departmental budgets and strategic plans. The SAVE
Council will be responsible for developing and reviewing Department-
wide savings and efficiency initiatives and monitoring component
progress to ensure positive results for cost savings, cost avoidance
and efficiencies. The goals of the SAVE Council are to achieve real and
sustainable Justice-wide savings and efficiencies.
PRISONS--THOMSON PRISON FACILITY
Question. The President's fiscal year 2011 budget request for the
Federal Prison System includes $170 million for the BOP to acquire and
renovate the Thomson Correctional Center in Illinois. An additional $67
million is requested for activation costs to get the facility up and
running. I have visited BOP facilities and I know firsthand the
terrible crowding situation in U.S. prisons.
I appreciate and support our Federal investigators and prosecutors
who are so very successful. However, the end result is that the U.S.
Federal prison inmate population continues to grow exponentially. In
fact, growth in that population has far outpaced growth in prison
capacity and reached grave proportions.
What are your plans for the immediate future--to relieve dangerous
overcrowding now--and in fiscal year 2011 and beyond?
Answer. The fiscal year 2010 appropriation provided funds for the
BOP to begin activating two medium security institutions, Federal
Correctional Institution (FCI) Mendota and FCI McDowell, which will
expand rated capacity by 2,432 beds. The fiscal year 2011 President's
budget requests new resources to acquire, renovate and begin activating
the Thomson facility (1,600 high security cells) and begin activating
FCI Berlin (1,280 beds).
I also convened a Sentencing and Corrections Working Group
comprised of multiple bureaus and offices to identify alternatives to
incarceration and reduce recidivism. The working group recommendations
are being discussed within the Department. I look forward to sharing
these ideas with Members of Congress and working together to reduce
crowding over rated capacity in the Federal Prison System.
Question. How will purchasing the Thomson facility address BOP
crowding?
Answer. The number of administrative maximum (ADX or ``super max'')
beds available in the Federal prison system has not increased since ADX
Florence was activated in 1994. Acquisition of the Thomson facility,
which is significantly larger than ADX Florence, will expand BOP's
capacity by up to 1,600 high security cells. The acquisition will allow
BOP to confine ADX and Special Management Unit (SMU) inmates at a lower
cost and within a shorter timeframe than building a new facility. High
security facilities are currently 53 percent crowded over rated
capacity. The Thomson facility is projected to reduce high security
crowding to 46 percent over rated capacity. Without this acquisition,
crowding in high security facilities is projected to rise to 57
percent.
Question. What role--if any--will the Defense Department and
Guantanamo detainees have if the BOP acquires and activates this high
security facility?
Answer. The fiscal year 2011 President's budget includes $170
million for the BOP to acquire and modify the Thompson Correctional
Center (Thomson, Illinois) for high security Federal prison use. The
priority is to reduce crowding over rated capacity in BOP facilities by
acquiring and renovating the Thomson facility, independent of the
Defense Department's (DOD) interests or goals. Thomson expands BOP's
capacity by 1,600 high security cells and would reduce crowding over
rated capacity in high security facilities from 53 percent (as of
August 12, 2010) to 46 percent. BOP will be responsible for all inmates
designated to the Bureau.
Acquisition and activation of the Thomson facility will reduce the
BOP's shortage of high security, maximum custody cell space. If it is
determined that a portion of the facility is required for detainee
management purposes, then the BOP would operate the Thomson facility as
a high-security administrative maximum prison with Federal inmates and
make a portion available to the Department of Defense (DOD) to house a
limited number of detainees. DOD would also be solely responsible for
the detainees housed in its separate portion of the facility and DOD
would be responsible for any additional security upgrades to the
institution that it deemed necessary. However, the facility would be
owned by the BOP, and the Department would intend to pay the
acquisition costs.
PRISONS--OVERCROWDING
Question. I understand that you would intend to house at Thomson
general population high security inmates, some supermax inmates, and
inmates designated for special management units. I am also concerned
about the current crowding rate at high security institutions. By the
end of 2011, it is expected there will be 228,000 inmates incarcerated
in BOP institutions nationwide.
What is the current crowding rate in Federal prisons?
Answer. As of August, 12, 2010, system-wide crowding over rated
capacity was 37 percent in facilities operated by BOP. By security
level, BOP facilities are crowded over rated capacity by 53 percent at
the high security level, 46 percent at the medium security level, and
37 percent at the low security level.
Question. What does it mean for staff and inmate safety?
Answer. As of August 12, 2010, crowding in BOP high security
institutions was 53 percent over rated capacity. High security
institutions confine the most violent offenders and crowded conditions
increase safety and security risks for staff, inmates, and the
community. If the BOP acquires the Thomson facility and begins the
activation process during fiscal year 2011, the crowding rate for high
security institutions is projected to decrease to 46 percent over rated
capacity. Without Thomson or a facility of similar capacity, crowding
in BOP high security institutions is projected to increase to 57
percent.
Question. Can you help the subcommittee to understand the impact
that would be made on this problem by having the additional bed space
at Thomson or elsewhere?
Answer. The number of administrative maximum (ADX or ``super max'')
beds available in the Federal prison system has not increased since ADX
Florence was activated in 1994. Acquisition of the Thomson facility,
which is significantly larger than ADX Florence, will expand the BOP's
capacity by up to 1,600 high security cells. The acquisition will allow
BOP to confine ADX and Special Management Unit (SMU) inmates at a lower
cost and within a shorter timeframe than building a new facility. High
security facilities are currently 53 percent crowded over rated
capacity. The Thomson facility is projected to reduce high security
crowding to 46 percent over rated capacity. Without this acquisition,
crowding in high security facilities is projected to rise to 57
percent.
PRISONS--UNDERSTAFFING
Question. The administration and the Department continued efforts
to address the operating needs of the Federal prison system. The fiscal
year 2011 President's budget's request resources for the Bureau of
Prisons (BOP) to fill 1,200 vacant base positions, addressing BOP
staffing needs. Increasing the number of staff in Federal prisons will
improve the inmate to staff ratio, which will result in better
supervision, safety, and programming of the inmates. Further, the
fiscal year 2011 President's budget also requests an additional 1,316
new positions (including 652 correctional officers). For context,
during fiscal year 2009, BOP achieved a net increase of 775 staff
across the agency. The fiscal year 2010 operating plan will allow BOP
to increase the total number of staff on-board this year by about 925,
including staffing for new institutions.
The President's fiscal year 2011 request for BOP provides funding
to hire an additional 1,200 correctional staff, including 652
correctional officers, in BOP facilities. Does this increase addressing
the shortfall in staffing?
Answer. The President's budget request contains half year funding
for an additional 1,200 correctional workers at existing institutions.
Yes, these positions are meant to increase staffing in the BOP
facilities.
Question. Understaffing of prisons has put prison guards and
inmates at great risk and the Bureau of Prisons needs to hire
additional prison guards. The number of Federal correctional officers
who work in BOP prisons, however, is failing to keep pace with this
tremendous growth in the prison inmate population.
The BOP system is currently staffed at an 86.6 percent level, as
contrasted with the 95 percent staffing levels in the mid-1990s. BOP
believes to be the minimum staffing level for maintaining safety and
security should not be less than 90 percent. The current BOP inmate-to-
staff ratio is 5 inmates to 1 staff member, versus the 1997 inmate-to-
staff ratio of 3.6 to 1.
In the last year, there have been numerous assaults on prison
guards, including an incident at a BOP facility when an inmate stabbed
an officer 7 times. What steps are you taking to protect officers in
BOP facilities?
Answer. BOP has taken a number of steps to improve security at BOP
facilities, including: (1) increased staffing on evenings and weekends;
(2) enhanced emergency response procedures and training of all staff to
ensure more rapid responses to emergencies; (3) quicker access to less-
lethal munitions; and (4) improved internal controls for inmate
movement.
High security institutions were authorized two additional staff for
evening watch and day watch shifts on weekends and Federal holidays at
penitentiaries. The staff members assigned to these posts function as
rovers and provide additional assistance to housing unit staff.
Therefore, two additional evening positions were incorporated into the
roster as well as two positions on the weekends and holidays.
Question. The Department of Justice must award billions of dollars
in State and local law enforcement grants each year. This year, we
expect it to administer $3.5 billion in grants alone. We must make sure
the Office of Justice Programs, the COPS Office, and the Office on
Violence Against Women have sufficient resources to get grants out the
door and monitor how those funds are spent.
Given the dramatic increase in grant applications and funding
available for State and local law enforcement activities in recent
years, what steps has the Justice Department taken to improve
accountability of taxpayer dollars when processing and awarding grants?
Answer. The Department is committed to improving the grant
management process. Each of the Department's grant-making components
began implementing the OIG's recommendations with their fiscal year
2009 and Recovery Act grants. As the inspector general noted in his
November 13, 2009 report of the Department's Top Management and
Performance Challenges, ``[t]he Department has taken positive steps,''
and ``is demonstrating a commitment to improving the grant management
process.''
Fairness, transparency, and accountability in the review, selection
and administration of the OJP grant programs are among the Department's
highest priorities. OJP is committed to ensuring that grant award
decisions are transparent and that it is accountable for effective
grant management.
Prior to making new grant awards, OJP considers whether grantees
have appropriately managed past grant award funding. OJP's Office of
Audit, Assessment, and Management (OAAM) administers a DOJ-wide high-
risk grantee program, working collaboratively with OJP bureaus and
program offices, the Office on Violence Against Women (OVW), and the
Community Oriented Policing Services (COPS). Prior to making new grant
awards to high-risk grantees, OJP determines whether additional special
conditions and oversight may be needed based on the grantees'
designated level of risk, including whether the grantee used the funds
appropriately in the past.
OJP has taken several actions to establish uniform peer review
policies and procedures, which apply across all OJP program offices and
bureaus. In July 2008, OJP issued peer review policies providing for a
sound and consistent methodology for scoring applications. OJP also
created a common peer review form for all program offices. These
policies were implemented to ensure that peer reviews are rigorous,
cost-effective, and transparent across all OJP program offices and that
funding decisions are clearly documented and justified. These policies
also ensure that peer review panels include subject matter experts.
Also in 2008, OJP implemented a policy issued by the Associate
Attorney General requiring DOJ grant-making components to maintain
documentation to support all discretionary funding recommendations and
decisions. On March 10, 2009, the OJP Assistant Attorney General issued
a memorandum to all OJP bureaus and program offices, which continues
the requirement that all discretionary grant recommendations must
include clear explanations of the funding choices made, the reasons for
the choices, and the policy considerations on which the decisions were
based. The OJP bureaus and offices now maintain records detailing and
supporting their grant recommendation decisions.
Beginning in fiscal year 2009, OJP award decisions are posted on
the OJP Web site, including the type of award, the recipient, and the
award amount.
For its fiscal year 2010 hiring program, the COPS Office conducted
a thorough internal review process where applications are scored based
on local economic indicators, crime rates and the applicant's local
community policing plan--the same factors that were used for grading
applications under the Recovery Act. In order to measure and compare
the necessary factors, the COPS Office worked in consultation with
experts in the fields of policing, criminology, and public finance to
develop the appropriate questions. COPS asked applicants to submit
information about:
--Reported crimes for the previous calendar year;
--Planned community policing activities;
--Changes in budgets for law enforcement agencies and local
governments; and
--Poverty, unemployment and foreclosure rates.
In asking a variety of fiscal health questions, the COPS Office
tried to get as complete a view as possible of the fiscal distress
being experienced by applicants through objective and verifiable
indicators that all agencies, from rural communities to large cities,
could accurately report. The grant selection methodology, final
rankings and applicant scores were all posted online, a process that
the COPS Office will replicate for its future hiring programs.
The COPS Office has an external vetting process as well, including
all United States Attorneys' Offices and the Justice Department's Civil
Rights Division, Criminal Division, OJP's Office for Civil Rights, and
Office of the Inspector General Investigations Division. These
components are asked to identify any ongoing investigations or other
matters that could make it inappropriate or inadvisable for the COPS
Office to make a grant award to a particular agency.
The COPS Office also uses Sex Offender Registration and
Notification Act (SORNA) expert peer reviewers to review the Project
Narrative and Budget Narrative for its Child Sexual Predator Program.
Each application was reviewed and scored three times by three separate
peer reviewers. OVW is also committed to ensuring the fair and
transparent awarding of grants. One critical component in the OVW
grant-making year is the peer review process. Through this process,
professionals with expertise in addressing violence against women
participate in evaluating grant proposals. OVW conducts peer reviews in
accordance with its Peer Review Guidelines. Applicants are scored based
on criteria established in program solicitations. Peer review is well
documented and ensures consistency and fairness in the process.
OVW's Technical Assistance Program provides OVW grantees and sub-
grantees with the expertise and support they need to develop and
implement successful State, local, tribal, U.S. territories and campus
projects; increase victim safety; and bolster accountability. OVW
supports education initiatives, conferences, peer-to-peer
consultations, and targeted assistance for OVW grantees to learn from
experts and one another about how to overcome obstacles and incorporate
promising practices in their efforts to address violence against women.
The primary purpose of the OVW Technical Assistance Program is to
provide direct assistance to grantees and sub-grantees to enhance the
success of local projects they are implementing with VAWA grant funds.
OVW conducts on-site monitoring of grantees to ensure that the millions
of dollars in OVW awards each year to States, tribes, units of local
governments, and nonprofit organizations are being used in accordance
with the intended purpose of OVW programs. On-site monitoring allows
OVW program specialists to offer guidance regarding grant compliance,
gather information on grantees implementing innovative best practices,
support implementation of practices that enhance victim safety and
promote offender accountability, and identify professionals who can
serve as peer reviewers and expert consultants. Also, early on-site
monitoring can prevent long-term challenges, including fraud, waste,
and abuse.
In an effort to improve accountability and increase efficiency for
its award making processes, the Justice Department's grant-making
components created a streamlined approach for American Indian and
Alaska Native tribal communities to apply for fiscal year 2010 funding
opportunities. The Coordinated Tribal Assistance Solicitation (CTAS)
will serve as a single solicitation for existing tribal government-
specific grant programs administered by OVW, COPS, and OJP. This move
comes after consultation with tribal leaders, including sessions at the
Department's Tribal Nations Listening Session last year.
Question. Does the Department have the necessary resources,
equipment and staff to process applications for programs funded in the
fiscal year 2010 Omnibus?
Answer. While the fiscal year 2010 appropriations for OJP's
Salaries and Expenses (S&E) account did not provide sufficient funds to
support the programs funded in the fiscal year 2010 Omnibus, the
Department of Justice subsequently submitted Congressional
reprogramming notifications to the Subcommittees on Appropriations for
Commerce, Justice, Science, and Related Agencies (``the
subcommittees'') to address DOJ grant components' critical fiscal year
2010 shortfalls. The Department appreciates the support received from
the subcommittees for these reprogramming notifications.
The Omnibus Appropriations Act of 2009 (Public Law 111-8)
established a new (S&E) account for OJP, OVW, and the COPS Office.
Staff of the subcommittees advised OJP of their understanding that
certain costs previously distributed to OJP programs (i.e., as
programmatic costs) should now be considered S&E. Because these costs
were previously distributed to programs, they were not taken into
consideration when the fiscal year 2010 appropriation level for the S&E
account was established. The Department submitted a reprogramming
notification for $8.5 million to the subcommittees to address these
requirements, and the subcommittees responded on April 29 to the
notification, without objection.
In addition, the Department submitted two reprogramming
notifications to the subcommittees to address critical contractual
services requirements. The subcommittees responded on July 29 to one
notification totaling $14.3 million, without objection. The
subcommittees responded on September 21 to the second reprogramming
notification totaling $8.0 million, without objection.
Similarly, for OVW, since the change in methodology occurred after
the President's budget had already been submitted, the peer review and
previously distributed costs were not taken into consideration in the
fiscal year 2010 budget request. Therefore, OVW submitted a $7.6
million Congressional reprogramming notification to reclassify funds
from OVW programs to S&E in order to cover costs that were previously
distributed to programs, but that are now considered S&E. It should be
noted that $600,000 of these reprogrammed funds were for a one-time
purpose to move OVW offices from its current location to Two
Constitution Square. The subcommittees responded on March 3 to this
notification, without objection.
In fiscal year 2011 OVW anticipates receiving an additional 40
positions and 25 full-time equivalents (FTE). Additionally, the
President's fiscal year 2011 budget requests $22.7 million for OVW's
S&E account, which includes adjustments to base as well as a program
increase. These FTEs and funds are critical to OVW's ability to carry
out its grant-making function, accomplish administration and
congressional priorities and mandates, and ensure sound stewardship of
OVW's mandate to improve the Nation's response to domestic violence,
sexual assault, dating violence, and stalking--largely through
administration of the Violence Against Women Act's grant programs.
OVW and the Department, as a whole, are committed to ensuring the
fair and transparent awarding of grants. One critical component in the
OVW grant making year is the peer review process. Through this process,
professionals with expertise in addressing violence against women
participate in evaluating grant proposals. Applicants for OVW grant
funds have confidence in the fairness of the selection process largely
because of the OVW peer review. In fiscal year 2010 for the first time,
however, OVW was not able to use grant program dollars to support peer
review of our grant applications. Peer review expenses were moved to
OVW's Management & Administration account without a commensurate
increase in that account to adequately support peer review. The Office
on Violence Against Women submitted a reprogramming of $7.6 million to
Congress on February 24, 2010 for costs which were previously
distributed to programs, including peer review, that were not taken
into consideration when the fiscal year 2010 appropriation level for
the S&E account was established. The subcommittees responded on March 3
to the notification, without objection. Supporting peer review will
continue to present a challenge in fiscal year 2011.
The Department's inspector general identified grant management as
one of the Department's Top Ten Management Challenges. The inspector
general noted the importance of making timely awards as well as the
necessity of maintaining proper oversight over grantees to ensure funds
are used as intended. The inspector general has stated that, while it
is important to efficiently award the billions of dollars in grant
funds appropriated by Congress annually, it is equally important to
maintain proper oversight over the grantees' use of these funds to
ensure accountability and to ensure that funds are effectively used as
intended. In addition, although the inspector general noted that the
Department is demonstrating a commitment to improving the grant
management process, and there have been significant signs of
improvement, ``considerable work remains before grant management of the
billions of dollars awarded annually in Department grants is no longer
considered a top Department challenge.'' We take the inspector
general's observation seriously and are working to meet this challenge.
Doing so requires funding for additional personnel to carry out
critical functions such as programmatic and financial monitoring and
grantee outreach and training. This ``post award'' work is fundamental
to preventing fraudulent, wasteful, or inappropriate use of the
billions of taxpayers' dollars that the Department awards in grants
each fiscal year.
Question. Do you anticipate needing additional resources for grants
management and administration, either this year or next?
Answer. In the fiscal year 2011 President's budget request, OJP
identified a total requirement of an additional 63 full-time
equivalents (FTE) and $56 million for the S&E account, which includes
adjustments to base as well as a program increase. These funds are
critical to OJP's ability to carry out its grant-making mission,
accomplish administration and congressional priorities and mandates,
and ensure sound stewardship of OJP's annual multi-billion grant
programs and the $2.765 billion appropriated pursuant to the Recovery
Act.
Similarly, the fiscal year 2011 budget request for the COPS Office
includes a total of $40.3 million for management and administration
expenses. The COPS request supports the administrative and oversight
costs of the $690 million in grant program funding requested in the
budget, as well as for management and administration of programs
appropriated in prior fiscal years, including the $1 billion COPS
Hiring Recovery Program (CHRP) funded by the Recovery Act in 2009. The
fiscal year 2011 request is $2.5 million above the current services
level, and includes an increase in COPS staffing levels of 22 positions
and 11 FTEs. With enhanced grant funding, it is vital for COPS to have
the staff and the systems in place to handle the thousands of new grant
awards to be made as well as continue to efficiently monitor, maintain
and close grants awarded in previous fiscal years. Additional resources
and staff in fiscal year 2011 and fiscal year 2012 will further promote
transparency and accountability for both the COPS Office and COPS
grantees and will assist to ensure the worthwhile investment of
taxpayer dollars.
In fiscal year 2011 OVW anticipates receiving an additional 40
positions and 25 full-time equivalents (FTE). Additionally, the
President's fiscal year 2011 budget requests $22.7 million for OVW's
S&E account, which includes adjustments to base as well as a program
increase. These FTEs and funds are critical to OVW's ability to carry
out its grant-making function, accomplish administration and
congressional priorities and mandates, and ensure sound stewardship of
OVW's mandate to improve the Nation's response to domestic violence,
sexual assault, dating violence, and stalking--largely through
administration of the Violence Against Women Act's grant programs.
As noted above, both OVW and the Department as a whole are
committed to ensuring the fair and transparent awarding of grants. One
critical component in the OVW grant-making year is the peer review
process. Through this process, professionals with expertise in
addressing violence against women participate in evaluating grant
proposals. Applicants for OVW grant funds have confidence in the
fairness of the selection process largely because of the OVW peer
review. In fiscal year 2010 for the first time, however, OVW was not
able to use grant program dollars to support peer review of our grant
applications. Peer review expenses were moved to OVW's Management &
Administration account without a commensurate increase in that account
to adequately support peer review. OVW did receive Congressional
approval to reprogram fiscal year 2010 grant funds to OVW's Management
& Administration account to support peer review. Supporting peer review
will continue to present a challenge in fiscal year 2011.
The Department's inspector general identified grant management as
one of the Department's Top Ten Management Challenges. The inspector
general noted the importance of making timely awards as well as the
necessity of maintaining proper oversight over grantees to ensure funds
are used as intended. The inspector general has stated that, while it
is important to efficiently award the billions of dollars in grant
funds appropriated by Congress annually, it is equally important to
maintain proper oversight over the grantees' use of these funds to
ensure accountability and to ensure that funds are effectively used as
intended. In addition, although the inspector general noted that the
Department is demonstrating a commitment to improving the grant
management process, and there have been significant signs of
improvement, ``considerable work remains before grant management of the
billions of dollars awarded annually in Department grants is not longer
considered a top Department challenge.'' We take the inspector
general's observation seriously and are working to meet this challenge.
