U.S.

Department of Justice
Office of Information Policy
Suite 11050
1425 New York Avenue, NW
Washington, DC 20530-0001

Telephone: (202) 514-3642

November 6, 2014
Ms. Anne Weismann, Esq.
Citizens for Responsibility
and Ethics in Washington
1400 Eye Street, NW
Suite 450
Washington, DC 20005
aweismann@citizensforethics.org

Re:

OLA/14-01844 (F)
VRB:VAV:GSA

Dear Ms. Weismann.:
This is an interim response to your Freedom of Information Act (FOIA) request dated
February 1, 2013, and received in this Office on February 7, 2013, for communications
between the Department and Representative Lamar Smith, Representative John Conyers,
Senator Patrick Leahy, and Senator Chuck Grassley or members of their staff, dating from
January 1, 2011. This response is made on behalf of the Office of Legislative Affairs (OLA).
By letter dated February 13, 2013, we advised you that your request would require a
search in another office, i.e. OLA. By e-mail dated May 15, 2014 Douglas Hibbard of this
Office contacted you regarding the possibility of narrowing the scope of your request by
identifying categories of records of interest to you. Pursuant to your October 2, 2014 phone
conversation with Greg Alvarez of this Office, you agreed to exclude constituent
correspondence from the scope of your request. Additionally, Mr. Alvarez informed you that
we could provide you with previously-processed communications from the Department to
Representative Smith and Senator Leahy, and you advised that you would reevaluate the status
of this request once you receive and review that material.
As discussed, enclosed are 234 pages of material that was located in a search of the
electronic database of the Departmental Executive Secretariat, which maintains certain OLA
records, including Departmental correspondence. Please be advised, the enclosed material
consist of Department cover letters to the above-named Congressmen, excluding any
attachments. I have determined that 233 pages are appropriate for release without excision,
and that one page is appropriate for release with excisions made pursuant to Exemption 6 of
the FOIA, 5 U.S.C. § 552(b)(6). Exemption 6 pertains information the release of which would
constitute a clearly unwarranted invasion of the personal privacy of a third party.

-2Once you have had a chance to review the enclosed material, please contact Greg
Alvarez of our Office, at Greg.Alvarez@usdgoj.gov, to further discuss your request.
For your information, Congress excluded three discrete categories of law enforcement
and national security records from the requirements of the FOIA. See 5 U.S.C. § 552(c) (2006
& Supp. IV 2013). This response is limited to those records that are subject to the
requirements of the FOIA. This is a standard notification that is given to all our requesters and
should not be taken as an indication that excluded records do, or do not, exist.
If you are not satisfied with my response to this request, you may administratively
appeal by writing to the Director, Office of Information Policy, United States Department of
Justice, Suite 11050, 1425 New York Avenue, NW, Washington, DC 20530-0001, or you may
submit an appeal through this Office’s eFOIA portal at http://www.justice.gov/oip/efoiaportal.html. Your appeal must be received within sixty days from the date of this letter. If you
submit your appeal by mail, both the letter and the envelope should be clearly marked
“Freedom of Information Act Appeal.”
Sincerely,

Vanessa R. Brinkmann
Senior Counsel
Enclosure

U.S. Department of Justice

Office of Legislative Affairs

Office of the Assistant Attorney General

Wushington. D.C 20530

JUN 22 Z011
The Honorable Frank R. Wolf
U.S. House of Representatives
Washington, DC 20515

Dear Congressman Wolf:
This responds to your letter, dated March 30, 2011, to the Attorney General, regarding
the report of the Department's Office of Professional Responsibility (OPR) on its investigation
of the government's voluntary dismissal of claims against three of the four defendants in United
States v. New Black Panther Partyfor Se(f-Defense, Inc., et al., No. 2:09cv0065 (E.D. Pa.
May 18, 2009). Your letter requested that we provide more information in response to your
previous letters to the Department dated June 6, July 17, July 22, and July 31,2009, and June 8,
2010. You also asked that we provide a copy of all documents requested by the United States
Commission on Civil Rights (USCCR or Commission) since 2009.
Although the Department initially indicated, in November 2009, that we wished to await
the outcome of the OPR investigation before providing further detail on this matter, recognizing
your interest in this topic, the Department thereafter nonetheless provided you with substantial
information about the New Black Panther Party litigation generally and the specific issues raised
in your letters referenced above. Soon after the initial decision to dismiss certain claims from the
New Black Panther Party case, we provided you with a briefing by key decision-makers from the
Civil Rights Division and a representative of the Federal Bureau of Investigation (FBI). We also
provided you and other interested Members of Congress a copy of all of the documents shared
with the USCCR about the case. These materials include:
• the Department's document productions to the Commission of January 11,2010,
February 26, 2010, and April 16, 2010 totaling over 4,000 pages;
• the Department's January 11,2010 responses to the Commission's interrogatories;
• the Department's April 16,2010 supplemental responses to interrogatories; and
• the detailed written statement of the Assistant Attorney General for Civil Rights of
May 14,2010.

The Honorable Frank R. Wolf
Page Two
We also have provided additional infonnation to you and your staff through responses to
written oversight questions. Given the voluminous nature of our responses, in responding to
your letter of June 8, 2010, the Department answered the questions it raised, and we also
carefully catalogued the responsive infonnation that had already been provided to you,
identifying the specific documents and interrogatory answers that responded to your questions
and document requests. A copy of our response, dated June 23, 20 10, is enclosed.
In addition, we understand that your office also has now reviewed the OPR report itself,
which provides greater detail and context regarding the matters you have raised. For instance,
your July 17,2009 letter asks about the FBI's awareness of the defendants in this case; that is
addressed in pages 10 and 21 ofthe OPR report. Your letters of July 17 and July 22, 2009, also
ask about communications between the Civil Rights Division and the leadership offices, which is
described in pages 58-61 and 67-68 of the OPR report, and about the Department's reasons for
dismissing claims against certain defendants, which are discussed in the report on pages 50, 57,
and 69-72. The OPR report also provides infonnation on other issues raised in your letters,
including the scope and duration of the injunction against King Samir Shabazz (see OPR report
at 57-58, 71) and reports received by the Department about potential New Black Panther Party
voter intimidation on Election Day 2008 (see id. at 9-13).
While significant confidentiality interests preclude our providing you with reports
prepared for OPR by career Department attorneys or the internal attorney work-product and
deliberative communications that we did not provide to the Commission, the totality of the
infonnation we have made available to you conveys a very detailed picture of the Department's
decision-making in this case. Accordingly, we believe that these efforts have been responsive to
your inquiries and respectfully disagree with any suggestion to the contrary. As always, we
remain available to confer further with your staff if that would be helpful.
We hope this infonnation 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
Enclosures

11."

",'

ill

June 23, 2010

The Honorable Frank R Wolf
Ranking Member
Subcommittee on Commcrce-lustice-Science
Committee Oil Appropriations
U.S. House of Representatives
Washington, D.C. 20515
Dear Congressman Wolf:
This responds to your June 8,2010 letter to the Allomey General conceming th.e
Department's litigation in U.S v. New Black Panther Party for Self Defense, Civil Action No.
2:09-cv-0065 (ED. Pa.).
We wouid like to emphasize at the outset th.at the Department shares your commitment to
the protection of the right to vote for all Americans. We have sought to accommodate requests
for information concerning the New Black Panther Party litigation in good faith and ill a
cooperative manner, consistent with the Department's institutional interests in protecting the
confidcnllality of our internal deliberations relating to litigation decisions. Accordingly, over the
past year, the Depa.rtmem has dedicated considerable time and resources to responding to
inquiries from Members of Congress and from the U.S. Commission on Civil Rights
(Commission or USCC'R), concernmg the Department's efforts in the New Black Palllher Parlv
case and has provided more than 4,000 pages of documents in response to the Commission' s
requests.
Because the answers to most of your questions are included m materi als that the
Department has provided to the USCCR, the enclosed responses reference the relevant
documents, which are also enclosed These matenals include the Department's document
productions to the USCCR of January 11.2010, February 26. 2010, and April 16,2010; the
Department's January II. 2010 responses to the Commission's interrogatories; the Department's
supplemental responses to interrogatories appended to April 16,2010 "Transmittal Letter" from
Joseph H. Hunt Director, Federal Programs Branch, eivi I DiVision, U.S. Department of Justice,

The H,lnorable Frank R Wolf
Page 2

to DavId P Blackwood, General Counsel, CSCCR (Supplemental Responses); and the written
Statement provided to the CornnllSsion by Thomas E Perez, in connection with his May 14,
2010 testlmony, which cont1lins detailed information concerning our litigation of\he New Black
Pal1filer Purl]' case. Most of these materials were previously provided to you, but for your
convenience we enclose them with this letter, All of them are contained on the enclosed CD,
with the exception of Assistant Anorney General Thomas E. Perez's wntten testimony, and
several declarations and photographs that were submitted to the Commission following our April
tf" 2010 suhmis$iol1. The testimony, declarations, and photographs arc enclosed in hard copy.

We hope tIlls information is helpful to you If we can be of funher assistance, please let
us know.
Sincer,,",)',

Ronald Weich
Assistant Attorney General
Enclosures

cc:

The Honorable Alan 8. Mollohan

Chainnan

U.S. Department of Justice
Office of Legislative Affairs

Office of the Assistant Attorney General

Washington, D.C. 20530

DEC 1 S l012
The Honorable Patrick J. Leahy
Chainnan
Committee on the Judiciary
United States Senate
Washington, DC 20510
Dear Mr. Chainnan:
This responds to your letter to the Attorney General dated December 6, 2012, requesting
that the Senate Committee on the Judiciary receive the same access to documents that the
Department provides to the House Committee on the Judiciary and the House Committee on
Oversight and Government Refonn, related to Magner v. Gallagher and certain other cases.
Enclosed please find 66 pages of documents, which we produced to the House
Committee on the Judiciary and the House Committee on Oversight and Government Refonn on
August 16,2012. There are 1,208 pages of additional materials that we are prepared to make
available at the Department for review by Committee staff. We would not ordinarily disclose
these additional materials, in which we have substantial confidentiality interests relating to
litigation matters, but we believe that this is an appropriate accommodation in this particular
instance. In addition, some of the pages bear limited redactions of personal email addresses and
cell phone numbers as well as text that is unrelated to Magner and the other cases of interest.
We have offered the same access to the House Committee on the Judiciary and the House
Committee on Oversight and Government Refonn.
We hope that this infonnation is helpful. Please do not hesitate to contact this office if
we may be of additional assistance regarding this or any other matter.
Sincerely,

~AJJA ( , ftt_

a~~.

Appelbaum
Acting Assistant Attorney General
Enclosures
cc: The Honorable Charles E. Grassley
Ranking Minority Member

u.s. Department of Justice
Office of Legislative Affairs

Office of the Assistant Attorney General

Washington, D.C 20530

July 20, 2012

The Honorable Patrick J. Leahy
Chairman
Committee on the Judiciary
United States Senate
Washington, DC 20510
Dear Mr. Chairman:
This supplements our previous response to your letter to the Attorney General dated June
26,2012, which requested documents in connection with the Committee's consideration of Ms.
Stephanie Rose's nomination to be a United States District Judge for the Southern District of
Iowa.
Pursuant to our further conversations with staff, we have enclosed additional documents
for the Committee's consideration. While our public disclosure of these documents might be
prohibited by the Privacy Act, we are providing them to the Committee in response to your
request pursuant to 5 U.S.C. 552a(b)(9) and your agreement that they will be deemed to be
Committee Confidential and will be made available for review only by Judiciary Committee
Members and staff. Nonetheless, the documents may implicate substantial individual privacy
interests and we have made limited redactions to protect those interests.
We hope that this information is helpful and remain available to respond to any further
questions you may have relating to Ms. Rose's nomination. Please do not hesitate to contact us
if we may provide additional assistance regarding this or any other matter.
Sincerely,

t:~~

Acting Assistant Attorney General

Enclosure
cc:

The Honorable Charles E. Grassley
Ranking Minority Member

U.S. Department of Justice
Office of Legislative Affairs

Office of the Assistant Attorney General

Washington. D.C. 20530

JUL 032012
The Honorable Patrick J. Leahy
Chainnan
Committee on the Judiciary
United States Senate
Washington, DC 20510
Dear Mr. Chainnan:
This responds to your letter to the Attorney General dated June 26, 2012, which requested
the transcript of an interview of Ms. Stephanie Rose in connection with the Committee's
consideration of her nomination to be a United States District Judge for the Southern District of
Iowa. The interview of Ms. Rose was conducted during the course of an investigation of
complaints that are now the subject of litigation pending in the Northern District of Iowa, Fagg
v. Holder.
While our public disclosure of this document might be prohibited by the Privacy Act, we
are providing it to the Committee in response to your request pursuant to 5 U.S.C. 552a(b)(9)
and your agreement that the transcript will be deemed to be Committee Confidential and will be
made available for review only by Judiciary Committee Members and staff. Nonetheless, the
transcript implicates substantial individual privacy interests and we have made limited redactions
to protect those interests.
We hope that this infonnation is helpful and remain available to respond to any further
questions you may have relating to Ms. Rose's nomination. Please do not hesitate to contact us
if we may provide additional assistance regarding this or any other matter.
Sincerely,

Judith C. Appelbaum
Acting Assistant Attorney General
Enclosure
cc:

The Honorable Charles E. Grassley
Ranking Minority Member

Please be advised no
additional pages to this
letter were located

U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney Genc:ral

Washington. D.C. 20530

June 6, 2013

The Honorable Bob Goodlatte
Chairman

Committee on the Judiciary
U.S. House of Representative
Washington, D.C. 20515
The Honorable Lamar Smith
Committee on the Judiciary
U.S. House of Representative
Washington, D.C. 20515
Dear Mr. Chainnan and Congressman Smith:
This responds to Chairman Goodlatte's letter of June 3, 2013, following up on then
Chainnan Smith's letters of November 13, 2012, to the Attorney General and the Director of the
Federal Bureau of Investigation (FBI). These letters concern an FBI investigation into matters
relating to former CIA Director David Petraeus. We apologize for the delay in responding to
your letters.
As you may know, longstanding Department of Justice policy precludes discussion of
ongoing law enforcement investigations, including the specific information sought in your

letters. This policy protects the integrity of our investigation. Inasmuch as this is an ongoing
investigation, we are unable to provide you with a briefing or provide answers to the specific
questions set forth in your letter at this time. Please do not hesitate to contact this office if we
may provide assistance regarding this or any other matter.
Sincerely,

~~1'\

Principal Deputy Assistant Attorney General

cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

U.S. Department of Justice

.

Office of the Assistant Attorney General

Office of Legislative Affairs
Washington, D.C. 20530

APR 17 Z013
The Honorable Lamar Smith
Chainnan
Committee on Science, Space
and Technology
U.S. House of Representatives
Washington, DC 20515

The Honorable Charles E. Grassley
Ranking Minority Member
Committee on the Judiciary
United States Senate
Washington, DC 20510

The Honorable Frank R. Wolf

Chainnan
Committee on Appropriations
Subcommittee on Commerce, Justice,
Science and Related Agencies
U.S. House of Representatives
Washington, DC 20515
Dear Chainnan Smith, Chainnan Wolf and Senator Grassley:
This responds to your letters dated February 27, 2013 to Melinda Haag, the United States
Attorney for the Northern District of California, and Lisa Monaco, tbe Assistant Attorney
General for National Security, regarding alleged transfers of national security technology.
We are reviewing the matters raised in your letters and will respond further at a later date.
We note your indication that you have received pertinent infonnation from federal law
enforcement sources. As we consider the questions you have raised, it would assist us if you
would provide us with the infonnation that has generated your concerns and advise us whether
your law enforcement sources would be willing to speak with us. As noted in a January 2 7, 20 12
letter from the Deputy Attorney General to the Chainnen and Ranking Members of the House
and Senate Judiciary Committees and the House Committee on Oversight and Government
Reform, the Department is committed to protecting the rights of whistleblowers and to
complying both with the letter and spirit oftbe Whistleblower Protection Act. We seek to obtain
the requested information in a manner that does not create a fear of reprisal for any protected
disclosure that has been made to Congress or others.

The Honorable Lamar Smith
The Honorable Frank R. Wolf
The Honorable Charles E. Grassley
Page Two

Thank you for considering this request. Please do not hesitate to contact us if we may
provide additional assistance regarding this or any other matter.
Sincerely,

~~\(.1
Peter J. Kadzik

Principal Deputy Assistant Attorney General
cc:

The Honorable Eddie Bernice Johnson
Ranking Minority Member
Committee on Science, Space
and Technology
U.S. House of Representatives
Washington, DC 20515
The Honorable Chaka Fattah
Ranking Minority Member
Committee on Appropriations
Subcommittee on Commerce, Justice,
Science and Related Agencies
U.S. House of Representatives
Washington, DC 20515
The Honorable Patrick J. Leahy
Chairman
Committee on the Judiciary
United States Senate
Washington, DC 20510

l'.S. Department of Justice
Oftice of Legislative Affairs

Ofli.:.: ofth.:

As~islam r\ttom.:~

(icncral

ll'w'iJtngtvn. D. C ]0530

October 25. 2012

The Honorable Daniel E. Lungren
Chairman
Committee on House Administration
L:.S. House of Representatives

The Honorable Lan1ar S. Smith
Chairman
Committee on the Judiciary
L.S. House of Representatives

The Honorable Howard P. ""Buck"" McKeon
Chairman
Comminee on Armed Services
U.S. House of Representatives
Dear Chairman Lungren. Chairman 'VlcKeon. and Chairman Smith:
This responds to your letter to the Attorney General dated October I 0. 2012. regarding
enforcement of the L:niformed and Overseas Citizens Absentee Voting Act of 1986 (UOCAVA).
as amended by the Military and Overseas Voter Empowerment Act (MOVE Act) of 2009. The
Department of Justice's work to enforce these important statutes is described below; we
understand that the Depanment of Defense (DoD) is responding separately to your inquiry.
including the question that was directed solely to DoD (Question I).
Protecting the voting rights of military· and overseas voters is a top priority for the
Department of Justice. Our work 10 enforce UOCAVA and the MOVE Act during the 2010
general election ensured that thousands of military and overseas voters had the opponunity to
vote and to have their votes counted. For the 20 I 0 general election. the Department obtained
coun orders. coon-approved consent decrees. or out-of-coun agreements in 14 jurisdictions.
ensuring that those jurisdictions either met the 45-day deadline or that they used expedited
mailing or other procedures to allow voters a sufficient opponunity to return ballots in time to be
counted. Following the 2010 general ekction. we continued to prioritize the enforcement of
UOCAVA ·s protections and to build upon the Department's earlier MOVE Act enforcement
actions.
With regard to the 2012 federal dection cycle. which is the first year that the MOVE Act
has applied to all federal elections. we have devoted significant resources to monitoring
LOCAVA compliance throughout the country during the primary elections and in the months
and weeks leading up to the general election.

The Honorable Daniel E. Lungren
The Honorable Howard P. ''Buck .. McKeon
The Honorable Lamar S. Smith
Page 2
With respect to your Question 2. in October 20 II the Department sent letters to the chief
state election officials around the country reminding them of their UOCAV A responsibilities and
requested teleconferences to discuss their preparations. Our contacts with states continued
throughout the election calendar in 2012, seeking to gauge and ensure UOCA VA compliance for
federal elections. In August 2012, we contacted states again to reiterate the requirement to
transmit ballots by September 22. the 45th day before the 2012 federal general election. For
those states not already required to report ballot transmissions under court orders or settlement
agreements with the Department. we requested that the states monitor transmission of ballots by
local election otlices and provide confirmation to the Department that ballots that were requested
by September 12 were transmitted by that date. Throughout our significant work with state
officials this year, we have urged election officials to alert us to any issues that might impact
timely transmission of ballots. and with respect to each transmission deadline, we have engaged
in extensive and continuous follow up with every state on ballot transmission and other
obligations.
With respect to your other questions. although the focus of your letter was the upcoming
general election, we include below infonnation about our UOCA VA enforcement not only tor
the general election but also for primary and special elections, because that work helped to
establish the structure to ensure compliance by states with their UOCAV A obligations for the
general election season.
To date in 2012, the Department has filed lawsuits against seven states and territories to
enforce UOCA VA for the 2012 federal primary. special, and general election cycle: Alabama,
Wisconsin. California. Georgia. Michigan. the Virgin Islands, and Vermont. (The filings in each
of these lawsuits are posted on the Civil Rights Division's website at
http://www.justice.gov/crt/about/vot/litigation/caselist.php#uocava_cases.) The lawsuits against
Alabama. Wisconsin, California. Michigan. and the Virgin Islands were necessary to remedy
delayed ballot transmissions and other violations by these states during their primary or special
primary elections. The lawsuit against Georgia was necessary to remedy UOCAV A violations
caused by Georgia's runoff election schedules. In tour of these lawsuits, the Department reached
consent agreements (Wisconsin. California, Michigan. and the Virgin Islands). In two lawsuits.
the Department obtained preliminary injunctions after contested litigation (Alabama and
Georgia).
The lawsuits against Vermont and the Virgin Islands were necessary to remedy those
jurisdictions' inability to send ballots by the 45-day deadline for the 2012 general election. In
United States v. Vermont, the Department filed suit on October I I to remedy the widespread
failure by Vermont officials to transmit liOCAVA ballots at least 45 days before the November
6. 2012 election. We reached a settlement with the state. tiled with the court on October 19 and
approved on October 22. which will ensure that military and overseas citizens are not
disenfranchised in the upcoming general election. The Department reached a consent decree
with the Virgin Islands on September 7. 2012 that. among other relief for UOCAVA voters for

The Honorable Daniel E. Lungren
The Honorable Howard P. ··Buck" McKeon
The Honorable Lamar S. Smith
Page 3
the general election. provides tor express delivery of blank ballots and express return of voted
ballots.
In addition. in response to the Department's outreach and inquiries. Mississippi reported
that three counties sent general election UOC AVA ballots late (after September 22. 2012). To
remedy this. the Mississippi Secretary of State adopted a temporary emergency rule to extend the
ballot receipt deadline for UOC AVA voters in those counties. which the Department precleared
under Section 5 of the Voting Rights Act. 42 U.S.C. § 1973c. on October 15.2012. In addition
to extending the ballot receipt deadline for UOCA VA voters in these counties. Mississippi has
agreed to contact all atl"ected UOCA VA voters by email. telephone. or express mail to advise
them that their ballots will be accepted up to the extended deadline. The state will also publicize
this remedy by press rekase and on the Secretary of State's website. Copies of the Mississippi
rule and the Department" s letters are enclosed.
With respect to your inquiry regarding Michigan and Wisconsin. on October 12, state
otlicials in Michigan announced that they would file suit against a number of local clerks in the
state to seek an extension of the ballot receipt deadline for UOCAVA voters in jurisdictions that
sent ballots late for the general election. See http://www.michigan.gov/sos/0,4670.7-127-288203--.00.html. The Department is closely monitoring the litigation to ensure that voting
rights of military and overseas voters are protected. In Wisconsin, the consent decree that the
Department reached with the state to address UOCAV A violations during the 2012 federal
primary election required the state to report on UOCA VA compliance for the general election.
The Department and the state have communicated regularly about concerns raised in these
reports regarding ballot transmission for the general election. The enclosed letter summarizes
the work the Department has done in this regard with the state and the Wisconsin Government
Accountability Board (GAB). On October 18, the GAB issued orders extending the ballotreceipt deadline in jurisdictions that transmitted ballots to military and overseas voters late. and
copies of these orders are also enclosed.
Similarly, we also note that in Alabama. the injunction that the court entered at the
Department's request to remedy UOCA VA violations during the 2012 federal primary election
required the state to report on UOCA VA compliance for the general election. The Department
and the state have communicated regularly about concerns raised in these reports regarding
ballot transmission for the general election. The state has taken several subsequent steps.
including extending the ballot receipt deadline in jurisdictions that transmitted ballots to military
and overseas voters late. Copies of the state's extension rule are enclosed.
Apart from lawsuits filed this year. the Department also has sought and obtained further
relief in 2012 in several of the lawsuits tiled before this year. For example. we won a significant
victory this year in our 2010 lawsuit against New York. In January 2012. the district court
granted our request to require that New York hold its federal primary election early enough to
allow absentee ballots to be transmitted tor the general election in compliance with the MOVE
Act. United States v. New York. 2012 WL 254263 (N.D.N.Y. Jan. 27. 2012). Pursuant to the

The llonorable Daniel E. Lungren
The Honorable Howard P. ··Buck'' Md\.eon
The Honorable Lamar S. Smith
Page 4
courfs order. New York now has a June primary for tederal elections. and must maintain a
federal primary date that is sutliciently early to ensure MOVE Act compliance for future federal
elections. We have also entered into supplemental consent decrees in the lawsuits we filed
against New Mexico. Illinois and Guam to remedy widespread UOCA VA violations in 20 I0.
The Department also has sought to protect the voting rights of servicemembers and
overseas citizens by participating as an amicus in other election-related litigation that may aflect
the time UOCA VA voters have to receive. cast. and return absentee ballots. In January 2012, the
Department filed a statement of interest in Perez v. Perry. No. 11-cv-360 (W.D. Tex.). before the
federal three-judge court that was considering the interim redistricting maps and the election
schedule that should be ordered for Texas's 2012 elections. Our statement urged the court to
reject proposals to the election calendar that would impede MOVE Act compliance and instead
to ensure that Texas's election schedule would allow time for ballots to be transmitted at least 45
days before elections for federal office. The court ultimately adopted an election schedule
consistent with this request. The Department also filed a statement of interest in a state court
case in New Mexico (Smith v. Duran). urging the court to ensure transmission of absentee ballots
to military and overseas voters in that state's 2012 primary election in compliance with the
MOVE Act.
Although your letter also seeks specific information about our investigations of particular
states and the Department's future litigation intentions for the 2012 general election cycle. as
with all of our law enforcement efforts. the Department's longstanding policy is not to disclose
confidential information from investigative tiles related to ongoing law enforcement and
litigation decisions. As we have noted previously regarding questions of this nature, revealing
information regarding the Department's specific sources of evidence. litigation plans and
preparations. and work product could undermine the effective and independent law enforcement
that the Department is charged with executing. We appreciate. however. Congress' interest in
understanding generally how our investigations ofUOCAVA compliance were undertaken tor
the 20 12 elections. and we trust that the information set forth above makes clear that the
Department will continue to aggressively enforce the provisions of UOCA VA.
Finally. apart from our litigation efforts and vigorous outreach to state election officials.
we have continued to advocate for even stronger protections for military and overseas voters on
the legislative front. The Department prepared a set oflegislative proposals to enhance the
enforcement of UOCA VA. and we transmitted those proposals to Congress in September 2011.
We were very pleased that several Senators introduced the "Servicemembers Protection Act" in
June 2012. an omnibus bill enhancing a range of civil rights protections for servicemembers.
This bill includes important proposed UOCAV A amendments that are modeled on the legislative
proposals we transmitted to Congress.

