Prepared Statement of Ranking Member Chuck Grassley
U.S. Senate Committee on the Judiciary
Hearing on Oversight of the Department of Justice
Tuesday, June 12, 2012
Mr. Chairman, thank you for holding today’s oversight hearing focusing on the Justice Department. There are a number of high profile issues currently before Congress that involve the Justice Department and hopefully today’s hearing provides us with the opportunity to get some answers. There is a lot of ground to cover so I thank the Attorney General for appearing today and trust that he will provide candid responses to our questions.
Border Patrol Agent Brian Terry died in a shoot-out with Mexican bandits in December 2010. Those bandits were armed with weapons our own government allowed to be purchased and transferred illegally under Operation Fast and Furious.
Nearly one year ago, three whistleblowers testified before the House Government Oversight Committee about the use of this practice, called “gunwalking,” in Operation Fast and Furious. Agent Terry’s mother and sister testified that day as well. Here we are—one year later—and the Terry family is still waiting for answers. They are still waiting for justice. The FBI doesn’t have the shooter in custody. And, the Justice Department is still defying a Congressional subpoena for information about how all this happened.
A lot has happened in the last year, virtually every official in the chain of command from the whistleblowers up to the Acting Director of the Bureau of Alcohol, Tobacco, and Firearms has been re-assigned. The United States Attorney for Arizona resigned and admitted leaking sensitive information about one of the whistleblowers to the press. The Chief of the Criminal Division of the Arizona U.S. Attorney’s office in Arizona refused to testify, citing his Fifth Amendment right not to incriminate himself. Then he resigned.
The head of the Criminal Division in Washington, Lanny Breuer, admitted he knew about gunwalking in an earlier case called Wide Receiver. However, he failed to speak up about it when he was sent copies of a letter to me denying that ATF ever let guns walk. He stayed silent for eight months while the public controversy over gunwalking grew. Emails surfaced that show Breuer’s Deputy discussed gunwalking in the context of both Wide Receiver and Fast and Furious. So senior people at Justice had to have known the details of what was going on.
Even more evidence of that fact arose recently. The House Committee obtained affidavits in support of wiretap applications in Fast and Furious. We cannot discuss them in open session because the Justice Department has indicated that they are under seal. But, there is now a public dispute as to what the content of the applications show that senior DOJ officials knew or did not know. One side says the applications show immense detail such that anyone reviewing them would have to have known that guns were being allowed to be transferred and trafficked across the border. The Attorney General says he has recently reviewed them, and he does not believe they show evidence of gunwalking.
However, when we interviewed the Acting ATF Director on July 4th last year, he told us something very different. According to former Director Melson, he read the affidavits for the first time on a plane on March 30, 2011—after this controversy had arisen. This was two months after the Justice Department denied in a letter to me that ATF ever walked guns. Director Melson said that when he read the affidavits, he was alarmed. He said, “I was surprised at the number of guns being purchased with our knowledge and not being interdicted. Primarily because of the number of guns that could, as a result, land in Mexico.” He said he immediately drafted an email warning “you better back off … the statement in … this February 4th letter to Senator Grassley, because I don't believe we can say that in light of the information that our agent was swearing to before a federal district court judge to get the wiretap.”
We have been seeking that email since last summer to corroborate Director Melson’s testimony. But, the Justice Department has not produced it. That email should have led the Justice Department to withdraw its initial denial letter in April 2011 instead of December 2011. We still don’t have a decent explanation for why it took so long to acknowledge the truth.
I also wrote to the Attorney General four months ago asking him to seek the Court’s permission to share the affidavits with Congress. I received no substantive reply to my request.
The Justice Department has provided 80,000 pages of documents to the Office of Inspector General. We learned just last Thursday from the Attorney General’s testimony in the House that the Department has gathered 140,000 pages of documents for its own internal review. Yet, the Department has only produced to Congress a mere 7,000 or so pages of documents. That’s just a spit in the ocean.
This constant stonewalling is why the House Committee is forced to move forward with contempt proceedings. I urge the Attorney General to show some leadership and to avoid this Constitutional stand-off and come clean. I think the American people deserve a better explanation than they have received so far. I know the Terry family does.