Doing so requires funding for additional personnel to carry out
critical functions such as programmatic and financial monitoring and
grantee outreach and training. This ``post award'' work is fundamental
to preventing fraudulent, wasteful, or inappropriate use of the
billions of taxpayers' dollars that the Department awards in grants
each fiscal year.
Question. What assurances do the American people have that DOJ is
awarding grants without waste, fraud or abuse?
Answer. The Department is committed to performing quality and
complete grant monitoring across OJP to detect and prevent waste,
fraud, or abuse. OJP has established common procedures and guidance and
provides training and effective tools to its grants managers to
properly conduct and document desk reviews and on-site monitoring,
formally communicate with grantees through the Grants Management System
(GMS), and track the resolution of open issues.
OJP's Office of Audit, Assessment, and Management (OAAM) is
dedicated to the oversight of OJP and COPS Office monitoring activities
and the assessment of grant program performance. OAAM reviews the
procedures and internal controls of OJP's grant management processes,
provides recommendations for improvement, and monitors actions to
ensure improvements are implemented. OAAM conducts program assessments
of OJP and COPS Office grants and grant programs to measure performance
against intended outcomes and assess compliance with applicable
regulations and statutes. Assessment reports will include targeted
recommendations for making program improvements and enhancing grant
oversight practices, as well as program accomplishments and best
practices.
OJP has embraced and implemented many of the recommendations from
the Department's Office of the Inspector General's February 2009 report
entitled ``Improving the Grant Management Process.'' OJP has
implemented the inspector general's recommendations relating to grant
program development and its grant application and award processes. OJP
has an action plan in place to implement the OIG's recommendations
relating to grant monitoring, program performance, and training to
grantees and staff. At every possible opportunity, OJP is implementing
OJP-wide corrective actions to respond to the inspector general's
grant-related and program-specific audit recommendations.
In 2009, over 500 OJP staff attended OIG-led training on detecting
and preventing fraud. OJP works with OIG staff to coordinate grant
fraud training at OJP sponsored conferences and meetings. Additionally,
a grant fraud component has been included in the Office of the Chief
Financial Officers' Regional Financial Management training seminars.
Both OJP and COPS worked closely with the OIG throughout the
Recovery Act grant pre-award phase and have taken proactive measures to
reduce the risk of waste, fraud, and abuse as it relates specifically
to Recovery Act funds. The COPS Office, working in conjunction with the
OIG, has uploaded Post-Award Grant Record-Keeping Tips to ensure
grantees are maintaining proper documentation for the CHRP grants and
COPS intends to replicate this for its future grant-making processes.
In addition to audits by the Office of the Inspector General, COPS
has a comprehensive grant monitoring process which provides serious
consequences for misuse of grant funds. This is particularly important
for Recovery Act funds. COPS barred 26 agencies across the country from
receiving CHRP funding because of previous violations. Eighteen of
these agencies were audited by the Office of Inspector General. Each
agency went through an audit resolution process, all had various
compliance violations, and most were found to owe money to the
Government. When these agencies demonstrated that they could not pay
back the funds, COPS and the OIG resolved these audits by barring these
agencies from receiving future COPS funding for a set period of time
based on the amount of funding owed or the type of violation. The
typical bar period is a maximum of 3 years.
In addition to the sanctions imposed by OIG, agencies found to be
in violation of the COPS retention requirement may be barred from
receiving future grant awards. Those agencies that did not qualify for
a retention exemption based on severe fiscal distress were barred for 3
years in accordance with the COPS retention policy. Eight of the
agencies had violations that were identified after going through COPS
comprehensive grant monitoring processes.
Grant monitoring and evaluation are also critical aspects of all
COPS grant programs. The COPS Office has a progress reporting system
that is being used to document grantees' use of funds. Recipients of
CHRP grant awards are required to use grant funds for the specific
hiring categories awarded and maintain documentation pertinent to the
officers hired/rehired with CHRP grant funding.
The Recovery Act requires grantees to report their financial and
programmatic progress within 10 days after the end of each calendar
quarter. The COPS Office requests information from grantees consistent
with section 1512 of the Recovery Act, including collecting information
on the number of new jobs created and the number of jobs preserved
using CHRP funding. The COPS Office is currently updating its grant
monitoring strategy for CHRP, and is also working with the OJP's Office
of Assessment, Audit, and Management to ensure implementation of a
consistent grants monitoring approach across the Department.
In addition, the COPS Office will use the following measures to
track the program's progress against achievement of Recovery Act and
program-specific objectives. The COPS Director will be accountable for
each of these measures.
--Number of New Jobs Created (Number of Newly Hired Sworn Officer
Positions).--A newly hired sworn officer is an additional
career law enforcement officer hired using Recovery Act funds.
This officer is over and above the number of officer positions
that a grantee would otherwise fund or redeploy in the absence
of the CHRP grant award. This outcome will be measured
quarterly.
--Number of Jobs Preserved (Number of Rehired Sworn Officer
Positions).--A rehired sworn officer is either an already laid-
off career law enforcement officer that is being rehired with
Recovery Act funds or an officer that is scheduled to be laid
off, but will not be, due to a CHRP grant award. This outcome
will be measured quarterly.
--Average Community Policing Capacity Implementation Rating (0 to
100) of CHRP Grantees.--One of the key measures COPS Office
management will use to evaluate the program is the average
community policing capacity implementation rating of CHRP
grantees. COPS management has asked an independent research
firm to conduct a survey to determine how COPS grants have
increased grantee agencies' capacity to implement community
policing strategies. Each survey will produce a rating, which
will be on a scale of 0 to 100 points, with 100 being the most
favorable rating. Grantees will be asked to answer questions
related to how CHRP grants have increased their agency's
capacity to implement community policing strategies with regard
to the three primary elements of community policing: (1)
developing community/law enforcement partnerships; (2) problem-
solving; and (3) organizational change. This outcome will be
measured on an annual basis.
OVW has identified detailed performance measures for each of its
grant programs. These measures are included in OVW grant program
solicitations and are collected through grantee progress reports. All
OVW grant program solicitations include Government Performance and
Results Act (GPRA) measures. Program solicitations also include a link
for applicants to access samples of the progress report forms that
grantees must complete during the life of the grant. These semi-annual
progress reports (for OVW discretionary grantees) and annual progress
reports (for OVW formula grantees and subgrantees) collect data
regarding program measures for each of OVW grant programs. Although
there are some similarities across progress report forms, OVW spends a
significant amount of time developing these forms based on the goals
and objectives of the individual grant programs.
The Department is committed to performing quality and complete
grant monitoring across OVW to detect and prevent waste, fraud, or
abuse. OVW has established common procedures and guidance and provides
training and effective tools to its grants managers to properly conduct
and document desk reviews and on-site monitoring, formally communicate
with grantees through the Grants Management System (GMS), and track the
resolution of open issues.
The objectives of OVW grant monitoring are to ensure that the
grantee complies with the programmatic, administrative, and financial
requirements of relevant statutes, regulations, policies, and
guidelines and/or special conditions applied to a specific award; to
verify that programs/projects initiated by grantees are carried out in
a manner consistent with the grantee's approved project goals and
objectives; to promote responsible stewardship of awarded funds by
reporting fraud, waste, and abuse, as well as suspected violations,
serious irregularities, and sensitive issues; and to provide guidance
or technical assistance to grantees on OVW policies and procedures,
grant program requirements, general Federal regulations, and basic
programmatic, administrative, and financial reporting requirements.
OVW imposes a special condition on all awards requiring grantees
to: ``. . . promptly refer to the DOJ OIG any credible evidence that a
principal, employee, agent, contractor, subgrantee, subcontractor, or
other person has either (1) submitted a false claim for grant funds
under the False Claims Act; or (2) committed a criminal or civil
violation of laws pertaining to fraud, conflict of interest, bribery,
gratuity, or similar misconduct involving grant funds.'' This condition
also applies to any subrecipients.
OIG staff makes presentations regarding fraud awareness, waste, and
abuse at all of OVW's new grantee orientations, which are mandatory for
new grantees to attend. OVW also has similar OIG presentations at its
annual STOP Administrators meetings, which are attended by officials
from the 56 States and territories that administer funding under the
STOP Formula Program. OVW will include OIG presentations at all
conferences directed at grantees and will require that current grantees
attend OIG grantee orientations on an annual basis or when there is a
key staff change on their grant. OVW is also currently drafting a Grant
Program Development Manual to provide guidance to OVW staff on
developing new grant programs. Several sections are in final draft, and
we hope to have the entire manual completed in fiscal year 2011.
______
Questions Submitted by Senator Patrick J. Leahy
RISS PROGRAM FUNDING
Question. I believe that information sharing among law enforcement
agencies plays a critical role in the fight against crime and
terrorism. I have long supported the Regional Information Sharing
System (RISS) program, which enhances the ability of local, State,
Federal, and tribal criminal justice agencies to keep our communities
safe by improving law enforcement technology and information sharing.
The Department's fiscal year 2011 budget requests $9 million for the
RISS program, a reduction of $36 million from last year's enacted
level. I am concerned that this severe reduction could result in the
dismantling of the RISS program and hamper our ability to share law
enforcement information and technology across jurisdictions.
Information and intelligence sharing are critical to fighting
increasingly expansive criminal networks, and RISS has proven to be
successful in identifying and targeting criminal conspiracies and
terrorist cells.
Do you agree that information sharing among law enforcement
agencies is critical for the safety and security of our country?
Answer. Without question, the Department of Justice agrees that
information sharing among Federal, State, local and tribal law
enforcement is critical for national security and public safety. It is
for this reason that the Department joined with more than 30 national
organizations representing State, local, and tribal law enforcement;
the Department of Homeland Security; and the FBI in signing the
National Criminal Intelligence Sharing Plan (NCISP). The NCISP still
serves as a blueprint document, along with the National Information
Sharing Strategy issued by the White House, in protecting the safety
and security of America.
The Department promotes greater sharing of national security and
criminal justice information among Federal, State, and local law
enforcement partners through a number of programs, including the FBI's
Law Enforcement Online, which provides access to the National Data
Exchange system. Additionally, the Department has demonstrated its
support for information sharing by providing over $335 million to the
Regional Information Sharing System (RISS) Program since fiscal year
2000.
Question. Why did the Department of Justice request only $9 million
for the RISS program in fiscal year 2011?
Answer. RISS provides a very important resource for sharing law
enforcement information through a secure network by Federal, State,
local, and tribal law enforcement agencies, while maintaining local
control over the data to be shared. Since 2000, the Department of
Justice has provided more than $335 million for the RISS Program, in
addition to millions in discretionary funding through various
competitive and non-competitive programs.
While the Department proposed a reduction to dedicated funding for
the RISS program in the fiscal year 2011 budget, it remains committed
to ensuring that the vital functions of law enforcement information-
sharing continue without interruption. We will continue to work with
our partners to maintain and expand current capabilities through
discretionary funding requested in the fiscal year 2011 budget by
considering options such as:
--Engaging RISS through the Byrne Justice Assistance Grants (JAG)
Program or Byrne Competitive Program to provide competitive
grant-funded training and technical assistance to law
enforcement around the United States.
--Seeking support for State-maintained RISS Centers through the Byrne
JAG Program.
--Re-evaluating user fees charged to member agencies to determine if
such fees, with moderate increases or restructuring, can better
support RISS.
POST CONVICTION DNA TESTING
Question. One of the key programs created in the Innocence
Protection Act was the Kirk Bloodsworth Post Conviction DNA Testing
Grant Program. Kirk Bloodsworth was a young man just out of the Marines
when he was arrested, convicted, and sentenced to death for a heinous
crime that he did not commit. He was the first person in the United
States to be exonerated from a death row crime through the use of DNA
evidence.
This program provides grants to States for testing in cases like
Kirk's where someone has been convicted, but where significant DNA
evidence was not tested. The last administration resisted implementing
the program for several years, but we worked hard to see the program
put into place. This year however the Department's budget did not
include a request for the Kirk Bloodsworth grant program. Can you
explain why the Department did not specifically request any funds for
post conviction DNA testing?
Answer. In fiscal year 2008, the Office of Justice Programs (OJP)
awarded $7.8 million under the Post-Conviction DNA Testing Assistance
program, and in fiscal year 2009, awarded an additional $9.8 million.
The program has been very successful and based on initial reports
from the fiscal year 2009 grantees, significant progress has been made.
However, in response to the fiscal year 2010 solicitation, the
Department's National Institute of Justice (NIJ) received only four
applications requesting a total of $1.6 million. Of these four
applications, only one was a new applicant. The remainder was current
grantees requesting continuation funds. Given this demand history in
fiscal year 2010, the Department did not request funding for this
initiative in fiscal year 2011. However, funds within the fiscal year
2011 request for the DNA Initiative, which includes ``$150 million for
DNA-related and forensic programs and activities (including related
research and development, training and education, and technical
assistance),'' can be made available to meet the needs in this area.
MENTALLY ILL OFFENDERS
Question. The Mentally Ill Offender Treatment and Crime Reduction
Act (MIOTCRA) was signed into law in 2004 and authorizes a $50 million
grant program to be administered by the Department of Justice. The bill
received unanimous, bipartisan support in both chambers of Congress and
is supported by a broad spectrum of leaders representing the diverse
fields of law enforcement, corrections, the courts and mental health.
The Mentally Ill Offender program provides assistance to States and
communities to mount new programs or expand existing programs that can
both reduce costs and help these offenders return to productive lives.
The MIOTCRA program received $12 million in fiscal year 2010 and is
in high demand. Of the 250 grant applications submitted in 2006, only
11 percent were funded, awarding only 28 jurisdictions in 19 States
with additional resources to design and implement or improve upon their
mental health programs. Despite this need, the Department's fiscal year
2011 budget request did not include funds for the MIOTCRA program.
I appreciate the Department's request for increased funding of
Drug, Mental Health and Problem-Solving Courts, but unfortunately that
funding would not encompass many of the key elements of the Justice and
Mental Health Collaboration Program, which was established by MIOTCRA.
Court-based grantees constitute only 40 percent of the current MIOTCRA
grantees, and MIOTCRA program dollars also go toward many other types
of initiatives, including mental health and substance abuse treatment
for incarcerated mentally ill offenders, community reentry services,
and cross-training of criminal justice, law enforcement and mental
health personnel. How does the Department plan to address this gap in
services?
Answer. The Department agrees that the Mentally Ill Offender
Treatment Crime Reduction Act (MIOTCRA) Program has produced very
promising results and is committed to furthering these efforts to
promote the use of evidence-based and innovative strategies to address
mental health issues. It is important to note, however, that the
proposed Problem-Solving Courts Program funding, while required to be
awarded to a court or court agency initially, could be sub-awarded to
other types of agencies in the community to address mental health needs
in order to form a more effective response to mental health issues.
Additionally, OJP has consistently made Byrne JAG funds and Byrne
Competitive Program funds available for the MIOTCRA Program, in
addition to new resources recently made available to address mental
health issues within the justice system, such as Second Chance Act
funding.
INTELLECTUAL PROPERTY ENFORCEMENT
Question. Intellectual property is critical to our Nation's
economy. It is the engine that drives our contemporary economy and will
fuel our future. Industries that rely on intellectual property
protection accounted for roughly one-half of all U.S. exports and
represented an estimated 40 percent of U.S. economic growth in 2006,
the last year in which our economy grew in all four quarters.
I authored the Prioritizing Resources and Organization for
Intellectual Property Act of 2008 (PRO-IP Act) (Public Law 110-403),
which authorized programs to strengthen the protection of our
intellectual property. I am pleased that the Department's fiscal year
2011 budget request includes funds for economic, high technology and
Internet crime prevention grants, including grants authorized by the
PRO-IP Act. I believe there is a critical need for the Federal
Government to take a leading role in protecting intellectual property
rights in order to prevent billions of dollars in losses due to piracy
and mitigate health and safety risks from trade in counterfeit goods.
Will you work with Congress to ensure that a significant portion of
funds provided for economic, high technology and Internet crime
prevention are devoted to intellectual property enforcement?
Answer. Yes, the Department of Justice and the Department of
Homeland Security will work with Congress to ensure that an appropriate
level of funds is devoted to intellectual property enforcement.
NEW BLACK PANTHER PARTY VOTER INTIMIDATION INVESTIGATION
Question. Some constituents have expressed a continuing interest in
the Justice Department's decisions with regard to its resolution last
year of a civil suit against members of the New Black Panther Party for
voter intimidation. I know that you have explained the basis of these
decisions in the past, but in order to ensure clarity on the subject,
please set out why the Department decided to resolve the New Black
Panther Party case in the way that it did, how the decision was made,
what steps were taken if any to ensure that the decision was made on
the merits and not based on political motivations, and what the results
were in the case.
Answer. Please see the Department's response to this question set
forth in its letter to Senator Leahy of August 10, 2010. See Attachment
1.
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC 20530, August 10, 2010.
The Honorable Patrick J. Leahy,
United States Senate,
Washington, DC 20510.
Dear Mr. Chairman: This responds to your letter, dated August 2,
2010, regarding United States v. New Black Panther Party for Self-
Defense, a case arising out of events in Philadelphia, Pennsylvania in
2008, and filed under section 11(b) of the Voting Rights Act, 42 U.S.C.
Sec. 1973i(b).
On January 7, 2009, the Department filed a complaint seeking
injunctive and declaratory relief under section 11(b) of the Voting
Rights Act against four defendants: two individuals who appeared at the
Philadelphia polling place on November 4, 2008, Minister King Samir
Shabazz and Jerry Jackson; the New Black Panther Party for Self-
Defense; and its leader, Malik Zulu Shabazz, who is not alleged to have
been present at the Philadelphia polling place. The complaint alleged
that the defendants violated section 11(b) because they attempted to
engage in, and engaged in, both voter intimidation and intimidation of
individuals aiding voters.
None of the defendants responded to the complaint in the case. That
did not, however, absolve the Department of its legal and ethical
obligations to ensure that any relief sought was consistent with the
law and supported by the evidence. The entry of a default judgment is
not automatic, and the Pennsylvania Bar Rules impart a clear duty of
candor and honesty in any legal proceeding; those duties are heightened
in the type of ex parte hearing that occurred in this matter. See Pa.
RPC 3.3(d). At the remedial stage, as with the liability stage, the
Department remains obliged to ensure that the request for relief is
supported by the evidence and the law. In discharging its obligations
in that regard, the Department considered not only the allegations in
the complaint, but also the evidence collected by the Department both
before and after the filing of the complaint.
For the reasons explained below, based on that review, the
Department sought and obtained an injunction against defendant Minister
King Samir Shabazz, the only individual known to the Department to have
brought a nightstick to a Philadelphia polling place in November 2008.
Following its review, the Department concluded, however, that the
evidence did not warrant seeking an injunction against the other
defendants named in the complaint, and dismissed the claims against
those defendants.
LEGAL ANALYSIS RELEVANT TO LIABILITY UNDER SECTION 11(B) OF THE VOTING
RIGHTS ACT
Section 11(b) of the Voting Rights Act prohibits anyone, whether or
not acting under color of law, from intimidating, threatening, or
coercing, or attempting to intimidate, threaten, or coerce, any person
for voting or attempting to vote or for aiding any person to vote or
attempt to vote or for exercising any powers or duties under certain
sections of the Voting Rights Act. Section 12(d) of the Voting Rights
Act, 42 U.S.C. Sec. 1973j(d), provides for the filing of a civil action
by the Attorney General to secure preventive relief for a violation of
such statute. In 1968, Congress repealed the criminal penalties for
violations of section 11(b) that were part of the original 1965 Voting
Rights Act. Public Law 90-284, Sec. 103, 82 Stat. 73, 75 (1968).
There have been very few cases brought under section 11(b).
Possible explanations include the limited remedies available under
section 11(b) of the Voting Rights Act and the challenging legal
standard of proof. As a result, the Department can find records of only
three civil actions filed under this provision since its enactment in
1965, prior to the case of United States v. New Black Panther Party for
Self-Defense. One of these cases settled before trial, and in both of
the others, the court ruled that the Department had failed to establish
a section 11(b) claim. Those cases are: (1) United States v. Harvey,
250 F. Supp. 219 (E.D. La. 1966) (Threats of eviction and other
economic penalties against black sharecroppers who had recently
registered to vote found not to be form of intimidation, threat or
coercion prohibited by section 11(b)); (2) United States v. North
Carolina Republican Party, Civil Action No. 91-161-CIV-5-F (E.D.N.C.)
(section 11(b) claim regarding pre-election mailing resolved by consent
decree dated Feb. 27, 1992); and (3) United States v. Brown, 494 F.
Supp. 2d 440, 477 n. 56 (S.D. Miss. 2007) (Publication by county
political party chairman of list of voters to be challenged if they
attempted to vote in party primary election found not to be form of
intimidation, threat or coercion prohibited by section 11(b)). Indeed,
as demonstrated in the Brown case, section 11(b) cases can be extremely
difficult to prove. In that case, the most recent Federal district
court to reject a section 11(b) claim noted that the United States had
``found no case in which plaintiffs have prevailed under this
section.'' Id.
The events that led to the Philadelphia section 11(b) case
referenced in your letter occurred at a predominantly African American
polling place, on the day of the most recent Federal general election,
November 4, 2008. The Department concluded that the evidence collected
established that Minister King Samir Shabazz violated section 11(b) by
his conduct at the polling place on that election day. This evidence
included his display of a nightstick at the polling place during voting
hours, an act which supported the allegation of voter intimidation. The
Department therefore decided to seek an injunction against defendant
Minister King Samir Shabazz. In approving the injunction, the district
court found that the United States had alleged that Minister King Samir
Shabazz ``stood in front of the polling location at 1221 Fairmont
Street in Philadelphia, wearing a military style uniform, wielding a
nightstick, and making intimidating statements and gestures to various
individuals, all in violation of 42 U.S.C. Sec. 1973i(b).'' (Order of
May 18, 2009, at 1). The court entered judgment ``in favor of the
United States of America and against Minister King Samir Shabazz,
enjoining Minister King Samir Shabazz from displaying a weapon within
100 feet of any open polling location in the city of Philadelphia, or
from otherwise violating 42 U.S.C. Sec. 1973i(b),'' Judgment (May 18,
2009). The Federal court retains jurisdiction over enforcement of the
injunction until 2012.