The Honorable Daniel E. Lungren
The Honorable Howard P. ··Buck.. McKeon
lhe Honorable Lamar S. Smith
Page 5
We hope this infi.mnation is helpful. Please do not hesitate to contact this otlice if we
rna) provide additional assistance regarding this or any other matter.
Sincere!).

~(.~
Judith C. Appelbaum
Acting Assistant Attorney General
Endosures
cc:

The Honorable Robert Brady
Ranking Minority Member
Committee on House Administration
The Honorable Adam Smith
Ranking Minority Member
Committee on Anned Services
The Honorable John Conyers. Jr.
Ranking Minority Member
Committee on the Judiciary

OCT -5 2012
Th~ Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
L.S. House of Representatives
Washington. D.C. 20515

Dear r. Chairman,
Thank you for your letter to .Anorney General Huld~r and Sccr..:tary of State Clinton
datod September 19. regarding false reports rdated to Omar Abdel Rahman. \'care providing an
identical response to the other Members who joined in your letter.
As you know, on October l. 1995. t(Jllowing a nine-month trial, Omar Abdel Rahman
was convicted by unanimous verdict in a United States court in the Southern District ofl\ew
York of the crimes of seditious conspiracy to oppose the United States gowmmcntthrough the
commission of terrorist acts, including planning to blow up the World Trade Center, United
'-:ations headquarters. and various bridges. tunneb <md landmarks in and around :'\ew York City.
lie was also convicted of S<Jlicitation 10 commit crimes of violence: conspiracy to mmder: and
bombing conspiracy. On January 17. 1996. he was sentenced to spend the remainder of his lite
in prison. His conviction and sentence were attirmed on appeal.
There is no truth to the reports referenced in your !etta. Omar Abdel Rahman will serve
the rest of his life in prison. No consideration is being given to releasing him or transferring him
to another country to complete his sentence.
We hope this information is helpful. Please do not hesitate to contact us on any matter of
concern.

Sincerely.

.~\~~:::Acting Assistant Attorney General
Office of Legislative Affairs
t:.s. Department of Justice
cc:

The Honorable John A. Boehner
Speaker of the House of Representatives
The Honorable John Conyers, Jr.
Ranking Minority ember

--)

/ /?:u:
I

//)

.
'~
David S. Adams
Assistant Secretary
Legislative Affairs
L.S. Department of State
/

U.S. Department of Justice
Office of Legislative Affairs
Office oftbe Assistant Attorney General

Washington, D.C. 20530

SEP

28 2012

The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This responds to your letter to the Attorney General dated September 24, 2012, regarding
the Department's administrative objection under Section 5 of the Voting Rights Act to South
Carolina's proposed photo identification requirement for voting, Act R54. The South Carolina
statute is now at issue in judicial preclearance litigation filed by the State against the Attorney
General. South Carolina v. United States, 12-cv-203 (D.D.C. filed Feb. 8, 2012) (three-judge
court). We are sending identical responses to Senator Graham and Representative Gowdy, who
joined in your letter to us.
Consistent with our longstanding policy and practice on the confidentiality of ongoing
law enforcement matters, the Department declines to disclose documents and other information
regarding its internal deliberations relating to this ongoing case. But we want to assure you that
the Department's position that Act R54 violates Section 5 of the Voting Rights Act is based only
on the facts and the law.
Section 5 requires that South Carolina demonstrate that Act R54 neither has the purpose,
nor will have the effect, of denying or abridging the right to vote on account of race, color, or
membership in a language minority group. 42 U.S.C. § 1973c. The court hearing the judicial
preclearance case will decide the matter de novo based on the evidence and arguments in the
record in the case, and not as a review of the Department's administrative decision. In the trial
that just concluded in that case, the evidence and arguments of the parties are matters of public
record. In that proceeding, South Carolina conceded that minority registered voters are
disproportionately likely to lack allowable identification under Act R54. The United States'
expert testified that nearly 61,000 African American voters- 8.3% of all African American
registered voters in the state- would be affected by the law, and that African American voters
are more than twice as likely as white voters to lack the forms of ID that would be allowed for
voting. The United States' position is that the evidence showed that requiring this
disproportionately-minority group of voters to obtain a new identification document, which is
available in only two locations in most South Carolina counties, would impose a burden material
enough that it will likely cause some reasonable minority voters not to exercise the franchise.

The Honorable Lamar S. Smith
Page2
Your letter notes that Act R54 would allow some voters to cast provisional ballots if they
complete an affidavit swearing that they "suffer from a reasonable impediment" that prevented
them from obtaining an allowable 10. South Carolina's interpretation of this exception evolved
over the course of the litigation, and the United States' position is that this exception is vague
and unworkable, and would be administered by poll managers and county election boards in a
manner that would have a retrogressive effect on minority voters. Among other difficulties are
two requirements relating to notaries: first, state law requires these affidavits to be notarized, and
second, notaries are permitted to charge a fee for their services. The South Carolina election
director testified that these and other requirements would have to be disregarded or else South
Carolina voters would be disenfranchised. Based on these facts and the other evidence presented
publicly at trial, the United States' view is that Act R54 is impermissibly discriminatory under
Section 5.
Your letter also asks about the decision-making process in Section 5 matters. The
Department's Procedures for the Administration of Section 5 provide that all determinations to
object under the statute are delegated to the Assistant Attorney General for Civil Rights. 28
C.F.R. § 51.3. The Division approaches its Section 5 enforcement authority with a keen
awareness of the importance of ensuring that the decision-making process is fair, thorough, and
independent The Division's dedicated and experienced career personnel play a crucial role in
ensuring the integrity of the review process. This had been the longstanding tradition in the
Voting Section in prior administrations for decades until it was changed in 2005 - in connection
with the specific submission your letter references- to exclude career attorneys and analysts
from full participation in the process. In 2009, the Civil Rights Division restored its practice of
providing every person working on a submission the opportunity to express his or her views,
because Assistant Attorney General Perez believes that a robust and honest exchange of ideas is
critical to effective decision-making. These principles were memorialized in a procedures
memorandum that the Department provided in response to inquiries you made last year, and
which is enclosed again with this response. These procedures were followed in this instance, as
in other Section 5 submissions we receive.
Finally, as you are aware, the three-judge federal district court in the District of Columbia
is now considering the evidence in the litigation that South Carolina filed. Accordingly, we will
follow our longstanding practice of not commenting further on pending litigation outside that
setting.
We assure you that the Department's review of Section 5 submissions will continue to be
thorough, fair, and fact-based. States covered by Section 5 bear the burden of showing that
proposed changes are not intentionally discriminatory and will not have a retrogressive effect.
As the Attorney General has emphasized, where states meet this burden, we will preclear the
changes, as with the recently-approved voter identification laws in Virginia and New Hampshire.
Where states do not meet this burden, we will object- as with the Texas redistricting plans and
the Texas voter identification law that were recently blocked by federal courts.

The Honorable Lamar S. Smith
Page3
We hope this infonnation is helpful. Please do not hesitate to contact this office if we
may provide additional assistance regarding this or any other matter.
Sincerely,

l::::::.I~

Acting Assistant Attorney General
Enclosure
cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

U.S. Department of Justice
Office of Legislative Affairs

Office of the Assistant Attorney General

Washington. D.C. 20530

September 11, 2012

The Honorable Lamar S. Smith
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This responds to your letter dated June 13, 2012, regarding the State Criminal Alien
Assistance Program (SCAAP). We are sending an identical response to the other Members of
Congress who signed the letter.
Although the Department's Bureau of Justice Assistance (BJA)--the agency currently
charged with implementing the SCAAP Program-notified SCAAP applicants more than one
year ago regarding the proposed change in the program that would eliminate reimbursement of
costs associated with the detention of suspected criminals of "unknown" citizenship, the
Department has decided to postpone this change for one additional year, allowing agencies
additional time to prepare for this change.
· The rationale for this decision is that many local agencies, despite their best efforts to
reduce the number of "unknown" detention days through closer collabomtion with the U.S.
Department of Homeland Security (DHS) and through other efforts, may not have been
successful in improving the nationality determinations of detainees. Although elimination of
payment for ''unknowns" would result in increased federal funding to some states, it would result
in a significant redistribution in federal funding that many local governments may not be
anticipating this year. The delay of this change for one year will provide a significant
opportunity for local governments to work collaboratively with DHS to improve local processes
for detainee identification, in anticipation of discontinuing payment for "unknowns" in the
future.
We hope this information is helpful. Please do oot hesitate to contact this office if we
may provide additional assistance regarding this or any other matter.
Sincerely,

~c-ar--Judith C. Appelbaum
Acting Assistant Attorney General

U.S. Department of Justice
Office of Legislative Affairs

Office of the Assistant Attorney General

Washington. D.C. 20530

August 30,2012
The Honorable Lamar S. Smith
Chainnan

Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This responds to your letter to the Attorney General dated May 24, 2011, regarding the
Department's preliminary review into whether federal laws were violated in connection with the
interrogation by the Central Intelligence Agency (CIA) of specific detainees at overseas
locations.
On January 2, 2008, Attorney General Michael Mukasey selected Assistant United States
Attorney John Durham of the District of Connecticut to conduct a criminal investigation into the
destruction of interrogation videotapes by the CIA. Undoubtedly, Attorney General Mukasey
called on Mr. Durham because he is a respected, career prosecutor with a long track record of
excellent service to the Department. Indeed, Mr. Durham has admirably served the Department
as a federal prosecutor for almost 30 years. On August 24, 2009, based on information the
Department received pertaining to alleged CIA mistreatment of detainees, the Attorney General
announced that he had expanded Mr. Durham's mandate to conduct a preliminary review into
whether federal laws were violated in connection with the interrogation of specific detainees at
overseas locations. The Attorney General made clear at that time, however, that the Department
would not prosecute anyone who acted in good faith and within the scope of the legal guidance
given by the Office of Legal Counsel regarding the interrogation of detainees. Accordingly, Mr.
Durham's review has examined primarily whether any unauthorized interrogation techniques
were used by CIA interrogators, and if so, whether such techniques could constitute violations of
the torture statute or any other applicable statute.

In an effort to ensure that his preliminary review was sufficiently thorough to put to rest
with finality any question regarding whether criminal statutes were violated in connection with
the interrogation of detainees by the CIA, Mr. Durham examined any possible CIA involvement
with the interrogation of I 01 detainees who were alleged to have been in United States custody
subsequent to the terrorist attacks of September II, 200 I. He identified the matters to include
within his review by examining various sources including the Office of Professional

The Honorable Lamar S. Smith
Page2

Responsibility's report regarding the Office of Legal Counsel memoranda related to enhanced
interrogation techniques, the 2004 CIA Inspector General's report on enhanced interrogations,
additional matters investigated by the CIA Office of Inspector General, the February 2007
International Committee of the Red Cross Report on the Treatment of Fourteen "High Value
Detainees" in CIA Custody, and public source information. With respect to the examination of
the interrogation and detention of the I0 I individuals, Mr. DurlJam reviewed information that
was not examined during the Department's prior reviews of interrogation matters.
Mr. Durham and his team reviewed a tremendous volume of information pertaining to the
detainees, almost all of which was highly classified. In June 20 II, Mr. Durham advised the
Attorney General of the results of his preliminary investigation, and the Attorney General
accepted Mr. Dwham's recommendation to conduct a full criminal investigation regarding the
deaths of two detainees while in CIA custody. Mr. Dwham has now completed his
investigations, which included among other things interviews of approximately 96 witnesses,
some of whom had not been interviewed previously at all and none of whom had been
interviewed by Department prosecutors or investigators. The investigations also included
examination of physical and documentary evidence that the Department had not examined during
the Department's prior review.
Based on the fully developed factual record concerning those deaths, the Department has
declined prosecution because the admissible evidence would not be sufficient to obtain and
sustain a conviction beyond a reasonable doubt with respect to federal offenses still within the
statute of limitations. Although the Department will not pursue criminal charges pertaining to
these matters, we will provide the CIA with information that may be pertinent to the Agency's
determination as to whether to undertake administrative action or make policy changes regarding
the treatment of detainees.
As the Attorney General noted at the time he announced the expansion of Mr. Durham's
authority, the men and women in our intelligence community perform an incredibly important
service to our nation, and they often do so under difficult and dangerous circumstances. They
deserve our respect and gratitude for the work they do. However, they are not above the law.
Ultimately, the Agency and the Department will be better served by our having conducted a
thorough review of the detainee treatment issues. The Attorney General recognizes that the
pendency of the review may have created anxiety among the Agency's employees. However, he
concluded based on existing and new information available to him that the United States needed
to perform due diligence on the detainee treatment issue. The Attorney General is confident that
Mr. Durham's review has satisfied that need The Department looks forward to continuing to
work together with the Agency to meet our joint responsibility to protect the nation from threats
to our national security while ensuring respect for the rule oflaw.

The Honorable Lamar S. Smith
Page3

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,

Jt':A~;ba~

Acting Assistant Attorney General
cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

U.S. Departmeat or Justice
Office of Legislative Affairs

Office of tbc Assi~llll Attorney O..ml

WaJhingtOII, DC ]0530

JUL 30 2013

The Honorable Lamar S. Smith

Committee on the Judiciary
U.S. House ofRepresentatives
Washington, D.C. 20515
Dear Congressman Smith:
This responds to your letter to the Attorney General dated February 22, 2013, in which
you requested data relating to the National Instant Criminal Background Check System (NICS)
and to federal prosecutions under several firearms statutes. We apologize for our delay in
responding. We are sending identical responses to the other Committee members who joined in
your letter.
You requested the following data for 200 I through 2012:
I. The number of individuals denied the right to purchase a firearm because afa NICS
denial due to prohibiting factors.
Based on the reports and statistics publicly available on the NICS website at www.fbi.gov/aboutus/ciislnics/nics, the following table shows the number of NICS denials processed by the FBI
NICS Section, for calendar years 2001 through 2012:

(Note: These figures do not include Point of Contact (POC) state denials, which may be based
purely on state law prohibitions, and may be prosecuted by state authorities.)
2. The number ofNICS denials that were referred/or investigation by law e'lforcement.
3. Of the instances where individuals were denied a firearm purchase because ofa NICS
check: the number of individuals referredfar prosecution; the number actually
prosecuted; and the number ofprosecutions resulting in a conviction.
Neither the ATF Denial Enforcement and NICS Intelligence (DENI) Branch nor the
Executive Office for United States Attorneys (EO USA) specifically tracks the number of cases
derived from NICS denials that are referred to United States Attorneys' offices (USAOs) for
prosecution. Consequently, we are unable to determine the exact number these cases. EOUSA

The Honorable Lamar S. Smith
Page2

has compiled a table (Attachment I) showing the nwnber of prosecutions under 18 U.S.C.
§§ 922( aX6) and 924( a)( I)(A)(the statutes under which offenses of misrepresentations during
the background check process, including on ATF Fonn 4473, are prosecuted). This table
indicates the nwnber of cases filed, defendants indicted, and convictions obtained under these
statutes for Fiscal Years (FY) 2004 through 2012. To be clear, charges under these statutes may
arise from circumstances other than NICS denials. In addition, investigations that begin with a
focus on violations of these statutes, including investigations based on NICS denials, may not
result in charges under these statutes, and may result in charges with steeper penalties than those
provided under these statutes. (Note: EO USA is unable to compile a breakdown by these
statutes for data predating FY 2004. Also, defendants found guilty in a Fiscal Year may have
been indicted in a prior Fiscal Year.)
Attachment 2 is a table compiled by the ATF DEN! Branch, which indicates the total
number of NICS denials that ATF received, and the total nwnber of these denials that were
referred to ATF Field Offices for investigation for calendar years 2001 througb 2012. Note that
the total nwnber of denials ATF received from NICS exceeds the total number of yearly NICS
denials. This is because each year there are hundreds to thousands of firearms transactions that
are initially denied by NICS, but which NICS overturns after they have been referred to ATF.
The ATF does not further investigate denials once it bas learned that those denials are
overturned. Also, these figures do not include POC state referrals to the ATF DEN! Branch
resulting from POC state denials.
4. The number ofcases referred for prosecution; Jww many were actually prosecuted; and
how many of these prosecutions resulted in a conviction for violations of the following
statutes: 18 U.S. C.§§ 922(a)(l)(A). 922(a)(2), 922(a)(6), 922(b)(2), 922(d)(l),
922(d}{3), 922(d)(5){A), 922(d)(8), 922(d)(9), 922(g)(4), 922(g)(5)(A), 922(g)(5)(B),
922(g){6), 922(g)(8), 922(g)(9), 922(q){2)(A). 924(h), and 924(j).

Attachment 3 is a table compiled by EOUSA, which indicates the total number of
suspects in matters investigated by the USAOs under these statutes for FY2004 througb FY20 12;
the number of defendants indicted, and the nwnber of defendants found guilty. (Note: EOUSA
is unable to compile a breakdown by these statutes for data predating FY 2004. In addition,
defendants found guilty in a fiscal year may have been indicted in a prior fiscal year.)
Attachment 4, also compiled by EO USA, indicates the total number of defendants charged under
18 U.S.C. §§ 922 and 924 (the primary statutes for charging firearms offenses) from FYs 2000
tbrougb 2012, with breakdowns for each USAO.
Our enforcement strategies necessarily take into account differences in state laws and
state prosecution priorities. An absence of federal prosecution in a case does not mean that a
defendant will not be prosecuted. The Department works with state and local law enforcement to
detennine whether it is most effective for a particular case to be prosecuted at the federal or state
level. Because we do not have the ability to track state level prosecutions, this letter only includes
data about federal cases, and thus does not account for cases in which our prosecutors and their state

The Honorable Lamar S. Smith
Page 3

counterparts have concluded that it is more advantageous for a firearms-related prosecution to occur
at the state level.

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,

Peter J. Kadzik
Principal Deputy Assistant Attorney General

Enclosures

U.S. Department of Justice
Office of Legislative Affairs

Office of the Assistant Attorney General

Washington. D.C. 20530

JUL 25 2012
The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This responds to your letter to the Attorney General dated May 31, 2012 which seeks
information regarding the Department's administrative review under Section 5 of the Voting
Rights Act of the State of Texas' voter identification law, S.B. 14, and our use of Spanish
surname data. We apologize for our delay in responding.
In general, Spanish surname data are standard features of our analyses both in the
administrative review and litigation contexts if there are a significant number of Hispanic
residents involved. We are well aware of the benefits and limits of these data, as well as the
literature concerning these data, and in using the data, we follow procedures that utilize the data
appropriately. We note as well that the State of Texas itself relies on Spanish surname analysis,
both in the election administration and the redistricting context. Indeed, the Texas Legislative
Council has observed, with regard to Spanish surname data, not only that "[n]o other estimate of
Hispanic voter registration in Texas is available by precinct for the entire state," but also that
"[m ]ost sources agree that the match between people who have Spanish surnames and those who
consider themselves Hispanic is relatively good in Texas ...."
http:l/www.tlc.state.tx.us/redist/glossaryQZ.html.

As you know, the State of Texas has filed a declaratory judgment action in federal court
seeking judicial preclearance ofS.B. 14 under Section 5 of the Voting Rights Act. Texas v.
Holder, No. 12-cv-128 (D.D.C.) (three-judge court). The case went to trial earlier this month
and we are awaiting the court's de novo determination about whether Texas has met its burden of
demonstrating that S.B. 14 neither has a discriminatory purpose nor will have a discriminatory
effect. 42 U.S.C. § 1973c.

The Honorable Lamar S. Smith
Page2

We hope that this infonnation is helpful. Please do not hesitate to contact this office if
we may provide additional assistance regarding this or any other matter.
Sincerely,

,t:.~~

Acting Assistant Attorney General
cc:

The Honorable John Conyers, Jr.

Ranking Minority Member

li.S. Department of Justice
Office of Legislative Affairs

I Hlk~ of th~ Assistant

Attom:~

Gi!ncral

H ashw~ton. 1J C l05J()

JUL 2 4 2012
The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington. D.C. 20515
Dear Mr. Chairman:
This responds to your letter to the Attorney General dated July 5, 2012 regarding expert
services retained in a case brought by the State of Texas against the Attorney General, seeking
judicial preclearance under Section 5 of the Voting Rights Act tor its new photo identification
requirement for voting. S.B. 14. lexas v. Holder. 12-cv-128 (D.D.C. filed Jan. 24, 2012) (threejudge court).
The Attorney General is charged by statute with the responsibility for defending cases
brought by covered jurisdictions seeking judicial preclearance under Section 5 of the Voting
Rights Act. As part of defending such cases. the Department of Justice must determine whether
the change neither has a discriminatory purpose nor will have a discriminatory effect. 42 U.S.C.
§ 1973c(a). In the course of making such determinations. the Department typically relies on the
analysis and testimony of retained experts. The Department has longstanding procedures for
how testifying and non-testifying experts are reviewed and retained in such cases. These
procedures do not involve placing expert contracts out for bids. which would not be practical
given the unique nature of the services for which they are retained. The Civil Rights Division
follows the requirements of the Federal Acquisition Regulations set out in Title 48 of the Code of
Federal Regulations. In particular. the FAR requirements exempt contracts for expert services
and litigative consultants from the competitive bidding process. 48 C.F.R. § 6.302-3 (enclosed).
These FAR provisions are authorized by federal statute. 41 U.S.C. § 3304(a)(3).
The nature of the expert inquiry as to discriminatory elfect in Section 5 cases is driven by
the available data. In some states covered by Section 5. election authorities request information
from voters on race and maintain detailed data on voter registration and voter turnout broken
down by race. which greatly assists in our analysis of questions of discriminatory effect. Texas
does not request such information from voters. and the only data Texas maintains are estimates
of registered voters with Spanish surnames. Therefore, in order to determine the racial makeup
of the population of registered voters potentially atlected by S.B. 14. the Department retained a
preeminent testifying expert to conduct an analysis into whether the state· s new voter

The Honorable Lamar S. Smith
Page 2

identitication requirement would have a discriminatory effect. We describe below the expert
analysis he undertook based on his report and testimony that is tiled with the court in that case.
Our expert matched Texas" voter registration database against other state databases with
forms or photo identification that are accepted under the new state law. to create a list of voters
without accepted state photo identification. He then undertook to measure the relative racial
compositions of the overdlllist of registered voters in Texas against the list of registered voters
in Texas without accepted state photo identification. To assist in accomplishing this task. based
on his experience. the expert recommended retaining Catalist LLC as a non-testifying expert
consultant. because it has developed a reliable methodology for identifying the race of registered
voters. Catalist's methodology provided a means not only of verifying the identification of
Hispanic voters initially derived from Spanish surname analysis. but also of estimating the
population of voters who are Anglo. black. and other races. The contribution of this racial data
to the analysis was uniquely available from Catalist. particularly on the exceptionally tight
litigation schedule in the Texas case.
Our expert testified that he recommended the use of Catalist because of his prior
opportunities to examine the reliability and accuracy of their data. beginning with a project
conducted by the non-partisan Pew Center on the States. He also testified that Catalist contracts
with several educational institutions. which include Harvard. Stanford. Yale, and George
Washington Universities.
Finally. as you are aware. the three-judge federal district court in the District of Columbia
is now considering the evidence in the litigation that Texas filed, including the expert testimony
that the Department presented in that case. Accordingly. we will follow our longstanding
practice of not commenting further on pending litigation outside that setting.
We hope that 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.

