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.

 

ATF Investigation

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.

 

Thank you.

Mr. President - As I grew up on my family's farm outside of New Hartford, Iowa, where I still live today, I grew to appreciate what it meant to be a farmer.  The dictionary defines a farmer as "a person who cultivates land or crops or raises animals".  But that definition doesn't come close to fully describing what a farmer is.

Being a farmer means someone willing to help a cow deliver her calf in the middle of the night, when its five degrees outside.  A farmer is someone willing to put all their earthly possessions at risk just to put a bunch of seeds in the ground, and hope that those seeds get rain at just the right time.

Farmers work hard cultivating their crops, and get the satisfaction of seeing the result of their hard work at the end of each crop season.  They take great pride in knowing they are feeding this nation and world.  And farmers tend to be people who relish the independence that comes with their chosen profession.  They are people with dirt under their fingernails.  They work long hours.  And often are underappreciated for what they do to put food on American dinner tables.  And they receive an ever shrinking share of the food dollar.

Farmers have chosen a line of work that comes with risk, risk that is inherent and often out of farmers' control.  The risk inherent in farming is why we have a farm program.  If we want a stable food supply in this country, we need farmers who are able to produce it.  When they are hit by floods, droughts, natural disasters, wild market swings, or unfair international barriers to their products, farmers need the support to make it through.  Most farmers I know wish there wasn't the need for a government safety-net, but they appreciate that it's there when they do need it.

And for decade after decade, congress has maintained farm programs because the American people understand the necessity of providing a safety net for those providing our food.  That's not to say each and every farm program ever created needs to continue.  Just as there are shifts in the market, sometimes public sentiment towards certain farm programs shifts.  Take direct payments for instance.  There was a time and place for direct payments, to help farmers through some lean years.  But now, times are okay in the agriculture industry, and the American people have rightly decided it is time for direct payments to end.  The Senate Committee has responded, and we have proposed eliminating the direct payment program.  And many farmers agree direct payments should go away.

There are other reforms the American taxpayers want to see.  There is no reason the federal government should be subsidizing big farmers to get even bigger.  People are tired of reading reports about the largest ten percent of farmers receiving nearly 70 percent of agriculture subsidies.  And you know what, most farmers agree with that as well.  Many farmers understand that in order for us to have a farm program that is defensible and justifiable, it needs to be a program designed to help the small and medium-size farmers who actually need assistance getting through rough patches out of their control.  The Senate Agriculture committee listened, and placed a payment limit of $50,000 per individual in this bill, $100,000 for married couples, for the payments under the Agricultural Risk Coverage program.

Taxpayers are equally tired of reading reports about how so many non-farmers receive farm payments.  I have been working to get reforms in farm payment eligibility for years.  And just as the tide has turned on the status quo for direct payments, the tide has turned on payment eligibility.  This bill contains crucial reform to the "actively engaged" requirements.  These reforms will ensure farm payments go to actual farmers.  The American people are not going to stand idly by anymore and watch farm payments head out the door to people who don't really farm.

There have been some people complaining about the payment limit reforms.  They complain that it will detrimentally change the way some farm operations do things.  Well, if they mean it won't allow non-farmers to skirt around payment eligibility, and line their pockets with taxpayer money meant for actual farmers, then yes, these reforms will impact those farming operations.  But let me make it perfectly clear, the reforms contained in this bill will not impact a farmer's ability to receive farm payments.  Furthermore, the reforms will not affect the spouse rule.

These reforms reflect what we hear from the grassroots - which is congress needs to be better stewards of taxpayer dollars.  That's true if we are talking about the farm program, or any other federal program.  Those who are against these reforms, are asking the American people to accept the status quo, and continue to watch as farm payments go to mega-farms and non-farmers.  We cannot, and will not accept the status quo.

The Agriculture Committee should be proud of the improvements we are making to payment limitations in this bill.  With these reforms, we bring defensibility and integrity to this farm bill.  In fact, without these reforms to the farm program, I wouldn't be able to support this bill.  I urge my colleagues to voice their support for these important payment limit provisions, and join with me in resisting any attempt to weaken these reforms.