After reviewing the evidence, the Department concluded that there
was insufficient evidence to establish that the New Black Panther Party
or Malik Zulu Shabazz, who was not at the polling place when the
relevant events occurred, violated section 11(b). Prior to the
election, the New Black Panther Party for Self-Defense made statements
and posted notice that over 300 members of the New Black Panther Party
for Self-Defense would be deployed at polling locations during voting
on November 4, 2008, throughout the United States. To the Department's
knowledge, the single polling place in Philadelphia is the only
location where an incident occurred. This apparent fact is inconsistent
with the notion that the Party or Malik Zulu Shabazz directed a
campaign of intimidation. The Department also considered the statement
posted by the Party on its Web site regarding the incident. The
statement posted on the Party Web site provided: ``Specifically, in the
case of Philadelphia, the New Black Panther Party wishes to express
that the actions of people purported to be members do not represent the
official views of the New Black Panther Party and are not connected nor
in keeping with our official position as a party. The publicly
expressed sentiments and actions of purported members do not speak for
either the party's leadership or its membership.'' As of May 2009, the
Department had information indicating that this statement was posted
prior to the filing of the civil action. A separate statement posted on
the Party Web site, dated January 7, 2009 (the same date that the
complaint in this case was filed), reported the suspension of the
Philadelphia chapter because of these activities.
Absent sufficient proof that the New Black Panther Party or Malik
Zulu Shabazz directed or controlled unlawful activities at the polls,
or made speeches directed to immediately inciting or producing lawless
action on election day, claims against those parties based merely upon
their alleged ``approval'' or ``endorsement'' of Minister King Samir
Shabazz's activities were, in our view, insufficient to establish legal
liability. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927
(1982). The Department therefore decided, based on its review of
applicable legal precedent and the totality of the evidence, to dismiss
the claims against the New Black Panther Party and Malik Zulu Shabazz.
Finally, the Department also concluded that the allegations in the
complaint against Jerry Jackson, the unarmed defendant present at the
Philadelphia polling place, did not have sufficient evidentiary
support. The Department's determination was based on the totality of
the evidence. In reaching this conclusion, the Department placed
significant weight on the response of the law enforcement first
responder to the Philadelphia polling place on election day. A report
of interview of the local police officer who responded to the scene,
which is included in the Department's extensive production to the U.S.
Commission on Civil Rights indicates that the officer interviewed Mr.
Jackson, confirmed that he in fact was a certified poll watcher, and
permitted Jackson to remain at the polling place.
LEGAL ANALYSIS APPLICABLE TO THE SCOPE OF THE INJUNCTION UNDER SECTION
11(B)
After the clerk of court filed an administrative entry of default
against defendant Minister King Samir Shabazz, the Department was
required to file a motion with the court, setting forth its view of the
legally appropriate scope of injunctive relief. Based on the facts in
the case and the relevant legal precedent, the Department concluded
that a nationwide injunction was not legally supportable in the case
against Minister King Samir Shabazz. The Supreme Court has emphasized
that an injunction must be ``no broader than necessary to achieve its
desired goals.'' Madsen v. Women's Health Ctr., 512 U.S. 753, 765
(1994). To that end, a reviewing court must pay ``close attention to
the fit between the objectives of an injunction and the restrictions it
imposes on speech'' in keeping with the ``general rule . . . that
injunctive relief should be no more burdensome to the defendant than
necessary to provide complete relief to the plaintiffs.'' See ibid.
(citation omitted).
Because injunctive relief is tailored to its objectives, a focus
upon the facts alleged by the Department was critical to determining
the scope of the injunction that could have been obtained. The
Department alleged that Minister King Samir Shabazz is a resident of
Philadelphia and is the leader of the Philadelphia chapter of the NBPP.
Complaint 5. The complaint alleged that on November 4, 2008, Minister
King Samir Shabazz brandished a weapon and made racially threatening
and insulting remarks while standing in front of the entrance of a
polling place in Philadelphia. Complaint 8-10. The complaint further
alleged that on this specific occasion Minister King Samir Shabazz
pointed the weapon at individuals, tapped it in his hand and elsewhere,
and made menacing and intimidating gestures, statements and movements
toward individuals who were present to aid voters. Complaint 9-10.
The evidence was insufficient to show that Minister King Samir
Shabazz had engaged or planned to engage in a nationwide pattern of the
kind of conduct he exhibited at the polling place in Philadelphia, or
that he was inclined to disregard the injunction. Cf. United States v.
Dinwiddie, 76 F.3d 913, 929 (8th Cir. 1996) (finding the scope of a
nationwide injunction in a Freedom of Access to Clinic Entrance Act
(FACE) case appropriate because of a protestor's ``consistent,
repetitious, and flagrant unwillingness or inability to comply'' with
the proscriptions of the law, his ``serious intent to do bodily harm to
the providers and recipients of reproductive health services,'' and the
possibility, if the injunction were geographically limited, that he
``could easily frustrate the purpose and spirit of the permanent
injunction simply by stepping over State lines and engaging in similar
activity at another reproductive health facility'' (quotation and
citation omitted)). Absent such facts, in other FACE cases, the
geographic scope of injunctions the Department has obtained has been
quite narrow, generally limited to a certain number of feet from a
given clinic, see United States v. Scott, No. 3:95cv1216, 1998 U.S.
Dist. LEXIS 10420 (D. Conn. June 25, 1998), or simply preventing
protestors from impeding ingress and egress to a particular clinic. See
United States v. Burke, 15 F. Supp. 2d 1090 (D. Kan. 1998); United
States v. Brock, 2 F. Supp. 2d 1172 (E.D. Wis. 1998).
Given the facts presented, the injunction sought by the Department
prohibited Minister King Samir Shabazz from displaying a weapon within
100 feet of any open polling location on any election day in the city
of Philadelphia, or from otherwise violating 42 U.S.C. 1973i(b), (see
Order of May 18, 2009, at 4). The Department considers this injunction
tailored appropriately to the scope of the violation and the
requirements of the First Amendment, and will fully enforce the
injunction's terms. Section 11(b) does not authorize criminal
penalties, monetary damages, or other kinds of relief.
In sum, we believe that the decision of the then Acting Assistant
Attorney General for Civil Rights to proceed with the claims against
Minister King Samir Shabazz and to dismiss the claims against the three
other defendants was based on the merits and reflects the kind of good
faith, case-based assessment of the strengths and weaknesses of claims
that the Department makes every day.
We hope this information is helpful. Please do not hesitate to
contact this office if we may provide additional assistance regarding
this, or any other matter.
Sincerely,
Ronald Weich,
Assistant Attorney General.
______
Questions Submitted by Senator Dianne Feinstein
MAY 2010 TIMES SQUARE PLOT
Question. I believe the HIG should be used where we can obtain the
most valuable intelligence possible, but I also understand that the HIG
cannot be everywhere and that intelligence officials from CIA and other
agencies make up the Joint Terrorism Task Force (JTTF) in each field
office.
Was the HIG deployed in this case? If not, what does the HIG have
that the Joint Terrorism Task Force personnel could not provide as far
as expertise for interrogations?
Answer. The High-Value Detainee Interrogation Group (HIG) deployed
in the Shahzad case to assist the New York Joint Terrorism Task Force
(JTTF) with interrogators, subject matter experts, and reports
officers. During the deployment, the HIG brought counterterrorism
subject matter experts from FBI, the Central Intelligence Agency, the
National Geospatial-Intelligence Agency, the Department of Defense, the
National Counterterrorism Center, and others to observe the
interrogation, and to provide advice, counsel, and intelligence
requirements to the interrogators. In addition, HIG reports officers
ensured that the results of the interrogation were disseminated to the
Intelligence Community (IC) within hours after each session. This
detailed level of expertise in areas as diverse as geospatial mapping,
behavioral analysis, and foreign terrorist network associations does
not typically reside in the JTTF. The interagency composition of the
HIG, and its full-time focus on coordinating interrogation resources
across the IC, enables the HIG to rapidly identify and deploy the right
resources and IC counterterrorism assets to augment a JTTF as needed.
Question. Does the New York JTTF have the lead for this case?
Please describe what kind of experience the New York JTTF has
interrogating terrorist suspects.
Answer. Yes, the New York JTTF has the lead for this case.
Currently, the New York JTTF has more than 400 personnel from 50
different law enforcement, public safety, intelligence, military, and
critical infrastructure agencies. The New York JTTF has handled some of
the most high-profile, high-threat terrorism investigations, including
the first bombing of the World Trade Center in 1993, the bombing of the
USS Cole in 2000, the second attack on the World Trade Center in 2001,
and the most recent attempted bombing in New York's Times Square.
SHAHZAD ARREST ALTERNATIVES
Question. It is my understanding that Mr. Shahzad is cooperating
and has waived his Miranda warnings as well as his right to be
presented before a magistrate judge.
Please tell us what other options the FBI had other than arresting
Shahzad and reading him his rights. As an American citizen could he be
detained without formal charges against him? For how long?
Answer. Regardless of nationality, any person arrested in the
United States is entitled to certain Constitutional rights. There are a
number of laws and rules that govern what must occur when a suspect is
arrested. First and foremost, the U.S. Supreme Court has held that the
Fourth Amendment requires that the facts justifying the arrest be
presented to a court ``promptly.'' Moreover, Rule 5 of the Federal
Rules of Criminal Procedure requires that the defendant be taken before
a judicial officer ``without unnecessary delay,'' at which time the
court will advise the defendant of his rights. With the exception of
questions designed to ensure the immediate public safety and the safety
of the arresting officers (the so-called Quarles exception), Miranda
warnings are generally required in order for responses to questions
posed while the defendant is in custody to be admissible in court
against the defendant.
The FBI has no legal authority to proceed against a terrorism
suspect who is arrested within the United States in any venue other
than an Article III court. There have been only two instances since
2001 in which civilians arrested within the United States were placed
in military custody for some period of time. In both instances, the
individuals were initially taken into custody and detained by Federal
law enforcement officials. The transfers from law enforcement to
military custody occurred by order of the President, and the civilians
were later returned to Article III courts for disposition of their
cases.
Question. Please explain how reading someone their Miranda rights
can facilitate their cooperation in a criminal case. Is reading a
suspect their rights sometimes part of a plan to get them to waive
their rights to allow more intelligence gathering than not reading
someone their Miranda rights would produce?
Answer. Many criminal defendants, including those arrested for
crimes related to terrorism, waive their Miranda rights and talk
voluntarily to investigators. In many other cases, defendants decide to
cooperate after consulting with counsel. Indeed, where defense
attorneys conclude that the Government has strong evidence to support a
conviction and lengthy sentence, they often encourage their clients to
cooperate. Miranda warnings are far less determinative of the prospects
for obtaining long-term cooperation in the criminal justice system than
other factors, such as the strength of the Government's case against a
defendant, the skill and expertise of the interrogator, and the
interrogator's background knowledge about the target and the subject
matter.
FBI SURVEILLANCE RESOURCES
Question. Chairwoman Mikulski and I are very intent on getting the
FBI the surveillance resources it needs. I believe we could use more
FBI teams--especially in our major cities.
Is it true that the FBI surveillance team lost Shahzad?
Answer. In May 2010, Faisal Shahzad attempted to detonate a car
bomb in Times Square. Attempts by the FBI New Haven Division's armed
Mobile Surveillance Team to keep him under surveillance failed when he
slipped away and eluded surveillance until his capture aboard a
commercial flight preparing to depart the country. Bad weather
precluded the use of aviation to track Shahzad. Had a surveillance
aircraft been available, it is likely that Shahzad would not have been
able to break contact with the squad covering him.
Question. I think we should spend more money to give the FBI the
resources it needs, so how much more money can you spend in fiscal year
2011 to hire and train more FBI surveillance teams?
Answer. The FBI's fiscal year 2011 Request to Congress includes an
additional 30 Mobile Surveillance Team--Armed (MST-A), positions (18
agents) and $6,100,000.\1\ The fiscal year 2011 cost per new Mobile
Surveillance Team (MST) \2\ position is $174,000; the cost per new MST-
A position is $217,000.
---------------------------------------------------------------------------
\1\ MST-A was formerly known as the Special Operations Group (SOG).
\2\ MST was formerly known as the Special Surveillance Group (SSG).
---------------------------------------------------------------------------
The MST-A program does not directly hire new agents; MST-A Agents
work FBI investigative cases for 11 years, on average, prior to their
assignment to a MST-A squad. Upon assignment to a MST-A squad, the MST-
A program provides surveillance training, photography training, and
Tactical Emergency Vehicle Operations Course (TEVOC) training, which
totals 3 weeks. The MST-A program can train 63 agents per year, which
equates to 7 MST-A teams.
Question. How long will it take to get more teams hired and trained
to deploy?
Answer. The FBI has a large applicant pool for the MST positions,
which traditionally can be hired and trained within the fiscal year.
The MST-A positions, which are filled by experienced FBI Agents, are
also traditionally filled and trained within the fiscal year.
DEPARTMENT OF JUSTICE FUNDING
Border Law Enforcement Grants
Question. Through the American Recovery and Reinvestment Act in
2009, the Chula Vista Police Department, on behalf of the local HIDTA,
the California Border Alliance Group, was awarded $2.86 million from
the Justice Department's Bureau of Justice Assistance to support
existing HIDTA-supported task forces with local representation from
five agencies along the southern border.
With only 6 months into the grant project, the task force thwarted
seven kidnappings and two murders in the United States and prevented
two murders in Mexico.
As the United States continues to combat narcotics trafficking and
related violence, this grant permitted more local participation in
Federal task forces ultimately allowing for better intelligence
gathering.
This grant model has proven successful in San Diego. Have other
grant recipients experienced similar success? If so, do you plan to ask
for a continuation of this grant opportunity in the fiscal year 2012
budget?
Answer. The progress you have described in Chula Vista is
impressive. While other grantees have reported strong progress in
creating and retaining jobs as well as in enhanced criminal
enforcement, they are early in the process of implementation and
progress will continue to be monitored.
Regarding future budget requests, the President has included in the
fiscal year 2011 budget request a program called Smart Policing, which
allows local law enforcement agencies such as Chula Vista to apply for
funding to implement evidence-based and innovative enforcement efforts,
which could include involvement in task forces. In addition, the Byrne
Justice Assistance Grants (JAG) Program was proposed at $519 million,
and the Byrne Competitive Program was proposed at $30 million. Each of
these programs could fund initiatives such as that implemented in Chula
Vista. In addition, we are working closely with the Office of National
Drug Control Policy (ONDCP) to coordinate our funding efforts with
those under the High Intensity Drug Trafficking Area (HIDTA) Program.
Question. Would it be worthwhile to extend these grants for longer
terms to allow better planning and sustainability by law enforcement?
Answer. The Department's Bureau of Justice Assistance (BJA), which
administers the Chula Vista grant, takes a proactive stance on this
issue. Typically, grantees that submit a 12-month budget are given as
much as 18 months to plan and implement the project. Additionally, BJA
is flexible with grant extensions, allowing local agencies to expend
funding for additional time, when needed and when the law permits, to
accommodate planning and sustainability concerns.
EL PASO INTELLIGENCE CENTER (EPIC)
Question. As Chair of the Senate Caucus on International Narcotics
Control, I hosted a hearing entitled ``Drug Trafficking Violence in
Mexico: Implications for the United States''. Several witnessed
discussed the importance of intelligence sharing and the great benefit
that the El Paso Intelligence Center (EPIC) is to the administration's
National Southwest Border Counternarcotics Strategy, which was released
in June 2009. DEA has requested funding for an expansion and renovation
project to enlarge the existing EPIC facility since 22 of the agencies
participating at EPIC, 8 are planning add personnel in the next year.
Is this expansion at EPIC critical for the intelligence sharing
process?
Answer. In order to facilitate information sharing with the various
El Paso Intelligence Center (EPIC) partners, a DOJ-DHS Leadership
Meeting was held at EPIC on June 8, 2010. Attending the meeting were
Drug Enforcement Administration Administrator M. Leonhart; DEA Chief of
Intelligence A. Placido; DHS Under Secretary C. Wagner; Customs and
Border Protection (CBP) Commissioner A. Bersin; United States Border
Patrol (USBP) Chief M. Fisher; U.S. Immigration and Customs Enforcement
(ICE) Deputy Assistant Secretary Pena; FBI Deputy Assistant Director D.
Cardona, USMS Assistant Director M. Earp; Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF) Deputy Director K. Melson; and several
other high-ranking officials. Various topics regarding the information
sharing process were discussed and ultimately decided upon at this
meeting. A few examples are detailed below:
--EPIC shall provide enhanced tactical cueing, analysis and analytic
products designed to assist field investigators and
interdictors perform their official duties.
--ATF will stand-up a joint interagency Firearms and Explosives
Trafficking Unit. (Note: This unit became operational in July
2010 with 3 ATF staff.)
--The EPIC sharing model will be expanded to provide interdictors
access to sensitive information via inclusion of CBP personnel
in SOD and the OCDETF Fusion Center;
--DOJ/DEA would seek funds to develop a backup of the OCDETF Fusion
Center's database at EPIC;
--EPIC will work with the Intelligence Community to acquire
additional information to assist law enforcement operations;
--EPIC and its members will explore ways to expand technical
collection along the entire length of the SWB;
--EPIC should expand training opportunities to State and local law
enforcement officers which will forge/enhance the bond between
interdictors at the border and the interior of the United
States. Increasing the flow of information between these two
groups will enhance the quality of intelligence and the
efficiency of interdiction operations and criminal
investigations; and
--Rather than creating another center, the focus should be on the
formation of a new EPIC Section (Border Intelligence Fusion
Section) to address border centric intelligence needs. The
number of personnel for this new EPIC Section has not yet been
determined.
To allow space for the various agencies relocating to EPIC,
expansion is necessary to provide for plans discussed/agreed upon at
the IS Conference. In December 2008, the Army Corps of Engineers (ACE)
conducted a study at EPIC regarding current space versus growth
potential in the existing facility. At that time, the study showed that
the facility consisted of a total of 324 available work spaces and that
it housed 340 personnel from the various participating agencies. Since
the ACE study, EPIC has grown to its current staffing level of 460.
Conversion and reallocation of other-than-workspace areas has provided
an additional 65 workstations for a total of 389 existing work spaces.
The recently converted gym and mail room to office space has provided
the facility an additional 17 work areas.
During fiscal year 2011, 8 agencies (listed below) plan to add a
total of 47 positions to the current EPIC staff of 460 and during
fiscal year 2012-2015, 7 agencies (listed below) plan to add an
additional 83 positions.
------------------------------------------------------------------------
Agency Increase
------------------------------------------------------------------------
Current EPIC Staff...................................... 460
===============
Fiscal Year 2011:
ATF................................................. +6
FBI (Southwest Intel Group)......................... +1
USMS................................................ +7
National Guard Bureau............................... +17
Texas Counterdrug................................... +3
JTF-North J-2....................................... +9
USCG................................................ +2
DEA................................................. +2
---------------
Total Fiscal Year 2011............................ +47
===============
New EPIC Section........................................ ( \1\ )
===============
Fiscal Year 2012-Fiscal Year 2015:
ATF................................................. +2
USMS................................................ +4
National Guard Bureau............................... +47
JTF-North J-2....................................... +14
CBP................................................. +9
USCG................................................ +3
DEA................................................. +2
---------------
Total Fiscal Year 2012-Fiscal Year 2015........... +83
------------------------------------------------------------------------
\1\ TBD.
The above increases would bring the EPIC staffing level to 590 by fiscal
year 2014-2015.
NARCO-TERRORISM
Question. I believe that unless we address the drug problem in
Afghanistan with the same level of resolve as the insurgency we will
fail to stabilize the country. The Drug Caucus has found that the
Taliban's terrorist operations are increasingly propelled by its huge
narcotics profits, with as much as $169 million coming from a single
heroin trafficker in a 10-month period. At present, the DEA, which has
units to address this type of narco-terrorism, does not have the
manpower to devote to fulltime operations in Afghanistan, but has
already been effective in combating major drug violators who are
providing weapons to the Taliban. For a fraction of our national
investment in Afghanistan, a DEA unit could be dedicated to removing
narco-terrorists from the battlefield in direct support of the
administration's top national security priorities.
I am asking for funding in the fiscal year 2010 supplemental or in
fiscal year 2011 appropriations to stand up a new Terrorism
Investigations Unit at DEA's Special Operations Division to focus on
Afghanistan.
Have the existing Terrorism Investigations Unit been effective and
do you agree that more resources are needed to address threat of narco-
terrorism?
Answer. DEA has two enforcement groups within its Special
Operations Divisions (SOD) with the mission of investigating high-level
foreign-based drug traffickers and narco-terrorists organizations--the
Bilateral Investigations Unit and the Terrorism Investigations Unit.
Both units have been able to disrupt and dismantle some of the world's
most dangerous drug trafficking organizations, as well as organizations
that have supplied funding and arms to terrorists. The investigative
success of these units has strengthened DEA's international
partnerships and proven to be an invaluable prosecutorial tool for the
U.S. Government.
The groups primarily conduct joint investigations with DEA Foreign
Offices working toward U.S.-based prosecutions in coordination with
SOD's Counter-Narcoterrorism Operations Center (CNTOC), DEA's central
hub for addressing the increase in narco-terrorism related issues and
investigations. The CNTOC's primary mission is to coordinate all DEA
investigations and intelligence linked to counter-terrorism and narco-
terrorism; targeting, investigating, and extraditing individuals who
are involved with drug proceeds that finance terror; and coordinating
terrorism-related information with the FBI and other U.S. Government
agencies.
The Bilateral Investigations Unit primarily pursues cases of drugs
being exported to the United States under 21 U.S.C. Sec. 959, and has
actively investigated major Mexican and Colombian drug traffickers.
Since its formation in 2002, the Bilateral Investigations Unit has
realized numerous successes including the indictments of Ismael
Zambada-Garcia and two key lieutenants; Ignacio Coronel Villarreal; and
the late Arturo Beltran Leyva and Hector Beltran Leyva. Additionally,
the Bilateral Investigations Unit indicted 17 Gulf Cartel members under
Operation Dos Equis.