~c~
Judith C. Appelbaum
Acting Assistant Attorney General
Enclosure
cc:

The Honorable John Conyers. Jr.
Ranking Minority Member

l'.S. Ucpartmcnt of .Justice
Onice of I .cgislati\c Alhlirs

JUN 0 6 2012
rhe Honorable Lamar Smith
('hainnan
Commiltcc on the Judiciary
U.S. llouse of Representatives
Washington. D.C. :!0515
The llonomblc Charles F. Grass ley
Ranking Minority l.cadcr
Comminee of the Judiciary
United States Senate
Washington. D.C. 20510
Dear Chainnan Smith and Senator Grassley:
This responds to your letter to the Attorney General and Janet Napolitano. Secretary of
the Department of Homeland Security (DHS). dated March I, 2012 regarding the February 6.
2012. orders of the United States Court of Appeals for the Ninth Circuit. In those orders, the
Court held consideration oftive immigration cases in order fqr the government to respond to the
Court's 4uestiun of whether the cases were affected by the Department of Homeland Security's
prosecutorial discretion initiative. We apologize for our delay in responding.
As you may know, on March 23. 2012 and April 2. 2012. we provided )'OUr stall' with the
government's responses to the Court's February 6. 2012 orders. Our responses. tiled on March
19. :!012. explained to the Court that prosecutorial discretion rests solely with the Executive
l:lmnch. and that the Court •hould proceed with adjudication of the pending cases absent an)
decision by DHS to move to administrativcl) close one or more of these cases. 1 Also. on April
4. 2012. otlicials from the DHS and the Department of Justke briefed your staff on DHS's

prosecutorial discretion initiative.

·

DIIS's Immigration and Customs Enforcement Director JoiUJ Morton has explained. in
memoranda and in puhlic statements. that appropriate exercise of prosecutorial discretion in
In the li fth case. l'ocelsanxn· ,. Holdl'r. ( \. No. I 0-706~!) (9 1' Cir. ). the parties agreed.
independent of the Court· s February ll. 2012 order. to tile a joint motion to r~open pwcecdings
1\ith the l:loard nf Immigration Appeals.
1

I h~ llmwrabk l.amar Smith
I he ll,~twrabk Charles I . lira"IC)
Pagt.."

hHl

inunigruti~Hl!H:.Jth.:rs allo\..;l(T.lo priorili/t..' iLs n.· ... oun..·~s to promntc naLional ~!.!<.:nriL~. horJ~r

st:t:urit~. anJ puhlk safl·L~ iilll'r~sts as

as the int~griL) of lht..' imt11igrarion S)Sk'm itsdt'. 2
It is uur unJcrswnJing thatiCL"s dcrisitHl to cxcn.:isc ils Ji~..:rt:tion 110L Lo scck rt..·mo,al of an
alien ala partil'ular point in Lime: Jocs not mean thaL ll'L will not rt.!\ isiL that Jl."cislon if'
cin:umsli.mces warrant dt1ing. su.
\Cll

In respnnsc to ynur idler.\!.!' have cmnpil!.!d Lhe information you sought in question I.

(a)

(g). "ith respc<:tlu allontc)S in the Department's Oflice of lmmigmliun Litigation (OIL).
Otl. rcpn.·scnts Lhc g.uvcrnmtnt in immigration maltl.:'rs hd{nc the federal courts. The Ext:cutive
Otlice ""Immigration Rcvic (I'OIR). within Lh~ lkpanm~nl of Justice. however, cannot
provide an accurate estimate of hours worked in tl1c cases referenced in your kttcr. Each
illlmigralion ease has a number of ,·ariables thalmay atlcctthc time it takes Lo complete il.
including Lime spent in administrali

e proceedings, as well as time EOIR adjudicators and
P"rsonncl spend administrati vel~ processing. reviewing. and evaluating cases ouL,idc of the
courtroom setting.
As Lo your questions regarding the time spent on this initiative by Ol IS personnel and the
sragc aL v.hi~h ICF rna) decide lo exercise its proseclatorial dlsnetion in an· immigration cas(!, we

refer you to l>f!S' s response Lu your lener dated April

n. ~0 12.

We hope this inlimnaliun is helpful. Please du nut hesitate to eunlaclthis ollice if we
may provide additional assistance regarding this ur any other matler.
Sineerely.

JJ:::p:l~a~

Acting Assistant Attorney tieneral
Enclosure

cc:

l'hc Honorahlc John Con)ers. Jr.
Ranking Minority Memhcr

cc:

l'hc llonorabk Patri<:k
Chainnatf

Leah~

' See generally. memoranda. dated March~. 20 II. ti·om J,•hn Monon. Director or ICL entitled
''( 'il•i/lmmigratioll r:,~thn:emenl: /'rioriti£'S /hr I he Apprdu.•Jl.'ii011, /)£'{('11/ioo. and Rt'lllill'£11 nl
AI ieus .. : anJ dated June I 7. 2!l II. cnlilkd .. r~rerd1 i11g /'msemtor iol /Ji.,actioll ( 'm•.,·i.•·tetl/ ll'itlt
the ( 'h·i/luwiiKI'Otiwt /:'J!forcemem l'rioritie., 1~/ tlu.• .·lJ.,:ellly /or the .·lPf'rehl'll.\itJII, Detention. awl
!lntll!l'al a/Aliens. (iuidcmce to/< 'f Auomey.\ Rnieu ittg the ( '/1/'. I Sl 'IS. ood /( 'f_' ('use.

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U.S. Department of Justice
Office of Legislative Affairs

Office of the Assistant Attorney General

The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515

Washington, D.C. 20530

JUN 06 2012

Dear Mr. Chairman:
This responds to your letter to the Attorney General dated May 25, 2012, which asked the
Department to respond to all outstanding oversight letters by June 6, 2012.
In the past week, we have coordinated with Committee staff to confirm your receipt of
responses to several oversight letters. We have also advised staff that we are not yet in a position
to respond to a few letters because we have not completed the steps necessary to answer your
questions, although our efforts are under way in each instance. We appreciated the opportunity
to confer with your staff to resolve questions about outstanding oversight letters in advance of
the Attorney General's hearing before the Committee on June 7, 2012.
Please do not hesitate to contact this office if we may provide additional assistance
regarding outstanding oversight letters or any other matter.
Sincerely,

C~:~

Acting Assistant Attorney General

cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

U.S. Department of Justice
(

Office of Legislative Affairs

Office of the Assis[an[ Anorney General

\*uhingtvn. D. C. 20530

JUN 042012

The Honorable Lamar S. Smith
Ranking Minority Member
Committee on the Judiciary
U.S. House of Representatives
Washington DC 20515
Dear Chairman Smith:
This responds to your letter to the Attorney General dated November 2, 20 II, regarding
concerns with one of the provisions concerning statutory exclusions that was contained in the
Department's proposed revisions to its Freedom oflnformation Act (FOIA) regulations and
inquiring about how exclusions are typically invoked We apologize for the delay in responding
to your letter.
Since issuance of Attorney General Holder's March 2009 FOIA Guidelines, the
Department has taken a number of steps to become more transparent in its handling of records
that are, by statute, excluded from the FOIA. Having now received a number of comments on
the Department's proposed regulations in this area, the Department is actively considering those
comments and is reexamining whether there are other approaches to applying exclusions that
protect the vital law enforcement and national security concerns that motivated Congress to
exclude certain records from the FOIA and do so in the most transparent manner possible. If the
proposed regulations can be improved in these respects, we will work to improve them. As to
Section 16.6(f)(2) of the proposed regulations, we will not include that provision when the
Department issues its final regulations.
Exclusions, which by statute can be applied only in very specific contexts, are different
from exemptions, which are more common. Congress excluded certain records from the FOIA
in 1986 to protect three narrow categories of law enforcement and national security information
that, if disclosed, could compromise vital interests. To take the simplest example, Section
552(cXI) of the FOIA recognizes that if a requester seeks information relating to an ongoing
criminal investigation, of which the target is unaware, and when even acknowledging the
existence of responsive documents would tip off the criminal to the ongoing investigation, those
records are not subject to the requirements of the FOIA.
Since 1987, the Department has handled records excluded under these provisions
according to guidelines issued by Attorney General Meese, which necessarily differ from the

The Honorable Lamar S. Smith
Page Two
"neither confirm nor deny" response. The Meese Guidance provided, among other things, that
where the only records responsive to a request were excluded from FOIA by statute, "a requester
can properly be advised in such a situation that 'there exist no records responsive to your FOIA
request,'" and that agencies must ensure that its FOIA responses to requests that invoke
exclusions and those that do not involve exclusions "are consistent throughout, so that no telling
inferences can be drawn by requesters." The logic is simple: When a citizen makes a request
pursuant to the FOIA, either implicit or explicit in the request is that is seeks records that are
subject to the FOIA; where the only records that exist are not subject to the FOIA, the statement
that "there exist no records responsive to your FOIA request" is wholly accurate. These practices
laid out in Attorney General Meese's memo have governed Department practice for more than 20
years.
While this approach has never involved "lying," as some have suggested, the Department
believes that the past practice could be made more transparent. Accordingly, as part of an effort
to update its FOIA regulations and other aspects of its Open Government initiative, the
Department took a number of steps designed to bring its handling of exclusions in line with
Attorney General Holder's commitment to open government.

First, to ensure that exclusions are invoked only when absolutely necessary, Section
16(f)(1) of the proposed regulations requires that the head of the FOIA office of any
Department of Justice component contemplating the use of an exclusion obtain approval
for such use from the Office oflnformation Policy.

Second, to promote greater accountability, Section 16.6(f)(3) requires components to
maintain records of any uses of an exclusion and its approval, and the Department has,
for the first time, required agencies to publicly report in their ChiefFOIA Officer
Reports on the number of times that they invoke exclusions.

• Third, to promote greater public awareness of exclusions than existed under the 1987
Attorney General Meese policy, Sections 16.4 and 16.6(f)(2) of the proposed regulations
sough to advise requesters of how exclusions may be used. Section 16.4 reminded
requesters that, under the FOIA, records that are excluded from FOIA are not subject to
the FOIA's requirements and are not considered responsive to a FOIA request.
Section 16.6(f)(2), in turn, sought to remind requesters that the exclusion of records from
a particular FOIA request is not noted in the response. As the 1987 Meese Guidance
recognized, consistent responses are necessary to avoid disclosing the ongoing criminal
investigation or other sensitive law enforcement or national security information that the
FOIA excludes.
Taken together, these steps were aimed at shining further light on a practice that, while
expressly contemplated by statute and necessary to protect vital law enforcement and national
security interests, operated for years with much less transparency. As you know, the initial