Inquiry prompted by recent arrest of murder suspect

WASHINGTON - Senator Chuck Grassley and Representative Lamar Smith are asking for a full accounting from the Department of Homeland Security of the number of foreign nationals who have been released from federal and state prisons but not deported because their home counties failed to cooperate and how many of those individuals have been convicted of additional crimes.

In a letter to Secretary Janet Napolitano, Grassley and Smith described the case of a man suspected of killing five people in San Francisco in March after having been released from prison in 2006 but never deported because his home country of Vietnam did not provide necessary documents.  When the individual was arrested this year, an official for the Immigration and Customs Enforcement could not say how many foreign nationals with deportation orders were released after home countries refused to respond.

A 2001 Supreme Court case said foreign nationals facing deportation cannot be held for more than 180 days.  In their letter today, Grassley and Smith also asked if the Obama administration would support legislation to allow the Department of Homeland Security to detain these individuals beyond six months.  They also asked for detailed information about federal efforts to get cooperation from home countries.

Grassley is Ranking Member of the Senate Judiciary Committee.  Smith is Chairman of the Judiciary Committee in the House of Representatives.

Click here for a pdf copy of the Grassley-Smith letter.

Senator calls on the National Institutes of Health to set tone for disclosure, accountability

 

WASHINGTON - Senator Chuck Grassley is asking the National Institutes of Health to explain why it has awarded a $400,000 medical research grant to a physician who it banned from NIH funding in recent years for failing to disclose a $1.2 million financial relationship with a major pharmaceutical company while leading a $9 million federal study involving that drug company's blockbuster depression drug Paxil.

 

"It's troubling that NIH continues to provide limited federal dollars to individuals who have previously had grant funding suspended for failure to disclose conflicts of interest and even more troubling that the Administration chose not to require full, open and, public disclosure of financial interests on a public website," Grassley wrote to NIH Director Francis Collins.

 

Last year, the Obama administration scrapped a proposed conflict of interest rule that would have required universities to disclose financial relationships between medical researchers and the pharmaceutical industry to be posted on publicly available websites.  "The Office of Management and Budget in the White House, which had final say over the matter, should have supported the policy that every institution post financial conflicts of interest on a public website," Grassley said.

 

Grassley has pursued an extensive campaign for disclosure of payments made by drug and medical device makers to physicians since 2007, when he began to expose dramatic disparities between what was reported and what was, in fact, received.  Grassley's oversight of industry payments also has extended to medical schools, medical journals, continuing medical education, and non-profit patient advocacy organizations.

 

One of those cases involved the doctor receiving the grant in question today, Dr. Charles B. Nemeroff.  In 2008, documents revealed that Nemeroff, who was then chair of Emory University's psychiatry department, failed to disclose that he received $1.2 million in consulting fees from GlaxoSmithKline, the maker of Paxil, while leading federal research on the treatment of depression.  Nemeroff left Emory University and was then hired by Miami University.  The Director of the National Institute of Mental Health within NIH weighed in on Nemeroff taking this new position.  While the NIH said that Nemeroff could not receive federal medical research dollars for two years, the ban has expired and, regardless, it did not apply to him in a position at a new university.

 

In addition, Nemeroff remains under investigation by the Inspector General for the Department of Health and Human Services, which is working with the Department of Justice on the case.  In his letter today, Grassley asked the NIH if this was considered.  "There has been no final resolution by DOJ or public finding by HHS OIG related to the investigation of Dr. Nemeroff. Yet, NIH awarded him another grant," he said.

 

Grassley said the decision by NIH "risks sending the wrong message to physicians seeking or performing federally funded research."

 

Click here to read Grassley's letter to the NIH, which he also sent to the President of the University of Miami, former Secretary of the U.S. Department of Health and Human Services Donna Shalala.

 

-30-