In 2007, the DEA established the Terrorism Investigations Unit, a
second enforcement group that works within SOD. Under the authority of
21 U.S.C. Sec. 960a, this Unit investigates international criminal
organizations that use illicit drug proceeds to promote and finance
foreign terrorist organizations and acts of terror. These DEA agents
have also produced impressive case results such as the arrest of
notorious arms trafficker Viktor Bout and his associate Andrei Smulian;
the arrest of arms trafficker and terrorist Monzer Al Kassar; the
capture of Haji Bashir Noorzai, reputedly Afghanistan's biggest drug
kingpin with ties to the Taliban and Al Qaeda and the leader of one of
the largest drug trafficking organizations in the Central Asia region;
and the capture of Haji Baz Mohammad, an Afghan heroin kingpin who was
the first defendant ever extradited to the United States from
Afghanistan.
During December 2009, the investigative efforts of the Terrorism
Investigations Unit resulted in Federal prosecutors charging three West
Africans with plotting to transport tons of cocaine across Africa in
concert with Al Qaeda, using 21 U.S.C. Sec. 960a for the first time
against that group. This investigation highlights the growing trend of
ties between drug traffickers and Al Qaeda as the terrorist group seeks
to finance its operations in Africa and elsewhere.
While the nexus between drugs and terrorism is not a new
phenomenon, the speed of its growth in the recent past has been
dramatic. Based on the overwhelming success of these two investigative
units and the potential to further expand the Government's
prosecutorial reach beyond our traditional borders, DEA believes that a
third enforcement group would generate immediate results on a global
scale; specifically in Afghanistan. Senate Report 111-229, that
accompanies the Senate's fiscal year 2011 appropriations bill for
Commerce, Justice, Science, and related agencies, directs DEA to use
existing resources to create an additional Terrorism Investigations
Unit.
GUN SHOWS
Question. This April marked the 11th anniversary of the Columbine
High School massacre. All four of the guns used by the killers were
purchased through private sellers at gun shows. No background checks
were required for these sales due to a gap in Federal law known as the
Gun Show Loophole. Moreover, according to ATF data, gun shows are a
major source of firearms trafficked into Mexico by drug cartels. Mayors
Against Illegal Guns--a bipartisan coalition of over 500 mayors from
across the country--has written a memorandum to the administration,
called the Blueprint for Federal Action on Illegal Guns, that lays out
specific administrative reforms that the Justice Department and ATF
could undertake to improve enforcement at gun shows.
What is the Justice Department's overall strategy to address
illegal sales at gun shows?
Answer. In support of efforts to reduce violent crime and protect
the public, ATF has a comprehensive strategy for addressing illegal
firearms trafficking at gun shows. While gun shows and flea markets
provide an outlet for firearms collectors, dealers and sportsmen to
engage in the lawful commerce of firearms, they can also provide
opportunities for prohibited persons, including violent offenders, to
illegally obtain firearms. The unregulated sale of personal firearms at
gun shows can increase the likelihood of criminal activity such as
trafficking and straw purchases. Frequently at these events, criminals
are able to obtain firearms with no background check and crime guns may
be transferred with no records kept of the transactions.
ATF's National Firearms Trafficking Enforcement Strategy went into
effect in June 2009, guided by a detailed implementation plan to
identify, investigate, disrupt, and refer for prosecution illicit
firearms traffickers, including proactive strategies to identify and
target illegal firearms traffickers at gun shows and flea markets in
their jurisdictions. There are two main elements to this strategy:
Element 1 (Pursue Investigations Where There is Reasonable Cause to
Believe Violations Have Occurred).--ATF Special Agents conduct
investigations when there is reasonable cause to believe a violation of
the Federal firearms laws has occurred. As with all investigations, ATF
bases its decisions to conduct investigative operations at gun shows on
significant law enforcement intelligence and information from sources
that indicate illegal activity is occurring at a specific gun show. ATF
often conducts these operations with the support of and in cooperation
with State and local law enforcement agencies. These joint law
enforcement efforts have proven to be successful in ensuring the
lawfulness of firearms transactions at gun shows.
In addition to investigating Federal firearms licensees (FFL)
believed to be violating Federal law, ATF also investigates private
sellers who appear to be engaged in the business of dealing firearms
without a license. Some individuals may do so without criminal intent
and in ignorance of the law. Others engage in firearms trafficking
purposefully. In both cases, through coordinated investigative and
outreach efforts, ATF seeks to identify such persons, whether they
operate out of gun shows or other venues, and deter this illegal
activity.
Element 2 (Conduct Proactive Outreach Activities That Educate Gun
Show Participants and Attendees).--ATF industry operations
investigators (IOIs) provide outreach at gun shows by proactively
educating attendees and preventing the illegal diversion of firearms.
ATF IOIs have held pre-gun show seminars for sellers to educate them on
Gun Control Act requirements and assist them in detecting and
preventing straw sales. ATF IOIs have also staffed booths at numerous
gun shows to provide information and assist with questions from sellers
and purchasers. In addition, ATF IOIs have displayed posters and
distributed flyers to gun show attendees on the ``Don't Lie for the
Other Guy'' program. These flyers explain the legal requirements
applicable to gun show participants, which vary as among FFL from
within the State where the gun show is held, FFLs from other States,
and private individuals.
Question. Has the Justice Department and ATF implemented the
mayors' recommendation to enhance gun show enforcement? Does it have
any plans to do so?
Answer. ATF's responses to the mayors' recommendations are listed
below:
--Recommendation 10.--When tracing guns, ATF National Tracing Center
(NTC) personnel should be trained to routinely ask the FFL who
sold the gun whether the recovered gun was purchased at a gun
show and the location of that gun show, and then use the data
to identify problematic gun shows. The NTC began requesting
information regarding the location where the sale of a firearm
took place (specifically whether the sale occurred at a gun
show and if so, the location thereof) from FFLs in June 2008.
Our ability to retrieve this information in an automated manner
will be improved when ATF's firearms systems are fully
upgraded, a process which is estimated to be completed
approximately 2 years from now.
--Recommendation 11.--ATF field agents should have the discretion to
conduct criminal enforcement operations at gun shows when trace
data, prosecutions, and witness statements suggest a particular
show is a source of crime guns. ATF field divisions currently
have the necessary latitude to conduct criminal enforcement
investigations at gun shows given the set of facts outlined by
the mayors.
--Recommendation 12.--ATF should increase enforcement activities to
deter sales to prohibited purchasers by unlicensed gun sellers.
ATF currently uses all available information and intelligence
to target unlicensed sellers at gun shows who are engaging in
illegal activities. ATF recognizes that gun shows are often
used by illegal firearms sellers and buyers, and targets these
illegal activities as an investigative priority. Through ATF's
coordinated investigative and outreach activity, ATF seeks to
deter sales to prohibited persons by licensed and unlicensed
sellers. ATF Industry Operations Investigators (IOIs)
complement ATF's criminal enforcement endeavors at gun shows by
taking a proactive approach to educate attendees and prevent
diversion of firearms. ATF IOIs have held pre-gun show seminars
for sellers to educate them on Gun Control Act (GCA)
requirements and assist them in detecting and preventing straw
sales. ATF IOIs have also staffed booths at numerous gun shows
to provide information and assist with questions from sellers
and purchasers. In addition, ATF IOIs have displayed posters
and distributed flyers to gun show attendees on the ``Don't Lie
for the Other Guy'' program. These flyers explain the legal
requirements applicable to gun show participants, which vary as
among FFLs from within the State where the gun show is held,
FFLs from other States, and private individuals.
--Recommendation 13.--ATF should investigate private sellers at gun
shows who appear to be engaged in the business without a
license. ATF currently performs such investigations as part of
its firearms trafficking strategy. ATF investigates private
sellers who appear to be engaged in the business of dealing
firearms without a license. Some individuals may do so without
criminal intent and in ignorance of the law. Others engage in
firearms trafficking purposefully and with full knowledge of
the law. In both cases, ATF seeks to identify such persons,
whether they operate out of gun shows or other venues, and
deter this activity.
--Recommendation 14.--At gun shows known for criminal activity,
agents should have discretion to compare purchasers' addresses
reported on Form 4473 to their State driving records. At gun
shows, as with sales at other locations, FFLs are required to
confirm a buyer's residence address by comparing the address
documented by the purchaser on the ATF Form 4473 with the
purchaser's identification document. The information provided
by purchasers is particularly important because it is used to
initiate the background check process required by the GCA.
Confirmation of residence addresses through residence checks
has proven to be an important tool to ensure the lawfulness of
firearms transactions and to prevent straw purchases. However,
Federal laws do not require firearm buyers to submit to any
background checks from private non-licensed dealers.
ATF RESOURCES
Question. The stated goal of ATF is to inspect Federal licensed
firearms dealers once every 3 years--an important practice for ensuring
dealer compliance with Federal laws and regulations. Yet in 2007, ATF
inspected only 9.3 percent of FFLs--an average rate of one inspection
every 11 years.
Do you believe DOJ, and specifically ATF, currently receive
adequate funding and resources to conduct firearms compliance
inspections of dealers every 3 years?
Answer. ATF currently has approximately 640 industry operation
investigators (IOIs) conducting firearms compliance inspections on a 6-
year cycle. This amounts to 11,000 firearms compliance inspections
conducted a year. The primary objectives of these inspections are to
educate the industry concerning regulatory requirements, and to promote
compliance and additional internal controls to prevent and detect
diversion. Although ATF believes a 3-year inspection cycle would be
optimal, its current ``risk-based'' approach directs existing resources
to Federal firearms licensees (FFLs) with a history of noncompliance.
Additionally, with the added resources provided in recent years to
address firearms violence along the Southwest border ATF has increased
the number of IOIs on-board and has been able to conduct 3-year
inspection cycles in this high priority geographic area.
Question. In addition, when do you expect the President to announce
a nominee for the Director of the ATF?
Answer. The administration recognizes the importance of the ATF
Director position, and we expect that the President will announce a
nominee for Director of ATF as soon as possible.
SOUTHWEST BORDER PROSECUTION INITIATIVE
Question. In April, I wrote a letter to the subcommittee with
Senators Boxer, Cornyn, Hutchison, Bingaman and Udall asking that
funding for Southwest Border Prosecution Initiative (SWBPI) be restored
in fiscal year 2011. The SWBPI program reimburses State, county,
parish, tribal, and municipal governments for costs associated with the
prosecution and pre-trial detention of Federal-initiated criminal cases
declined by local offices of the United States Attorneys. This
important funding provides local law enforcement agencies with the
means to prosecute drug trafficking and violent crime cases that have
been initiated federally but referred to local jurisdictions along the
southwest border.
If this funding is not restored, will U.S. Attorneys continue to
refer cases to State and local jurisdictions for prosecution? If not,
do the U.S. Attorneys in the Southwest border States have sufficient
resources to deal with the increased caseload?
Answer. Local, State, and tribal prosecution offices are important
partners with the five Southwest border Districts in prosecuting
criminal offenses that originate along the border between the United
States and Mexico. Without this partnership, thousands of criminal
cases, namely narcotic offenses, would not be prosecuted.
Although the U.S. Attorney's Offices have been allocated additional
Assistant U.S. Attorney (AUSA) positions to devote to the investigation
and prosecution of Southwest border type offenses and criminal
immigration offenses, they still require the assistance of the State,
local and tribal prosecution offices to prosecute lower level drug
trafficking crimes, simple possession drug offenses and certain
juvenile offenses. Since 2008, the Department has allocated an
additional 111 new AUSA positions to the 5 SWB Districts. Due to the
additional attorney resources, each of the five SWB Districts saw a
dramatic increase in its felony caseload from fiscal year 2007 to
fiscal year 2009. Arizona increased its felony caseload by 1,153 cases;
southern California increased its felony caseload by 1,567 cases; New
Mexico increased its felony caseload by 1,155 cases; southern Texas
increased its felony caseload by 2,674 cases and western Texas
increased its felony caseload by 2,118 cases. The additional resources
that the State, local and tribal courts can employ to address and
combat criminal offenses along the Southwest border increases the total
number of criminal offenders that can be successfully prosecuted.
THOMSON FACILITY
Question. The fiscal year 2011 Bureau of Prisons (BOP) budget
request for the Thomson prison is $236.9 million, including funds to
purchase ($155 million), renovate ($15 million), and staff ($66.9
million) the facility. The prison will add 1,600 high security beds to
the Federal system. Some have argued, I believe incorrectly, that
moving these detainees creates a new terrorist target ``in the
heartland of America''.
Can you describe the modifications that will be made to the
facility to ensure that it will be able to house high-risk Federal
inmates and former Guantanamo detainees?
Answer. Additional modifications would be needed to meet BOP's
security standards to house high security inmates. Below is a list of
the major modifications needed, together with examples of the necessary
security enhancements: New stun-lethal fence and new razor ribbon to
meet BOP guidelines; new fence alarm system; new rear gate and
sallyport gates; construction of facilities building and storage area;
and security upgrades, such as: Door locks, hardening of recreation
cages behind units, adding security fencing within compound, installing
additional cameras tied to the monitoring system, installing radio
system base and portables, adding additional security lighting within
compound, installing anti-crash bollards in front of institution and
rear, and constructing holding cells in receiving and discharge area.
Acquisition and activation of the Thomson facility will reduce the
BOP's shortage of high security, maximum custody cell space. If it is
determined that a portion of the facility is required for detainee
management purposes, then the BOP would operate the Thomson facility as
a high-security administrative maximum prison with Federal inmates and
make a portion available to the Department of Defense (DOD) to house a
limited number of detainees. DOD would also be solely responsible for
the detainees housed in its separate portion of the facility and DOD
would be responsible for any additional security upgrades to the
institution that it deemed necessary. However, the facility would be
owned by the BOP, and the Department would intend to pay the
acquisition costs.
Question. How different will this facility be from the Supermax
facility in Florence, Colorado?
Answer. The Thomson facility was built for the State of Illinois as
a maximum security prison and was completed in 2001. It could be used
fairly quickly after some modifications, which would reduce costs and
save several years of construction time, as compared to constructing a
new facility. Moreover the Thomson facility would enable the Bureau of
Prisons (BOP) to move the most disruptive and violent inmates out of
existing general population U.S. Penitentiaries (USPs) to a newer, more
modern facility better suited to the controls required to manage the
Special Management Unit (SMU) and Administrative Maximum (ADX) type
population.
Once modified, Thomson would be similar to ADX Florence in security
standards and daily operations. Acquiring Thomson would not replace ADX
Florence, but rather help alleviate inmate crowding levels and provide
safer conditions for staff and inmates. The number of supermax beds
available in BOP facilities has not increased since ADX Florence was
activated in 1994. ADX type and SMU inmates require specific higher
security standards. Individual cells are required for ADX type inmates
and, therefore, require more space to operate. The Thomson facility is
not only larger than the ADX, but by acquiring Thomson, the BOP would
gain a fairly new high security facility with ample bed space to house
ADX type and SMU inmates, at a lower cost and within a shorter
timeframe, than building a new facility from the ground up.
As it stands now, its size, age, and existing security features
make it the best, and possibly, only, candidate to be retrofitted to
meet Federal maximum security requirements.
VOCA FUNDING
Question. On June 24, 2009, Senator Leahy introduced the Crime
Victims Fund Preservation Act of 2009, of which I am a cosponsor. The
bill would establish minimum funding levels for the Crime Victims Fund
for fiscal years 2010 through 2014. The amount made available to the
fund would be increased by 23 percent each year from $705 million in
fiscal year 2010 to $1.6 billion in fiscal year 2014.
Does the Justice Department have a position on this bill and are
the funding levels proposed in the bill sufficient?
Answer. The administration remains strongly committed to preserving
the integrity of the Crime Victims Fund and to supporting all victims
of crime. The Crime Victims Fund also provides support for programs
targeting women who are victims of crime and provides resources for
victim service providers. Like the Crime Victims Preservation Act, the
fiscal year 2011 President's budget contemplates an increase in the cap
for the Crime Victims Fund. For fiscal year 2011, the administration
has proposed a $95 million (13.5 percent) increase to the Crime Victims
Fund cap for a total of $800 million. Of the total amount requested,
$100 million is set-aside to support programs to combat violence
against women. For a given year, the cap for the Crime Victims Fund is
determined as part of the budget development process for that year.
Therefore, at this time, the Department has no position on the
appropriate level for the cap in future years.
CRIME VICTIMS CLINICS
Question. In 2004, Senator Kyl and I successfully enacted
legislation, the Crime Victims' Rights Act, to provide the victims of
violent crimes a set of procedural rights under Federal law, and to
ensure that they have a standing to assert their rights before a court.
The act also authorized Federal funding for victims' clinics for
pro bono legal counsel and support services. With the assistance
provided through these clinics, victims understand their rights, learn
how to actively engage in the case against their offender, and ensure
that they are not treated by the justice system as only a ``witness
to'' or ``piece of evidence in'' the case.
These clinics are essential to victims' understanding of their
rights and their subsequent ability to request the enforcement of these
rights at court. The Office for Victims of Crime has been helpful in
providing startup funds for clinics in some States, but this funding is
almost exhausted. In order to fully implement and validate the Crime
Victims' Rights Act, we believe that the clinics require a constant
stream of funding.
Will you work with us to locate a dedicated funding stream for
these victim clinics?
Answer. OVC formally communicated to State Victims of Crime Act
(VOCA) Victim Assistance Administrators in June 2010 that they were
authorized to use formula VOCA funding to support legal clinics that
offer legal services to crime victims. This clarification was a pivotal
step in support for the legal clinics, as previously most States
believed that the existing VOCA Guidelines prohibited them from
supporting legal clinics with VOCA funding. To ensure continued
progress, the Department's Office for Victims of Crime (OVC) supports
the institutionalization and expansion of the crime victims' rights
enforcement programs authorized for funding by subsections 103(A) and
(b)(4) of the CVRA. OVC is in the process of revising existing
guidelines for VOCA victim assistance funding and developing
regulations that will further clarify and articulate the policy that it
is appropriate and allowable to use this funding to support legal
assistance to crime victims for issues related to their criminal
victimization, including legal representation during criminal
proceedings.
______
Questions Submitted by Senator Frank R. Lautenberg
Question. My understanding is that a legally purchased firearm was
recovered in the Times Square bombing suspect Faisal Shazad's car at
JFK Airport. As you know, NICS background check records for firearm
purchases are destroyed in 24 hours after a purchase is approved.
Do you think that destroying NICS background check records that
were used in approving a gun purchase in just 24 hours is a good idea?
Answer. National Instant Criminal Background Check System (NICS)
background check records for ``proceeded'' transactions (i.e.,
background checks that reveal no prohibiting information about the
purchaser) are contained in the NICS Audit Log. Information in the NICS
Audit Log concerning proceeded transactions is required by law to be
destroyed within 24 hours. NICS has been complying with that
requirement since July 21, 2004, without incident. Regardless of the
length of retention, moreover, information in the NICS Audit Log
concerning proceeded transactions may only be used for limited
purposes, which do not include routine law enforcement functions. As a
result, changing the retention period for NICS Audit Log information
would not necessarily make that information more available as an
investigative tool.
Question. In the absence of the requirement to destroy the NICS
background check record of Faisal Shahzad in 24 hours, do you believe
that the FBI would have known right away by reviewing his background
check record that the suspect had purchased a firearm and could be
armed with it?
Answer. If Mr. Shahzad attempted to purchase a firearm from a
Federal firearm licensee, a NICS background check record would have
been created. Even assuming that this record was maintained in the NICS
Audit Log beyond 24 hours, however, it would not reveal whether the
firearm was actually transferred. Moreover, as noted above, the FBI's
ability to use that record for law enforcement purposes is constrained
by law.
______
Questions Submitted by Senator Richard C. Shelby
NIST FORENSICS
Question. Attorney General Holder, The National Academy Forensics
Study made 13 recommendations to shore up deficiencies identified by
their investigation. The areas requiring attention are standards,
practices, protocols, research, ethics, education, training,
accreditation, certification, proficiency testing, report writing and
testimony. Included in the recommendations is the creation of a
national institute of forensic science.
What is your opinion on this report and its recommendations?
Answer. The Department welcomed the report of the National Research
Council of the National Academies of Science (NAS) entitled,
Strengthening Forensic Science in the United States: A Path Forward
(the NAS report). The report is an important contribution to the public
discourse on the state of the forensic science community, and it
recommends many useful steps to strengthen the community and enable it
to continue to support an effective criminal justice system. In fact,
many of these steps are familiar to those in the forensic science
community, including DOJ, and have been discussed among practitioners
for some time.
Question. What is your Department doing to address these
recommendations? Is there a timeline for action?
Answer. The Department of Justice is participating in the inter-
agency Subcommittee on Forensic Science (SOFS) of the National Science
and Technology Council, organized by the White House's Office of
Science and Technology Policy. The SOFS is currently preparing
recommendations for coordinated, comprehensive executive branch action
to advance the goals of the NAS report.
Question. The report cites the need for increased scientific
research in the forensic disciplines, how is the administration going
to address this recommendation? Are you working with science agencies
like NIST, NSF, and OSTP?
Answer. The Department of Justice is participating in the inter-
agency Subcommittee on Forensic Science (SOFS) of the National Science
and Technology Council, organized by the White House's Office of
Science and Technology Policy. DOJ and NIST are the co-chairs of the
SOFS, and NSF is an active participant. The SOFS is working on
coordinated, comprehensive executive branch action to advance the goals
of the NAS report, including increased scientific research. For
example, on a recommendation from the SOFS, in September 2010 NSF
sponsored a symposium on cognitive bias and forensic science. This
recommendation from the SOFS responds directly to issues raised in
chapter 4 of the NAS report.
In addition, the Department's National Institute of Justice (NIJ)
has several projects in place that address the need for more funding of
forensic science research:
--NIJ awarded $7.9 million in fiscal year 2009 and $7.2 million in
fiscal year 2010 under a solicitation entitled, ``Fundamental
Research to Improve Understanding of the Accuracy, Reliability,
and Measurement Validity of Forensic Science Disciplines.''