The Honorable Lamar S. Smith
Page Three
comment period on these regulations closed last year, with no public comment on the provisions
in question. As a result, however, of this Administration's commitment to openness, the
Department reopened the comment period on these regulations precisely so that it could receive
additional input. The reopened comment period has concluded, and the Department is now in
the process of reviewing those submissions. We are also taking a fresh look internally to see if
there are other options available to implement Section SS2(c)'s requirements in a manner that
preserves the integrity of the sensitive law enforcement records at stake while preserving our
continued commitment to being as transparent about the process as possible.
In response to your specific questions, first, as described above, since 1987 with issuance
of the Meese Guidance, responses involving excluded records are worded differently than
responses where the agency states it can "neither confirm nor deny" the existence of the
requested records. Second, while no statistics were previously kept on the number of times
exclusions were used, the Department has for the first time this year required public reporting of
use of exclusions. The Department reported using exclusions in 147 requests out of 63,992
requests that were processed in Fiscal Year 20 II. Third, since enactment of the statutory
provision containing exclusions, the Department has employed the same approach in responding
to requests as is detailed in the 1987 Meese Guidelines. Lastly, when Congress amended the
FO lA to include exclusions, the "neither confirm nor deny" response was already in existence
and used by agencies for certain categories of requests. As explained in the Meese Guidance, it
was because that response "inadequately protects against the particular harms in question that the
more delicate exclusion mechanism, which affords a higher level of protection, sometimes must
be employed." The exclusions themselves describe the three narrow categories of records where
a "neither confirm nor deny" response would not be adequate.
We hope that 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,

~~~r:r:-Acting Assistant Attorney General

cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

U.S. Department of Justice
Office of Legislative Affairs

Office of the As.sistont Attorney General

The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515

Washington, D.C 20530

JUN 0 4 2012

Dear Mr. Chairman:
This responds to your letter to the Attorney General and Secretary Napolitano dated
June 24,2011, regarding the Department's allocation of!aw enforcement resources along tbe
Southwest border. We appreciate your interest in these matters and share your commitment to
keeping our borders safe and secure. We apologize for our lengthy delay in responding to your
letter.
The dismantling and disabling of the transnational criminal organizations (TCOs) that
threaten the integrity of our Southwest border is a priority for this Administration. The
Department of Justice, with our partners at the Department of Homeland Security, is dedicating
unprecedented resources to ensure security along our Southwest border. Key to our response is
multi-agency coordination across state, federal, and international boundaries to target the
criminal networks that threaten our U .S.-Mexico border. Particularly through the use of
intelligence coordination centers such as tbe El Paso Intelligence Center (EPIC), the Organized
Crime Drug Enforcement Task Force (OCDETF) Fusion Center, and the multi-agency
operations coordination center known as the Special Operations Division (SOD), we are
bringing our collective resources to bear against tbe TCOs that operate along our Southwest
border.
The heart of tbe Department of Justice's strategy for addressing drugs and violence on
the Southwest border is through our own investigative and prosecutorial efforts as detailed in
our Strategy for Combating the Mexican Cartels ("Strategy"), issued by the Attorney General
on January 5, 2010. The Strategy emphasizes the use of intelligence to coordinate long-term,
complex investigations to identify all the tentacles of a particular criminal organization.
Through SOD, we are able to execute multi-jurisdictional enforcement actions, 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 destroy or weaken the drug

The Honorable Lamar S. Smith
Page 2
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.
This "whole of government" approach has led to a number of remarkable successes.
Some recent examples of SOD-coordinated investigations involving multiple OCDETF and
other task forces include:

Project Delirium (2011): This 20-month multi-agency operation targeted the
La Familia Michoacana Cartel distribution networks and resulted in the arrest of
I ,985 individuals;

Operation Bombardier (20 II): This disruption operation was a multi-agency
coordinated response to the murder of one U.S. agent and wounding of another by
members of Los Zetas Cartel. Operation Bombardier was a rapid response strike
targeting all Mexico drug trafficking organizations (DTOs) including cartel
members, associates, infrastructure and activity operating in the United States
regardless of specific cartel affiliation resulted in 676 arrests;

Project Deliverance (20 I 0): This 22-month multi-agency investigation targeted
all Mexican DTO transportation and distribution infrastructure along the
Southwest border and elsewhere in the United States, resulting in more than
2,200 arrests;

Project Coronado (2009): This 44-month multi-agency operation targeted the La
Familia Michoacana Cartel's distribution networks and resulted in I, 186 arrests;

Operation Xcellerator (2009): This 21-month multi-agency operation targeted the
Sinaloa cartel and resulted in the arrest of more than 750 individuals; and

Project Reckoning (2008): This 18-month multi-agency operation targeted the
then combined Gulf and Los Zetas Cartels and resulted in 621 arrests.

Combined, these six Department of Justice-led SOD and OCDETF investigations over
the past four years resulted in more than 7,700 arrests and the seizure of more than
$423,000,000 in U.S. Currency; 311,000 pounds of marijuana; 37,800 kilograms of cocaine;
2,500 pounds of heroin; and I0,400 pounds of methamphetamine.
Likewise, the Department has secured a number of notable extraditions and convictions
over the past year. For example, in January, narcotics kingpin Alberto Benjamin ArellanoFelix, head of the Tijuana Cartel, pleaded guilty in the Southern District of California to
racketeering and conspiracy to launder money, and was sentenced to 25 years in prison on April
2, 2012. Once that sentence is served, he will be sent back to Mexico to finish another 22 years

The Honorable Lamar S. Smith
Page 3
for a conviction there. Similarly, when three people associated with the U.S. Consulate in
Juarez were gunned down after leaving a child's birthday party in March 2010, the Criminal
Division and the U.S. Attorney's Office in El Paso stepped in, leading the investigation and
prosecution of over 30 members and leaders of the Barrio Aztecas gang, including the people
responsible for the Consulate murders. And, when ICE Agents Jaime Zapata and Victor Avila
were ambushed in Mexico in February 2011, resulting in the tragic death of Agent Zapata, the
Criminal Division and the U.S. Attorney's Office in Washington, D.C., spearheaded the
investigation and prosecution of the members of the Zetas responsible for the murder of Agent
Zapata and the shooting of Agent Avila. While this highly sensitive case is on-going, we are
achieving remarkable results.
Although we have made great strides against the Mexican drug cartels in recent years,
we cannot achieve success without support and input from congressional leaders like you. We
appreciate Congress' recognition that our efforts in Mexico must be consistent and sustained.
Our experience teaches us that there are no quick fixes to this type of problem. It is only
through a long-term, cooperative partnership with our own agencies, legislators, and neighbors
in Mexico that we will weaken the influence of organized crime on Mexican society and along
our Southwest border, thereby better protecting our citizens.
We hope this information is helpful. Please do not hesitate to contact this office if we
may be of assistance with this or any other matter.
Sincerely,

J::A~I~

Acting Assistant Attorney General
cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

Office of Legislative Affairs

Wushmgton. LH · :!053f!

The Honorable Lamar Smith
Chairman
Committee on the Judiciary
Cnited States House of Representatives
Washington. D.C. 20515

JUN 042012

Dear Chairman Smith:
This responds to your letter to the Attorney General dated February 9. 2012. in which you
request an update on the activities of the Department of Justice's Office of Justice for Victims of
Overseas Terrorism (OVT). In your letter. you ask a series of specific questions about OVT' s
structure and work. We apologize f(lr the delay in our response.
As you note in your letter. Congress directed the Department to create OVT as part of a
2004 appropriations bill. See Consolidated Appropriations Act of2005, Pub. L. No. 108-447, §
126. 118 Stat. 2809. 2872 (2004 ). The conference report accompanying that bill cited the Koby
Mandell Act of 2003 and recommended that ovr s mission be "to ensure that the investigation
and prosecution of deaths of American citizens overseas are a high priority within the
Department of Justice ... H.R. Rep. No. I 08-792. at 780 (2004) (Con f. Rep.).
OVT functions today largely according to the framework set out by former Attorney
General Alberto R. Gonzales when he created the office in 2005. See Memorandum. Oflice of
the Attorney General. dated May 6. 2005 (hereafter "Attorney General's OVT Memo").
enclosed. OVT works to identify L.S. victims of overseas acts of terrorism wherever in the
world the acts are carried out. advocates for victims· rights in both domestic and foreign
prosecutions (including by supporting L.S. citizen victim attendance at and participation in
foreign criminal justice proceedings). arranges victim briefings with Department and other
government otlicials. and ensures that victims are kept informed about proceedings and that their
interests and views are considered by decision-makers. In creating OVT. Congress addressed an
existing gap: OVT serves as the only entity in the L.S. government with specific responsibility
for providing assistance to l".S. terrorism victims as they navigate foreign criminal justice
systems.

The Honorable Lamar Smith
Page Two
1. How many employees does OVT currently have? Please specifY position title as well as
whether it is full or part time.
OVT currently has tour full-time professionals (Director. Attorney Advisor. Victim Outreach
and Training Specialist. and Program Specialist).

2. Please provide OVT's actual budget, by year, since its inception.
OVT was under the Criminal Division from inception until June 6. 2007. It is now pan
of the National Security Division (NSD). Because NSD consists of only one decision unit. OVT.
like other sections within th.: Division. is not reported as a separate. identifiable line item in the
budget.
Note that OVT receives additional, program-specific funding from the Crime Victims
Fund through Interagency Agreements with the Office of Justice Program's Otlice for Victims of
Crime (OVC). This supplemental funding supports the Criminal Justice Panicipation Assistance
Fund (CJPAF). which is discussed more fully below. and a Training and Technical Assistance
lund. lt also provided seed money to establish the Victim Outreach and Training Specialist
position within OVT.

3. How many terrorists who injured or killed V.S. citizens overseas have been investigated
and prosecuted in the United States owing to OVT's efforts since 2005?
Within the Department of Justice. the FBI serves as the lead agency investigating federal
terrorism offenses. and the Counterterrorism Section of the National Security Division (formerly
a section of the Criminal Division) and C.S. Attorney's Otlices have lead responsibility for
prosecuting such offenses. See the Attorney General's OVT 'vlemo at 2. OVT does not have
investigative or prosecutorial responsibilities. !d. OVT's efforts to identify victims, monitor
victim cases. and ensure victims· rights. however. help keep victim cases and issues a priority
with investigators and prosecutors. Moreover. gaining the trust and cooperation of victims is a
key clement in a successful investigation and prosecution. Through its advocacy on behalf of
victims and in serving as a bridge between victims and decision-makers. OVT has made many
valuable contributions to the investigation and prosecution of terrorism offenses domestically as
well as abroad and kept justice for the victims a primary Department goal. Recent examples
include:

OVT assisted tarnily members and victims during the German prosecution of Arid Uka
for murdering two U.S. servicemen and injuring two others outside the Frankfurt.
Germany airport. OVT funded travel expenses tor six victim tamily members to travel
to Germany to attend and participate in the German prosecution. provided information to
the taruilies concerning proceedings and sentencing options. and assisted in obtaining
authorization trom C.S. victims to include personal information in a memorandum to

The Honorable Lamar Smith
Page Three
foreign prosecutors addressing sentencing aggravating factors. The German court
ultimately sentenced the defendant to the maximum sentence available after finding
aggravating factors supporting such a sentence.

OYT funded travel expenses for the victim's parents to anend several court proceedings
in the Israeli prosecution of lyad Fatafa and Kifah Ghneimat for the murder of an
American citizen in Israel. OYT's Allomey Advisor accompanied the parents to Israel
and assisted during meetings with the Israeli prosecutors. a visit to the crime scene.
development of a victim impact statement for presentation to the Israeli court, and a
meeting with the Israeli victim compensation program. The defendants were sentenced
to lite plus twenty years and two life sentences. respectively.

OYT maintains a password-protected website for the C.S. citizen victims of the 2002
Bali. Indonesia bombings that provides regular updates on the ongoing prosecution of
Lmar Patek lor his role in that crime. OVT also provided information on U.S. crimevictim rights to Indonesian ot1icials and worked with the t: .S. citizen victims to draft.
notarize. and properly format victim impact statements from 10 U.S. citizen victims or
their families. Department of Justice ot1icials in Indonesia provided the statements to
Indonesian authorities. OYT supported the travel of one U.S. citizen survivor of the
bombings to testify at the trial in Jarkarta. During his testimony. he provided photos,
medical records. and the ,·ictim-impact statements from all of the t;.s. victims to the
judges.

In the only C.S. prosecution based on the Mumbai. India a!!acks of November 2008.
OYT established a password protected website. The information on such websites
enabks victims to make informed decisions about interacting with the public and the
media and eliminates the need to rely on public sources tor information about the
investigation and prosecution that may be biased or inaccurate. See Allomey General
Guidelines for Victim and Witness Assistance. Art. Y.J.3 (2011 edition).

OYT introduced the family of a U.S. citizen killed in the !985 hijacking of the Achille
Lauro cruise ship to those investigating and prosecuting an arms supplier suspected to
have supplied the hijackers in a case involving unrelated charges. Thereafter, the C.S.
Attorney's Office victim witness coordinator staff assisted the victims in connection with
court proceedings.

OVT assisted l.i .S. victims of overseas a!lacks attributed to a! Qaeda in connection with
military commissions proceedings. OYT maintained a webpage for victims of aJ Qaeda
attacks. supported victim access to proceedings being held at Guantanamo Bay. Cuba.
and coordinated meetings between government officials and victims. Overseas a!lacks
attributed to a! Qaeda or a! Qaeda-atllliated groups include the bombing of the C.S.S.
Cole in Yemen. the East Africa Embassy bombings. the 2002 Bali bombings. the 2003

The Honorable Lamar Smith
Page Four
Jakarta. Indonesia hotel bombings. and the kidnap and murder of a U.S. citizen journalist
in Pakistan.

4. How many cases have been referred to OVT by third parties for action, whether
formally or informally, and how many of those requests has 0 VT acted upon and with
what result?
OVT receives numerous referrals from a wide variety of sources and endeavors to act on
all referrals. whether formal or informaL Examples include:
o

Creating password-protected informational websites lor victims (six websites for
nine cases that serve hundreds of victims).

o

Providing victims with information about foreign prosecutions and other matters
of interest through emails. phone calls. and personal meetings (hundreds of
individual contacts).

o

Supporting victim travel to foreign criminal justice proceedings ( l 0
victims/support persons in three cases).

o

Advocating for victim participation in foreign proceedings (numerous cases).

o

Coordinating meetings between victims and Justice Department and other
government agency officials (hundreds of victims have participated in meetings.
including two large meetings with victims of al Qaeda-attributed attacks and
several group meetings with victims from attacks in Israel. Gaza and the West
Bank).

o

Coordinating the designation process for the International Terrorism Victim
Expense Reimbursement Program (ITYERP). as discussed further below. ( 166
attacks designated).

o

Supporting victims· rights in C.S.-based prosecutions (multiple cases).

o

Providing daily public-source information to Justice Department officials.
prosecutors and investigators about international terrorism cases with C .S. citizen
victims (this service has varied over time: currently there arc 15 cases with daily
updates).

o

Meeting regularly with Justice Department otlicials to raise victim issues and
articulate victim views and needs (OVT staff has met at least three-to-five times
per week. every week for seven years with Justice Department officials for these
purposes).

The Honorable Lamar Smith
Page Five

5. The conference report cited above also directed OVT to "create a Joint Agency Task
Force consisting of Department of Justice and Department ofState personnel to be
activated in the event of a terrorist incident against American citizens overseas."
Please provide details on the history and composition of that task force and any
terrorist incidents in which it has been involved since its inception.
The Joint Agency Task Force was informally established immediately after OVT"s
creation in ay 2005. Soon thereafter. the Task Force was called upon to ensure that
infornmtion and assistance !lowed quickly and efficiently from the State Department's incident
task force to all Task Force members to meet the needs of the U.S. victims of the July 7. :wos.
London subway bombings. On September 27. 2007. the Assistant Attorney General for :"'ational
Security and the Assistant Secretary of State. Bureau of Consular Affairs. signed a memorandum
of understanding (MOl.:) that formally established the Task Force as the "Joint Task Force on
U.S. Citizen Victims of Terrorism Abroad" (hereafter VTA Task Force).
The VTA Task Force provides the platform for agencies with a role in assisting U.S.
overseas terrorism victims to meet on a regular basis and keep current on agency points of
contact. It has met on a regular basis since its creation and addressed a variety of topics.
including: Privacy Act information sharing issues. maintenance of an emergency contacts list.
coordination of responses to victims in specific cases. operation of the ITVERP and how to
publicize the program, presentations on specific topics by experts (e.g.. reunification of hostages,
special tax treatment for terrorism victims). and meetings with victims of acts of international
terrorism.

T"o particularly significant events tor the VTA Task Force were a debriefing covering
the response to the victims of the ""ovember :2008 umbai. India. a \tack and a victim
perspective meeting held in May 2009. The information developed during that meeting has been
used to intorm policy and training for C.S. government personnel working with victims of
international terrorism. The VTA Task Force plans to hold additional victim perspective
meetings in the future to continue the practice of consulting with victims about how the
government is meeting their needs in the aftemtath of terrorist attacks.

6.

Please Jist any other major OVT accomplishments in furtherance of its mission since
its inception.
A. Identifying l: .S Victims of Overseas Terrorism

From OVT"s inception. a critical step in meeting its mission has been conducting
research to identif) American victims of past overseas terrorist attacks. OVT"s efforts in this
area continue.
B. aintaining Case Priorit'

The Honorable Lamar Smith
Page Six
As pre\ iously discussed. OVT has a core mission of keeping U.S. citizen victim cases a
high priority in the Department. It accomplishes this in the following ways:

OVT reports directly to the oftice of the Assistant Attorney General (AAG) for National
Securit~. This direct report enables OVT to raise !'.S. citizen victims' issues. views, and
concerns at a high level in the Department.

OVT's Director participates in weekly meetings led by the Deputy Assistant Attorney
General for Counterterrorism and Counterespionage to stay current on case status and
ensure that !J.S. victims are identified and their issues addressed.

OVT coordinates meetings between senior Justice Department officials and U.S. victims
of overseas terrorism.

OVT staff sends daily updates to staff in the AAG · s office and prosecutors and
investigators around the country and abroad.

OVT has conducted extensive training on victims· righ1s and services in overseas
terrorism cases.

For the past three years. OVT has sponsored a commemoration ceremony within NSD for
l\ational Crime Victims Rights Week.
C.

Lnderstandin~

Victim Views and Meeting Victim .\Jeeds

Fundamental to OVT's work is the belief that victims achieve a measure of justice by
being acknowledged by their government. treated ~Nith respect. and provided with intorrnation
about specific cases and the workings of the criminal justice system. To that end. OVT has
interacted with hundreds of victims through face-to-face meetings and by phone. emaiL websites,
and letters.
1.

Sen·ing in a Dire('! f'ictim Services Role for Overseas Prosecutions

As noted earlier, no other program in the Department or LS. government has specitic
responsibility for supporting and assisting U.S. terrorism victims during prosecutions in foreign
courts. The OVT staff includes two attorneys who are torrner prosecutors. and their experience
and training in U.S. criminal law and procedure. as well as crime victims' rights. helps OVT
assist victims with inforn1ation about foreign criminal justice proceedings. Further. OVT works
to provide lJ .S. citizen victims ~Nith the types of rights and sen· ices in connection with overseas
prosecutions that they would receive in l;.s.-bascd prosecutions.

The Honorable Lamar Smith
Page Seven
For example. while L.S. laws mandate that victims be notitied about public court
proceedings. there are no such requirements in many foreign jurisdictions. OVT attempts to till
this gap. OVT routinely compiles and posts publicly available information about foreign
proceedings and about the foreign criminal justice system on password-protected websites that
provide victims background and context to understand information about specific proceedings.
OVT maintains secure websites lor the lollowing prosecutions:
c
c
c
c
o

2008 Mumbai attacks
20 I0 Kampala World Cup soccer bombings
2002 Bali bombings
2009 Jakarta hotel bombings (archived. proceedings completed)
AI Qaeda-attributed attacks (LiSS Cole. East Africa Embassy bombings. kidnapping
and murder ofl;.s. citizens. Jakarta hotel bombings. 2002 Bali bombings. and
September II. 200 I attacks on the Lnited States) (see further discussion on military
commissions. infra) (archived)

OVT strives to provide information regarding these cases in ··plain English"" accessible to nonattorneys. (OVT vets the information it posts for accuracy with the Department of State and other
components of the Department of Justice.)
Beyond providing inlormation. OVT frequently advocates for U.S. victims during the
course of overseas prosecutions and arranges lor victim impact statements to be submitted to
!(>reign investigators. prosecutors. or courts. For example (and as discussed above). OVT
recently collected victim impact statements in connection with the trial ofCmar Patek in
Jakarta. Indonesia. for Patek"s role in the 2002 Bali bombings.
ii.

Funding Trm·el

Beginning this past fall. after having identified the expense of travel as a barrier
to victims participating in overseas criminal proceedings. OVT initiated the Criminal Justice
Participation Assistance Fund. Through an agreement with the Oftice of Justice Progmms"
Office for Victims of Crime. OVT received $200.000 from the Crime Victims Fund. OVT has
used this funding in connection with three recent overseas terrorism prosecutions. as described in
the answer to question number 3.
iii.

Supporting Expense Reimbursement Program

OVT tacilitates linancial assistance to victims through its active participation in ITVERP.
administered by the 011ice of Justice Programs· Otlice of Victims of Crime. ITVERP provides
reimbursement tor certain expenses---e.g. funeraL burial. medicaL mental health-stemming
from international terrorism. U.S. citizen and L:.S. government employee victims and their
survivors are eligible for the program. An attack is not recognized for reimbursement purposes
until the Attorney General determines that there is a reasonable indication that the attack

The Honorable Lamar Smith
Page Eight
constitutes an act of international terrorism. The Attorney General has delegated this designation
authority to the AAG for National Security. OVT coordinates NSD's designation process.
consulting with the Oftice oft he Director of:-.lationallntelligence and prosecutors in NSD's
Counterterrorism Section. To date, the Department has designated 166 attacks as acts of
international terrorism with U.S. victims for purposes of!TVERP.

iv.

Consul!ing to Share Experience and Legal Expertise

OVT also has shared its experience and legal expertise to support other victim-related
efforts within the C.S. government. For example. in 2008. the Department of State negotiated a
settlement agreement with the government of Libya under which Libya agreed to deposit money
into a fund to compensate U.S. victims of Libyan-sponsored terrorism. The settlement covered
I 0 attacks spanning two decades. beginning with the Lod Airport attack (Israel) in 1972.
Although many eligible victims learned of the settlement agreement and resulting fund through
counseL OVT undertook an etTort. in connection with the U.S. Attorney's Oftice for the District
of Columbia. to notity unrepresented victims about the possibility of filing a claim. OVT also
posted information about the settlement fund and claims process on its website.
OVT has also been providing advice and assistance to the Oftice of :Yiilitary
Commissions (0.C) in its provision of victims' services. With support from OVT. the OMC
has created an oftice to provide victim and witness assistance in connection with commission
proceedings. As an example of OVT' s support to the OM C. OVT has done the following with
respect to the commissions· handling of the cases stemming from the September 11.2001 attacks
on the t:nited States:
o

Initiated outreach to the leadership of 9/11 family groups to schedule meetings with
:-.lSD and OMC ot1icials about victim support during commission proceedings.

o

Developed a plan for closed circuit television (CCTV) broadcast of Guantanamo Bay
proceedings to military bases on the L .S. mainland so that victims can observe the
proceedings. Also. assisted OMC in obtaining funding support for the CCTV program.

o

Maintained a secure website for victims of a! Qaeda-attributed attacks containing
information about the Guantanamo Task Forces.

o

Coordinated Justice Department meetings for victims of at Qaeda-attributed attacks
with Detention Policy Task Force and Guantanamo Review Task Force ofticials. The
meetings took place on June 16 and 17. 2009. Attorney General Eric H. Holder. Jr.
met with victims during the meeting on June 17.

The Honorabk Lamar Smith
Page ~inc

Provided email and website notification to 9/ll victims concerning transfer of the 91 II
prosecution to the U.S. District Court for the Southern District of New York in
November 2009 and transfer back to the OMC in April 20 II.
D. Addressing the ~eeds of U.S. Victims of Terrorist Attacks in Israel. the West Bank.
and Gaza

Although the Koby Mandell Act was not passed by Congress. OVT recognizes that
terrorist attacks in Israel. the West Bank. and Gaza were driving forces behind OVT's creation.
and has made a high priority of working v.ith American victims of these attacks.

OVT has identified and continues 10 work to identify U.S. citizen victims of terrorist
attacks in Israel. the West Bank. and Gaza. From June :1005 through June 2007. the OVT
Director met with approximately 25 victims of attacks in Israel. the West Bank. and
Gaza. in both the United States and Israel.

ln June 2007. the OVT Director traveled to Israel with a team of FBI agents and
prosecutors from the U.S. Attorney's Office for the District of Columbia and NSD. The
team conducted two meetings for C .S. victims of overseas terrorism. one in Jerusalem
and one in Tel Aviv. explaining C.S. law and answering victims' questions.

In 2008. OVT arranged for U.S. citizen victims of attacks in Israel, the West Bank. and
Gaza to meet with senior t:.S. government ofticials from the Justice and State
Departments related to their civil lawsuits against the Palestinian Authority. ln Knox v.
Palestinian Authority. the federal judge had asked the United States whether it would file
a statement of interest in the case supporting the Palestinian Authority's motion to vacate
a large default judgment in favor of the victim plaintiffs. Cltimately. the United States
declined to file a statement of interest in the Knox case.

In October 20 II. the Government of Israel announced a prisoner exchange of about 1.000
prisoners in Israeli jails for the return of an Israeli soldier being held by Hamas. OVT
immediately alerted Justice Department officials of the planned release and the
Department. together with the Department of State. urged the Government of Israel not to
rdease prisoners responsible for murdering or injuring L; .S. citizens before the prisoners
served their full sentences. OVT's records of L.S. victims of overseas attacks provided
U.S. government ofticials important information for purposes of subsequent discussions
with Israel in advance of a second prisoner release in December 20 II. OVT provided
information to the American victims and their families about the release and has
continued to correspond with victims. keeping them apprised. as appropriate. of efforts
by the FBI and federal prosecutors to review these matters for potential investigation and
prosecution.

The Honorable Lamar Smith
Page Ten

As discussed above. OVT used CJPAF funding to enable the parents of a U.S. citizen
killed in Israel to travel to Israel tor the trial of those responsible. An OVT Attorney
Advisor accompanied the parents and tacilitated their participation in meetings and their
submission of victim-impact statements for the sentencing of one of the perpetrators.

Through the years. OVT ha' also been in phone and email contact with many victims of
terrorist attacks in Israel. the West Bank. and Gaza and provided intonnation and
assistance as needed. These communications have been enormously helpful in alening
DOJ officials to issues of concern to the victims in these cases.

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.

t::Ap~b~
Acting Assistant Attorney General

cc:

The I Ionorable John Conyers. Jr.
Ranking Minority Member

Enclosure

U.S. Department of Justice
Offiee ef Legislati:~e Affairs

Office of the Assistant Attorney General

Washington, D.C. 20530

JUN

1 2012

The Honorable Lamar Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This responds to your letter to the Attorney General dated June 15,2011, requesting
clarification of the Department's position on the medical use of marijuana and relevant
Departmental Memoranda. We apologize for our lengthy delay in responding to your letter. We
are sending an identical response to Crime, Terrorism, and Homeland Security Subcommittee
Chairman Sensenbrenner, who joined in your letter.
On June 29,2011, in response to inquiries requesting clarification of the Department's
position on state regulated medical marijuana, Deputy Attorney General Cole issued guidance
(the "Cole Memorandum," a copy of which is enclosed) clarifying the guidance issued by former
Deputy Attorney General Ogden (the "Ogden Memorandum"). Deputy Attorney General Cole's
guidance is also consistent with letters sent by various United States Attorneys, which reflect the
Department's commitment to enforcement of federal criminal laws.
As your letter notes, in enacting the Controlled Substances Act (CSA), Congress
determined that marijuana is a Schedule I controlled substance. Persons who are in the business
of cultivating, selling, or distributing marijuana, other than as part of a federally authorized
research program, are in violation of federal law and are subject to enforcement action, including
prosecution, when the Department determines that such action is warranted. This is the case
even when these activities may be lawful under state law. However, as the Ogden Memorandum
made clear, the Department recognizes, as a general matter, that it is not an efficient use of
limited federal resources to focus enforcement efforts on individuals with serious illnesses who
use marijuana as part of a recommended treatment regimen consistent with applicable state law,
or on individual caregivers who are not engaged in the commercial cultivation, sale, or
distribution of marijuana.