Leaks of Classified National Security Information
In the past month, there have been a number of damaging classified national security leaks to the media. These leaks have included information about U.S. involvement in cyber-attacks on Iranian nuclear facilities, details about the thwarted underwear bombing plot in Yemen, the President’s so called “kill list,” details on the raid to kill Osama Bin Laden, and the identity of the Pakistani doctor who helped locate Osama Bin Laden. Every leak is damaging to national security, but the most dangerous ones threaten ongoing operations and risk the lives of men and women—American and foreign—who are working on our behalf abroad.
At a hearing last May, I asked Attorney General Holder about his statement where he said, “Leaks endanger the lives of Americans serving overseas.” He added that, “[To] the extent that we can find anybody involved in breaking American law who has put at risk the assets and the people that I have described…they will be held responsible. They will be held accountable.” I agree with his statements and believe these leaks need to be investigated and prosecuted—especially if they were made for political gain as some have alleged.
Unfortunately, as I pointed out in May of last year, Attorney General Holder’s statements say one thing and the Department’s actions in prosecuting leaks say another. For example, it was reported in the press last year that the Department had dropped the prosecution of a former Department of Justice Attorney, Thomas Tamm, who admitted to leaking classified national security information to the press. While the Department wouldn’t comment, Tamm’s attorney told the press that he received a letter from the Department confirming that the investigation and prosecution of Mr. Tamm had concluded.
Another example of the DOJ’s failure to prosecute their own is related to the Anthrax attacks. As part of that investigation, information was leaked to the press regarding the involvement of Dr. Stephen Hatfill. Those leaks ultimately led to a taxpayer funded settlement of nearly $6 million. In a September 2011 letter, the Department stated, “[a]fter an extensive investigation, career prosecutors concluded that … criminal charges were not appropriate in this matter.” At the May hearing, Attorney General Holder added, “when it comes to cases that involve national security, sometimes there is a balancing that has to be done … between what our national security interests are and what might be gained by prosecuting a particular individual.” The Attorney General went on to emphasize that the decisions not to prosecute were made by career employees—not political ones.
Based upon conflicts between the Attorney General’s past statements and actual Department practice, I am concerned about the decision to appoint two political appointees—U.S. Attorneys—to investigate this matter. Further, despite attempts to package this as a special prosecutor, the Attorney General’s decision to assign these two U.S. Attorneys treats this grave national security matter like a regular criminal investigation. The only reason these U.S. Attorneys were assigned to the investigation is because of their proximity to where the conduct likely occurred. On top of all this, there have been reports that that the National Security Division at the Department has been recused from involvement in the leak investigation—a signal they could possibly be the source of the leak.
Given the potential conflicts of interest with the Department investigating itself, the past failures of the Justice Department to prosecute their own who admitted to classified leaks, and the Attorney General’s own tepid responses to my past questions about leak prosecutions, I believe the only way to truly get to the bottom of these dangerous leaks is to appoint an independent special prosecutor. I want to hear from the Attorney General both why he assigned this matter to two U.S. Attorneys as a regular investigation and how we can have any confidence in the Department to prosecute their own, given their past failures and the double standard of internal discipline we have seen as part of the investigation of discovery failures in the prosecution of Senator Stevens.
I also want to discuss a topic I believe the Attorney General and I agree on: the urgent need to reauthorize the expiring provisions of the Foreign Intelligence Surveillance Act. This is critical to our national security and the law has helped produce significant intelligence that is vital to protect the nation against international terrorism and other threats.
Time permitting, I would like to discuss some important national security matters, including the Justice Department’s legal advice on targeted killing of U.S. citizens abroad, the Department’s continued delays in adjudicating FBI employees’ whistleblower complaints, the Attorney General’s failure to answer a letter signed by all Judiciary Committee Republicans on the transfer of the dangerous terrorist detainee Ali Mussa Daqduq, and the Department’s failures in the prosecution of Senator Stevens. I would also like to ask the Attorney General about the lack of attention his department has given to local jurisdictions that refuse to assist the federal government when it comes to enforcing our immigration laws. The Department has challenged four states that have immigration enforcement-minded laws, yet it has turned a blind eye to jurisdictions such as Cook County which has an ordinance directing the Sheriff to disregard immigration detainers. The ordinance undermines public safety and hinders Immigration and Customs Enforcement’s (ICE) ability to enforce the nation’s laws. Despite the strong rhetoric from Secretary Napolitano and ICE’s Assistance Secretary Morton, this administration and this Department of Justice have not adequately addressed this issue in Cook County or other cities that stand in the way of enforcing our immigration laws.