--NIJ recently issued its first-ever grant solicitation focused on
research and development for medicolegal death investigations
and in June 2010, NIJ held its first symposium for medical
examiners and coroners in an effort to identify their research
needs.
--NIJ's Office on Investigative and Forensic Sciences recently
initiated an NIJ-Forensic Sciences Foundation grant program
which provides research grants to students in FEPAC accredited
colleges and universities.
Question. In my opinion, the solution to the issues raised by the
NAS is going to involve more than just the Department's assets. While I
don't think the creation of a separate and independent National
Institute of Forensic Science is realistic, I do think that some type
of partnership between Justice, NIST, and NSF will be required. Would
you be supportive of this type of arrangement?
Answer. As noted above, the Department already works closely with
NIST and NSF through the SOFS and supports continued close cooperation
to jointly improve forensic science.
ADAM WALSH ACT RESOURCES
Question. There are an estimated 135,000 non-compliant sex
offenders in the United States and the Marshals Service estimates they
need a dedicated force of 500 deputies working on these cases to fully
implement the Adam Walsh Act.
In March 2010, President Obama appeared on ``America's Most
Wanted'' with John Walsh and made a pledge to increase funding and
personnel for enforcement of the Adam Walsh Act. The President
highlighted that ``it is very important for us to build up U.S.
Marshals' capacity. That is something we want to do in the Federal
budget . . . my expectation is that we will get support, bipartisan
support, from Congress on this issue because it is so important to
every family across America.''
If fully funding the Adam Walsh Act is a priority for the
President, why didn't DOJ request additional resources for the Marshals
Service in the fiscal year 2011 budget request?
Answer. The Adam Walsh Child Protection and Safety Act is a
significant and landmark piece of legislation that considerably
enhances the ability of the Department to respond to crimes against
children and vulnerable adults and prevent sex offenders who have been
released back into the community from victimizing other people. In
fiscal year 2011, the administration is requesting $336 million for
Adam Walsh Act related activities, an increase of $20 million (6.3
percent) to support implementation of the provisions of the Act.
Question. Can Congress expect to receive an amended fiscal year
2011 request adding resources for Adam Walsh Act enforcement?
Answer. The Department is not aware of any pending supplemental
requests or budget amendments that would direct additional resources to
the Department specifically to enforce the Adam Walsh Act. However,
most of the activities authorized by the act are already performed as
part of the Justice Department's traditional mission. In most
instances, for programs where the act authorized specific funding
levels, the Department is spending at or above those levels.
DANGER PAY FOR USMS AND ATF PERSONNEL IN MEXICO
Question. While the DEA and FBI receive danger pay for their
personnel in Mexico due to prior authorizations passed in 1990 and
2002, the Marshals Service and ATF do not have this same authorization
language. USMS and ATF personnel face the same risks as their DEA and
FBI counterparts in Mexico and should be equally compensated.
Due to recent killings of consulate workers in Juarez, the State
Department added danger pay for all U.S. Government employees working
in six Mexican cities (Juarez, Matamoros, Monterrey, Nogales, Nuevo
Laredo, and Tijuana). State's guidelines are limited to where personnel
are ``posted''; therefore, USMS and ATF personnel who are officially
posted in Mexico City (not on State's list of six Mexican cities) will
not receive danger pay.
How is this administration working to rectify this danger pay
disparity among DOJ law enforcement personnel working in Mexico?
Answer. This subject is complicated by the random nature of the
violence that could put our employees in harm's way, and the diversity
of operational requirements between FBI, DEA, USMS, and ATF. We have
made great strides in the last year to better understand this issue and
other steps besides danger pay are promotions for those who serve in
Mexico.
Within the last year, the Department of State has authorized danger
pay for five cities in Mexico. In addition, during recent discussions
with State, we have been made aware that a 5 percent Hardship Allowance
based upon ``danger'' factors at a post has been authorized for four
additional cities in Mexico, including Mexico City.
Currently Danger Pay is authorized for the following cities in
Mexico: Ciudad Juarez at 15 percent; Matamoros at 15 percent; Monterrey
at 15 percent; Nogales at 15 percent; and Tijuana at 15 percent.
Danger factors within the Hardship Differential provide 5 percent
additional at the following posts: Guadalajara is at 5 percent but
would be at zero otherwise; Hermosillo is at 15 percent but would be at
10 percent otherwise; Merida is at 15 percent but would be at 10
percent otherwise; and Mexico City is at 15 percent but would be at 10
percent otherwise.
The Department of State has assured us that they are regularly
monitoring the situation in Mexico.
Question. Why was danger pay for USMS and ATF not included as a
legislative need in the fiscal year 2011 budget request?
Answer. The administration is currently addressing this issue;
therefore, a legislative proposal at this time would be premature.
Question. When can Congress expect to see a proposed legislative
solution to this issue?
Answer. DOJ and the Department of State are working collaboratively
on the issue of Danger Pay in Mexico and have made great strides within
the last year, as noted in response to your previous question. We are
actively engaged in discussions on a legislative package that would
bring parity between our agencies, though the timing of such
legislation has not been decided. We are committed to ensuring the
safety of our employees stationed abroad and appreciate the level of
interest and support you have provided us on this issue.
DHS-DOJ DISPARITY ALONG THE SOUTHWEST BORDER
Question. On April 19, Senators McCain and Kyl released a 10-point
plan to increase Southwest border security. The plan proposes adding
resources to DHS, particularly Border Patrol, but not for DOJ's
components. Many Southwest border districts are already operating at
capacity, particularly the Marshals Service and Office of Detention
Trustee, in terms of space to hold detainees. Adding more resources
without balancing the request to include DOJ agencies could lead
Southwest border districts to the breaking point.
Does the administration believe there is parity between DHS and DOJ
along the Southwest border?
Answer. The administration is working to facilitate parity between
DHS and DOJ on the Southwest border. Any increase in Department of
Homeland Security (DHS) enforcement activity has a ``downstream''
impact on workload and resource requirements that affect the rest of
the criminal justice system, including both DOJ and the Judiciary. A
principal area of concern along the Southwest border is the existing
capacity of the prosecutorial, judicial, detention and incarceration
components to respond to increased efforts by law enforcement.
Currently, the annual number of apprehensions outpace prosecutorial
capacity for criminal cases involving illegal immigration, drug
trafficking, border violence and gangs; litigation and adjudication
capacity for immigration cases moving through the Federal courts;
detention capacity for the criminally accused as they move through the
criminal justice system; and incarceration capacity for the criminally
convicted after they are sentenced.
Additional funding directed at certain critical chokepoints could
make matters worse if it is provided without considering the entire
scope of Southwest border requirements. These chokepoints include:
limits in human capital, training and facilities for new personnel
(both operational and administrative); and infrastructure and other
physical capital constraints along the Southwest border, particularly
USMS cellblock/courthouse space, detention/incarceration beds, and
tactical support resources. Outside of the DOJ, the limited number of
courtrooms, judges, magistrates, and other members of the judiciary
further restrict the Federal Government's ability to increase
prosecutorial caseload and process larger numbers of offenders in the
justice system.
Question. If the McCain-Kyl plan makes its way to legislation, what
resources would DOJ agencies need to maintain parity with DHS?
Answer. Funding provided in the 2010 Emergency Border Security
Supplemental Appropriations bill will allow the Department of Justice
to expand our investigations and prosecutions. With the $196 million
provided, the Department will be able to surge Federal law enforcement
officers to high crime areas in the Southwest border region by funding
more than 400 new positions and temporarily deploying up to 220
personnel. Specifically, Justice funding would increase the presence of
Federal law enforcement in the Southwest border districts by adding
seven ATF Gunrunner Teams, five FBI Hybrid Task Forces, additional DEA
agents and Deputy U.S. Marshals, equipment, operational support, and
additional attorneys and immigration judges and to support additional
detention and incarceration costs for criminal aliens in coordination
with Department of Homeland Security enforcement activities. The
supplemental would also provide funding to support Mexican law
enforcement operations with ballistic analysis, DNA analysis,
information sharing, technical capabilities, and technical assistance.
However, some of these funds were required for Justice to prosecute the
current level of Operation Streamline prosecutions. Any significant
increase in resources of the Border Patrol will have a significant
downstream impact on the Department of Justice and the Administrative
Office of the Courts.
Question. How would DOJ component agencies--the Marshals Service,
Office of Detention Trustee, U.S. Attorneys Office--be affected if
Operation Streamline is expanded to all districts along the Southwest
border?
Answer. The capacity of the criminal justice system in the
Southwest border region presents a very real impediment that needs to
be addressed before Operation Streamline can be expanded beyond its
present scope. These impediments include the physical constraints of
courthouses along the border, including the number of defendants that
can be housed and processed in a given day; the number of judges,
magistrates, and other judicial personnel; and the number of detention
beds where defendants can be housed in reasonable proximity to a given
courthouse. Presently, courthouse structures in the region are
inadequate to process large numbers of additional defendants. Moreover,
the U.S. Marshals Service and U.S. Attorneys would have to modify or
waive a number of their internal requirements in order to process an
increase in defendants. Even increasing the daily shift of operations
within the courthouses, particularly in Tucson, Arizona and San Diego,
California, would be insufficient to process the increase in defendants
likely to arise from expanding Operation Streamline.
Increased Department of Homeland Security (DHS) enforcement
activity in the Southwest border region would have a ``downstream
impact'' on workload and resource requirements--affecting the rest of
the criminal justice system, including the Justice Department and the
Administrative Office of the U.S. Courts (AOUSC). For example, felony
drug arrests and subsequent additional investigations would likely
increase, resulting in the need for additional Drug Enforcement
Administration agents and support staff, and the need for additional
attorney and intelligence analyst personnel deployed as part of the
Organized Crime Drug Enforcement Task Forces Program. Further,
additional Alcohol, Tobacco, Firearms and Explosives personnel would be
needed to address gun trafficking arrests and investigations. In
addition, Operation Streamline would increase the fugitive warrant
workload, which in turn further impacts the USMS. The workload of other
parts of the system, including the Executive Office for Immigration
Review and the Civil Division's Office of Immigration Litigation, would
also increase. As stated previously, AOUSC would likely require
additional courthouse space, judges, magistrates, and other judicial
personnel to accommodate pressures resulting from the increased DOJ
investigative and prosecutorial workload.
Question. Can DOJ provide this subcommittee with a detailed report
about the resources needed if Operation Streamline was expanded to all
Southwest border districts?
Answer. Operation Streamline has been viewed as a consequence-based
prosecution initiative in which many U.S. Customs and Border Protection
(CBP) apprehensions are criminally prosecuted. Operation Streamline is
currently in place in some form in several sectors in the Southwest
border region. However, even in those sectors where Operation
Streamline is in place, many of the programs have a ``daily cap'' in
terms of prosecutions based on resource limitations of Department
components and Federal courts. For example, although CBP arrests
several hundred individuals each day in the Tucson, Arizona Sector,
only 70 cases per day are prosecuted under the auspices of Operation
Streamline. This number is capped at 70 cases due to resource
limitations of the U.S. Marshals Service cellblock and personnel,
courtroom space, availability of court personnel, and detention bed
space.
In order to implement Operation Streamline across the entire
Southwest border region in a true zero-tolerance form, Department
components and the Federal court system would need additional
resources, such as:
--Additional personnel would be needed by the U.S. Marshals Service,
the U.S. Attorneys Offices, and the courts.
--Additional resources for the Federal Prisoner Detention Fund would
also be required.
--Additional construction funding would be needed to exponentially
enlarge cellblock space in all Southwest border U.S.
Courthouses.
At this time, the Department cannot provide a detailed report about
the resources needed Government-wide if Operation Streamline was
expanded to all Southwest border districts. Many of the Department cost
inputs fluctuate. For example, detention costs are dependent on both
detainee population levels and per diem jail rates. These levels and
the average per diem jail rate would fluctuate as the immigration
workload shifted to other border zones with less stringent immigration
enforcement policies. Other factors impacting costs, also unknown,
include time in detention (which is at the discretion of the courts;
average sentence terms from Operation Streamline cases have not been
uniform across Operation Streamline locations) availability of bed
space, as well as courthouse and cellblock space limitations.
Funding provided in the 2010 Emergency Border Security Supplemental
Appropriations bill will allow us to expand our investigations and
prosecutions. With the $196 million provided, the Department will be
able to increase the presence of Federal law enforcement in the
Southwest border districts by adding seven ATF Gunrunner Teams, five
FBI Hybrid Task Forces, additional DEA agents and Deputy U.S. Marshals,
equipment, operational support, and additional attorneys and
immigration judges and to support additional detention and
incarceration costs for criminal aliens in coordination with DHS
enforcement activities.
DEA-EPIC-ICE
Question. Mr. Attorney General, I understand that there is
considerable confusion about providing support to the law enforcement
community in the interdiction of bulk currency and that at least two
centers--the El Paso Intelligence Center or EPIC and the Bulk Currency
Smuggling Center operated by ICE--are competing with one another to
provide similar services to law enforcement.
Are you aware of this and what can you tell us about plans to
assure that tax dollars are not being wasted?
Answer. DEA and the Department of Justice are aware of the ICE Bulk
Currency Smuggling Center (BCSC). The Department is aware that there
may be duplication of effort and confusion over the bulk currency
activities of the BCSC and DEA's El Paso Intelligence Center (EPIC).
Several meetings between DEA--representing EPIC--and ICE--representing
the BCSC--have recently been held to address this matter and to assure
the effective and efficient expenditure of appropriated funds. There
has been some progress in these discussions but the matter has not yet
been conclusively resolved. Since 1974, EPIC has operated as an
interagency intelligence center providing tactical support to law
enforcement organizations dealing with illegal aliens, weapons,
contraband drugs and, by extension, the currency that represents the
proceeds of these illegal activities. As a multi-agency tactical
intelligence center with representatives from 20 Federal agencies,
including ICE, and liaisons assigned from Colombia and Mexico. EPIC has
been responsible for tactical cueing and providing intelligence and de-
confliction for law enforcement agencies from across the country for
more than three decades.
BUREAU OF PRISONS/THOMPSON CORRECTIONAL CENTER
Question. The fiscal year 2011 budget requests a total of $237
million--$170 million for purchase and renovation and $67 million for
equipping and staffing--the Thompson Correctional Center. The Thompson
Correctional Center is an Illinois State Prison that would be converted
into a high security U.S. Penitentiary. It is also the site that the
administration has identified for relocating terrorists who are
currently housed at GITMO.
Mr. Attorney General, was the $237 million for Thompson
Correctional Center part of the Department of Justice fiscal year 2011
budget request to OMB? Or was this funding added to the Department's
request by the administration?
Answer. Regarding budget deliberations, the nature and amounts of
the President's decisions and the underlying materials are
confidential. As described in the fiscal year 2011 Congressional
Justification, the Thomson facility provides an opportunity to
alleviate prison overcrowding in a cost effective manner. As of August
12, 2010, BOP institutions are crowded 37 percent over rated capacity,
causing triple bunking in low and medium security institutions, and
double bunking in high security institutions. Crowding is 53 percent
over capacity in high security facilities. Capacity must be expanded to
promote safe prison operations for both staff and inmates.
NATIONAL DRUG INTELLIGENCE CENTER
Question. The Department is requesting $45 million for the National
Drug Intelligence Center.
Mr. Attorney General, was the $45 million for the National Drug
Intelligence Center part of the Department of Justice fiscal year 2011
budget request to OMB? Or was this funding added to the Department's
request by the administration?
Answer. The Department of Justice fully supports the $45 million
included in the fiscal year 2011 President's budget request for NDIC.
The funding represents the ongoing cost to maintain NDIC operations and
does not reflect an enhancement of NDIC's programs. Deliberations that
led to the President's budget decisions are confidential to the
executive branch, and congressional justification materials describe
requests made in the fiscal year 2011 President's budget.
DRUG INTELLIGENCE CENTER
Question. The subcommittee understands that OMB suggested shutting
down all but the Document and Media Exploitation activities of the
National Drug Intelligence Center since OMB believed the drug analysis
functions are duplicated in other Federal drug intelligence centers.
OMB believed such an action would save $22 million in fiscal year
2011--$22 million that could be used for combating terrorism and other
high priorities that I believe OMB has not funded at the appropriate
levels.
Mr. Attorney General, do you believe there is merit to the OMB
suggestion? Is the analytical function of the National Drug
Intelligence Center duplicative of other centers?
Answer. The National Drug Intelligence Center (NDIC) provides
beneficial intelligence products to the Department as well as other
drug law enforcement stakeholders. Deliberations on the future of NDIC
that led to the President's budget decisions are confidential to the
executive branch, and congressional justification materials describe
requests made in the fiscal year 2011 President's budget.
Question. Mr. Attorney General, you are requesting $42 million to
expand the DEA's El Paso Intelligence Center. Would it make sense to
consolidate the drug analysis work at the National Drug Intelligence
Center into DEA's El Paso Intelligence Center?
Answer. The funds being requested to expand EPIC are to accommodate
an anticipated growth in the number of U.S. and international partners
that are now collaborating to advance our interests in securing the SWB
and confronting transnational criminal organizations.
Deliberations that led to the President's budget request are
confidential to the executive branch, and congressional justification
materials describe requests made in the fiscal year 2011 President's
budget.
ADMINISTRATION ``EARMARKS''
Question. Congress is often chastised by the administration for
funding projects and programs--derisively called ``earmarks''--that
were not proposed in the President's budget. What the administration
does not willingly identify are the ``earmarks'' that they add to an
agency's budget for their initiatives. So, Madame Chairwoman, I'd like
to bring some transparency to the process--just as we are required to
declare and itemize our requests, so should the administration.
Mr. Attorney General, for the record, would you provide a list of
the projects and programs and associated funding that was added to your
fiscal year 2011 budget request by the administration and which were
not included in your original budget request to the OMB.
Answer. Regarding budget deliberations, the nature and amounts of
the President's decisions and the underlying materials are
confidential. Information describing the President's request can be
found in congressional justifications.
PEER REVIEW COSTS AT DOJ
Question. Previously at OJP, there had been questionable peer
review problems, in particular at the National Institute of Justice,
where peer reviewers were actually reviewing contracts that their
lobbyist were competing for.
What is the average cost of reviewing an application within the
Office of Justice Programs?
Answer. Office of Justice Programs (OJP) peer review cost averages,
as well as a breakdown of the costs for each of the OJP bureaus and
program offices from fiscal year 2006 through fiscal year 2009, are
detailed on the attached spreadsheet. See Attachment 2.
SUMMARY OF OFFICE OF JUSTICE PROGRAMS PEER REVIEW COST DATA FISCAL YEAR 2006 TO FISCAL YEAR 2009
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Fiscal Year Fiscal Year Fiscal Year Fiscal Year Fiscal Year Fiscal Year Fiscal Year
Fiscal Year 2006 Total 2006 Fiscal Year 2007 Total 2007 Fiscal Year 2008 Total Fiscal Year Fiscal Year 2009 Total 2009
2006 Total Number of Average 2007 Total Number of Average 2008 Total Number of 2008 Average 2009 Total Number of Average
Program Office Peer Review Applications Peer Review Peer Review Applications Peer Review Peer Review Applications Peer Review Peer Review Applications Peer Review
Cost Peer Cost per Cost Peer Cost per Cost Peer Cost per Cost Peer Cost per
Reviewed Application Reviewed Application Reviewed Application \1\ Reviewed Application
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
BJA......................... $280,000 789 $355 $1,061,058 2,486 $427 $1,381,184 2,046 $675 $3,959,506 7,215 $549
BJS \2\..................... ( \3\ ) ( \3\ ) ( \3\ ) ( \3\ ) ( \3\ ) ( \3\ ) ( \3\ ) ( \3\ ) ( \3\ ) $49,082 156 $315
CCDO........................ $22,050 63 $350 $20,950 55 $381 $23,891 56 $427 $53,222 91 $585
NIJ \4\..................... $1,176,233 2,019 $583 $1,282,720 2,383 $538 $1,572,875 1,609 $978 $1,536,148 1,679 $915
OJJDP....................... $296,021 663 $446 $509,815 1,164 $438 $747,979 949 $788 $2,601,590 4,421 $588
OVC......................... $60,448 135 $448 $83,862 116 $723 $136,051 102 $1,334 $400,316 452 $886
SMART \5\................... ( \3\ ) ( \3\ ) ( \3\ ) ( \3\ ) ( \3\ ) ( \3\ ) $102,832 110 $935 $85,349 90 $948
-------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total Amount \6\...... $1,834,752 3,669 ........... $2,958,405 6,204 ........... $3,964,812 4,872 ............... $8,685,213 14,104
Average Amount........ ........... ............ $436 ........... ............ $501 ........... ............ $856 ........... ............ $684
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Fiscal year 2008 costs included the development and implementation of an OJP peer reviewer database that is used by all OJP bureaus and offices.
\2\ BJS did not implement the OJP peer review process until fiscal year 2009. Prior to fiscal year 2009, BJS conducted their peer review entirely in-house and did not use OJP's Grants
Management System (GMS).
\3\ N/A.
\4\ Concept papers are included in NIJ's total number of applications, and did not have in-person peer review. The number of concept papers were fiscal year 2006: 967; fiscal year 2007: 1,159;
fiscal year 2008: 636; fiscal year 2009: 180.
\5\ SMART did not start administering and peer reviewing their own grants until fiscal year 2008.
\6\ Fiscal year 2009 cost and application data includes American Reinvestment and Recovery Act of 2009 (ARRA) funding applications. The peer review contract cost in fiscal year 2009 decreased
due to the volume of ARRA applications, many of which were reviewed internally.
Question. What has OJP done to ensure this hasn't happened again?
Answer. Within 48 hours of OJP assigning applications to a peer
reviewer, the peer reviewer is required to disclose any conflict of
interest on the OJP Disclosure of Conflict of Interest form. This form
is retained in OJP's Grants Management System (GMS). If a peer reviewer
discloses a conflict of interest with any applicant, OJP's Bureau or
Program Office, in consultation with the Office of the General Counsel
(OGC), will review the Disclosure of Conflict of Interest form and
determine if the peer reviewer needs to be removed from the peer review
of the application(s). If the peer reviewer is removed from the peer
review process, the reviewer's access to the application(s) is
eliminated.