The Honorable Lamar S. Smith
Page Two

--··---~---

As the Cole memorandum makes clear, the Ogden Memorandum was not intended to
shield from federal enforcement large-scale, privately owned industrial marijuana cultivation
centers, which remain subject to potential federal enforcement action. Accordingly, consistent
with the Cole memorandum, United States Attorneys, through the exercise of prosecutorial
discretion, will continue to focus their limited resources on the investigation and prosecution of
significant traffickers of illegal drugs, including marijuana, and on disrupting illegal drug
manufacturing and trafficking networks.
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,

IL1t- ( . t?vt------·
J:J~~- Appelbaum

Acting Assistant Attorney General
cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

Enclosure

U.S. Department of Justice
Office of Legislative Affairs

Office of the Assista"lt Attorney General

Washillgton. DC 20J30

MAY 08 2012
The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:

This responds to your letter to the Attorney General dated March 16, 2012, concerning
the Justice Department's enforcement of federal firearms laws. The Department shares your
views on the importance of transparency in government operations. Below are responses to your
questions.

I. Does the Department track or retain data on the number ofcharges filed and
convictions obtained under 18 U.S. C.§§ 922, 924, 929, 930, 931, and 26 U.S. C.
§ 586/, whether listed as a lead charge or otherwise? Ifso, how long has the
Department tracked or retained this information?
Yes, the Department does track and retain data on charges filed and convictions
obtained under Title 18, United States Code,§§ 922,924,929,930,931 and Title 26,
United States Code § 5861. This information is retained for all counts, regardless of
whether the count is a lead charge against a particular defendant. The Department
has tracked firearm/weapons information in some form since 1955. This data is
publicly available by Fiscal Year in Table 3 of the United States Attorneys' Annual
Statistical Reports:
http://www.justice.gov/usaolreadins roornlfoiamanuals.html#reports. For at least the
last twenty years, the government has been able, upon request, to provide specific
information on the statutory charge and conviction for each separate offense listed.
Beginning in Fiscal Year 2006, the Department improved its ability to provide
specific charging information to include not only the specific statutory section
involved, but also the applicable statutory subsection.

2. Does the Department track or retain data on the number ofcharges filed and
convicttonsobtainedfor each separate offense established under /8 U.S. C.§§ 922,
924, 929, 930, 93/, and 26 U.S. C. § 5861, whether listed as a lead charge or
otherwise? If so, how long has the Department tracked or retained this information?

The Honomble Lamar S. Smith
Page Two
Yes, the Department does track and retain data on the nwnber of charges filed and
convictions obtained for each separate offense under Title 18, United States Code,
§§ 922, 924, 929, 930, 931 and Title 26, United States Code § 5861. As noted above,
for at least the last twenty years, the Government has been able, upon request, to
provide specific information on the statutory charge and conviction for each separate
offense listed. Beginning in Fiscal Year 2006, the Department improved its ability to
provide specific charging information to include not only the specific statutory
section involved, but also the applicable statutory subsection.
3.

If the Department does not track or retain the data described in the previous
questions, are there any statutory restrictions or pragmatic difficulties in doing so?

The Department agrees with your observation that tracking and retention of data that
focuses only on the lead charge provides an incomplete picture of the total universe of
prosecuted fireanns cases. For this reason, as noted above, the Department tracks and
retains information on all offenses charged. Since Fiscal Year 2006, this system has
allowed for the retention and tracking of firearms prosecutions by statute and by
subsection.
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
cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

U.S. Department of Justice
Office of Legislative Affairs

Office of the Assistant Attorney General

Washington. D.C. 20530

MAY 01 Z0.

The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515
Dear Mr. Chairman:
This responds to your letter to the Attorney General, dated March 21, 2012, following up
on earlier correspondence about an article posted on the website "Pajamas Media" alleging that a
Department employee lied to the Office of the Inspector General (OIG).
In our letter of March 12, 2012, we advised you that we are not in a position to respond to
the specific allegations made in the article because of the OIG's pending inquiry into the Civil
Rights Division's Voting Section. Your letter of March 21,2012, restated questions that you
posed in your January letter about statements by the Department employee to other Voting
Section employees regarding her interview with the Inspector General. Unfortunately, we
believe that efforts to investigate these allegations-which would entail questioning employees
about their conversations about OIG interviews- would inevitably overlap with the OIG
inquiry.

We regret that we cannot be of assistance in this matter. Please do not hesitate to contact
this office if we rnay be of assistance in any other matter.
Sincerely

llVlczA

Ronald Weich
Assistant Attorney General

cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

l .S. Department of Justice

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APR 1 7 2012
The llonorahlc Lamar Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington. D.C. 20515
Dear Mr. Chairman:
This responds to your letter to Attorney (ieneral Holder dated November 30. 2011.
regarding grant management and oversight by the Department of Justice's Office of Justice
Programs (OJ!'). We are sending an idcnticallcttcr Senator Grassley. who joined in your letter.
We apologize for our delay in respunding to your letter.
Please be assured that the Department recognizes its responsibility to be a good steward
of federal funding, and over the last three years. OJP has significantly improved its grants
management. OJP has worked hard to ensun: accountability in its grant programs by
establishing policies. procedures. and internal controls to ensure sound administration:
strengthening programmatic and financial management and enhancing monitoring and oversight
ofOJP's grant programs. These improvements position OJP to carry out the agency's statutory
responsibilities etlcctively while minimizing the potential for waste. fraud. or abuse of taxpayer
dollars.
Detailed responses to your specific questions. and supporting materials. are set forth in
the ~nclosures to this letter. In addition. we wish to bring to your attention the fact that OJP"s
efforts have been highlighted in two recent reports of the Department's Oftlce of the Inspector
General (OIG ): OIG · s "Semiannual Report to ( ·onwess: October I. 20 I 0 - March 31. 20 I/" and
its !\·larch 2011 report entitled, "Audit o(The Of/ice o(.fu.rtice Prowmm' Afonitoring and
Oversight o/Recuverv Act and Xon-Recove1y Act Grants.·· These reports describe many of the
significant improvements in OJP"s monitoring and oversight of grants. and one concludes that
··o.JP has made significant improvements in its monitoring and oversight of grants, including
grants funded hy the Rccmcry Act_ .. .;
These reports also acknowledge the collaborative relationship that has developed between
OJP and the OIG in addressing grant management challenges. oJP·s improvements also have
'.'li!miannual Repon to ( 'ongri!.

Related Interests

S. Ocrober /, w.,0/0

,\larch 31. lOJ I.

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lhe llonorahlc Lamar Smith
P~tgc I wu
been highlighted in a recent National Aeronautical and Space Administration (NASA) OIG audit
on NASA's grants administration and management.•
We hope this in!t>nnation is hL'Ipf'ul. Pleased<> not hesitate· to contact this office if' we
ma: prtl\·idc additional assistance regarding this or any other matt!.!r.
Sincerely.

Jv1

-\

G-_}\

Ronald Weich
Assistant Attorney General
Enclosures
cc:

The Honorable John Conyers. Jr.
Ranking Minority Member

.VASA's (jranl Administration und Munag~tment, Audit Report 16-11-026. Septemher 12. 2011
( hi!JL_. l_!ig_nuSiJ,~u\:_ t~uilfl1__!_fJUJrL'._Ll_-:-'!! I j(i- ~ 1-0;,__fy}_sjjj pgs iv and f.l
1

U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General

Washington. D.C 20530

APR 0 9 2012

The Honorable Lamar Smith
Chairman
Committee on the Judiciary
U.S. House ofRepresentatives
Washington, D.C. 20515

Dear Mr. Chairman:
This responds to your letter to the Attorney General dated February 27, 2012, requesting
information on the Department of Justice's approach to enforcing the Civil Rights of
Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997. Specifically, you request (I) copies of
all CRIPA investigative findings letters from January I, 2009 to the present, (2) information on
all cases in which the DOJ has intervened, pursuant to our CRIPA authority, from January I,
2009 to the present, (3) the number of CRIPA investigations instituted, per year, since 2006, and
(4) copies of the last three annual reports sent to Congress on CRIPA enforcement.
We have enclosed a list ofCRIPA investigative findings letters from January I, 2009 to
the present, all of which are available at our website at
hnp://www.justice.gov/crt/about/soVfindsettle.phn#CRIPA. Regarding your second request, the
Department did not intervene in any private suits pursuant to our CRIP A authority from January
I, 2009 to the present. Regarding your third request, we have provided a table listing (a) the
number of CRIPA investigations opened (officially noticed), (b) the number of CRIPA findings
letters issued, (c) and the number of actions commenced, by calendar year since 2006. We have
included a footnote for each action cnmmenoed that identifies whether it was filed
simultaneously with a settlement agreement, as are most of our cases. Lastly, we have included
hard copies of the last three annual reports-2011, 2010, 2009---.<ent to Congress on CRIPA

enforcement

The Honorable Lamar Smith
Page Two
We hope this infonnation 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
Enclosures
cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

U.S. Department of Justice
Office of Legislative Affairs

Office of the Assismnt Attorney General

Washington, D.C. 20530

MAR 13

201~

The Honorable Lamar Smith
Chairman
Committee on the Judiciacy
U.S. House ofRepresentatives
Washington, D.C. 20515
Dear Mr. Chairman:

This responds to your letter to the Attorney General dated Januacy 26, 2012, regarding an
ordinance recently enacted in Cook County, Ulinois that allegedly permits local law enforcement
officials to release illegal aliens. You have expressed concern that this ordinance causes local
officials to ignore immigration detainers from the U.S. Immigration and Customs Enforcement
(ICE) requesting that those individuals continue to be detained.
As you are aware, ICE has the lead role in managing relationships with state and local law
enforcement entities regarding imntigration detainers. ICE Director Jobn Morton wrote to the
President of the Cook County Board of Commissioners on Januacy 4, 20 12, expressing serious
concern about this matter, and it is our understanding that ICE and DHS officials have been in
contact with Cook County officials regarding this matter since then
We hope that 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

cc:

The Honorable Jobn Conyers, Jr.
Ranking Minority Member

U.S. Department of Justice
Office of Legislative Affairs

Oftlcc of the Assi!ltant Attorney General

Wcuhington. D.C. 10530

March 12, 2012

The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515

Dear Mr. Chairman:
This responds to your letter to the Attorney General dated Janoary 26, 2012, inquiring
about an article posted on the website "Pajamas Media" alleging that a Department employee
lied to investigators from the Office of the Inspector General (OIG).
Since the Inspector General's inquiry into the Civil Rights Division's Voting Section is
ongoing. we are not in a position to respond to the specific allegations made in the article. At
this time, we can confmn that the employee named in your letter currently serves as an analyst in
the Voting Section of the Department's Civil Rights Division. In response to your question
about instaoces of employees lying to the Inspector General, we are advised that individual OIG
reports may indicate the IG's view that an employee has lied during an investigation, but the
Department does not track that type of information.
We bope that this information is belpful. 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

cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

U.S. Department of Justi<e
Office of Legislative Affairs

Office of the Assistant Attorn~ General

Ww/Ungtott. D.C. 20530

March 7, 2012

The Honorable Lamar Smith
Chainnan
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515

Dear Mr. Chainnan:
This responds to your September 21, 20 II request for the travel records of the
Department's Assistant Attorneys General of the Litigating Divisions.
Enclosed is the temporary duty travel data for travel performed by the Assistant
Attorneys General (AAG) in the Department's litigating divisions to include the Civil Division,
Antitrust Division, Civil Rights Division, Tax Division, Environment and Natural Resources
Divisi9n, and the Criminal Division, from January 2001 through September 21,2011. It includes
the traveler name, travel dates, travel location, travel purpose, and cost to the taxpayer. Also
enclosed per your request are new and revised Department procedures for employee travel
promulgated since January 20, 2009.
Senior officials must travel to fulfill the Department's law enforcement and criminal
justice system mission. The frequency of travel within the litigating divisions varies depending
on each division's caseload, programs, and policy initiatives ongoing at any given time. Travel
may be for operational purposes, such as settlement negotiations, court appearances, or to
support the government's response in critical situations sucb as the Deepwater Horizon Oil Spill.
Travel also may be necessary for meetings with state and local stakeholders and our justice
system counterparts in both the United States and abrosd to coordinate critical policies. Further,
spesking engagements with bar associations, law schools, and industry groups enable the
Department to communicste important initiatives, such as health care fraud, mortgage fraud, and
white collar crime litigation strategies. The Assistant Attorneys General also travel to coordinste
the work of their divisions with U.S. Attorneys offices in tbe field. Regardless of sdministration,
official travel serves to communicate, coordinate, and fulfill the Department's mission priorities.
The information set forth in the enclosures regarding travel dates, locations, and cost data
were obtained from tbe Department's accounting system, tbe Financial Management Information
System (FMIS). Trip purpose was provided by eru:h of the litigating divisions. In limited cases,
particularly with regard to prior sdministration trips, tbe purpose of the travel we are providing

The Honorable Lamar Smith
Page2

may be summary in nature, e.g. "field visit" or "conference." Given the passage of time, those
swnmary entries were the only information cWTently available.
In reviewing the enclosed data, please be aware that many airfares increased over the
time period covered by your request. As a general observation, we note that the average of the
GSA rouod trip contract fares was $526 in Fiscal Year 2002, $640 in FY 2006, and $996 in
2011. In a briefaarnpling of city-to-city comparisons, we saw that the 2011 fares were higher
than the 200 I fares in all ten cities we aarnpled. Tbe change in airfares over time is a factor to be
considered in any comparisons drawo from the enclosed data.

Please note that pursuant to 31 U.S.C. Section 1353 agencies may accept reimbursement
from a non-Federal source for travel expenses incurred bY an employee for attendance at
meetings, conferences, speaking engagements and similar functions. Prior ethics approval is
required, and twice yearly agencies report the expenses that are accepted to the U.S. Office of
Government Ethics. A limited number of AAG trips included such reimbursements, and where
this occurred, amounts showo are the costs borne bY the Department
The following information is enclosed:
Enclosure I: Travel data of the litigating division Assistant Attorneys General and
Acting Assistant Attorneys General during the Ohama Administration (from January 20,
2009 through the September 21, 2011 date of your request);
Enclosure2: Travel data of the litigating division Assistant Attorneys General and Acting
Assistant Attorneys General during the prior Administration;
Enclosure 3: Assistant Attorneys General and Acting Assistant Attorneys General names
and tenure dates from January 2001 through the dale of your request, and
Enclosure 4: New or revised Department procedures relaled to employee travel
promulgaled since January 20, 2009. Regarding the requested travel policies, please note
we have not included routine updates to the Federal Travel Regulation (FTR) provided by
the General Services Administration. Enclosed policies include:




May 4, 2009- Deputy Attorney General memorandum Co'!ference and Premium
CltiJis Travel Expenditures.
October I, 2009- Justice Management Division Finance Staff issued Policy and
Procedures Bulletin 10.()2 Deductions from Per Diem for Meals Provided by the
Government.
March 18, 20 I 0 - Assistant Attorney General for Administration memorandum
Lodging Tax Exemptions.
Angust 9, 20 I 0 - Assistant Attorney General for Administration memorandum
Common Efficiencies and Cost Savings.
December 10,2010- Director, Finance Staff, Justice Management Division
memorandum Permissive Use ofNon-Contract Airfares. Enclosed in that

The Honorable Lamar Smith
Page3




directive was Policy and Procedures Bulletin 01-02, October 2000, Use of
Contract Airfares.
January 21,2011- Attorney General memorandum Temporary Freeze of Hiring
and Non-Essential Spending.
May 27,2011- Director, Finance Staff, Justice Management Division
memorandum regarding Non-Contract Airfares and Changes to the On-line
Booking Engine for Air Travel. Enclosed in that directive was the E-Travel
Online Booking Engine "Get17rere" Quick Start Guide: How to Reserve a Flight
May 25, 2011.
August 24, 20 II - Deputy Attorney General memorandum Department ofJustice
Order 2200.111, DOJ Travel Regula/Ions. Transmittal memo and accompanying
DOJ Order.
October 5, 20 II - Deputy Attorney General memorandum Continued Restrictions
on Non-Essential Spending.
November 21, 20 II - Deputy Attorney General memorandum Cost Contrals and
Eucutive Order on Promoting Efficient Spending.

We bope this information is helpful. Please do not hesitate to contact this office if we
may provide additiooal assistance regarding this or any other matter.

Rooald Weich
Assistant Attorney General
Enclosures (5)
cc:

The Honorable Jobo Conyers, Jr.

U.S. Department of Justice
Office of Legislative Affairs

Office of the Assistant Attorney General

WashingtOII, D.C. 20530

MAR 0 1 2012

The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515

Dear Chairman Smith:
This responds to your letter to Attorney General Holder dated January 25,2012,
regarding the recent settlement in United States v. Countrywide Financial C01poraJion, CV Ill 0540 (C.D. Cal.). Your letter requests additioaal information about the administration of the
settlement fund established to compensate victims of the discriminatory lending practices alleged
in the complaint.
The Department's complaint alleges that Countrywide engaged in a systemic pattern or
practice of discrimination in violation of the Fair Housing Act (FHA), as amended, 42 U.S.C. §§
3601 el seq., and the Equal Credit Opportunity Act (ECOA), 15 U.S.C. §§ 1691, et seq. We filed
the complaint, together with the proposed consent order, on December 21, 2011, and the district
court approved and entered the consent order on December 28. The consent order requires the
defendants to establish a $335 million settlement fund. The purpose of this fund is to
compensate the more than 200,000 African-American and Hispanic borrowers who were victims
of the alleged discrimination. The settlement fund also will compensate individuals who were
victims of the marital status discrimination alleged in our complaiot.
The establishment of such a fund as part of the settlement of complaints filed under the
Fair Housing and Equal Credit Opportunity Acts, as well as other civil rights statutes, has been a
long-standing practice of the Department, and is used as a mechanism for locating and
compensating as many victims of the alleged discriminatory practices as possible. The
settlement fund established to compensate victims in the Countrywide case will be administered
by an independent Settlement Administrator under a contract with the defendants. The
Countrywide consent order is available at
http://www.justice.gov/crt/aboutlhceldocumentslcountrvwidesettle.ndf.

The Honorable Lamar S. Smith
Page2
Your letter specifically seeks information about bow the Department will detennine who
is an aggrieved person eligible to receive compensation and bow much compensation each
aggrieved person will receive. Your letter also expresses concern about the possibility of fraud
in the claims process.
Aggrieved persons or applicants are persons wbo suffered damages as a result of
violations of the FHA, 42 U.S.C. §3602(i), and ECOA, 15 U.S.C. §169l(e). ln this case,
aggrieved persons are qualified borrowers wbo paid more for their loans because of illegal
discrimination based on race or national origin. Under the terms of the consent order, the
Department will provide information to the Settlement Administrator identifying aggrieved
persons based on loan-specific infOrmation obtained from the defendants. The Settlement
Administrator will then attempt to locate and contact those borrowers. Once these aggrieved
persons are located and contacted, the Department will detennine appropriate compensation
amounts for those borrowers based on loan·speciflc infonnation. After those detenninations, the
Settlement Administrator will contact the aggrieved persons again to obtain the necessary
releases so that payments can be distributed. The Department will work with the defendants and
the Settlement Administrator to ensure that procedures are in place to detect and report any
potential fraud or loan scams related to this process.
The consent order further provides that if any money remains in the settlement fund after
all identified aggrieved persons have been compensated, defendants will select recipient
organizations fur those funds and the amount each is to receive. Pursuant to Para.l5 of the
consent order, qualified organizations that may receive such funds are organizations that
"provide services including credit and housing counseling (including assistance in obtaining loan
modification and preventing foreclosure), financial literacy, and other related programs targeted
at African-American and Hispanic potential and former homeowners in communities where the
complaint alleges significant discrimination occurred against [such] borrowers." The consent
order further provides that although the recipients of such funds must not be related to Bank of
America, they may include nonprofit organizations, of the type specified, to which Bank of
America previously has provided financial support. Once the defendants have selected the
organizations, the consent order requires that defeudartts "consult with and obtain the nonobjection of the United States ... and the parties shall obtain the Court's approval." This type of
provision has been used by the Department in settling civil rights cases under a variety of statutes
for many years.

Your letter expresses concerns about how organizations will be selected as potential
recipients of any remainder funds in the Countrywide settlement and whether organizations with
a "political ntission" would qualify. As noted above, the consent order specifies that only
organizations which provide services related to consumer financial education, counseling. and
foreclosure prevention would qualify as recipients. Additionally, the consent decree provides
that the defendants will select the organizations to receive any such funds and the amount each
organization is to receive in the first instance and will then consult with the government to
determine if there is any o~ection. The parties must obtain court approval of the agreed-upon
recommendations before any funds may be distributed to the qualified orgartizations selected by
the defendants. The requirement of court approval provides an additional safeguard to prevent

The Honorable Lamar S. Smith
Page3
any inappropriate selection of recipient organizations. Thus, the Department bas no unilateral
ability to select or distribute funds to any organization under the consent order. Finally, to
ensure that the funds are spent appropriately, the consent order obligates the defendants to
require each fund recipient to report to the parties within one year on how it bas utilized those
funds.
We hope this information is helpful. Please do not hesitate to contact this office if we
may provide additional assistsnce regarding this or any other matter.
Sincerely,

rvu.J,
Ronald Weich
Assistant Attorney General
cc:

The Honorable John Cottyers, Jr.
Ranking Minority Member

U.S. Department of Justice
Office of Legislative Affairs

Office of the Assistant Attorney General

Washington, D.C. 20530

February 13, 2012

The Honorable Lamar Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515
Dear Chairman Smith:
This responds to your letter to the Attorney General dated January 24, 2012, which
requested documents and other information regarding the Department's role in assessing the
legal issues relating to the President's recent recess appointments. We hope that the information
setforth below is helpful to your understanding of the Department's position on those issues.
On January 12, 2012, the Department's Office ofLegal Counsel (OLC) published on its
website the enclosed opinion for the Counsel to the President, dated January 6, 2012, and entitled
Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro
Forma Sessions. The opinion memorializes and elaborates on oral advice OLC provided to the
White House Counsel prior to the recess appointments cited in your letter. OLC had advised the
Counsel that the President has the authority under the Recess Appointments Clause, U.S. Const.
art. II, § 2, cl. 3, to make recess appointments during the intrasession recess from January 3,
2012, to January 23,2012, notwithstanding the convening of periodic pro forma Senate sessions
at which no business was to be conducted. The OLC opinion and the prior oral advice referred
to in the opinion did not address the particular appointments of officials to the National Labor
Relations Board or the Consumer Financial Protection Bureau.
As explained in the OLC opinion, prior Attorney General and OLC opinions, presidential
practice, and judicial precedent all establish that the President can make recess appointments
during an intrasession recess of 20 days, the length of the recess at issue. The OLC opinion goes
on to explain that pro forma sessions of the Senate, where no business is to be conducted, do not
interrupt the intrasession recess in a manner that would preclude the President from determining
that the Senate remains unavailable throughout the recess to perform its advise-and-consent
function. Thus, it concludes that the President has the authority under the Recess Appointments
Clause to make appointments during an intrasession recess otherwise of sufficient length to
support recess appointments under the Clause, even if that recess is punctuated by pro forma
sessions. In 20 I 0, two former Bush Administration OLC officials expressed the same

The Honorable Lamar Smith
Page Two
conclusion. See Steven G. Bradbury & John P. Elwood Call the Senate's Bluff on Recess
Appointments, Washington Post, Oct 15,2010, available at http://www.washingtonpost.com/
wpcdyn/content/article/20 I 011 0/14/AR20 I 0 I0 140544l.html. They stated that "the Senate
cannot constitutionally thwart the president's recess appointment power through pro forma
sessions." Jd
The OLC opinion neither withdraws nor amends any prior opinion by the Attorney
General or OLC. On the contrary, it applies the legal framewo!K established by earlier opinions
to the previously unaddressed question of the legal impact of pro forma sessions during a recess.
For example, Attorney General Daugherty concluded in 1921 that recess appointments can be
made during significant intrasession adjournments. OLC relied on Attorney General
Daugherty's opinion for the fundamental point supporting the conclusion that pro forma sessions
do not preclude the President's exercise of his authority to make recess appointments: that
during a recess punctuated by pro forma sessions, the Senate is unavailable to give advice and
consent. Describing the Daugherty opinion as "seminal," the OLC opinion relies on his
statement that "the real question ... is whether in a practical sense the Senate is in session so
that its advice and consent can be obtained." Executive Power-Recess Appointments, 33 Op.
Att'y Gen. 20,21-22 (1921) (second emphasis added); see also id at 25 ("Is the Senate absent
so ihat it can not receive communications from the President or participate as a body in making
appointments?"). Subsequent opinions likewise concluded that in determining whether
an intrasession adjournment constitutes a recess in the constitutional sense, the touchstone is
"its practical effect: viz., whether or not the Senate is capable of exercising its constitutional
jUnction of advising and consenting to executive nominations." Recess Appointments, 41 Op.
Att'y Gen. 463, 467 (1960) (emphasis added); accord lntrasession Recess Appointments, 13
Op. O.L.C. 271,272 (1989). The January 6 OLC opinion thus applies principles long accepted
by the Executive Branch.
Your letter also requested copies of Department documents relating to the OLC opinion
or the recess appointments ofNLRB and CFPB officials. We are enclosing copies of all of the
published Attorney General and OLC opinions that are cited in the OLC opinion. The Executive
Branch has substantial confidentiality interests in the remaining documents that may be
responsive to your requests. In addition to the confidentiality interests that pertain to all
unpublished OLC advice, there is in this circumstance a heightened confidentiality interest in
such advice because the responsive OLC documents concern the President's discharge of his
constitutional responsibilities. Disclosure of these deliberative materials could chill the candid
exchange of views that is essential to sound decision making by the President and senior
Executive Branch officials and inhibit them from seeking legal advice from OLC in the future.
Your request also covers additional attorney wo!K product and attorney-client communications
regarding litigation challenging these recess appointments. The Executive Branch likewise has
substantial confidentiality interests with respect to those documents.

The Honorable Lamar Smith
Page Three
We hope this information is helpful. Please do not hesitate to contact this office if we
may provide further assistance regarding this or any other matter.
Sincerely,

d~A~~

Deputy Assistant Attorney General
Enclosures
cc:

The Honorable John Conyers, Jr.
Ranking Member

U.S. Department of Justice

Office of Legislative Affirirs

Office of the Assistaot Attorney GcncraJ.

Washington. D.C 20530

FEB 0 I ZOI2
The Honorable Lamar Smith

Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This responds to your letter to the Attorney General dated November 18,2011, in which
you requested additional infonnation pertaining to investigations of Immigration Judges
conducted by the Department of Justice's Office of Professional Responsibility (OPR) since
January 20, 2001. Your letter followed up on our August 12, 2011, letter to you in which we
provided certain infonnation and documents in response to your earlier letter of May 9, 2011.
Our responses to the three specific questions posed in your most recent letter are set forth

below.
Question 1:

How many instances has OPR investigated Immigration Judges based on
dbagreements over an interpretstion of the law by the Immip-ation Judge
found not to be reasonable by OPR since January 20, 2001?

There are no instances, since January 20, 2001, in which OPR investigated an
Immigration Judge based upon a disagreement over an interpretation of law that OPR found not
to be reasonable. Since January 20, 2001, OPR has conduc1ed two investigations based upon
serious judicial criticism concerning an interpretation of law by an Immigration Judge or a
member of the Board of Immigration Appeals (BIA). In each ofthose instances, OPR disagreed
with the court of appeals' criticism and, indeed, concluded that the decision reached by the
Immigration Judges and the BlA members did not coustitute an unreasonable intetpretation of
the law. In responding to your May 9, 20llletter, we provided you with redacted copies of these
two OPR reports of investigation.

The remainder ofOPR's investigations concerning Immigration Judges are unrelated to
the issue highlighted in your letter, i.e., what you have characterized as a disagreement over the
inteipretation of the law. As noted in our August 12, 2011 letter, those other matters include
making ethnic or racial slurs; making obscene comments off the record; using profanity; verbally
accosting parties and lawyers; engaging in improper ex parte communications; disregarding

The Honorable Lamar S. Smith
Page Two
procedural regulations; materially misstating the evidentiary record; improperly assisting a
respondent in presenting their case; falsely certifying to maintaining an active law license; and
conflicts of interest.

Question 2:

How iJ OPR better qlllllifled than an Immigration Judge to determine