To prevent conflicts of interest during the application review
process, NIJ issued, in June 2010, internal guidance entitled National
Institute of Justice Guidelines on the Administration and Management of
NIJ Grant Programs (the ``Guidelines''), for the administration and
management of all NIJ grant programs to ensure that key aspects of the
pre-award and award process for grants and cooperative agreements are
documented. Beginning with fiscal year 2010 awards, all NIJ staff
involved in the pre-award evaluation process are required to complete a
Disclosure of Conflict of Interest form, which is reviewed by the
immediate supervisor, certifying that they have reviewed the OJP OGC
Guidance on Conflicts of Interest and indicate if they perceive that
they have a conflict with any of the applications they have been
assigned to review. If the memorandum cites a possible conflict, the
supervisor will review the signed memorandum, consider the conflict,
review the subject employee's Confidential Financial Disclosure Report,
and make a determination about whether or not a conflict exists. The
supervisor may work with NIJ's Office of Operations staff to consult
with OGC when input is deemed necessary. If the supervisor determines a
conflict exists, he or she must recuse the staff member from dealing
with a specific grant application or from an entire solicitation.
Similar procedures to avoid conflicts of interest exist throughout OJP.
Additionally, NIJ staff attended mandatory ethics training in
November 2009 conducted by OJP's OGC.
Question. There will be differences in costs between bureaus in
OJP. Why is there such a difference?
Answer. OJP bureaus and program offices conduct one or more of the
following three types of peer review: standard review, internal review,
and in-person review. The type of peer review determines, in large
part, the cost.
A standard peer review process includes, but is not limited to:
creating standard forms for solicitations; three peer reviewers
reviewing approximately 15 applications each; a $125 per application
stipend for each peer reviewer; technical assistance for the peer
review process and OJP's Grants Management System (GMS); a conference
call or a webinar with the peer reviewers to discuss the initial peer
review scores within a defined variance; and post review activities
such as developing the funding tables and drafting the non-funded
letters. External reviewers are used in this process, but are not
brought to a central location for discussion and consensus review.
An internal review process includes the same activities as the
standard review process, but DOJ employees are used as reviewers.
Unlike outside reviewers, Federal employees do not receive a stipend
for reviewing applications. Finally, an in-person review also includes
costs such as travel, hotel, and per diem, for bringing the reviewers
to a central location.
The following chart details estimated fiscal year 2010 costs based
on the type of peer review process utilized by the respective bureau or
program office.
------------------------------------------------------------------------
Estimated
Fiscal Year
Bureau or Program Office 2010 Cost Per Elected Processes
Application
------------------------------------------------------------------------
Bureau of Justice Assistance $800 Standard Peer Review
(BJA). Process.
Bureau of Justice Statistics $500 Internal and External
(BJS). Reviewers.
Community Capacity Development .............. CCDO cancelled
Office (CCDO). competitive
solicitations in
fiscal year 2010.
National Institute of Justice $925 Standard Process with 4
(NIJ). or (versus 3) reviewers.
The additional peer
reviewer increases the
cost by $125 per
application.
$1,250 In-Person Meeting.
Office of Juvenile Justice and $800 Standard Peer Review
Delinquency Prevention (OJJDP). Process.
Office for Victims of Crime $860 Standard Peer Review
(OVC). Process.
Sex Offender Sentencing, $860 Standard Peer Review
Monitoring, Apprehending, Process.
Registering, and Tracking
Office (SMART)
------------------------------------------------------------------------
--BJS costs are lower because BJS conducts mostly internal (DOJ
employee) peer reviews. An internal peer review process
eliminates the $125 stipend that is paid to non-Federal
employee peer reviewers. Also, the contractor does not need to
provide technical assistance on how to use OJP's Grants
Management System.
--NIJ, as an independent scientific research agency, has higher costs
because of the complexity of its research methodological
issues, and its need to conduct both standard and in-person
peer reviews. In-person peer reviews allow for the effective
exchange of scientific information and provide a forum for peer
reviewers to discuss and debate various approaches to
conducting criminological experiments. The in-person costs are
higher because they include travel costs (airfare, hotel, meals
and expenses) for the peer reviewer. Also, NIJ costs are higher
for standard peer reviews because NIJ often uses four or more
peer reviewers instead of three peer reviewers. An additional
peer reviewer increases the cost of a standard peer review by
$125 per application. For both standard and in-person peer
reviews, additional activity is undertaken to develop the NIJ
specific funding tables (in lieu of the more standardized
scoring/tier reports prepared for other agencies/offices, and
to identify each application's principal investigator for
inclusion in the funding table and application summary).
--OVC and SMART generally conduct standard peer reviews, but the
costs are slightly higher because a reduced number of
applications are assigned per panel, thereby increasing the
number of reviewers and panels. In addition, all or most
applications are discussed during consensus reviews, which
increase the duration of the reviews.
Question. Please list the costs from fiscal year 2006 to fiscal
year 2009 and explain if there is a significant difference in costs.
Answer. Please see the attached chart that lists, for each year
from fiscal year 2006 to fiscal year 2009, the total peer review cost,
the number of applications peer reviewed, and the cost per application
for each fiscal year for each OJP bureau and program office.
The current OJP peer review contract supported the fiscal year 2008
and fiscal year 2009 peer review process. The overall cost of peer
review increased from approximately $4 million in fiscal year 2008 to
$8.7 million in fiscal year 2009 because the number of applications
peer reviewed increased from 4,872 to 14,104. The increase in the
number of applications OJP received and peer reviewed in fiscal year
2009 was largely due to funding appropriated pursuant to the American
Reinvestment and Recovery Act (Recovery Act) of 2009. It is important
to note that per application peer review costs were less in 2009 than
in 2008 due to the fact that program offices had to assume many of the
peer review tasks themselves in order to handle the unanticipated
volume of Recovery Act applications.
In fiscal years 2006 and 2007, the peer review services for each of
the OJP bureau and program offices were covered under individual
contracts in each of the program offices. In fiscal year 2007, OJP
awarded a new consolidated peer review contract. The consolidated peer
review contract did not start providing peer review support for the OJP
bureaus and program offices until fiscal year 2008. The consolidated
peer review contract supported a standard peer review process across
OJP. This included additional tasks and a standard fee of $125 per
application for the peer reviewers. It also included the development
and maintenance of an OJP Peer Review Database. Development of the
database was a necessary, but added peer review cost. The OJP Peer
Review Database currently has over 4,000 peer reviewers registered. The
OJP bureaus and program offices must select peer reviewers from the
Peer Review Database.
Comparing application costs across fiscal years is difficult for
two primary reasons: (1) Different contractors were used in 2006 and
2007 than in 2008 and 2009, and (2) the number and complexity of the
tasks were different in each of the fiscal years. Comparing different
tasks between fiscal years and among program offices is made more
difficult by several variables that determine the per application
costs. Among those variables that account for varying costs are:
--The number of tasks conducted by the contractor (Program offices
request different levels of support, so costs are not standard
across program offices in OJP.)
--The number of peer reviewers on each panel (Some program offices
require four peer reviewers instead of the standard three
reviewers per panel.)
--Whether reviews are conducted onsite or via telephone (The costs of
transporting peer reviewers in to a central location is
exponentially more expensive, but is often necessary.)
--The specialization and qualifications of the peer reviewers
(Program offices, such as the National Institute of Justice,
require professionals with specific qualifications, such as
doctoral degrees, or professional expertise in an unusual
subject.)
--Whether the contract costs include mailing non-funding letters with
edited panel comments (Some program offices prepare and mail
their own non-funding letters.)
--The manner in which consensus is reached (in person vs. via
telephone) and whether or not consensus is required (Again,
this relates to the transportation costs for bringing together
panel members for a consensus review. Larger awards may require
onsite consensus review.)
Accordingly, it is difficult to make an absolute comparison among
fiscal years because contractors, tasks, practices, and scenarios
differed during this time span. While many efficiencies have been
introduced over the past 3 years, OJP also has placed new and
additional requirements on the contractor in order to ensure that there
is transparency in the award process and that fair and open competition
can be properly documented.
See Attachment 2.
Question. If the application costs increased under the current
contract for peer review services over the last 3-4 years, what is this
attributable to?
Answer. The current OJP peer review contract supported the fiscal
year 2008 and fiscal year 2009 peer review process. The overall cost of
peer review increased from approximately $4 million in fiscal year 2008
to $8.7 million in fiscal year 2009 because the number of applications
peer reviewed increased from 4,872 to 14,104. The increase in the
number of applications OJP received and peer reviewed in fiscal year
2009 was largely due to funding appropriated pursuant to the American
Reinvestment and Recovery Act of 2009.
Question. Finally, what cost containment strategies are
contemplated?
Answer. In an effort to streamline the process and reduce costs,
OJP released a Request For Quotation (RFQ) in July 2010 for peer review
activities in fiscal year 2011-fiscal year 2015. In addition, the OJP
bureau and program offices perform continuous reviews to reduce costs
and, whenever appropriate, choose to complete peer review tasks in-
house and/or conduct a standard peer review instead of a higher-cost
in-person peer review.
Question. Please have OJP's OCFO task OAAM (Office of Audit
Assessment and Management) to prepare these cost work ups, and the
bureaus and program offices confirm the figures for accuracy before
submitted.
Answer. See attached chart, also provided in response to Senator
Shelby's Questions 20 and 23. See Attachment 2.
FORENSICS COST ANALYSIS
Question. As you know I am opposed to NIJ's efforts of bailing out
their friends with taxpayer dollars to cheapen the quality of evidence
by outsourcing DNA work to private contractors, as I believe we need to
build our crime labs up and increase their capacity so that they can
respond to the ongoing increase of cases that come that way. I find it
unfortunate that many politicians have put unrealistic mandates on the
crime labs yet they have not provided them the tools to meet those
mandates and as a result they are forced to outsource. I am very
concerned with your agencies clear leaning toward private contractors
on this matter, particularly NIJ. Your office continues to put together
panels with handpicked agencies so that you can present outcomes that
support your position.
Please provide me a clear cost analysis of doing business with a
private lab and include in that the cost to work the case from
reception; including detection of stains on all items, identification
of those stains, isolating and examining portions of those stains, and
testifying in court.
Answer. NIJ provides Forensic DNA Backlog Reduction grants directly
to State and local government laboratories for the purpose of reducing
their backlogs. Backlog reduction activities may include the provision
of overtime to DNA analysts, the purchase of supplies required for the
DNA analysis of samples, and/or the outsourcing of samples to
accredited fee-for-service laboratories for DNA analysis. NIJ also
provides funding to State and local government laboratories to purchase
equipment and hire/train DNA analysts so they can build their capacity
to the point where they will not have to rely on assistance from
private labs.
NIJ's primary backlog reduction program, the Forensic DNA Backlog
Reduction Program, provides funding to States and units of local
government through grants. Recipients of these grants may choose to
send casework evidence samples to accredited fee-for-service
laboratories for DNA analysis if they do not have the capacity to
conduct the analysis themselves. Because NIJ does not establish or
manage casework contracts with private laboratories, it is difficult to
assess the total cost of doing business with the private laboratories.
Some private laboratories post their fee schedules publicly (e.g.
http://www.bodetech.com/solutions/dna-identification-services/forensic-
casework-price-list), and based on the examination of selected budgets
submitted with requests for funding in fiscal year 2009, the estimated
cost of outsourcing casework can range from $200 to $2,500 per case,
with an approximate average of $994 per case; however, this is not a
full analysis of all costs involved and may be influenced by other
variables such as the number of samples tested per case, the extent of
forensic testing (i.e., identification of stains or screening for
biological fluids), differing types of DNA analysis methods (e.g., STR,
Y-STR, mtDNA), or variations in the number of samples requested per
month. Additionally, NIJ does not allow Forensic DNA Backlog Reduction
Program grant funds to be used for expert witness testimony, and as
such, does not collect information regarding the costs associated with
court testimony.
NIJ's other Forensic DNA backlog reduction program, the Convicted
Offender and/or Arrestee DNA Backlog Reduction Program, provides
funding through grants to State laboratories that perform forensic DNA
analysis for upload to the Offender Index of the Combined DNA Index
System (CODIS). Through the grant program, a State may request up to
$35 per sample to perform DNA analysis in its own CODIS laboratory, or
it may contract up to $35 per sample to a qualifying private fee-for-
service laboratory to perform the DNA analysis. Qualifying laboratories
are those that are accredited, have obtained a National Environment
Policy Act Finding of No Significant Impact from OJP, receive mandatory
annual DNA audits, and as such, are on the list of approved vendors.
The current list of qualifying laboratories consists of five private
laboratories; however, any accredited laboratory can become a
qualifying laboratory by contacting NIJ and meeting and completing all
requirements.
If a State has samples that were collected from convicted offenders
and/or arrestees and are pending DNA analysis for upload to CODIS, and
the State does not wish to establish or manage a contract with a
private laboratory, that State can request that NIJ contract directly
with the private laboratory for the DNA analysis of the backlogged
convicted offender and/or arrestee samples. Because NIJ allows States
that receive grants from the Convicted Offender and/or Arrestee DNA
Backlog Reduction program to use granted funds to send backlogged
samples to private laboratories, contracts between OJP and private
laboratories are established only at a State's request. These contracts
are established and managed by OJP's Acquisitions Management Division.
In fiscal year 2009, the contracted cost per sample ranged from $22.90
to $32.00. Similar costs are anticipated for fiscal year 2010.
NATIONAL ACADEMY OF SCIENCE STUDY
Question. Does the Department of Justice have or is it developing a
position on any of the issues of forensic reform as noted in the
National Academy of Science report? Please include accreditation of
laboratories and other forensic service providers, certification of
those individuals who provide testimony in court regarding their
findings, initiating research to determine what has yet to be done to
improve the various examinations conducted, what support can be given
to help laboratories to develop the capacity to handle casework
received in an acceptable timeframe, and what support can be given to
encourage students to pursue careers in forensic science and forensic
pathology?
Answer. The Department of Justice has not itself taken a position
on the specific recommendations of the NAS report, but rather has
participated in the inter-agency Subcommittee on Forensic Science
(SOFS) of the National Science and Technology Council, organized by the
White House's Office of Science and Technology Policy. The SOFS is
currently preparing recommendations for coordinated, comprehensive
executive branch action to advance the goals of the NAS report.
FBI
Question. In an effort to fully understand this change in FBI
Laboratory policy and what prompted this sudden policy change, I'm
submitting the same questions I mailed to Director Mueller in a letter,
to the Department of Justice so we can have these answers on record. I
request that you provide the answers to the following questions and
produce all documents and information requested for the record.
The FBI laboratory is one of the few executive board members of
American Society of Crime Lab Directors (ASCLD), who issued the
aforementioned position statement in support of the status quo and
restricting access to NDIS to public labs. Explain why the FBI
Laboratory, who has representation on this body's executive board,
contradicts the position so soon after ASCLD's release of its position
statement. Did undue pressure change the FBI position?
Answer. The FBI Laboratory's position regarding private laboratory
access to the National DNA Index System (NDIS) does not contradict that
of the American Society of Crime Lab Directors (ASCLD). The FBI's March
23, 2010 press release clearly states, ``The administration and
operation of the National DNA database is an inherently governmental
function that supports criminal investigations conducted by our
Federal, State, local, and tribal law enforcement partners. Therefore,
the FBI's assessment does not include re-evaluating access to NDIS.''
Both the ASCLD position statement and the FBI's press release reaffirm
support for the status quo that private laboratories should not have
access to the NDIS. Both statements also support looking for ways to
enhance the NDIS process so that DNA profiles can optimally assist in
fighting crime.
Several members of the forensic community, including ASCLD, have
been interested in improving the process of analyzing, reviewing, and
entering DNA profiles into NDIS. The President of ASCLD requested the
FBI's ex-officio (non-voting) member of the Board of Directors to
communicate with the ASCLD Advocacy Committee. The extent of those
communications was to understand the problems perceived by State and
local crime laboratory directors and to advise of potential efforts the
FBI Laboratory may consider to help all NDIS laboratories. However,
there was no pressure whatsoever put upon the FBI's ex-officio member
for the FBI to change its policy on private laboratory access to NDIS
or other related policies that would benefit private DNA laboratories.
Question. The FBI's Scientific Working Group on DNA Analysis
Methods (SWGDAM), CODIS State Administrators, and ASCLD have all issued
positions strongly supporting the status quo and restricting access to
NDIS. With these and other subject matter experts supporting the
current FBI procedures and national standards, who specifically at the
FBI decided to move toward loosening these standards and made the
decision to change this policy?
Answer. As previously noted, the FBI's March 23, 2010 press release
clearly states, ``The administration and operation of the National DNA
database is an inherently governmental function that supports criminal
investigations conducted by our Federal, State, local, and tribal law
enforcement partners. Therefore, the FBI's assessment does not include
re-evaluating access to NDIS.'' The scope of the current review is
limited to a re-evaluation of NDIS procedures to determine whether
time/backlog efficiency improvements would be possible, with no
diminution in the current level of NDIS integrity. Again, the FBI
Laboratory is not considering any changes to NDIS access, which is
currently limited to Federal, State and local criminal justice
agencies.
Question. Provide the names, dates, and attendees of any meetings
held between the FBI Laboratory Director or his representative, and
representatives of vendor DNA laboratories prior to this press release.
Answer. The FBI Laboratory Director has had the following relative
interactions with vendor laboratory representatives prior to the
release of the March 23, 2010, press release:
--Brief courtesy discussions with vendor participants at professional
meetings, such as the International Association of Chiefs of
Police (IACP), American Academy of Forensic Sciences, ASCLD,
CODIS Conference, etc. At no time at any of these events did he
discuss FBI Laboratory requirements or vendor capabilities.
--On October 23, 2009, at the request of the IACP, the FBI Laboratory
Director and the Executive Assistant Director of the FBI's
Science and Technology Branch, Louis Grever, met with IACP
deputy executive director Jim McMahon and IACP member Howard
Safir (former NYPD Police Commissioner, IACP president, and
current CEO of Bode Technology). Mr. McMahon's and Mr. Safir's
stated purpose was to represent the opinions of senior law
enforcement officials regarding the value of DNA and the need
for faster turnaround times. All present were cognizant of Mr.
Safir's current position with Bode Technology, and the
conversation was never allowed to stray into discussion of
Bode's capabilities or FBI requirements relative to contracted
DNA analysis. It is noted that Bode Technology is currently
under contract to the FBI for providing DNA support to
Metropolitan Police Department (MPD) casework and laboratory
workspace for MPD laboratory staff.
--On November 2, 2009 Jeff Boschwitz of Orchid Cellmark approached
the FBI Laboratory Director on the exhibitor floor of the CODIS
Conference and requested a meeting to discuss various issues of
interest to Orchid Cellmark. The FBI Laboratory Director
expressed that this meeting would be inappropriate per the
Federal Acquisition Rules and FBI Ethics procedures. Subsequent
e-mail attempts by Mr. Boschwitz to engage the Laboratory
Director were unanswered. The FBI Laboratory Director has had
no other communications of any kind with Mr. Boschwitz or
Orchid Cellmark.
Prior to issuing the press release, representatives of the FBI
Laboratory engaged in conversations with the ASCLD, SWGDAM, CODIS State
Administrators, the Police Executive Research Forum (PERF), the IACP,
and other Federal, State, local, and tribal agencies, including the Los
Angeles Police Department (LAPD), to determine if a re-evaluation was
necessary. The FBI did not engage with lobbyists or industry
representatives on this issue.
Question. Did the FBI issue this press release because of pressure
from Congress, lobbyists, or industry representatives?
Answer. No, the FBI did not issue the March 23, 2010 press release
because of pressure from Congress, lobbyists, or industry
representatives. Rather, the decision by the FBI to re-evaluate current
policies, standards, and protocols was informed and influenced by
inquiries to the FBI Laboratory by members in the law enforcement and
forensic community.
The issue of DNA backlogs and the technical review process has
drawn significant attention from Congress, and the FBI has been
contacted by Members of Congress and/or their staffs by letter and
phone. FBI representatives have had meetings and conversations with
Members of Congress and/or their staff regarding the DNA backlog,
technical review, and other related issues. For example,
representatives of the FBI Laboratory met with staff from the Senate
Judiciary Committee on March 2, 2010 to discuss potential efficiencies
that could be gained by this re-evaluation of policies, standards, and
protocols. Members of Congress and/or their staffs have expressed their
interest in legislating on the issue of DNA backlogs. While the FBI is
aware that Congress has the authority to legislate this issue, the FBI
is more concerned with the accuracy, the backlogs, and the long
turnaround times for casework, which decreases the utility of NDIS to
solve crime.
Prior to the press release, the FBI Laboratory engaged in
conversations with the LAPD, ASCLD, SWGDAM, CODIS State Administrators,
PERF, the IACP, and other Federal, State, local, and tribal agencies to
determine if a re-evaluation was necessary.
The FBI Laboratory is aware of activity by lobbyists and industry
representatives who seek either private laboratory access to CODIS and/
or a repeal of the 100 percent technical review requirement. The FBI
has not interacted with individuals representing either of these
groups.
Question. Was the FBI told by Congress, lobbyists, or industry
representatives that if the FBI does not move in this direction,
changes will be legislated? If so, who?
Answer. While Members of Congress and/or their staffs have
expressed interest in legislating these issues, the FBI was not
expressly told by Congress, lobbyists, or industry representatives that
changes would be legislated in the absence of action by the FBI. While
the FBI is aware that Congress has the authority to legislate this
issue, the FBI is more concerned with the accuracy, the backlogs and
the long turnaround times for casework, which decreases the utility of
NDIS to solve crimes. The FBI Laboratory is obligated to ensure the
quality and integrity of the data in NDIS, as well as ensure
operational efficiency. The re-evaluation described in the March 23,
2010 press release is a responsible measure to fulfill these
obligations.
Question. Has the FBI attended any meetings with the National
Institute of Justice (NIJ) and discussed vendor laboratories? If so,
please provide details and all documentation of the items discussed.