whether an interpretation of immigration law by the Immigration Judge Is
reasonable?

Immigration Judges are also Department of Justice attorneys. Tbe professional conduct
of all Department attorneys falls withio the investigative jurisdiction of OPR. In order to cany
out its mission, OPR employs experienced attorneys who routinely investigate professional
misconduct allegations in complex matters. Many ofOPR's attorneys have particular expertise
in specialized areas of the law such as immigration law, and case assigmnents within OPR reflect
that expertise. OPR recognizes that immigration Jaw is a complex and specialized area of the
law. As a result, over the past several years, OPR bas assigned immigration matters to a select
team of attorneys.

Question 3:

Information coneeming each cue that OPR bas investigated.

It is worth noting that most perfonnance and conduct issues involving Immigration
Judges do not come to the attention of or get investigated by OPR. Within the Executive Office
for Immigration Review (EOIR), the Office of the Chieflmmigration Judge (OCU) maintains a
system for receiving and processing complaints against Immigration Judges, including serious
judicial criticism by a circuit court. Only a very small number of complaints filed with OCU
result in OPR referrals or investigations. For instance, in FY 2010, EOIR only referred
complaints involving two Immigration Judges to OPR. Similarly, in FY 201 I, EO!R only
referred one complaint against an Immigration Judge to OPR.
As noted above, OPR bas conducted two investigations since January 20, 2001 based
upon serious judicial criticism concerning an interpJetation of the law by an Immigration Judge
or a member of the BIA. Neither one of these cases resulted in a fioding of professional
misconduct and, thus, no disciplinary action was taken.
As you are aware, OPR reports are rarely disclosed outside the Department because they
usnally contain information that implicates significant individnal privacy interests or reveals
internal deliberations that the Department bas substantial confidentiality interests in protecting.
Department employees who are investigated or who participate in OPR investigations have
reasonable expectations that their identities will not be revealed. Wbere, as here, OPR found that
the Immigration Judges and BIA members who were investigated did not commit professional
misconduct or exercise poor judgment, these privacy interests are particularly substantial. While
we appreciate your suggestions that we disclose the reports with only the identities of the

The Honorable Lamar Smith
Page Three
Immigration Judges or the case citations to the appellate decisions redacted, we have concluded
1hat these redactions would not be sufficient to protect the identities of the individuals involved.
The Department also has significant confidentiality interests in the internal deliberations
contained in OPR reports. We believe that the disclosure of those deliberations, including
adVice, =mmendations, assessments of evidence and discussions of!egal issues would chill
the candor 1hat is essential to OPR reports. "Human experience teaches that those who expect
public dissemination of their remarks may well temper candor with a concern fur appearances
and for their own interests to the detriment of the decisionrnaking process." United States v.
Nixon, 418 U.S. 683,705 (1974). Similarly, we believe that the disclosure of investigative
materials developed during the OPR investigative process, including interview transeripts and
witness statements, would discourage individuals from providing candid and complete
infonnation in future investigations. As explained in our August 12• letter, this, in tum, would
adversely affect OPR's ability to investigate alleged misconduct by Department attorneys.
Although we are not providing the requested documents, we note 1hat the two redacted OPR
reports and other documents previously provided to the Committee set fortb the standards and
procedures OPR applies in its investigations of Department attorneys, which we understand from
your letter to be an important part of your inquiry.
In an effort to accommodate the Committee's oversight needs for information in this
matter, we would like to offer a briefing by senior Department officials, which we think would be
helpful in addressing your concerns about OPR's investigations of Immigration Judges and BIA
members.
We hope that this infurmation is helpfuL Please do not hesitate to contact this office if
we can provide additional assistance regarding this or any other matter.

Sincerely,

tMLAJ\

Ronald Weich
Assistant Attorney General
cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

lJ.S. Department of Justice
Office of Legislative Affairs

January 12, 2012

The Honorable Lamar Smith
Chairman. Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515
Dear Chainnan Smith:
This responds to your letter to the Attorney General doted Septemher 19, 2011, regarding
the Solyndra bankruptcy case. We apologize for our delay in responding to your letter. On
September 30, 20 II, the United States Trustee for Region 3 who has responsibility for
administration of the case filed a motion for the United States Trustee (UST) to appoint an
independent chapter 11 trustee to take control of the debtor corporation. A copy of the motion is
enclosed.
At a hearing on October 17, 2011, the bankruptcy court denied the UST's motion
because. among other things, Solyndra's Chief Executive OtTtcer resigned after the UST's
motion was filed and the company subsequently requested permission to hire a Chief
Restructuring Officer to operate the company. The court concluded that Solyndra's actions
represented a ''good compromise.''
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
Enclosure
cc:

The Honorable John Conyers. Jr.

U.S. Department of Justiee
Office of Legislative Affairs

Office of the Assistant Attorney General

Warhingron, D.C. 20530

January 6, 2012

The Honorable Lamar S. Smith
Chainnan
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515
Dear Mr. Chainnan:
This responds to your letter of December 13, 2011, which followed up on our previous
correspondence regarding your July 6, 2011 requcsta for documents and interviews you believe
relevant to the issue of whether Supreme Court Associate Justice Elena Kagan should recuse
herself from pending litigation challenging the Patient Protection and Affordable Care Act
(PPACA).
As we have stated in our prior letters, we have serious separation-of-powers concerns
regarding this congressional inquiry, which would circumvent the existing legal proeess
for recusal determinations in pending Supreme Court litigation by inquiring into the preconfmnation activities of a sitting Supreme Court Justice. We have previously informed
you that we are unwilling to participate in the inquiry because it poses an unaceeptable risk
of inappropriate encroachment upon the judicial bnsncb. We adhere to that position.
Your recent letters have made it clear that the Committee's inquiry is also hased on a
purpose that falls outside the scope of Congress's oversight authority. The Department has long
recognized, as it stated in an opinion issued during the Reagan Administration, that "Congress
may conduct investigations in order to obtain facts pertinent to possible legislation and in order
to evaluate the effectiveness of current laws." Scope of Congressional Oversight and
Investigative Power with Respect to the Executive Branch, 9 Op. O.L.C. 60,61 (1985). And
in numerous decisions, the Supreme Court has held that an oversight request must be for a
legislative purpose, i.e., to "obtain information in aid of the legislative function." McGrain v.
Daugherty, 273 U.S. 135, 176 (1927). See also, e.g., Eastland v. U.S. Servicemen's Fund, 421
U.S. 491, 504 n.15 (1975); Watkins v. United States, 354 U.S. 178, 187 (1957) (Congress's

The Honorable Lamar S. Smith
Page2
oversight activities must "be related to, and in furtherance of, a legitimate task of the Congress").
The Committee has shown over the cour.;e of its four letters to the Department on this
matter that its inquiry regarding Justice Kagan does not seek facts in aid of Congress's legitimate
legislative function, but instead seeks documents and information in order to influence a case
pending in the Supreme Court. Your most recent letter, dated December 13, observed that
"(t]he health care law being considered by the Court presents questions of singular constitutional
importance. Given such, the public has a right to know the extent of Justice Kagan's
involvement with this legislation as well as any previously stated legal opinions about the
legislation while she served as Solicitor General." That letter was of a piece with your prior
letters. For example, although your letter of November 22 asserted that your requests have been
"pursuant to the JudiciSiy Committee's oversight authority over the Department of Justice and
the Office of the Solicitor General," the very next sentence of the letter clearly ststed the nonlegislative purpose of the inquiry: "The results of that oversight would have a bearing on
whether Jtistice Kagan had a possible conflict of interest that might preclude her from
participating in litigation in the Supreme Court challenging the constitutionality ofPPACA due
to her involvement with this legislation while she was serving as the United States Solicitor
General." Similarly, your initial letter of July 6 stated that the request was prompted by
"questions ... about whether Justice Kagan's prior work on (PPACA] while serving as Solicitor
General should disqualify her from hearing challenges to its constitutionality."
Seeking infonmation for the purpose of affecting pending judicial matters is plainly
not a permissible objective of congressional oversight. Such a non-legislative purpose for a
congressional inquiry was ~ected by the Supreme Court in Sinclair v. United States, 279 U.S.
263, 295 (1929), where it stated that "Congress is without authority to compel disclosures for the
purpose of aiding the prosecution of pending suits." See also Barenblatt v. United States, 360
U.S. I09, 112 (1927) ("lacking the judicial power given to the JudiciSiy, Congress cannot inquire
into matters that are exclusively the concern of the Judiciary"); Kilburn v. Thompson, 103 U.S.
168, 192 (1881) ("The matter was still pending in a court, and what right had the Congress of the
United States to interfere with a suit pending in a court of competent jurisdiction?''). This is not
a situation in which Congress's effort to obtain information for a legitimate legislative purpose
would have the incidental effect of revealing information useful in pending litigation. Cj
Sinclair, 279 U.S. at 295. Rather, as the Committee's letters show, the Committee's only
purpose is to influence the pending litigation challenging the constitutionality ofPPACA.
Furthermore, the fact that this request was made "[o]n the[] behalf' of Members of
Congress who have submitted amicus briefs in the lower courts in support of the challenge to
PPACA now pending in the Supreme Court reinforces our conclusion that the purpose of the
request is to influence the outcome of the litigation by affecting the recusal decision of Justice
Kagan. Indeed, over two-thirds of the Members upon whose behalf you pursue this inquiry have
joined in submitting an amicus brief to the Supreme Court on this pending matter.
In short, we do not believe that this inquiry is within Congress's oversight authority
because the Committee's purpose of obtaining information in order to affect whether Justice
Kagan should recuse herself concerns a matter within the province of the Supreme Court, not
Congress. Accordingly, as we have previously stated, we regret that we cannot be of further

The Honorable Lamar S. Smith
Page3
assistance in this matter. Please do not hesitate to contact this office if we may provide

assistance regarding any other matter.
Sincerely,

(1Vlvv\
Ronald Weich
Assistant Attorney General
cc:

The Honorable John Conyers, Jr.
Ranking Minority Member


'

I

Office oflbe Assistant Attorney General

U.S. Department of Justice

Office of Legislative Affairs

WaJhingron. D.C. 10530

December 6, 20 I I
The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 205 IS
Dear Mr. Chairman:

This n:sponds to your letter of November 22, 2011, which followed up on our pn:vious
corn:spondence regarding your July 6, 2011 requests on behalf of other Members who asked you
to seek documents and other information about activities of Supreme Court Associate Justice

Elena Kagan while she served as Solicitor General of the United States. In your letter, you also
concurred with the November 18, 2011 n:quest made by Senators McConnell, Kyl, Grassley, and
Lee.
We believe that the questions you have raised are premised upon a selective reading of
documents that the Department has already released in response to Freedom of Information Act
(FOIA) requests. In fact, those documents are consistent with then-Solicitor General Kagan's
statements on this issue during the confinnation process. In addition, federal law provides a
process for recusal determinations in the context of litigation.
We have serious separation-of-powers concerns regarding a congressional inquiry that
aims to circumvent this existing legal process by inquiring into the pre-confinnation activities of
a sitting Supreme Court Justice. That is especially so in cormection with a pending case in which
many Members of Congress submitted amicus briefs in the lower courts. We are unaware of any
precedent for the Department to participate in such an inquiry, which poses an unacceptable risk
of inappropriate encroachment upon the judicial branch.
For the foregoing reasons, we regret that we cannot be of further assistance in this matter.
Please do not hesitate to contact this office if we may provide assistance regarding any other
matter.
Sincerely,

tJ\!\

0\

Ronald Weich
Assistant Attorney General

The Honorable Lamar S. Smith

Page Two

cc:

The Honorable John Conyers, Jr.

Ranking Minority Member

U.S. Department of Justiee
Office of Legislative Affairs

Office of the Assistant Attomcy General

Washington. D.C. 20530

December 5, 2011

The Honorable Lamar S. Smith
Cbairmao

Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515
Dear Mr. Chairman:
This responds to the portion of your letter to the Attorney General dated September 8,
20 II, which requested documents and other materials regarding the hiring practices of the
Department of Justice's Civil Rights Division since January 20, 2009. We are providing
substantial information on the Division's hiring practices in a separate letter, also dated today,
which responds to the other requests set forth in your letter, including requests 5, 6, 7, 8, and 9.
We forwarded your request for documents to the Civil Rights Division. In accordance
with your letter, the Division's search focused on documents and related materials regarding the
policies, practices, and guidance for the hiring of experienced career attorney applicants,
candidates for the Attorney General's Honors Program, and the Summer Law Intern Program,
("SLIP") for employment with the Civil Rights Division.
Enclosed are 1245 pages of documents responsive to your request, including Department
and Civil Rights Division internal memoranda, and training materials governing the evaluation,
selection, and hiring process for job applicants for the Department and the Division. In response
to your request, we are also providing copies of resumes of individual attorney applicants hired
by the Department to work in career positions in the Civil Rights Division from January 20, 2009
to the date of your letter. The majority of the resumes were released by the Department in May
in response to a Freedom of Information Act request. These resumes bear limited routine
redactions, such as personal addresses, non-public phone numbers, and other personal
information implicating individual privacy interests. Also, for the reasons set forth below, we
have redacted the names of Division attorneys involved in the selection process for these job
applicants. Moreover, in a few of the enclosed training "PowerPoint" presentations, there are
titles or labels iudicaring where a video clip was imbedded in the presentations or where the
PowerPoint presentation accompanied a video training. We are prepared to make those videos
available at the Department for review by Committee staff.

The Honorable Lamar S. Smith
Page2
We are not providing to the Committee copies of resumes of individuals who applied for
positions with the Civil Rights Division, but who were not extended an offer or who declined an
offer. Applicants who did not become employees of the Division, have reasonable expectations
of privacy with respect to their applications. It would not be possible to protect their
confidentiality interests through redactions because of the highly particularized and personal
nature of resumes. 1
Although we are not providing to the Committee the names of Department attorneys
involved in the hiring process, we have provided detailed infonnation about the role each type of
employee, including career Division attorneys, plays at each stage of the hiring process.
Identifying Division attorneys who participated in the hiring process could chill the candid
evaluation of job applications by those career reviewers, and discourage their participation in
future hiring efforts. lbis is particularly important because many of those involved were nonmanager career attorneys who volunteered to serve on hiring committees. Nor have we provided
the deliberative internal documents prepared by Division attorneys pertaining to their
consideration ofindividual applicants for positions with the Civil Rights Division. The Division
has advised that these· documents set forth internal deliberations and communications about the
merits of the candidates' applications.' Protecting the confidentiality of these internal
deliberations is important to preserving the candid exchange of views about applicants essential
to a sound hiring process.
We believe that the documents enclosed here will assist the Committee by providing a
full understanding of the Civil Rights Division's hiring practices and policies, and we would be
pleased to confer further with Committee staff about this request. Please do not hesitate to
contact this office if we can provide additional assistance regarding this or any other matter.
Sincerely,

1V\~
Ronald Weich
Assistant Attorney General
cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

1
Moreover, as disclosed in the spreadsheet we are enclosing in this production specifying the number of
applications received for CKbjob posting, the Civil Rights Division estimales there w«e over twelve thousand
applications received for positions with the Division during the specified time period. Eveo assuming that it would
be possible to appropriately redact these resumes while protecting these individual's privacy interests, identifylng,
reviewing, redacting. and other processing of these reswnes would be labor intensive and unn:asonably bmden the
limited resources of the Civil Rights Divislon, which, as ac:knowledged ln your letter, is already operating under
strict bud:f;etary constraints.
The Division also has advised that it would be extraordinarily time consuming to identify and collect
these records because they are not maintained ln any one location.

U.S. Department of Justice
Office of Legislative Affairs

Office oflhc Assistant Attorney General

Washington, D.C. 10530

December 5, 20 II
The Honorable Lamar S. Smith
Chairman
. Cnmrnittee on the Judiciary
U.S. House of Representatives
Washington, DC 20515
Dear Mr. Chairman:
This is in response to your letter to the Attorney General dated September 8, 20 II,
regarding hiring practices of the Department's Civil Rights Division (the "Division"). In a
separate letter, also dated today, we describe our production of documents responsive to your
request on this subject.
We are pleased to report that the Division has taken unprecedented steps over the last
three years to ensure that hiring of career employees is based on each individual's qualifications
for the job, divorced from improper political considerations, plain and simple. The Division has
instituted new policies founded on the fundaroeotal principle that merit, not political affiliation or
ideology, must guide hiring decisions fur career positions. We believe that the issuance and
implementation of these policies has addreased the well-documented politicization of career
hiring that took place in the Division during the last Administration, and we are proud of the
caliber of the Division's new employees.
In July 2008, the Department's Office of the Inspector General (OIG) and OffiCe of
Professional Responsibility (OPR) fouod that, during the previous Administration, the Division
improperly used political or ideological affiliations in assessing apVlicants for career attorney
positions in violation of both Departmental policy and federal law. The July 2008 Report
focused particular attention on the fact that between 2003 and 2006, Bradley Schlozman, who
was a Deputy (DAAG), and later a Principal Deputy (PDAAG) and Acting Assistant Attorney
General within the Division, considered political and ideological affiliations when hiring and
taking other personnel actions relating to career attorneys, in violation of Department policy and
federal law' The report made recommendations on how the Division should reform its hiring
process to ensure that such illegal and improper practices could not again occur.
1
U.S. Department of Justice, Office oftbe lnsp«tor OeneraVOfftcc of Professional Responsibility, "An
lnvestigation of Allegations of Politicized Hiring and Other lmproper Personnel Actions in the Civil Rights
Division" (July2, 2008) ("July 2008 Report").
2
/dat64.

The Honorable Lamar S. Smith
Page 2

In 2009, the Division not only implemented the OIG/OPR recommendations, but also
took substantial additional steps to elintinate the likelihood that improper considerations could
again play a role in the hiring process for career attorney positions. Until the improper conduct
described above occurred, merit had been the touchstone of the hiring process for career
professionals in the Civil Rights Division for decades- through both Republican and Democratic
Administrations. Merit is once again the guiding principle of the Division's hiring process and
selection criteria. Determinations of merit. of course, include consideration of experience in the
relevant field. For this reason, many of the Division's hires have civil rights experience, which
is directly relevant to the work they would be expected to do in the Civil Rights Division.
To fully respond to your letter, which is primarily based on blog postings wrinen by
fonner employees of the Division.' and to clarify that die concerns expresaed in your letter are
entirely unfounded, we respond below to each of the above points in some detail. First, we
describe the improper hiring practices that took place during the last Administration and
prompted corrective action in this Adntinistration. We then describe the policies put into place
in this Administration, with respect to both to the hiring process and the criteria that are treated
as permissible considerations in hiring career attorneys. Last, we address the unsubstantiated
suggestion that consideration of job-related experience is serving as a proxy for hiring on the
basis of political affiliation or ideology.
The discussion below responds to the questions 5-9 in your !coer. Questions l-4 request
documents and other materials and are addressed in the accompanying letter addressing our
response to your document request; all of the internal documents and memorandum referenced
below are being provided to your office in response to your request for information.
I.

Hiring Practices Between 2002-2008

The July 2008 OIG/OPR report found that beginning in 2002,4 the political appointees
in the Office of the Assistant Attorney General for Civil Rights ("OAAG" or "front office")
revised the written policies governing the hiring process for experienced attorneys: the process
was centralized, and primary responsibility for decision-making was shifted from the Section
Chiefs- who are career employees- to the political appointees in the OAAG. Under those new
written policies, the DAAGs or their front office designees reviewed the applications, deterntined
which applicants should be interviewed, and then forwarded all of the applications to the Section
Chiefs. The Section Chief then interviewed the applicants identified by the DAAGs, and, in
some cases, was perntitted to identify and interview other applicants for further consideration.
The Section Chief then made a hiring recommendation to the DAAG; the DAAG in tum
forwarded the Section Chiefs and the DAAG's own recommendations to the AAG for approval.
~ Mern. from D. Greene to Section Chiefs re: New Attorney Hiring Process, Feb. 25, 2002,
1
One of these fonner employees, who left ihe Division in January 2006, worked in the Office of the
Assistant Attorney General while the illegal hiring practices documented in the July 2008 Report took place. This
individual declined to cooperate with the OPRIOIG investigation.
4
Prior to 2002, mosl non-manager experienced attorneys were interviewed and hired at the Section Chief
level, subject to approval by the OAAG.

The Honorable Lamar S. Smith
Page3
which was issued at the direction of former AAG R. Boyd. In 2003, that process was modified
further and Section Chiefs were permitted to review applications in the Human Resources office
only; they were not provided copies of the application materials. See Mern. from former AAG
R. Alexander Acosta to Section Chiefs re: Attorney Hiring Process, Dec. I, 2003.
In addition to documenting the shift of control over the hiring process from career
managers to political appointees, the July 2008 Report included a number of specific findings of
improper consideration of political and ideological affiliations in hiring decisions. Specifically,
the July 2008 Report found that Mr. Schlozman actively sought and hired candidates with
conservative political or ideological affiliations who rarely had any civil rights background,
rarely expressed any interest in civil rights enforcement, and had little or no relevant work
experience. In-some cases, newly hired attorneys would appear on a Section roster having been
hired without any inVolvement by the Section Chief in the hiring process. In numerous e-mails,
Mr. Schlozman expressly referenced the political or ideological affiliations of applicants.' See
July 2008 Report ot 14 35.
The Report also included findings that, although the extent to which the Section Chiefs
were involved in the hiring process varied among the Division's sections, the Section Chiefs of
many sections were effectively excluded from the decision-making process for hiring career
attorneys for their sections. Mr. Schlozman often conducted interviews himself; Section Chiefs
were given little notice of interviews and discouraged from asking questions during interviews;
Section Chiefs were denied access to information about the full pool of applicants; and the
assessments and recommendations of Section Chiefs were ignored, as were their objections to
the hiring of several attorneys on the grounds that the attorneys were unqualified or had been
fired from other jobs. See July 2008 Report at 14-35.

We are concerned that your letter appears to minimize the gravity of the behavior
documented in the July 2008 Report and elsewhere. The improper consideration of political or
ideological affiliation in hiring and other personnel decisions in the Civil Rights Division during
this time period was not, as your letter states, limited to the misconduct of a ''single specific
hiring manager," namely Mr. Schlozman. Although the July 2008 Report's findings focused on
his misconduct, the Report further concluded that several other political appointees, including
two AAGs and two Principal DAAGs, had knowledge or some indication of Mr. Schlozman's
improper consideration of political and ideological affiliations and failed to take action to ensure
that hiring decisions were consistent with federal law and Department policy. See July 2008
Report at 45-52. Moreover, we do not believe the Report supports the conclusion set out in your
letter that, except for Mr. Schlozman's hires, there was a "republican-to-democrat hiring split
5
Specifically, the July 2008 Report included findings, based on direct evidence, thai Mr. Schlozman
favored applicants with conservative political or ideological affiliations, whom he referred to as ''real Americans,"
''right-thinking Americans" or members of "the team," and disfavored applicants witb civil rights or hWIUlD rights
experience whom he considered to be "liberal." It was documented that Mr. Schlozman wrote: "this has lib written
all over it,'' "conservative?" and .. Unfortunately I have an interview at I with some lefty wbo we'll never hire but
I'm extending a courtesy interview as a favor." In an e-mail to an attorney hired by Mr. Schlozman who commented
that his ..office is even next to a Federalist S<x:iety member," Mr. Scb.lozman responded, "Just between you and me,
we hired another member of 'the team' yesterday. And still another ideological comrade will be staning in one
month. So we are making progress." See July 2008 OIG Report at 14-35.

The Honorable Lamar S. Smith
Page4
that was closer to 50-50." Of the 13 hires (out of 112) during the period in question that were
not attributed to Mr. Schlozman, four were identified as conservative, three as liberal, and six as
unknown. In addition, improper hiring practices were not limited to the Civil Rights Division
during this time period. See OIG/OPR Report, An Investigation of Allegations of Politicized
Hiring by Monica Goodling and Other Staff in the Office of the Attorney General, July 28, 2008;
OIG/OPR Report, An Investigation of Allegations of Politicized Hiring in the Department of
Justice Honors Program and Summer Law Intern Program, June 24, 2008.
In the wake of substantial media attention to the politicization of the hiring process, in
June 2007, then-Assistant Attorney General for Civil Rights Wan Kim issued a memorandum
stating that personnel decisions within the Division were required to comport with applicable law
and that "there will be no discrimination based on ... political affiliation.". See Mem. from
AAG W. Kiin to Division Employees re: Guidance on Personnel Matters, June 29,2007. Acting
AAG Grace Chung Becker issued a similar memorandum in August 2008.
II.

Hiring Practices Beginning in 2009

Based on the investigation summarized in the July 2008 Report, OIG and OPR
recommended that the Division take a number of steps to "help ensure that such conduct does not
occur in the future," inclnding providing regular training on merit system principles and
prohibited personnel practices to supervisors and personnel with a role in hiring career
employees; issuing periodic statements to all employees about what constitutes prohibited
personnel practices; reaffirming that the Departmen~ as an employer, is committed to
compliance with all laws, regulations and policies; and providing information about how
employees can report violations. See July 2008 Report at 64-65.
Beginning in 2009, the Civil Rights Division not only implemented the recommendations
set forth in the July 2008 Report, but also took additional concrete actions, as set forth below, to
insulate the hiring process from improper political considerations and to ensure that career staff,
whatever the political or ideological perspectives of the governing Administration, are selected
based on qnaliftcations and without regard to political affiliation.
To help guide the formulation of these policies, in 2009, the Division convened a
Working Group comprised of the career Section Chief or a career Deputy Chief from each of the
Division· s sections, the Director of the Division's Professional Development Office, the
Division's Human Resoun:es Officer and the Division's employment counsel. The Working
Group was taaked with, among other things, reviewing the policies and practices for hiring
experienced attorneys for career positions in the Division and recommending changes in those
policies and practices, particularly in light of the findings and recommendations in the July 2008
Report. In September 2009, the Working Group submitted to the Acting AAG recommendations
for written policies and processes governing the hiring of experienced attorneys and attorney
promotions, which reflected the input of the Working Group and all Division Section Chiefs.
These recommendations were based in large part on the general recommendations of the
July 2008 Report and the specific recommendations of this working group of career Division

The Honorable Lamar S. Smith
PageS
managers. Shortly after his conf111Dation and before the Division began a hiring cycle to fill
more than 100 positions, Assistant Attorney General Thomas E. Perez acted on those
recommendations and issued a series of written policies designed to restore credibility,
transparency and fairness to the process used for hiring career attorneys. 6 Each of these reforms
is rooted in the recommendations made in the July 2008 Report.
These new written policies were posted publicly on the Division's website,' and provide
specific guidance to supervisors and employees involved in the hiring process about merit
system princi pies and prohibited personnel practices. Integral to the new process, the Division
each year issues a written policy statement to all employees reiterating the AAG's commitment
to ensuring that all personnel decisions are consistent with applicable law and Department
policies, including an express statement that consideration of political affiliation, and using
ideological affiliation as a proxy for determining political affiliation, are strictly prohibited.'
The fundamental principle animating these new policies is that merit, not political
affiliation or ideology, must guide hiring decisions for career positions. These written policies
and guidance memoranda include the following core safeguards for hiring experienced, nonmanagerial, attomeys: 9

Shilling primary decision-making for hiring these attorneys back to the career Section
Chiefs who supervise the day-to-day work of the sections, including creating a process
whereby:

~ Mem. from AAG T, Perez 10 AU CRT Employees re; Civil Rights Division Experienced Attorney
Hiring Process, Dec. 3, 2009; Mem. from AAG T. Perez to CRT Managers, Supervisors and Staff lnvolv«l in the
Hiring Process for Filling Career Positions re: Merit System Principles and Prohibited Personnel Practices. Dec. 10,
2009; Mcm. ftom AAG T. Perez to AU OAAG Attorneys, AU Settioo Managers, All Experienced Attorney Hiring
Committee Members and Human Resources re: Guidance for Civil Rights Division Managers Regarding Hiring for
Career Experienced Attorneys, Jan. 20, 2010.
1
!!ttQ_;i/w~_w.justice.gov/cniemplovmentl (last visited Oct. 31, 2011).
1
~ Mem. tiom Acting AAG L. King to All Division Employees re: Guidance on Personnel
Matters, April 28, 2009; Mem. from AAG T. Perez 10 All Division Employees re: Interim Guidance on Equal
Employmmt Opportunity, Merit Syslem Principles and Prohibited Personnel Practices, July 13, 2010.
9
Beca.use your letter focuses on dle Division's oon·manager experienced attorney hiring process, we have
not gone into detail about dle conclusions of the July 2008 Report that relale to the Honors Program or SLIP hiring
process. However, because you have requested documents related to the hiring process for the Honors Program, in
addition to prod~K:ing diose documents, we nole that the Department and OARM, which oversees the Honors
6

Program and SLIP hiring processes, made significanl changes to those processes beginning in 2007, following
complaints ofpoliticization under the last Administration and based on the recommendations of dlc 010 and OPR in
a Jwte 2008 report. 1n addition lo adhering to the OARM guidance, dle Civil Rights Division issued further
guidance for the specific procedures and time frames to be followed by dle career Division employees serving on the
Honors Program/SUP Hiring Committee- including specific prohibition against consideration of political or
ideological affiliations in making hiring decisions and requiRments dlat members of the Division's Honors Program
Hiring Committee attend mandatory training on. inler alia, merit system principles. Mem. from AAG T. Perez.
2010 Civil Rights Division Honors Program I Summer Law lnlem Program Hiring Process, Aug. 17, 2010. AAG
Perez's memorandum, as well as dle materials from diose training programs., are included with d1e documents
provided to you wilh dlis response.

The Honorable Lamar S. Smith
Page 6

applications are reviewed and applicants selected for interview by Section-level
Hiring Committees comprised of career attorneys and chaired by career Section
Chiefs;

hiring recommendations are made to OAAG by career Section Chiefs with input
from the Committee;

hiring recommendations must be made in writing and include a summary of how
the recommended applicant's or appHcant's education, work experience and
references satisfy the qualifications for the position set forth in the vacancy

announcement;

decisions by the Assistant Attorney General or his/her designee to reject the
Section Chiefs recommended applicaot(s) must be made in writing.

Requiring that all attorney vacancies be pubHcly advertised via section-speclfic vacancy
announcements (i.e., generic, non-section specific ..trial attorney" announcements will no
longer be used); that all vacancies be posted on the Division's and the Department's
websites, as well as on the Office of Personnel Management's website
(www.usajobs.gov); 10 and that vacancy announcements identify the specific
qualifications/criteria for selection (e.g., substantive knowledge and expertise in the laws,
rules and regulations applicable to the work of the section).

Affinnatively apprising every employee in the Division of job vacancies and inviting all
employees to notify organizations of these openings. 11

Requiring that only applicants who apply through the normal application process in
response to a particular vacancy annowtcement may be considered (!&, unsolicited
applications or applications sent directly to political appointees, career managers or
anyone else may not be considered).

Identifying categories of skills and experience that should be included in vacancy
announcements and considered in making hiring decisions, including but not limited to:
academic achievement; interest in the enforcement of civil rights laws; substantive

to Due to budgetary constraints and the Department's hiring freeze, some recent Division job openings have
only been available to internal Division applicants. For this reason, some job announcements have been posted only
on the Division's intemal websile.

11

In addition, the Division's public website states: "Announcements are also distributed by the Office of
Attorney Recruitment and Management and/or by the Division's Human Resources Office to a broad and diverse
array of organizations, including but no I limited to bar associations, law schools and professional organizations.
Sections may also distribute announcements to additional organizations who may know of qualified candidates for a
particular vacancy announcement To expand our recruitment efforts, the Civil Rights Division is developing an
outreach list of organizations to circulate Civil Rights Division-specific attorney job announcemeats. If you are, or
know of, an organization that might be interested in receiving these annnuncements, please e·mail
."http: ''"'ww-iustict: gov:crt.'empl_9~~.!lli (last visited Oct. 31, 20 II).

The Honorable Lamar S. Smith
Page?
knowledge and expertise in the laws, rules and regulations applicable to the work of the
section; experience conducting investigations and developing cases for litigation; written
and oral communication skills; oral advocacy skills; and negotiation skills.

Identifying the criteria that may not be considered in making hiring decisions, including
the following express prohibition against consideration of political affiliation:
The Civil Rights Division is an equal opportunity I reasonable accommodation employer.
All hiring is based on merit; consistent with applicable federal law and Department of
Justice policies, discrimination based on race, color, national origi'n. gender, age, political
affiliation (including using ideological affiliation as a proxy for determining political
affiliation), disability, marital status, sexual orientation, gender identity, status as a
parent, membership or non-membership in an employee organization, or personal
favoritism is strictly prohibited."

Providing information regarding the complaint procedures for reponing suspected
violations of the non-discrimination policy or prohibited personnel practices (including
potentially improper interview questions). That information includes the contact
information fur the Department's Equal Employmeot Opportunity Office and the Office
of Special Counsel.

In addition, a key component of the revamped hiring process was the creation of a
mandatory training program for all Division employees involved in the hiring process, including
political appointees and career attorney managers. This program was created by the Division's
Professional Development Office, with input from the Department's Office of Attorney
Recruitment and Management (OARM) and the Division's Employment Counsel. To our
knowledge, this is the first time that the Division bas held mandatory training that specifically
addresses issues related to the career attorney hiring process. The Division conducted seven
sessions of that program between June 2009 and April2010, and these trainings continue to be
held periodically.
As reflected in the training materials that we are providing in response to your letter, the
program specifically addresses merit system principles and prohibited personnel practices,
including the prohibition against consideration of political or ideological affiliation in hiring.
The training also includes specific discussion oftbe findings of the OIG/OPR repons - including
reports documenting improper hiring practices elsewhere in the Department- and examples of
the illegal hiring practices identified in those reports to make clear the types of information that
may not be considered during the hiring process. Equal employment opportunity and merit
system principles are also addressed in several other training programs the Division provides to
its employees, including a Supervisor Training program and in the Equal Employment
Opportunity segment of the Division's annual Professionalism Training program, which
employees are required to attend.
12
The January 20, 2010 guidance memorandum and the April28, 2009 and July 13, 2010 Division policy
statements specifically list all of the prohibited personnel practices.

The Honorable Lamar S. Smith
Page 8
You asked what guidance bas been given to employees involved in the hiring process
with respeet to hiring selection criteria (question 7). Those policies are deseribed above. You
also asked whether internet searches were performed on applicants to the Division (question 5).
Because of the misuse of information culled from internet searches by political appointees in the
prior Administrarion to determine the political or ideological affiliations of applicants, the
Division has erred on the side of caution in addressing the use of internet searches in its guidance
memorandum and in its mandatory hiring training. 13 The policy instructs employees involved in
the hiring process that they "may not conduct internet searches of applicants at any point during
the hiring process." 14 Moreover, the prohibition against internet searches of applicants- and the
reasons for that prohibition- are specifically discussed during the mandatory trainings for all
employees involved in the hiring process. Employees are instructed that, pending further
guidance from the Department, they may not conduct internet searches of applicants, including
pulling articles applicants have writteo. 1' Thus, while your letter states that internet searches of
the Division's hires would reveal their political or ideological affiliations, this policy precludes
such searches and serves as an added precaution against the possibility that internet searches of
applicants' backgrounds will be misused to reveal their political or ideological affiliations.
Your letter, and the blog posts referenced in it, also suggest that all of the Civil Rights
Division's hires since 2009 are "liberal," and that this means the Division screens applicants for
ideology. Specifically, the blog posts posit that worl<ing at certain organizations, belonging to
certain groups, participating in certain activities in law school, or even having a certain sexual
orientation necessarily reflects a particular political or ideological affiliation. We dispute the
allegation that this information serves- or was treated- as a valid proxy for assessing political
affiliation. As would any responsible employer, the Division places a high value on an
applicant's relevant experience in the field, as well as demonstrated commitment to full and fair
enforcement of civil rights laws, when making hiring decisions. The examples of prior
employment cited in these blog posts- noting, for example, that numerous new hires for the
Division had previously worked for civil rights organizations- reflect nothing more than that. It
is no more surprising or inappropriate for the Civil Rights Division to select applicants with civil
u This policy was created primarily in response to tbe OIG and OPR report finding tbe White House
Liaison and Senior Counsel to tbe Attorney General during the prior Administration improperly considered political
and idenlosical information garnerc:d ftom searches of the political contribution and voter registration records of
candidates for career positions, as well as internet searches of candidates for career posidons using the following
internet search string:

lfirst name of a candidate]! and pre/2 [last name of a candidate] w/7 bush or gore or republican! or democrat!
or chargl or accus! or criticiz! or blam! or defend! or inm eoDU'a or clinton or spotted owl or florida reeount or
sex! or controvers! or ruis! or fraud! or investigat! or bankrupt! or layoffi or downsiz! or PNTR or NAFfA or
outsourcl or indict! or enron or kerry or iraq or wmd! or IUTeSt! or intox! or fired or sex! or racist or intox! or
slur! or arrest! or fired or controversl or abonionl or gay! or homosexual! or gun! or fireann!

See OIG/OPR Report, An Investigation of Allegations of Politicized Hirins by Monica Goodling and Other
Staff in tbe Offi." of the Attorney General, July 28, 2008, 91}..103, 121.
14
~ Mem. fi'om AAG T. Perez to All OAAG Attorneys, All Section Managers, A11 Experienced Attorney
Hiring Committee Members and Human Resources re: Guidance for Civil Rights Division Managers Regarding
Hiring for Career Experieoced Attorneys, JM. 20, 2010.
"~Training Materials from Jan. 21,2010 Hiring Training. which included a slide that !"(!ads: ''Can
you conduct internet searches about applicants? No, not at lhis time. further suidance will follow."

The Honorable Lamar S. Smith
Page9
rights experience than it is, for example, for the Antitrust Division to hire attorneys with antitrust
experience. Nor does this reflect a form of"disparate impact" discrimination. in response to
question 9 in your letter. We also disagree with the premise that working for civil rights
organizations necessarily correlates with a "liberal" ideology, as attorneys from across the
ideological spectrum have historically worked for and supported the work of a variety of civil
rights organizations. The party of Lincoln bas a long history of support for civil rights; it would
be incorrect to suggest that a person must be affiliated with only one political party to have
worked in a civil rights organization.
Your letter asks whether there is a policy or guidance that suggests that experience
representing defendants in civil rights cases should not be considered on par with experience
having represented plaintiffs (question 8). The Division does not have a policy or a practiceofficial or unofficial suggesting that one type of civil rights experience is less valuable than
another kind. Indeed, such a policy would be counterproductive because the Division's
jurisdiction covers a wide range of federal civil rights statutes; its enforcement efforts are
strengthened by the fact that its attorneys have a range oflegal skills and experiences. The
resumes of the Division's attorney hires since 2009, which we are providing to you today, reflect
a diverse array oflegal experiences.
Experience, sound judgment, and a demonstrated commitment to full and fair
enforcement of civil rights laws, not ideology, are key attributes that the Division looks for in its
candidates. The Division has hired people from a variety of legal backgrounds because these
critical skills can be fuund in many different settings. For instance, the Division has hired
individnals from large and small law firms alike; lawyers with experience in civil rights
orgartizations, as well as the Judge Advocate General (JAG) Corps; people with prosecution
experience and criminal defense experience; lawyers with civil litigation backgrounds on both
the plaintiff and defense sides; and peor.le who have clerked or extemed for judges appointed by
every president since Presidert Carter. 6 The Division does not inquire into the ideological or
political affiliation of these applicants, but inquires instead into whether they are the best
qnalified applicants for the position.
Moreover, as detailed in this letter and in our document production, the Division has
issued a number ofwtitten policies to all employees involved in the hiring process setting forth
the selection criteria that may or may not be considered in making hiring recommendations or
selections. Those policies include job-related skills and experience, such as substantive
knowledge and expertise in the laws, rules and regulations applicable to the work of the section;
experience conducting investigations and developing cases for litigation; wtinen and oral
communication skills; oral advocacy skills; and negotiation skills. Those policies draw no
distinction between skills and experience gained representing plaintiffs or defendants, and
employees involved in the hiring process were not instructed- officially or unofficially -to
make such a distinction.

16
As part of our production ro you today, we are providing all of the resumes that were produced pursuant
to the Freedom oftnfonnation Act request lhat formed tbe basis oflhe btog postings your letter ciles. Although this
information can be found in these resumes, much of it was not mentioned in the blog poslings c:ited In your letter.

The Honorable Lamar S. Smith
Page 10
Your letter also suggests that the Division's recruiting for career positions has been onesided, citing an on-line report that Mr. Perez spoke to the American Constitution Society for Law
and Policy and containing a partial quote of what he said. A review of a recording of the event
shows that Mr. Perez's statement in full was: "We've restored the nonpartisan merit based
transparent hiring process for all attorneys. Go to our website and you will see the hiring policy
and I am going to be calling each and every one of you to recruit you because we've got 102 new
positions in our budget and so we're going to be moving forward. That is something to clap
about." 17 As he did at this event, Mr. Perez has spoken at law schools and legal organizations all
across the country to recruit for the Division and to ensure large pool of well-qualified
applicants. In addition, the job announcements that were developed and sent out pursuant to the
Division's new hiring policies were, at Mr. Perez's direction, widely disseminated without
regard to the ideology or political affiliation of the recipients of the announcements.
Of course, the most effective way to judge the quality and qualifications of the Division's
hires under its current leadership is by the quality of the Division's work. On October 21, we
sent you a letter summarizing the impressive work of the Division over the last two and a half
years. During this period, the Division's new hires, working alongside its longstanding and
dedicated career staff, have made significant strides in restoring the Division's capacity to fulfill
its critical mission.
Finally, you ask about the Division's efforts to close a budget gap. The Division was
privileged to receive substantial new funding in Fiscal Year 2010, which it used to hire the career
professionals whose hiring is the subject of your letter. The amounts appropriated during that
period, however, were not annualized to cover the full costs of the authutiL.cd h.itiug, inct~~
costs for items such as rent and equipment have further strained the Division's resources. In
response, the Division, along with the rest of the Department, has taken prudent steps to reduce
its expenditures, including by offering a buyout to long-term employees. Tbe Division will
continue to take steps to ensure responsible stewardship of its resources.
We hope that 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 Weicb
Assistant Attorney General

cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

17

~ h.up:::ww .... .c-spauan.:hives.oruprogram 2Q0782·1 (last visited October 29, 2011),

U.S. Department of Justice
Office of Legislative Affairs

Office of the Assistant Attorney General

Washington, D.C. 20530

November 10. 2011
The Honorable Lamar S. Smith
Chainnan

Committee on the Judiciary
U.S. House of Representatives
Washington. DC 20515
Dear Mr. Chairman:

This responds to your letter dated October 28,2011, which followed up on our previous
correspondence regarding your July 6, 2011 request on behalf of 49 Members of Congress who
wrote to you asking that you see.k documents and other information about activities of Supreme
Court Associate Justice Elena Kagan while she served as the Solicitor General of the United
States. We regret that you are dissatisfied with our response of October 27,2011.
We have carefully reconsidered your request, but we must again respectfully decline to
comply with your requests because of the significant concerns articulated in our October 27
letter, in addition to the confidentiality interests implicated by your request. While we appreciate
the Committee's oversight role regarding Department activities, the practical impact of this
particular request would be to probe whether a Supreme Court Justice should participate in a
case pending before the Court As we previously stated, we are concerned that such an inquiry
would pose an unacceptable risk of inappropriate encroachment upon the judicial branch and we
believe that any questions regarding participation by a Justice in a pending case should be
addressed in the context of the case itself.
In any event, based upon the record searches we have conducted in response to Freedom
of Information Act (FOIA) requests, we are not aware of any infurmation that raises questions
about then~Solicitor General Kagan's statements during the confinnation process regarding the
topic framed in your July 6 letter. As you know, the Department previously released documents
under the FOIA relating to this matter, and we have enclosed here additional documents that
were released yesterday, none of which changes our view. The materials withheld under FOIA
implicate substantial Executive Branch confidentiality interests relating to internal deliberations.

The Honorable Lamar S. Smith
Page2
While we must respectfully disagree with you on this matter, we would be pleased to
confer with you about it further if that would be helpful.
Sincerely,

Ronald Weich
Assistant Attorney General
cc:

The Honorable John Conyers, Jr.
Ranking Member

U.S. Department of Justice
Office of Legislative Affairs

Office of the As ... i~tant

Anurne~

Gcnernl

Wr1~hi11gtrm.

D.C. 20530

November 1, 2011

The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 205 I 5
Dear Mr. Chairman:
This responds to your letter to the Attorney General dated September 21, 20 II,
concerning the availability of former Deputy Assistant Attorney Geoeral Julie Fernandes to
provide a briefing in connection with the Committee's inquiry into the Civil Rights Division's
enforcement of federal voting rights laws.
As you know, the Department has provided extensive information to the Committee over
the past nine months in response to this oversight inquiry, including by making available over
850 pages of documents. We had also hoped to provide a briefing by Ms. Fernandes for
Committee staff, but "" are no longer able to do so because she has left the Department. While
we regret that this briefmg is no longer possible, we note that the offer was communicated
informally several weeks before it was formalized in the June 30 letter to you, but the offer was
not accepted until August 24. The Department and Ms. Fernandes had been amenable to
scheduling the briefing for a mutually convenient time throughout that period, but- although the
Department staff discussing this matter with your staff on August 24 did not know it yet- by the
end of August Ms. Fernandes had accepted another position and was planning to leave the
Department. Even after her plans did become known, the Department responded to your August
24 request by offering the briefing for the following week (during Ms. Fernandes' last week in
the office) or after her departure, but no date was agreed on. When Ms. Fernandes subsequently
concluded that her new responsibilities would make her unavailable for a post-employment
briefing, we advised Committee staff immediately. Following receipt of your September 21
letter, senior Department leadership contacted Ms. Fernandes to renew our request that she
provide the briefmg previously discussed with the Committee, but she declined.

The Honorable Lamar S. Smith
Page Two

ru we have discussed with your staff, we would be happy to continue to confer on ways
to respond to any remaining questions or concerns you may have in connection with this inquiry.
We hope this infonnation is helpful. Please dn not hesitate to contact this office if we
may provide additional assistance regarding this or any other matter.
Sincerely,

1M~
Ronald Weich
rusistant Attorney General
cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

lA

Office of the Assistaot Attorney General

U.S. Department of Justice
Office of Legislative Affairs

WashingtorJ. D.C. 20530

October 27, 2011
The Honorable Lamar Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515
Dear Mr. Chairman:
This responds to your letter to the Attorney General, dated July 6, 2011, on behalf of 49
Members of Congress who wrote to you requesting that you seek documents and other
information about activities of Supreme Coun Associate Justice Elena Kagan while she served as
the Solicitor General of the Unired States.
As noted in the letter you received from your colleagues, the Department has disclosed
records relating to the Patient Protection and Affordable Care Act (PPACA) in response to three
Freedom of Information Act (FOIA) requests, two of which were consolidated in Media
Research Center v. Department ofJustice (D.C.D.C.). The U.S. District Court for the District of
Columbia recently granted the government's motion for summary judgment in that case. The
documents disclosed by the government in the case include records from the Office of the
Solicitor General. If you are not already in possession of these documents, we would be pleased
to provide them to you upon request. We are not aware of any information in the documents that
"raise(s) questions" about then Solicitor General Kagan's statements in the confumation process.

We have grave concerns about the prospect of a congressional investigation into the preconfirmation activities of a sitting Supreme Court Justice. The Senate confirmation process is a
rigorous, in-depth inquiry into the background and activities of nominees, particularly for the
Supreme Court. As you nore, then-Solicitor General Kagan answered questions about the topics
described in your letter during the course of her confinnarion. We are unaware of any precedent
for Congress to conduct a post-confirmation investigation regarding the pre-confirmation
activities of a sitting Justice, and we would regard such a course of action as an unseemly
encroachment on the judicial branch of government.
Moreover, any questions about participation in cases by sitting Justices are more properly
addressed in the conrext of specific litigation, where the parties have an opportunity to seek
recusal if they choose to do so. In that regard, we nore that many of the Members who signed the
letter to you have signed amicus briefs challenging the constitutionality of the legislation.

The Honorable Lamar Smith
Page 2
For these reasons, we respectfully decline to produce the documents and access to
individuals requested in your lener. We would be pleased to discuss this further with Committee
staff if that would be helpful.

Please do not hesitate to contact this office if we may provide additional assistance
regarding this or any other matter.
Sincerely,

McJ\
Ronald Weich
Assistant Attorney General

cc:

The Honorable John Conyers, Jr.
Ranking Member

U.S. Department of Justice
Office of Legislative Affairs

Office of lhe

Assi.~ant

Attorney Geneml

W<~shin,l('llm,

D.C. 205JU

October 17, 2011

The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives

Washington, DC 20515
Dear Mr. Chairman:
This responds to your letter to the Assistant Attorney General for Civil Rights dated
August 17, 2011, about the Department's enforcement of the Freedom of Access to Clinic
Entrances Act ("FACE"), 18 U.S.C. § 248 (1994).
As your letter notes, FACE was enacted in 1994 in response to a wave of violence at
abortion clinics around the country. As stated in the "Purpose" section of the statute, Congress
acted "to protect and promote the public health and safety ... by establishing Federal criminal
penalties and civil remedies for certain violent, threatening, obstructive, and destructive conduct
that is intended to injure, intimidate or interfere with persons seeking to obtain or provide
reproductive health services." Pub. L. No. 103-259 § 2. As you also note, Congress made clear
that the law was not to be construed to "prohibit any expressive conduct (including peaceful
picketing or other peaceful demonstration) protected from legal prohibition by the First
Amendment to the Constitution." 18 U.S.C. § 248 248(d)(l).
The Department takes seriously its responsibility to enforce FACE fully and fairly and in
a manner that does not infringe any First Amendment rights. Under the leadership of Assistant
Attorney General Thomas E. Perez, the Civil Rights Division has pursued both civil and criminal
actions under FACE, as warranted by the evidence and with due regard for constitutionally
protected speech. We disagree with your suggestion that civil FACE cases (which can result in
injunctive relief) are inherently more threatening to free speech than criminal prosecutions
(which can result in imprisonment), but we can assure you that the decision whether and how to
enforce FACE in particular circumstances- including the decision whether to proceed civilly or
criminally- is based in every case on an assessment of the evidence and the relevant law and
never on any desire to "chill" protected speech.
Your letter focuses particular attention on our civil enforcement of FACE, and we are
pleased to provide you with information on those efforts. The Civil Rights Division has filed
eight civil FACE cases since the beginning of 2009. This by no means represents every incident
brought to the Division's attention. but only those where it was determined that the evidence

The Honorable Lamar S. Smith
Page Two

would prove an actionable violation. The earliest such case, Holder v. Branc~ 1 grew out of the
same incident that gave rise to a 2007 civil action, Keisler v. Dunk!e,2 in which the court held
that the defendant violated FACE by posting threats on the Internet against a reproductive
healthcare provider. The judge in~ found that the death threat was a ''true threat" under
Pirst Amendment jurisprudence and as such did not enjoy First Amendment protection.3 Branca
in turn focused on the actual author of the threats posted by defendant Dunkle in the earlier case.
In both cases, the sole remedy was the removal of the specific threatening language from the
Internet and a prohibition on posting equivalent language in the future. Both orders clearly
stated that the defendants were not prohibited from picketing or from creating, publishing or
disseminating anti·abortion infonnation.
The only other recent civil FACE case based on speech is United States v. Dillard,' in
which an abortion opponent sent a letter to a physician considering providing abortion services in
Wichita, Kansas. As quoted in our complaint (enclosed), the letter warned the physician that,
among other things, the physician should be "checking under [her] car everyday - because
maybe today is the day someone places an explosive under it." The Uepartment alleges that the
defendant's conduct constituted an actionable threat offorce under FACE. That case is currently
in litigation and the Department therefore cannot comment further on it.
The remaining civil FACE cases brought since the beginning of2009 involve the use of
force and/or physical obstruction- activities that do not raise First Amendment issues. Two
cases5 involved defendants entering clinic buildings and throwing their bodies against the doors
to prevent access, with one defendant also pounding on the door in an attempt to get into the
patient examination area. Two pending cases involve defendants pushing6 or chest·butting7
people accompanying patients into reproductive healthcarc facilities. The other pending cases
allege physical obstruction of either vehicles' or pedestrians• as they attempted to enter
reproductive healthcare facilities.

1

2:09-cv-3145 (E.D. Pa.) (filed July 15, 2009).
2:07-cv-3577 (E.D. Pa.) (filed August 28, 2007).
3
Holder v. Branca was resolved by a consent decree.
4
6:11-cv-01098 (D. Kan.) (filed April7, 2011).
' United States v. Gaona, 5: 10-cv-0094 (W.D. Texas) (filed June 15, 2010); United States v.
Kroack. 2:11-cv-00432 (W.D. Wash.) (filed March 3, 2011).
6
United States v. Hamilton, 3:10-cv-00759 (W.D. Ky.) (filed December 21, 2010).
7
United States v. Kenneth and JoAnn Scott, 11-cv-1430 (D. Colo.) (filed June I, 2011).
8
United States v. Pine, 9:10-cv-80971 (S.D. Fl.) (filed Augustl8, 2010); United States v.
Kenneth and JoAnn Scott, 11-cv-1430 (D. Colo.).
9 United States v. Retta, 1:11-cv-01280 (D.D.C.) (filed July 14, 2011).
2

The Honorable Lamar S. Smith
Page Three
Each of the civil cases narrowly targets the specific actions of a specific defendant. In
every instance, the defendant crossed the line from protected expressive activity to activity that is
appropriately prohibited by FACE. In every instance, numerous other anti-abortion protesters
enjoyed the free exercise of their constitutional rights without engaging in the use of force, threat
of force, or physical obstruction. The Division recognizes and supports the constitutional rights
of all Americans, and carefully focuses its cases on behavior that does not enjoy constitutional
protection.
Moreover, in every injunction the Division seeks, it is informed by the Supreme Court's
decision in Madsen v. Women's Health Center, which upheld the constitutionality of courtestablished buffer zones that ''burden no more speech than necessary to accomplish the ·
governmental interesf' of"protecting access" to a reproductive healthcare clinic. 512 U.S. 753,
755, 770 (1994). Accordingly, in one case the Department is simply seeking to prohibit the
defendant from entering a clinic's driveway, because she had blocked a car's passage into the
clinic's parking lot. In other cases, we have sought buffer zones to prohibit defendants from
coming within a certain distance of a clinic's entrance or driveway. In all instances, the
requested buffer zones are tailored to the defendant's specific behavior, and leave ample room
for the defendant and others to engage in lawful protest activity."

You have asked about the sources for reports to the Department of possible FACE
violations, and factors that are considered in determining whether to bring enforcement actions
under FACE. The Division receives information regarding potential FACE violations from
numerous sources, including health care providers and victims. but does not systernatlcally
categorize such information by source. The Division weighs numerous factors in deciding