Answer. The FBI has not attended any meetings with the National
Institute of Justice (NIJ) to discuss vendor laboratories since 2006.
Question. Provide specific details of the FBI's past experience
with vendor DNA laboratories, to include the name of the vendor
laboratory and the results of any lab errors that were detected by the
FBI after the vendor review was conducted.
Answer. Since 2003, the FBI Laboratory has participated in four
outsourcing contracts. These contracts are as follows:
--Outsourcing to Orchid Cellmark of nuclear DNA casework for serology
and Short Tandem Repeat (STR) analysis. Contract amount was
$1,100,000. Period of performance was from September 2003
through July 2007.
--Outsourcing to Orchid Cellmark of nuclear DNA casework for
retesting purposes. Contract amount was $113,000. Period of
performance was from September 2003 through September 2005.
--Outsourcing to The Bode Technology Group of Federal Convicted
Offender database samples for STR analysis. Contract amount was
$1,000,000. Period of performance was from February 2004
through December 2006.
--Outsourcing to The Bode Technology Group of Metropolitan Police
Department (MPD) backlog cases for serology and STR analysis,
as well as space for the operation of the MPD DNA Laboratory,
has totaled $2,100,000 to date. The period of performance has
spanned September 2008 to present.
During the FBI's technical review of the outsourced Federal
Convicted Offender data, several errors were identified with the vendor
(The Bode Technology Group) laboratory data. These errors can be
classified into the following categories: administrative, clerical,
quality, and incorrect profiles. Administrative and clerical errors
included items such as missing or incomplete paperwork and
typographical errors. Quality issues occurred when the vendor
laboratory reported data that did not meet the FBI's interpretation
guidelines. These samples had to be reanalyzed by the vendor
laboratory. Finally, there were instances in which the reported profile
was determined to be incorrect during the FBI technical review of the
data. In these instances, the samples had to be reanalyzed by the
vendor laboratory. Any errors that were identified during the FBI's
technical review of data submitted by the vendor laboratory were
subsequently corrected and ultimately accepted by the FBI.
Administrative, clerical, and quality issues were also observed
with the outsourced serology and STR analyses conducted by the vendor
laboratory (Orchid Cellmark) on both contracts initiated in September
2003. Most significantly, the vendor laboratory notified the FBI
Laboratory of the improper testing and reporting of laboratory results
by an Orchid Cellmark examiner on submitted FBI Laboratory casework. In
these instances the samples were reanalyzed by the vendor laboratory,
and further reviewed by the FBI Laboratory, prior to ultimate
acceptance.
Question. Provide specific details on the architecture and scope of
what the FBI plans to do after this press release. What will the
process entail? How long will this evaluation last?
Answer. The FBI's ``Initiative to Enhance NDIS Efficiency'' began
with a kick-off meeting on April 26, 2010 during which the objectives
of this re-evaluation were established. The participants invited to
this meeting included representatives from the IACP, SWGDAM, the Police
Executive Research Forum, ASCLD, the American Society of Crime
Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB),
Forensic Quality Services-International, the National Institute of
Standards and Technology (NIST), the National Institute of Justice
(NIJ), and the New Scotland Yard Metropolitan Police Service (United
Kingdom). Representatives from these agencies attended the meeting,
with the exception of the IACP and the New Scotland Yard Metropolitan
Police Service.
At this meeting, the FBI presented a strawman proposal for the re-
evaluation of NDIS policies, standards, and procedures and began
discussions with these groups on the process under which the NDIS re-
evaluation is to be conducted. The FBI Laboratory has reached out to
additional stakeholder groups most likely to be affected by any change
in NDIS processes and practices for their comments. The FBI then
presented this strawman proposal to additional stakeholders, such as
the NDIS Board, CODIS State Administrators, SWGDAM Executive Board, and
ASCLD Board. The groups were requested to provide feedback and
suggestions. The FBI is looking at all proffered proposals and comments
to determine the best course of action.
The FBI expects to maintain communication with these various groups
as their comments and information is gathered. The FBI will continue to
seek their input on the acceptability and feasibility of any proposed
changes to the operation of the National DNA Index. Additionally, the
FBI hopes to collect data and suggestions from jurisdictions that have
been successful in reducing their DNA backlogs. Once the FBI has all
the relevant information, it will evaluate the data and determine a
timeline, as well as if a pilot project is needed. Based on the
stakeholder input, the changes will be discussed with SWGDAM, who, if
necessary and in agreement, will recommend changes to the Quality
Assurance Standards to the FBI Director.
Question. Once the evaluation is completed, who at the FBI will
decide whether any procedures should be changed?
Answer. Once the FBI's re-evaluation of all NDIS policies,
standards, and procedures is complete, FBI Laboratory management will
propose recommended changes (if any) to the FBI Director. When the FBI
Director approves changes to the Quality Assurance Standards, the NDIS
Procedures Board will make changes to the operational procedures of
NDIS. The NDIS Procedures Board is composed of 12 individuals
representing the FBI, SWGDAM, CODIS State Administrators, and State and
local labs providing the highest volume of criminal and offender
casework to NDIS. The NDIS Procedures Board approves changes to NDIS
Procedures based upon a majority vote for which a quorum of members is
present. Any proposed changes will be compliant with current
legislation governing the operation of CODIS.
Question. If any changes are recommended, will the FBI require the
CODIS State Administrators to unanimously endorse the proposed changes
as it is the individual States who are affected most by a reduction in
the review of vendor DNA data? If not, why is the FBI ignoring the
opinions and concerns of these experts?
Answer. The FBI recognizes that the States, and the DNA records
that they contribute, are responsible for the success of the NDIS. The
FBI's practice has always been to seek out the views and opinions of
the CODIS State Administrators, the NDIS Procedures Board, and the
SWGDAM, with respect to any fundamental changes in the operation of
NDIS. This is generally done at either the semi-annual CODIS State
Administrators meetings or at NDIS Procedures Board and SWGDAM
meetings. For situations requiring a more immediate response, the FBI
solicits comments or input via e-mail requests. The FBI encourages
CODIS State Administrators to make their views known during such
meetings or through written communications. All of their views/comments
are reviewed and carefully considered by the FBI before any new
procedure or change is implemented. In those instances in which a
substantial change to existing procedures is contemplated, the FBI
often institutes such a change on a pilot basis to further evaluate the
need for the change and the impact, if any, on the CODIS community. The
FBI understands the importance of the CODIS community in the continued
success of the CODIS and NDIS Programs.
With regard to this particular re-evaluation of NDIS policies,
standards, and procedures, the FBI conducted an initial meeting with
the CODIS State Administrators May 11-12, 2010, and plans to meet with
them again in November 2010 to discuss potential revisions to NDIS
procedures. FBI will solicit the opinions of these individuals at every
step in the re-evaluation process. The FBI has also established an e-
mail address for distribution of regular updates on the NDIS procedural
re-evaluation, as well as for ease of solicitation of feedback from all
interested in the re-evaluation process.
Question. Federal law directs SWGDAM to oversee changes to the
FBI's quality assurance standards. Newly revised standards were just
completed last year. At that time, did the Office of General Counsel of
the FBI review the new standards and indicate that the FBI should
loosen the standard of review for vendor labs? Will the FBI require a
unanimous endorsement from SWGDAM on any proposed changes? If not, why
not?
Answer. The DNA Identification Act of 1994 specifies that the FBI
Director's Quality Assurance Standards shall be developed, and if
appropriate, revised by the DNA Advisory Board (DAB), an entity
established by the act and tasked with these responsibilities. The act
also defined the Board's tenure to not exceed 5 years. The first
meeting of the DAB occurred in May 1995 and the last in December 2000.
The DNA Advisory Board recognized the Quality Assurance Standards would
require direction and management beyond their 5 year tenure, and
identified TWGDAM (Technical Working Group for DNA Analysis Methods),
later re-named SWGDAM (Scientific Working Group for DNA Analysis
Methods) as an appropriate body to provide such support. When the DNA
Advisory Board was dissolved in December 2000, it was their
recommendation that future revisions to the Quality Assurance Standards
be performed by SWGDAM.
As an advisory authority, and not derived from a statutory role,
the FBI's SWGDAM accepted the DNA Advisory Board's recommendation for
maintaining and providing recommendations to the FBI Director for the
Quality Assurance Standards. SWGDAM revised the Quality Assurance
Standards in 2007 and 2008. These revisions were vetted not only by
accrediting agencies, specifically the American Society of Crime
Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) and
Forensic Quality Services (FQS), but also by the governmental
laboratories and the public. All comments received by the deadline were
considered by SWGDAM. After the public review, the proposed revisions
were forwarded to the FBI's Office of General Counsel (OGC) for review.
The FBI's OGC requested minor revisions to language in the standards,
but did not presume to offer counsel on any technical issues, including
the technical review requirement. The recommended revisions to the
Quality Assurance Standards were approved by the FBI Director and went
into effect July 1, 2009.
The FBI is fully engaging SWGDAM on any proposed changes regarding
the NDIS enhancement proposals, especially with regard to the FBI
Director's Quality Assurance Standards. The SWGDAM by-laws specify that
the affirmative vote of the majority of a quorum of SWGDAM members
shall be an act of SWGDAM. Therefore, a unanimous endorsement by SWGDAM
of any proposed changes to the Quality Assurance Standards is not
required under SWGDAM's current by-laws.
Question. The FBI's CODIS Unit reports that the current framework
has aided approximately 100,000 investigations and to date, has never
incorrectly identified an offender to law enforcement. The FBI is now
implementing the new Federal law where a DNA sample will be collected
from Federal arrestees. By the FBI's own estimate, it will receive more
than a million additional DNA samples a year. Provide the justification
on why the FBI is considering loosening the quality standards when the
number of samples the FBI will be putting into the database is going to
increase dramatically.
Answer. The FBI continues to endorse the highest quality standards
possible for DNA analyses as an active member of many groups which
espouse quality in forensic science, to include SWGDAM, ASCLD, and
ASCLD/LAB. Having managed NDIS for 12 years, the FBI has a thorough
understanding of the effect of data quality on the ability of the
National DNA Database to aid investigations and solve crimes. The re-
evaluation of policies, standards, and procedures being performed must
ensure that quality and integrity of data are priorities, and under no
circumstances will the FBI make changes to procedures that will
endanger the effective operation of NDIS. The FBI has no intention of
lessening quality standards, but rather has the goal of making the
operation of NDIS more efficient for all who use information derived
from this system.
Question. Do you plan to outsource any of the testing related to
the increase in Federal DNA collections, and if so, why?
Answer. The FBI does not currently plan to outsource any of its
Federal DNA Database Program testing. The FBI does use the services of
contractor staff working within the FBI Laboratory to process DNA
samples submitted under the Federal Convicted Offenders Program (FCOP).
The FBI continues to build its capacity to be able to analyze 90,000
samples per month and is on track to eliminate its offender backlog
later this year. When the backlog is eliminated, the FBI Laboratory
envisions achieving a 30-day turnaround on samples submitted under
current legislation.
Question. The FBI is proposing that they perform site visits and
audits to screen private labs to participate as an ``AOL'' associated
outsourcing laboratory. Do they know how many private labs they will
accommodate? Will they use existing resources to do this or ask for
more money or positions to handle this workload?
Answer. The FBI Laboratory offered a ``strawman'' proposal to its
stakeholders to stimulate discussions on if, and how, the operation of
the National DNA Index System could be enhanced to better serve the law
enforcement and CODIS communities. Input and comments from its
stakeholders revealed that the ``strawman'' proposal was not a
direction that a majority of its CODIS community was comfortable in
pursuing at this time. As a result, the initial proposal is no longer
under consideration. Instead, the FBI is reviewing proposals that would
necessitate minor changes to the FBI Director's Quality Assurance
Standards (QAS) for Forensic DNA and DNA Databasing Laboratories to
provide States with additional flexibility in data review and their
database and searching operations.
While the associated outsourcing laboratory proposal is no longer
under consideration, it has been suggested that the FBI's performance
of site visits, if acceptable under the QAS, would provide some
additional flexibility to the States for accepting ownership of
outsourced DNA records. The FBI will be reviewing this proposal with
all of its stakeholders to determine if additional personnel or
resources would be necessary to perform on-site visits of private
laboratories.
Question. Does the FBI plan to propose this process for offender
samples and move the process to ease work samples after a pilot
project?
Answer. At this time, only minor changes to Quality Assurance
Standards for both Forensic DNA and DNA Databasing Labs are being
considered. These changes will give the States options for performing
the 100 percent technical review, to include the use of contractors or
assistance from other NDIS-participating laboratories. At this time,
there are no immediate plans to conduct a pilot project.
Question. The FBI apparently supports dropping the quality
assurance practice of public labs technically reviewing data produced
by private labs prior to upload to CODIS. The American Society of Crime
Lab Directors (ASCLD) and CODIS technical administrators cite a number
of concerns with quality of data from private labs that raise the
concern. If public labs must own the data after it is tested by the
outsourced private lab, why does the FBI feel that a review of that
data is no longer warranted as an important quality assurance measure?
(Note: ASCLD is concerned about taking ownership of data that has not
been reviewed by public labs only prior to upload. Developing a profile
and acquiring a hit in the database only generates an investigative
lead in many cases. Additional work and court testimony often has to be
performed as follow up.)
Answer. The ``strawman'' proposal offered to the law enforcement
community included the concept of transferring the responsibility of
data quality to the private laboratory. The feedback provided by ASCLD
and the CODIS State Administrators indicated that this was not a
favorable option and strongly opposed the removal of the 100 percent
technical review requirement. Alternative suggestions, which will give
States additional flexibility on review of outsourced data, are being
considered.
Question. Does the FBI plan to make a path for private labs to
eventually have the capability to upload samples to NDIS to some
extent? ASCLD opposes any access by private entities, approved by the
FBI or otherwise, to have access to confidential public information.
Why does the FBI appear to lean toward developing data to support some
level of access by private labs to NDIS?
Answer. As mentioned in our March 2010 press release announcing the
review of the National DNA Index System, the FBI believes that
participation in NDIS is an inherently governmental function that is
properly limited to criminal justice agencies for law enforcement
identification purposes. The FBI does not support permitting private
organizations or entities direct access to NDIS, and the FBI has no
plans to collect data to support any efforts for private entities to
obtain access to NDIS.
Question. The FBI stated that private labs have assisted with
testing one-half of the current offender profiles that public labs have
uploaded to the database (not casework samples). They appear to site
this statistic as some sort of justification or entitlement for working
with private labs. What is their view on the importance of citing the
number of cases that public labs have been forced to outsource due to a
lack of capacity in their own labs?
Answer. In describing the success of the National DNA Index System
in generating investigative leads for criminal investigations, the FBI
acknowledges the contributions of Federal, State, local and private
laboratories that have generated the DNA records contained in NDIS. The
number of investigations aided by NDIS is attributable to the number of
DNA records stored at the national level. Through the NDIS review
process, the FBI is working together with our stakeholders to provide
the flexibility to the States to operate their DNA databases in the
most efficient manner appropriate to their individual needs, whether
the data is generated in-house or outsourced.
Question. The FBI recently surveyed all NDIS labs in an effort to
assess the current DNA backlog. The majority of the DNA review problems
for offenders and cases is limited to only a few labs, and including
the FBI as one of the worst. The FBI is not in favor of making the raw
survey results public and are proposing an elaborate plan before even
looking at the data to even see what the problem is.
Answer. No response required.
bop
Question. OMB's Capital Programming Guide (OMB Circular No. A-11,
Part 7) provides very specific direction regarding the analysis
required to justify capital investments. Please describe the step-by-
step process the Bureau of Prisons and the Department undertook to
justify the purchase of the Thompson Correctional Center (TCC). In
particular, please share with us the results of your cost-benefit and
risk analyses? What viable alternatives were examined and what were the
decisive factors that favored Thompson?
Answer. BOP Capacity Planning Committee has explored various
possibilities to increase higher security bed space. In considering the
Thomson Correctional Center, BOP's capacity planning and analysis
followed the guidance set forth by OMB Circular A-11, Part 7.
Continuing increases in the Federal inmate population pose a
substantial and ongoing challenge for BOP--particularly at the medium
and high security levels. BOP must increase its capacity, and can do so
by acquiring and renovating existing structures, expanding existing
facilities (where infrastructure permits), and constructing new
prisons. The fiscal year 2011 activation of the Thomson facility would
reduce the crowding rate in BOP high security institutions from 53
percent to 46 percent over rated capacity. Without this acquisition,
crowding in BOP high security institutions is expected to reach 57
percent over rated capacity.
BOP representatives visited the Thomson facility in 2009 and 2010
and determined that the institution was suitable, with modifications,
to meet BOP's specific needs for special administrative high security
bed space. After the State of Illinois indicated its interest in a
sale, BOP researched the State's construction costs, met and spoke with
facilities staff at Thomson, and developed preliminary estimates for
maintenance and retrofit requirements. As part of the President's
budget request, the OMB Exhibit 300s are posted on the Department's Web
site and is available at: http://www.justice.gov/jmd/2011justification/
exhibit300/.
The Thomson facility is uniquely different than other properties
the BOP has considered. The Thomson facility is modern, was never fully
utilized, and was built specifically to house maximum security inmates.
Based on other ongoing construction projects, BOP estimates that it
would cost between $200 million and $300 million to construct an
equivalent high security facility in the current market, and it would
take approximately 3 to 4 years to complete the Environmental
Assessment process, proceed through the procurement process, and
complete construction. The costs and time to activate the Thomson
facility are expected to be significantly less; given security criteria
for Administrative Maximum (ADX) and Special Management Unit (SMU)
inmates, BOP determined the Thomson acquisition would be the best
value.
Question. Because of the proximity of the TCC to the Mississippi
River, environmental concerns were raised about the prison that faded
when the decision was made not to open the prison. What were those
concerns? Have you conducted an Environmental Assessment/Environmental
Impact Statement to support purchase of the TCC? If not, how did you
by-pass National Environmental Policy Act requirements?
Answer. The Bureau of Prisons (BOP) has not received information
regarding specific environmental concerns leading to the decision by
the State of Illinois to construct the Thomson facility. However, BOP
intends to conduct an Environmental Assessment pursuant to the National
Environmental Policy Act; it is anticipated that environmental impacts
to the Mississippi River will become part of the overall analysis. As
with any Environmental Assessment, if significant environmental impacts
would result from the acquisition and activation of the Thomson
facility that cannot appropriately be mitigated, BOP would conduct an
Environmental Impact Statement.
Question. The TCC was completed in 2001 and has remained empty,
save a 200-bed minimum security unit, since then. The facility appears
to fit the classic definition of a ``white elephant.'' What happened in
Illinois that led them to abandon the prison the minute it was
completed a decade ago? What, specifically, has the State of Illinois
done and spent to prevent the empty facility from deteriorating over
the last decade? Have Federal engineers inspected the TCC and reported
on its material condition? If so, what were the results of their
inspection? If not, when will such an inspection be conducted?
Answer. According to the State of Illinois, although the high
security portion of the Thomson facility was never fully operational,
the State has been operating a 200-bed minimum security camp adjacent
to the secure facility. According to State officials, the high security
portion of the facility was never opened because of statewide fiscal
concerns. In terms of upkeep, BOP officials have visited the facility
on multiple occasions and inspected the institution thoroughly. The
institution has been well-maintained and is suitable, with
modification, to meet the needs of the Federal Prison System.
Question. BOP is on record, repeatedly so, opposing the purchase of
low- or medium-security privately-funded and built prisons, because of
inherent design flaws that were operationally unacceptable and too
expensive to fix. How does the TCC compare to BOP design and
construction standards for the ``Supermax'' or other ultra-secure
Federal facilities? Presuming much of this was done prior to making
Thompson known and in anticipation of using it as a replacement for
Guantanamo Bay's Detention Facility, have military officers responsible
for the detention of terrorists at Guantanamo Bay inspected the TCC and
provided an analysis of the security and safety of the facility? If
not, will such an inspection be conducted?
Answer. Throughout BOP's history, the agency has acquired former
military installations, college campuses, and a seminary to convert
them for Federal prison use. Several of these locations included
existing buildings that required renovations and security enhancements
to provide suitable housing for low and minimum security inmates. BOP
also acquired the U.S. Disciplinary Barracks in Lompoc, California in
1959, which was modified and converted into U.S. Penitentiary Lompoc,
now a medium security institution.
BOP's interest in acquiring Thomson is consistent with its earlier
position. In contrast to earlier acquisitions, the Thomson facility has
already been built to modern, high security correctional facility
specifications rather than having to be converted to prison use. In
earlier years, most prisons offered to BOP for purchase were old,
obsolete facilities that were no longer desired by States moving to
newly constructed, modern prisons.
Question. The ``Presidential Memorandum--Closure of Detention
Facilities at the Guantanamo Bay Naval Base,'' issued December 15, 2009
must have reflected the summation of considerable analysis by the
Departments of Defense and Justice regarding the incarceration of
terrorists on U.S. soil. What bodies were convened to conduct this
analysis, who was involved, and where are the results of their labors?
Answer. The Justice, Homeland Security, and Defense Departments
collaborated to assess potential U.S. facilities for the Guantanamo Bay
detainees, including several interagency meetings and site visits to
the facility in Thomson. This work was part of a broader effort by the
Detention Policy Task Force, created pursuant to Executive order 13493,
to evaluate options for the apprehension, detention, trial, transfer,
release, or other lawful disposition of individuals captured or
apprehended in connection with armed conflicts or counterterrorism
operations. The preliminary evaluation process also included
discussions with Illinois stakeholders once the administration
identified the Thomson facility as a likely candidate, such as: the
Director of the Illinois State Police, the Director of the Illinois
Department of Corrections, the Director of the Illinois Emergency
Management Agency, and multiple regional, county, and local law
enforcement officials.
THOMSON PRISON
Question. How did BOP determine that Thomson met the ADX/high bed
space need?
Answer. BOP staff made multiple site visits to tour the Thomson
facility and compare its security features with BOP administrative
maximum, special management and general population high security
bedspace. BOP staff determined that the institution was suitable to
meet BOP's special administrative high security bedspace needs and
could become fully operational fairly quickly after acquisition,
modification and hiring and training staff.
Question. What were the construction costs to the State of
Illinois?
Answer. BOP's understanding is that the cost to the State of
Illinois has been reported at $140 million.
Question. What were estimates for maintenance and retrofit
requirements?
Answer. As requested in the fiscal year 2011 President's budget,
the BOP estimates $15 million is required for security and
infrastructure upgrades.
Question. Why don't we offer a fire sale price, and no more, for
this white elephant to ensure costs to acquire, retrofit, and activate
the facility are ``significantly less'' than new construction?
Answer. Federal law requires the amount paid for the negotiated
purchase of real property to be just compensation which is not less
than the fair market value determined by an appraisal completed in
accord with 42 U.S.C. Sec. 4651, 49 CFR part 24, and the Uniform
Appraisal Standards for Federal Land Acquisitions. Further, the
Department of Justice believes the costs and benefits of acquiring
(within 1 year) and modifying a never opened, solidly built, 1,600-
cell, high security facility in Thomson, Illinois, for approximately
$170 million outweighs the cost (up to $300 million in the current
market) and time for constructing (approximately 3 to 4 years) a new
high security facility.
Question. When is the formal appraisal going to be completed?
Answer. The formal appraisal is expected to be completed in Fall
2010.
Question. What are all of the applicable rules and regulations for
purchasing Thomson that BOP must fully comply with?
Answer. BOP must comply with the following Federal rules and
regulations:
--The National Environmental Policy Act of 1969 and its implementing
regulations;
--The Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 and its implementing regulations;
--A Procedural Guide for the Acquisition of Real Property by
Governmental Agencies Title Standards 2001;
--18 U.S.C. Chapters 301 and 303; and
--Any other relevant authorization and/or appropriations laws.
In addition, Illinois State rules and regulations may impact the
BOP and are unknown at this time.
Question. Please break down the OMB Circular No. A-11, part 7 into
its individual steps and provide the documentation required by the
circular where appropriate.
Answer. As part of the President's budget request, and in
accordance with guidelines set forth by OMB Circular A-11, part 7, the
OMB Exhibit 300s are posted each year at the following Web site: http:/
/www.justice.gov/jmd/2011justification/exhibit300/.
Question. When does BOP intend to conduct an Environmental
Assessment pursuant to the National Environmental Policy Act?
Answer. The Environmental Assessment began in June 2010. BOP
anticipates the Environmental Assessment will be completed in Fall
2010.
Question. Provide an engineer's report on material condition and
needed modifications.
Answer. BOP does not produce an ``engineer's report''; however, the
Bureau's assessment, according to Correctional Programs and Facilities
experts, concluded that additional modifications would be needed to
meet BOP's security standards to house high security inmates. The
following lists the major modifications needed and provides examples of
the necessary security enhancements: New stun lethal fence and new
razor ribbon to meet BOP guidelines; new fence alarm system; new rear
gate and sallyport gates; construct facilities building and storage
area; and security upgrades, such as door locks, hardened recreation
cages behind units, addition of security fencing within compound,
installation of additional cameras and tie to monitoring system,
installation of radio system base and portables, additional security
lighting within compound, installation of anti-crash bollards in front
of institution and rear, and construction of holding cells in receiving
and discharge area.
The number of administrative maximum (ADX or ``super max'') beds
available in the Federal prison system has not increased since ADX
Florence was activated in 1994. Acquisition of the Thomson facility,
which is significantly larger than ADX Florence, will expand BOP's
capacity to confine ADX and Special Management Unit (SMU) inmates at a
lower cost and within a shorter timeframe than building a new facility.
The Thomson facility is unique in that it is modern, was never
fully utilized, and was built specifically to house maximum security
inmates. Completed in 2001, the Thomson facility could be used fairly
quickly after some modifications were completed. It could be acquired
and readied for use, at today's lower costs, more rapidly than
constructing a new facility, saving several years. The Thomson facility
would enable BOP to move the most disruptive and violent inmates out of
existing general populations U.S. Penitentiaries to a newer, more
modern facility better suited to the controls required to manage the
ADX- and SMU-type populations. Some features of the Thomson facility
that compare extremely well with other administrative high units are:
The amount of bedspace available (1,600 cells); flat land geography
that allows unobstructed line of sight; good infrastructure with plenty
of sewer and water capacity; and a central layout for program space,
hospital, food service, education.
Question. Provide information on CCA medium-security facilities
previously negotiated or discussed.
Answer. BOP currently contracts to house low security criminal
aliens, BOP is not aware of any Corrections Corporation of America
facilities offered for sale to BOP.
Question. Please provide the Defense Department inspection
findings.
Answer. The Department of Justice does not have a copy of the
Defense Department's inspection findings.
Question. Please provide the December 15 letter from Secretary
Gates and AG Holder detailing some of the security enhancements
envisioned for the Thomson facility.
Answer. Attached is the requested letter to Governor Quinn of
Illinois, which was signed by Attorney General Holder (Justice),
Secretary Clinton (State), Secretary Gates (Defense), Secretary
Napolitano (Homeland Security) and then Director Blair (National
Intelligence). See Attachment 3.
December 15, 2009.
The Honorable Pat Quinn,
Governor of Illinois,
Chicago, Illinois 60601.
Dear Governor Quinn: On January 22, 2009, President Obama issued
Executive order 13492, directing the closure of the detention center at
Guantanamo. A key purpose of this Order was to protect our national
security and help our troops by removing a deadly recruiting tool from
the hands of al-Qa'ida. This should not be a political or partisan
issue. This action is by the Nation's highest military and civilian
leaders who prosecuted the war against al-Qa'ida under the previous'
and continue to do so today. It is also supported by five previous
Secretaries of State who in both Democratic and Republican
administrations, including those of Presidents Nixon, Ford, George H.W.
Bush, Clinton, and George W. Bush.
On November 12, 2009, you wrote to Defense Secretary Robert Gates
and Attorney General Eric Holder proposing that the Federal Government
work with the State of Illinois to acquire the Thomson Correctional
Center to house Federal inmates and a limited number of detainees from
Guantanamo Bay, Cuba. We appreciate the leadership and assistance you
and Senator Dick Durbin have provided during our evaluation of this
proposal. We also would like to thank Thomson Village President Jerry
``Duke'' Hebeler and the people of Thomson and the surrounding region
for their support and hospitality.
We write to inform you that the President has directed, with our
unanimous support, that the Federal Government proceed with the
acquisition of the facility in Thomson. Not only will this help address
the urgent overcrowding problem at our Nation's Federal prisons, but it
will also help achieve our goal of closing the detention center at
Guantanamo in a timely, secure, and lawful manner.
Executive order 13492 directed us to close the detention facility
at Bay and to conduct a review of the most secure and efficient way to
adjudicate each of the Guantanamo detainee cases. This is part of the
President's aggressive posture in the fight against al-Qa'ida that uses
all instruments of our national power, including: keeping the pressure
on al-Qa'ida and its leadership globally; strengthening homeland
security and increasing cooperation and intelligence sharing among
Federal agencies and between the Federal Government and State and local
authorities; recognizing our values as a critical piece of our battle
against our enemies; prosecuting detainees in Federal courts, which
have safely and securely prosecuted terrorists for many years; trying
detainees for violations of the law of war in military commissions.
which were reformed by bipartisan legislation signed by the President
in October; and transferring detainees to their home countries or third
countries that agree to accept them, when consistent with our national
security interests and humane treatment policies.
As the President has made clear, we will need to continue to detain
some individuals currently held at the Guantanamo Bay detention
facility. To securely house these detainees, Federal agencies plan to
work with you and other State officials to acquire the nearly vacant
maximum security facility in Thomson, Illinois. This facility will
serve dual purposes. First, the Department of Justice will acquire this
facility primarily to house Federal inmates. The Bureau of Prisons has
a pressing need for more bed space in light of current crowded
conditions. Second, the Defense Department will operate part of the
facility to house a limited number of detainees from Guantanamo. The
two parts of the facility will be managed separately, and Federal
inmates will have no opportunity to interact with Guantanamo detainees.
The security of the facility and the surrounding region is our
paramount concern. The facility was built in 2001 to maximum security
specifications, and after acquisition it will be enhanced to exceed
perimeter security standards at the Nation's only ``supermax'' prison
in Florence, Colorado, where there has never been an escape or external
attack. Federal departments and agencies, including the Departments of
Homeland Security. Justice, and Defense, will work closely with State
and local law enforcement authorities to identify and mitigate any
risks, including sharing information through the State's ``fusion
center'' and working with the Federal Joint Terrorism Task Force.
The President has no intention of releasing any detainees in the
United States. Currant law effectively bars the release of the
Guantanamo detainees on U.S. soil, and the Federal Government has broad
authority under current law to detain individuals during removal
proceedings and pending the execution of final removal orders.
Federal officials also have consulted with local, county, and State
law enforcement authorities to begin the process of identifying
additional resources they may require to handle the increased
population of Federal inmates and detainees. We are pleased that
Illinois law enforcement authorities endorsed this plan in a letter to
the Secretary of Defense and the Attorney General dated December 2,
2009. We also note that more than 30 villages, towns, cities, counties,
chambers of commerce, and other community and business organizations
have sent letters, approved resolutions, or otherwise expressed their
support for this plan. We are greatly encouraged by this support, and
we commit to working with local authorities closely as this process
moves forward.
There are many steps still to be taken and many requirements still
to be met, but we look forward to working with you to complete the
Federal acquisition of the facility in Thomson.
Sincerely,
Hillary Clinton,
Secretary of State.
Robert M. Gates,
Secretary of Defense.
Eric H Holder, Jr.,
Attorney General.
Janet Napolitano,
Secretary of Homeland Security.
Dennis C. Blair,
Director of National Intelligence.
Question. Provide more details and work products in response to the
original question: What bodies were convened to conduct this analysis
resulting in the December 15 letter referenced above, who was involved,
and where are the results of their labors? Any other pertinent info you
can offer would be appreciated as well.
Answer. Department of Justice officials have participated in a
number of interagency meetings, work activities, and site visits of the
Thomson facility. Visits and discussions have served as opportunities
to engage local community members and law enforcement representatives;
inform congressional, Office of Management and Budget, Department of
Defense staff, and Illinois State legislators; assess compatibility
with the operational and security needs of the Federal prison system;
and educate surrounding communities of employment opportunities.
In addition, the Director of BOP has testified at hearings before
the Illinois State Legislative Commission on Government Forecasting and
Accountability and congressional appropriations committees on plans to
purchase Thomson. The Department has also participated in a several
congressional briefings with the Senate and House appropriations
committee staff regarding the acquisition, renovation, and activation
of the Thomson facility.
______
Questions Submitted by Senator Mitch McConnell
Question. Currently, Federal correctional officers from Bureau of
Prisons facilities in Kentucky, USP McCreary and FCI Manchester, have
advised that they are not authorized to carry Oleoresin Capsicum (OC)
spray as a means of defense from personal attacks from inmates who are
often armed with improvised weapons. In light of the fact that the
safety device is standard-issue in State prisons and local detention
facilities across the United States, is the Bureau of Prisons
considering the use of OC spray as standard-issued equipment to aid in
increasing officer safety while on duty?
Answer. The Bureau of Prisons' (BOP) inmate management philosophy
focuses on constructive and frequent interaction and communication
between staff and inmates. In accordance with this approach, BOP does
not issue less lethal devices to staff for everyday interaction with
inmates and everyday performance of their duties and responsibilities.
Implementing this policy promotes a less confrontational environment
between staff and inmates. Further, it does so without providing the
temptation or opportunity for inmates to obtain such devices through
aggressive behavior. In all secure institutions (low, medium, and high-
security), staff are authorized to use an array of less lethal
munitions and devices (e.g., chemical agents and pepper ball launchers,
etc.), but only during emergency situations. To further enhance safety
and security, certain less lethal munitions have been placed in
strategic areas for prompt access. Securely storing devices inside the
institution with clearly established management controls, rather than
in the outside armory only, ensures easier access and quicker response
times to emergency situations.
BOP's inmate management philosophy, with its focus on the
utilization of confrontation avoidance techniques, has worked well for
the vast majority of inmates. BOP continues to review other aspects of
institution operations and BOP policies and procedures to determine
what else might be done to enhance safety and security and address
staff concerns, consistent with the mission of the agency.
Question. In 2008, Bureau of Prisons Director Harley Lappin enacted
a policy change to provide correctional officers with stab-resistant
vests. The policy made the decision to wear a stab-resistant vest
voluntary for each individual officer. However, the policy also
dictates that if an officer chooses to wear a vest, he or she must do
so at all times regardless of an officer's posting, duties, or
proximity to inmates, thus creating a deterrent to officers opting to
wear vests. Has the BOP considered whether such a restrictive policy
discourages officers from wearing these protective vests and has it
conducted any research to determine the impact of its policy to date?
Answer. BOP reached an agreement with the Union regarding the vest
implementation plan. All staff members who request a stab resistant
vest are required to wear the vest while on duty except (1) during
Annual Training, (2) when assigned to phone monitoring outside the
secure confines of the facility, and (3) when assigned to the control
center. Under the vest Implementation plan, each staff member who
receives a fitted stab resistant vest is given a 6 month phase-in
period. At any time during that initial 6 month period, the staff
member may turn in the vest if he/she no longer desires one.
Question. In 2004, Congress passed the Law Enforcement Officers'
Safety Act. This law allows law enforcement officers, including Bureau
of Prisons correctional officers, to carry firearms when off-duty to
defend themselves and their families. However, BOP has never reached an
agreement allowing for storage of officers' personal weapons at BOP
facilities. Has BOP considered providing storage for staff's personal
weapons, or in the alternative, allowing staff to equip their vehicles
with in-car gun safes?
Answer. The storage of personally owned firearms at Federal
correctional and detention facilities would reduce the safety and
security of the environment for staff, inmates, and the community. For
instance, the storage of personal firearms on BOP property would
provide opportunities for inadvertent mishaps regarding lost, stolen,
or misplaced weapons and/or ammunition. In addition, the accidental
discharge or misplacement of a personal weapon or ammunition could pose
a significant threat to staff, inmates, and the general public.
______
Questions Submitted by Senator George V. Voinovich
OPERATION STREAMLINE
Question. Operation Streamline is a program where illegal
immigrants are prosecuted and face jail time for crossing the border.
This program has contributed to a 49.5 percent reduction in
apprehensions by the Border Patrol along the Southwest border. It has
also demonstrated the great cooperation between the U.S. Department of
Homeland Security, the Department of Justice, and the Judiciary.
Unfortunately, Operation Streamline, as successful as it is, is not
fully utilized in all areas of the Southwest border. In the Tucson
Sector, there is an artificial cap of 70 prosecutions per day in the
face of hundreds of daily apprehensions. Does the Department of Justice
support maximizing the use of Operation Streamline in all sectors along
the Southwest border?
Answer. Border security and immigration policy continue to be a
priority for the Department of Justice (the Department or DOJ). With
regard to the Southwest border, the Department's efforts are focused on
combating large and sophisticated criminal organizations, and the
Department has devoted unprecedented resources to that effort. The
Department generally supports consequence-based enforcement programs
such as Operation Streamline as one of various tools that assist law
enforcement in controlling illegal immigration and related violence.
Operation Streamline programs are in place in four of the five
Southwest border districts. It is, however, implemented differently in
each of the districts, as a result of varying local conditions.
Operation Streamline has an enormous impact on the Department, as
would any fast track immigration enforcement initiative. For example,
capacity and infrastructure constraints (e.g. courthouse, cell block
space, and ventilation systems) restrict the number of detainees or
cases that can be processed by the Federal courts.
Funding provided in the 2010 Emergency Border Security Supplemental
Appropriations bill will allow the Department to expand investigation
and prosecution efforts along the Southwest border. With the $196
million provided, the Department will be able to surge Federal law
enforcement officers to high crime areas in the Southwest border region
by funding more than 400 new positions and temporarily deploying up to
220 personnel. Justice funding will also increase the amount of
equipment, operational support, and attorneys and immigration judges in
order to support additional detention and incarceration costs for
criminal aliens in coordination with Department of Homeland Security
(DHS) enforcement activities.
Question. In fiscal year 2009, there were 39,183 apprehensions
accepted for prosecution under Operation Streamline across the entire
Southwest border. Of those 15,550 were in one sector Tucson. But, these
15,550 prosecutions represent only a fraction of the 241,673
apprehensions made in the Tucson Sector in fiscal year 2009. It would
appear that much more can be done.
Please identify what additional resources are in the fiscal year
2011 President's request to expand Operation Streamline.
Answer. As stated previously, the Department of Justice is a
committed partner in the Operation Streamline initiative. While the
fiscal year 2011 President's budget does not break out separately all
funds related only to Operation Streamline, in total, the fiscal year
2011 budget requests $3.49 billion for the Department of Justice's
Immigration and Southwest border related activities. This represents an
increase of $228 million (7 percent) from the fiscal year 2010 enacted
level. Additionally, funding provided in the 2010 Emergency Border
Security Supplemental Appropriations bill will allow the Department to
expand investigation and prosecution efforts along the Southwest border
into fiscal year 2011. With the $196 million provided, the Department
will be able to surge Federal law enforcement officers to high crime
areas in the Southwest border region by funding more than 400 new
positions and temporarily deploying up to 220 personnel. Justice
funding will also increase the amount of equipment, operational
support, and attorneys and immigration judges in order to support
additional detention and incarceration costs for criminal aliens in
coordination with DHS enforcement activities.
Question. What funding and additional personnel would be required
for the Department of Justice to support doubling the number of
Operation Streamline prosecutions in the Tucson Sector in fiscal year
2011? Please provide a table that displays costs and personnel for each
component within the Department of Justice and the recurring costs for
fiscal years 2012 through 2016 needed to do this.
Answer. Many of the Department's cost inputs along the Southwest
border are unpredictable. For example, detention costs are dependent on
both detainee population levels and per diem jail rates. These levels
and the average per diem jail rate fluctuate depending on a number of
factors, including sector in which the program operates. In fiscal year
2009, the highest per diem rate paid was in the San Diego border
sector. The detention costs range from as little as $41 to as high as
$111.45 per detainee per day. Other factors impacting costs include
time in detention and availability of bed space, as well as courthouse
and cellblock space limitations. Length of sentence is one variable
that is at the discretion of the courts and sentence terms from
Operation Streamline cases.
The differences in how each border sector operates Operation
Streamline and unpredictable cost inputs make accurately estimating the
full cost of implementation (however that is defined) difficult. To
address these complexities, the National Academy of Sciences is
currently studying the downstream effects of DHS immigration-related
programs on the Department of Justice. Specifically, the purpose of the
study is to develop, test, and select a budget model that accurately
captures fiscal linkages between the two Departments and leverage the
linkages into an estimate of the Department's immigration-related
costs. Congress mandated the study in the Commerce, Justice, Science
and Related Agencies Appropriations Act for 2009. The study started in
January 2010 and is expected to be completed and provided to Congress
in June 2011.
Question. What funding and additional personnel would be required
for the Department of Justice to support tripling the number of
Operation Streamline prosecutions in the Tucson Sector in fiscal year
2011? Please provide a table that displays costs for each component
within the Department of Justice and the recurring costs for fiscal
years 2012 through 2016 needed to do this.
Answer. Many of the Department's cost inputs along the Southwest
border are unpredictable. For example, detention costs are dependent on
both detainee population levels and per diem jail rates. These levels
and the average per diem jail rate fluctuate depending on a number of
factors, including sector in which the program operates. In fiscal year
2009, the highest per diem rate paid was in the San Diego border
sector. The detention costs range from as little as $41 to as high as
$111.45 per detainee per day. Other factors impacting costs include
time in detention and availability of bed space, as well as courthouse
and cellblock space limitations. Length of sentence is one variable
that is at the discretion of the courts and sentence terms from
Operation Streamline cases.
The differences in how each border sector operates Operation
Streamline and unpredictable cost inputs make accurately estimating the
full cost of implementation (however that is defined) difficult. To
address these complexities, the National Academy of Sciences is
currently studying the downstream effects of DHS immigration-related
programs on the Department of Justice. Specifically, the purpose of the
study is to develop, test, and select a budget model that accurately
captures fiscal linkages between the two Departments and leverage the
linkages into an estimate of the Department's immigration-related
costs. Congress mandated the study in the Commerce, Justice, Science
and Related Agencies Appropriations Act for 2009. The study started in
January 2010 and is expected to be completed and provided to Congress
in June 2011.
Question. Are there any factors that would prohibit the expansion
of Operation Streamline in the Tucson Sector?
Answer. In total, the fiscal year 2011 budget requests $3.49
billion for the Department of Justice's Immigration and Southwest
border related activities. This represents an increase of $228 million
(7 percent) from the fiscal year 2010 enacted level. A significant
expansion of Operation Streamline would require additional appropriate
enforcement and detention capacity, which could require a redirection
of resources from other priority mission areas.
There are a number of factors that would inhibit the expansion of
Operation Streamline. Capacity and infrastructure constraints (e.g.,
courthouse, cell block space, and ventilation systems) restrict the
number of detainees or cases that can be processed.
Question. The Department of Homeland Security Appropriations Act,
2010, requires the Department of Homeland Security, in consultation
with the Department of Justice and the Administrative Office of the
United States Courts, to submit a report to the Committees on
Appropriations and the Committees on the Judiciary on resources needed
by the Department of Homeland Security, the Department of Justice, and
The Judiciary to increase the effectiveness of Operation Streamline
programs and the resources needed to utilize this program in additional
sectors. This report was due in December 2009 and is now several months
overdue. Has the Department of Justice completed its portion of the
report and submitted that information to the Department of Homeland
Security and the Office of Management and Budget? If not, when will it
do so?
Answer. The Department provided its information to the Department
of Homeland Security (DHS). DHS has reported that the Operation
Streamline report was sent to the Hill on August 16, 2010.
CONCLUSION OF HEARINGS
Senator Mikulski. So the subcommittee will stand in recess,
subject to the call of the Chair in cooperation with the
ranking member.
We are in recess.
[Whereupon, at 11:52 a.m., Thursday, May 6, the hearings
were concluded, and the subcommittee was recessed, to reconvene
subject to the call of the Chair.]