whether to bring a case. The Division follows the principles for federal prosecutions detailed in
the U.S. Attorneys' Manual to determine when to prosecute criminally. USAM 9-27.000 et seq.
Those criteria include, among other factors: the nature and seriousness of the offense; the
deterrent effect of prosecution; the person's history with respect to criminal activity; and the
person's culpability in connection with the offense. For both civil and criminal cases, the
Division heeds the USAM guidance that expressly prohibits government attorneys from making
prosecutive or other decisions based on a person's race. religion, sex, national origin., or political
10

As Assistant Attorney General Perez said in his testimony before the U.S. Civil Rights
Commission to which your letter refers, in FACE cases the geograp hie scope of injunctions the
Department has obtained have been quite narrow, consisting of a small buffer zone around a
clinic or an order preventing protesters from impeding ingress and egress to and from a particular
clinic. By contrast, the relief the Department sought and obtained in the New Black Panther
Party case was a broader injunction; it bars the defendant from engaging in certain activities
within 100 feet of any open polling place in Philadelphia. The Department considers that
injunction to be tailored appropriately to the scope of the Voting Rights Act violation that
occurred in that case. as well as the requirements of the First Amendment.

The Honorable Lamar S. Smith
Page Four
association, activities or beliefs; the attorney's own personal feelings concerning the person, the
person's associates, or the victim; or the possible effect of the decision on the attorney's own
professional or personal circumstances. USAM 9-27.260.

Your letter also asks for an explanation of the ''uptick" in civil I'ACE litigation during
this Administration and asks whether there has heen any change in the review process for FACE
cases. With respect to the number of civil FACE cases, we can report that in the first six years
after FACE was enacted in 1994, during the Clinton Administration, 17 civil FACE complaints
were filed; in the eight years of the Bush Administration, one civil FACE complaint was filed;
and in the first two and a half years ofthe Obarna Administration, eight civil FACE complaints
have been filed. The review process has not changed, and we do not have an explanation for this
pattern, but we can assure you that under the leadership of Assistant Attorney General Perez, the
Division enforces all of the laws within its jurisdic.tion.
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
Enclos\U"e

cc: The Honorable John Conyers, Jr.
Ranking Minority Member

U.S. Department of Justite

Office of Legislative Affairs

Office of the Assistant Attorney General

Washingtan, D.C. 20530

September 20, 2011
The Honorable Lamar Smith
Chainnan, Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515
Dear Mr. Chairman:
This responds to your letter, dared August I, 2011, to the Department of Justice,
concerning AT&T Inc.'s proposed acquisition ofT-Mobile USA Inc. The Department
appreciates having the benefit of your perspective.
On August 31,2011, the Department of Justice filed a civil antitrust lawsuit to block
AT &T's proposed acquisition ofT-Mobile USA. After a thorough investigation, the Department
determined that the proposed transaction would substantially lessen competition for mobile
wireless telecommunications services across the United States, resulting in higher prices, poorer
quality services, fewer choices, and fewer innovative products for the millions of American
consumers who rely on mobile wireless services in their everyday lives. A copy of the
Department's press release explaining the reasons for these actions is enclosed, and the
Department's complaint is available at wwwjustice.gov/atr/caseslatttmobile.htm.
Mobile wireless telecommunications services play a critical role in the way Americans
live and work, with more than 300 million feature phones, smart phones, data cards, tablets and
other mobile wireless devices in service today. Consumers across the country. including those in
rural areas and those with lower incomes, have benefitted from competition among the nation's
wireless carriers. Four nationwide providers of these services-AT&T, T·Mobile, Sprint and
Verizon--account for more than 90 percent of mobile wireless connections.
According to the complaint, AT&T and T·Mobile compete head to head nationwide,
including in 97 of the nation's largest 100 cellular marketing areas, and compete nationwide to
attract business and government customers. T·Mobile competes aggressively with all of the
other national providers to attract individual consumers. businesses, and government customers
for mobile wireless telecommunications services, including competing on price, plan structure.
network coverage. quality, speed, devices, and operating systems. A combination of AT&T and
T-Mobile would eliminate this price competition and innovation. It would reduce the number of
nationwide competitors in the marketplace from four to three. Eliminating this aggressive
competitor, which offers low pricing and innovative products. would hurt consumers, businesses.
and government customers that rely on a compelitive marketplace to provide them with the best
products at the best possible price.

The Honorable Lamar Smith
Page Two
The complaint cites T-Mobile and AT&T documents that indicate numerous ways that
AT&T felt competitive pressure from T-Mobile. For example, its documents explain how TMobile has been an important source of competition among the national carriers through
illllovation and quality enhancements, such as its introduction of the first nationwide high-speed
data network using advanced HSPA+ technology, and the first handset using the Android
operating system. T-Mobile also has been an important source of price competition in the
industry.
The complaint also states that regional providers face significant competitive limitations,
largely stemming from their Lack of national networks, and are therefore Limited in their ability to
compete with the four national carriers. As such, any potential entry from a new mobile wireless
telecommunications services provider would be unable to offset the transaction's anticompetitive
effects because it would be difficult, time-consuming and expensive, requiring spectrum licenses
and the construction of a network.
The Department gave serious consideration to the efficiencies that the merging parties
claim would result from the transaction. The Department concluded AT&T had not
demonstrated that the proposed transaction promised any efficiencies that would be sufficient to
outweigh the transaction's substantial adverse impact on competition and consumers. Moreover,
the Department observed that AT&T could obtain substantially the same network enhancements
that it claims will come from the transaction if it simply invested in its own network without
eliminating a close competitor.
The Department appreciated your Committee's efforts to investigate the competitive
implications of this proposed transaction. The Department carefully reviewed the record of the
Committee's May 26, 20 II, hearing, as well as the facts you shared in your letter, and
considered this information as part of our review.
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

Enclosure
cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

U.S. Department of Justice

Office of Legislative Affairs

Office or the: Assistant Attorney General

r-fiashington, D.C 10530

August 12, 2011

The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington. D.C. 20515
Dear Mr. Chairman:
This responds to your letter to the Attorney General, dated May 9, 2011, which requested
additional information pertaining to investigations of Immigration Judges (IJs) by the Office of
Professional Responsibility (OPR) since January 20, 200 I. This followed up on my letter to you,
dated July 28, 20 I 0. which responded to your previous request, dated May 26, 20 I 0.
Among other things, your May 9th letter asked about OPR's investigations oflJs in which
there has been a disagreement over a "reasonable interpretation of the law." OPR does not
initiate an investigation uf an IJ merely because a court overturns an IJ's decision, nor when an
appellate court indicates a plain disagreement over a reasonable interpretation of the law.
Accordingly, we have no documents responsive to that portion of your request. Rather, most of
OPR 's investigations of IJs are triggered by serious judicial criticism concerning conduct or
temperament issues. e.g., being abusive toward a party or displaying impermissible bias.
Nevertheless, if a court tinds that an U blatantly disregarded the law or controlling precedent.
OPR may initiate an investigation, and has conducted such investigations in the past.
The following are responses to the twelve specific questions you posed in your letter:
Question J:

Under what circumstances does OPR investigate alleged misconduct by an
immigration judge?

Although most ofOPR 's investigations involving Us are in response to serious judicial
criticism, OPR does receive complaints from other sources such as private immigration
a1tomeys. trial attorneys with the Department of Homeland Security, and aliens. In those
instances, OPR will conduct an investigation if the complainant has presented credible evidence
of possible misconduct. OPR does not investigate matters in which a complainant is simply
dissatistied with an IJ•s decision.

The Honorable Lamar S. Smith
Page Two
Question 2:

Under what authority is the misconduct investigated?

Pursuant to 28 C.F.R. §§ 0.39-0.J9c. the Attorney General delegates to OPR the authority
to conduct misconduct investigations.
Questioa 3:

What is the process for such an investigation?

As part of its standard investigative practice, OPR requests a written response from the
subject. In cases involving Us, an OPR attorney also listens to the tape recording of the
underlying proceeding and reviews the documentary record. If the matter cannot be resolved

after reviewing the response and documentary evidence. OPR conducts an on-the-record
interview of the subject in the presence of a court reporter. OPR thereafter gives the subject an
opportunity to review the transcript of the interview and to submit any additional infonnation. If
necessary, OPR may interview other individuals. including the complainant, an U's supervisor.
and court staff. If OPR makes a preliminary detennination that the U engaged in professional
misconduct, a copy of the draft report of investigation is provided to the IJ for comment. At the
conclusion of any investigation involving an IJ, a final report of investigation is sent to the
Director of the Executive Office for Immigration Review (EOIR).

Question 4:

At what point in the process is the immigration judge notified that an
investigation is being conducted?

Once an investigation has been initiated. the first step usually is to notify the
immigration judge and request a written response from the judge. Immigration judges (or other
Department attorneys) are not notified if OPR dismisses a matter because it is frivolous on its
face or is unsupported by any credible evidence.

Question 5:

Does OPR review an immigration judge's overall immigration benerrts grant
rate or rate of reversal by the Board of Immigration Appeals or federal
appellate courts whea investigating immigration misconduct?

·rhe grant rate and rate of reversal of JJs are generally irrelevant for purposes of an OPR
investigation. OPR has on a limited number of occasions reviewed the grant rate when it has
been alleged that an IJ has displayed an overt bias favoring respondents. OPR might review the
rates of reversal oflJs by the Board oflmmigration Appeals (Board) in rare instances where a
high rate of reversal suggests a pattern of improper conduct. In those limited instances in which
OPR reviews an immigration judge's be-nefit grant ratf"s or ratf"s ofrevr.rsal hy the Hoard. it is
only because it is directly relevant in assessing evidence of possible bias towards respondents or
perceived patterns of improper conduct. OPR does not review such statistics in other cases
involving immigration judges nor does OPR maintain such data.

The Honorable Lamar S. Smith
Page Three
Question 6:

Are immigration judges considered departmental attorneys or are they
treated as the functional equivalent to administrative law judges? Please
explain the criteria employed to determine which category is appropriate.
How do standards differ between the two categories?

By regulation, IJs are attorneys appointed by the Attorney General as "administrative
judges." See 8 C.F.R. § 1.1(1). As with all Department attorneys, OPR always considers any
special responsibilities and obligations associated with an attorney's position. ln cases involving
Us. OPR recognizes that Us exercise broad discretionary power in their role as adjudicators.
Nevertheless, lJs are Department attorneys and as such, they are obligated to follow the relevant
rules of professional conduct as well as the Standards of Ethical Conduct for Employees of the
Executive Branch.
Question 7:

What background/knowledge/training do OPR investigatol"li have in
immigration law?

OPR does not employ invesligators. Rather, OPR has a team of seasoned lawyers. Each
lawyer has the requisite skills to investigate any area of the law. Over the past several years.
OPR has assigned immigration matters to a select team of attorneys. These attorneys have an indepth understanding of the laws and procedures governing the immigration courts as well as
immigration law issues arising in other DOJ components.
Question 8:

Please provide representative examples of aU types of Immigration judge
misconduct that OPR has investigated.

OPR has investigated IJs for the following: making ethnic or racial slurs; making
obscene comments otT the record; using profanity; verbally accosting aliens and lawyers;
engaging in improper ex parte communications; disregarding regulations: materially misstating
the evidentiary record; improperly assisting a respondent in presenting their case; falsely
certifYing to maintaining an active law license; and conflicts of interest.
Question 9:

Please provide the data on asylum grants and denial rates for immigration
judges wbo have been subject to OPR investigation as compared to all
immigration judges.

The national average asylum grant rate for all immigration judges in FY I 0 is 5 I%. The
asylum grant rates in FY 10 for immigration judge'!i who h~vf': ~f':n S11hjrct to OPR
investigations begun on or after January I. 2008, based on serious judicial criticism are set forth
below:
Judge I

59%

Judge 2

53%

The Honorable Lamar S. Smith
Page Four
Judge 3

25%

Judge4

44%

Judge 5

41%

Judge6

41%

Judge 7

41%

Judge 8

32%

Judge 9

53%

Question 10: For FY 2009, FY 2010, and FY 2011 to date, what expenses were incurred for
travel, transcription/court reporter services, and other costs for conducting
investigations of immigration judges based on criticism in Circuit Court
opinions?

For FY 2009 to present, OPR 's travel and court reporter expenses for investigations of
Immigration Judges involving judicial criticisms were$ 3715.14 and$ 3447.88, respectively.
Question II: For FY 2009, FY 2010, and FY 2011 to date, what were the total costs
allocated to investigations of immignrtion judges, including salaries and
benefits of attorneys, investigaton, court reporters, and other staff.

OPR does not keep records of the infonnation you have requested. In any investigation
conducted by OPR. several line attorneys. supervising attorneys. and support staff may be
involved at varying stages of the process. As a result. OPR cannot provide salary-related
expenditures or investigating expenses in any particular area of the law or any specific group of
the Department.
Question 12: Please provide all dO£uments, including emails, produced since Janu&l')' 20,
200), that relate to questions one through seven.

Enclosed are 7 pages of publicly available documents responsive to questions 1-7.
In addition. your letter requested documents since January 20,2001, in which OPR
investigated an IJ based on an appellate court's disagreement over an interpretation of the law by
an IJ that was found to be unreasonable by OPR.

The Honorable Lamar S. Smith
Page Five
We have identified documents relating to OPR investigations arising from judicial
findings that an lJ blatantly disregarded the law or controlling precedent. Enclosed are 52 pages
of documents relating to OPR investigations arising from judicial findings that Us and/or Board
members disregarded the law or controlling precedent. The enclosed records were disclosed in
this form in response to third party requests submitted to OPR pursuant to the Freedom of
Information Act (FOIA), 5 U.S.C. § 552. We recognize FOIA does not apply to the
Committee's request. Our preliminary review indicates that we would make the same redactions
in this instance in order to protect individual privacy interests but we will review these records
further to determine whether text germane to the Committee's interests should be restored.
The Department has significant confidentiality interests in additional OPR documents
regarding investigations of Us because they reflect internal deliberations and implicate
substantial individual privacy interests. They include documents containing information
provided to OPR with an expectation of confidentiality, such as interview transcripts. the
disclosure of which would chill individuals from providing information to OPR in future
investigations, which in turn, would compromise OPR's ability to investigate allegations of
misconduct by Department atlomeys e1Tectively. We would appreciate the opportunity to confer
with your staffifthe Committee has particular information needs that we can accommodate in
another way, consistent with these interests.
We hope that this infOrmation is helpfuL Please do not hesitate to contact this office if
we can provide additional assistance regarding this or any other matter.
Sincerely,

Ronald Weich
Assistant Attorney General
cc:

The Honorable John Conyers. Jr.
Ranking Minority Member

U.S. Department of Justice
Office of Legislative Affairs

Office of the Assistant Attorney General

Washington, D.C. 20530

August 2, 2011

The Honorable Lamar S. Smith

Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This responds to your June 22, 20 ll, letter to the Attorney General in which you urge the
Department ofJustice to appeal the sentence imposed in United Stales v. C.R., 09-CR-155, 2011
WL 1901645 (E.D.N.Y. 2011). An identical response is being sent to Chairman F. James
Sensenbrenner, Jr. and Ranking Minority Member Chsrles Grass ley.
Tbe defendant in this case pleaded guilty to one count of Distribution of Child
Pornography. Under the provisions of Title 18 of the United States Code, Section 2252(b)(l),
the defendant is subject to a mandatory minimum term of imprisonment of 60 months. As you
note in your letter, the district court imposed a sentence far below the mandatory minimum
required by statute. Please be advised that the United States filed a notice of appeal in this case
on July 12, 2011. On July 27, 2011, the court ordered the defendant to report to his place of
incarceration on August 15, 2011.
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,

Mark David Agrast
Acting Assistant Attorney General

cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

bee:

The Honorable Lorena E. Lynch
United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 1120 I

u.s. Department or Justiee
Office of Legislative Affairs

Office of the Assistant Attorney General

WaJhington. D.C. 10530

July 27, 2011

The Honorable Lamar S. Smith
Chainnan
Committee on the Judiciary
U.S. House of Representatives

Washington, DC 20515
Dear Mr. Chainnan:
This responds to your letter dated May 24, 2011, regarding a March 9, 2011 article that
appeared in The American Banker about ongoing negotiations with mortgage servicers. Your
letter raised questions regarding the Justice Department's authority to participate Ln such
negotiations in light of Congress's authority to enact unifonn bankruptcy laws. You also asked
about the enforceability of a future, hypothetical settlement.
Under 28 U.S.C. §§ 515-19, it is the responsibility of the Department of Justice to
conduct and supervise litigation ln whlch the United States is a party or has an interest. The
Department also has the authority to resolve such claims when it can do so consistent with the
United States' long tenn interests. Pursuant to 28 U.S.C. § 586, the Department's United States
Trustee Program (USTP) has hroad standing and authority to act in the public interest to protect
the integrity and efficiency of the bankruptcy process and deter abuse. The settlement
negotiations referenced Ln your letter constitute a routine exercise of those authorities.
Indeed, the negotiations arise out of allegations that mortgage servlcers violated state and
federal law in a variety of ways. Among other things. Congress has imposed a number of
obligations on mortgage servicing companies who seek taxpayer reimbursement for their
activities, and the Department of Justice has a duty to enforce them. Mortgage servicers are, for
example, bound by the requirements ofthe False Claims Act, HUD guidelines and regulations,
and the strictures of the Financlallnstitutions Refonn, Recovery, and Enforcement Act of 1989
when they make submissions to the federal Housing Administration (FHA) to demand that
taxpayers reimburse them for losses suffered in foreclosing on mortgages insured by FHA. As
the "watchdog" of the bankruptcy system, H.R. Rep. No. 95-595, at 88 (1977), reprinted in 1978
U.S.C.C.A.N. 5963,6049, the USTP also has a statutory obligation to investigate and object to
abuses of the bankruptcy process, including the filing of inaccurate proofs of claim for
repayment and motions to pennit foreclosures based on inaccurate accounting by mortgage
servicers. A nwnber of mortgage servicers have stipulated to violations of state and federal laws
in consent orders wlth various banking regulatory authorities, and the Department will not pennit
an end·run around federal laws where the facts and law require action.

The Honorable Lamar S. Smith
Page Two
If a coordinated settlement is reached, any remedy that it imposes will also he based on
the authorities of the state attorneys general with whom the Department of Justice is working.
These officials enforce the consumer-protection laws of their states and have broad authority to
seek prospective changes in conduct. Coordination with these state officials through the
interagency Financial Fraud Enforcement Task Force provides the best oppottunity to reach a
resolution that stabilizes the housing market, facilitates business efficiency for servicers, and
protect the interests of consumers. Taken together, the members of the Financial Fraud
Enforcement Task Force and their state pattners have court-recognized authority to seek, as part
of a resolution against a defendant that has failed to comply with the law, terms that require the
defendant to take additional steps.
We want to assure you that any possible settlement in this matter will not interfere with
the uniform application of bankruptcy laws. The Department, through USTP, has a long history
of reaching settlements with parties. including mortgage servicers alleged to have violated the
law through their submissions to bankruptcy courts. In these settlements, private parties may
agree to take specific actions to remedy alleged violations of law. but these agreements will not
hamper the uniform application of bankruptcy law. On the contrary, they are intended, in part. to
promote compliance with federal bankruptcy law in the future. For example, the USTP entered
into a nationwide settlement with one mortgage servicer in June 2010 that required the servicer
to take a number of remedial steps and imposed a consent decree on the servicer to ensure future
compliance. Our goal is to address violations of all applicable statutes and promote compliance
with them in the future.

Finally, you asked about the manner in which a possible settlement would be enforced.
Enforcement mechanisms, including the forum in which an agreement might be enforced, would
depend on the terms agreed to by the parties - should the parties choose to enter into a
settlement.

The Department will continue to pursue its goal of reaching a resolution, whether through
settlement or otherwise, that both protects consumers and taxpayers and properly responds to
allegations of violations of law.
We hope this infonnation 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
cc;

The Honorable John Conyers, Jr.
Ranking Minority Member

U.S. Department of Justice
Office of Legislative Affairs

OffiCe aj tM As.risttJIIt Allor~~cy C,e'ftral

WaU!illglon. D.C. 20530

June 30, 2011

The Honorable Lamar Smith
Chairman
Committee on the 1udiciary
U.S. House of Representatives
Washington, D.C. 20515
Mr. Chairman:
This responds to your letter to the Attorney General dated May 13, 2011, regarding press
reports that the Department of Justice had declined prosecution of Thomas Tarnm for the alleged
disclosure of classified information.
We appreciate your concerns about the need to prosecute those who disclose classified
information that can harm our nation's security, and we want to assure you that the Department
takes such matters seriously. Indeed, as our recent record demonstrates, the Department has been
very aggressive in pursuing those who leak information that could compromise our country's
safety.

The Department does not believe that holders of security clearances should have the
discretion to unilaterally disclose information about programs with which they disagree. For
those who genuinely seek to expose waste, fraud and abuse relating to classified programs, there
are specific, authorized ways to report such concerns. such as notifYing inspectors general and
specific Congressional committees. Moreover, the Department understands that the various
intelligence community agencies regularly publicize these available avenues to their employees,
and the Department expects employees with security clearances to adhere to those protocols. It is
never appropriate for government employees who are trusted with the nation's most valuable and
sensitive information to mishandle classified information in any manner that puts the nation's
security at risk.
The investigation and eventual decision not to prosecute Thomas Tarnm was handled by
career prosecutors within the Department and experienced special agents of the Federal Bureau
of Investigation. After a thorough investigation that involved interviews of many witnesses and
the review of thousands of documents over a span of approximately four years, the evidence
developed did not warrant prosecution in this matter. While as a matter of long-standing policy,
the Department generaJly does not discuss the specific reasons for such a decision, we can advise
you that the decision about whether or not to tile federal charges was governed by the Principles

The Honorable Lamar Smith
Page Two
of Federal Prosecution, which can be found in the United States Attorneys' Manual. To date,
there have been no charges brought against anyone as a result of the New York Times article
referenced in your letter.
We hope that this infonnation 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
cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

U.S. Department of Justice
Office of Legislative Affairs

Office of the Assistant Attorney General

Washington. D.C. 20530

June 30,2011
The Honorable Lamar S. Smith

Chainnan
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515

Dear Mr. Chairman:
This supplements our previous responses and docwnent productions, including those of
January 31, and March 2, 2011, and follows up on our conversations with Committee staff
regarding your interest in additional information about the policies and practices of the Civil
Rights Division with regard to the bringing of cases under the Voting Rights Act.
We understand that you would like more information about the documents that we did
not produce or make available in response to your request due to the Department's substantial
confidentiality interests. These include changes to rules and guidelines, consisting of: I) drafts
of amendments to 28 C.F.R. Part 51, "Procedures for the Administration of Section 5 of the
Voting Rights Act," the final version of which was published at 76 Fed. Reg. 21239; 2) draft
revisions to the Department of Justice Redistricting Guidance, the final version of which was
published at 76 Fed. Reg 7470 and provided to the Committee on February 9, 2011; and 3)
proposed amendments to 28 C.F.R. Part 55, "Implementation of the Provisions of the Voting
Rights Act Regarding Language Minority Groups," which remain under review within the
Department We note that the first two relate to the administrative enforcement of Section 5 of
the Voting Rights Act, which does not pertain to "the bringing of cases under the Voting Rights
Act," as requested by your letter, but we thought it might be responsive to your interests, based
on discussions with Committee staff. The draft regulation materials are voluminous and include
scores of records about the form, minor edits, and technical matters that seem unlikely to assist
the Committee in understanding the Division's policies and practices.

We also have not produced highly deliberative internal communications, including emails
about specific litigation issues. some of which remain unresolved. We believe that the
confidentiality of internal deliberations about specific legal issues is important to preserving the
candid exchange of views about such matters that we believe is essential to sound decision~
making.
The majority of the responsive portions of the Section 5 Manual have already been made
available for review, except for certain law enforcement sensitive and deliberative portions,

The Honorable Lamar S. Smith
Page Two
which the Department has historically protected. We are prepared to make most of the
remaining responsive material available for review, however, in order to accommodate the
Committee's information needs.
Under these circumstances, in addition to these documents and the others we have
previously provided in response to your request, we would like to explore additional possibilities
for accommodating your oversight interests in this matter. Toward that end, we would like to
offer a briefing by Deputy Assistant Attorney General Julie Fernandes, who we believe can
provide substantial information to the Committee about policies and practices relating to the
Voting Rights Act. We hope that you will accept this offer as a next step in the process,
understanding that we will continue to confer with staff about document matters.
We hope that this information is helpful. Please do not hesitate to contact this office if
we can provide additional assistance regarding this or any other matter.

Sincerely,

Ronald Weich
Assistant Attorney General
cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

U.S. Department of Ju•tice

Office of Legislative Affail'li

Wa.rhilfBW'I.

v. c zrmo

June 22, 2011

The Honorable Lamar S. Smith
Chalnnan
Committee on 1he Judiciary
U.S. House of Representatives
Washington. D.C. 20515
Dear Mr. Chairman:

This responds to your letter dated April 22. 2011, regarding your request for docume"nts
penalning ro the Department's Office of Professional Responsibility's (OPR) investigation of the
dismissal by the Cl vii Rights Division of claims against three of the four defendants in United
States v. New Black Pamher Party for SelfDefeme. Inc., eta/., No. 2:09cv006S (E. D. Pa. May
18, 2009).

As you know. on April6, 2011, we provided a redacted copy of the OPR report to the
Committee in response to your request. In doing so, we noted that OPR reports are generally not
disclosed outside of the Department because they frcquendy contain infonnation thal is sensitive
from a law enfon::ement and personal privacy standpoint, as well as discussion of intmtal
deliberations. We have similar concerns about disclosing the interview transcripts and written
responses of the Department's employees. The requested documents contain frank discussions of
internal Depanm.ent deliberations and personnel matters in which the employees who provided
the information, as well as employees who are discussed in the written responses and interviews~
would have strong privacy interests. We are concerned that any disclosure of these materials
would substantially chill employees from providing complete and candid information to OPR in
future investigations, which would compromise OPR's effectiveness in investigating allegations
of misconduct by Department attorneys.
If you would like additionallnform.&Jion about Of'R' s process in this matter and the busis
for its conclusions. we are wiJJiag to provide a briefing to Committee staff by knowledgeable
Department representatives. Such a briefmg may be unprecedented because, to our knowledge,
the Dcpallment hss not provided a briefing to Committee staff after an OPR report hss been
made available. Nonetheless, in this limited circumstance, the Department will do so in a good
faith effort to accommodate the Committee's requests while also protecting individual privacy
and the Department's institutional interests in the continued effectiveness ofOPR. We hope that

The Honorable Lamar S. Smith
Page Two
the briefing will meet your needs. We will make ammgements to scbedule it in the near future if

you believe that would be helpful.
We appreciate your interest in this matter. Please do not hesitate to contact this office if
you would like additional assistance regarding this or any other matter.

Sincerely,

/IV\~
Ronald Weich
Assistant Attorney General
cc:

Tbe Honorable John Conyers, Jr.

Ranking Minority Member

U.S. Department of Justice
Office of Legislative Affairs

Office: or the Assistanl Attorney Ocnentl

Washington. D.C. 20530

June 20, 2011
Tbe Honorable Lamar Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This responds to your letter, dated June 10, 2011, which asked the Department to provide
docwnents, created on or after February 15, 20 II, that are responsive to House Resolution 292,
including those concerning the War Powers Resolution, Operation Odyssey Dawn and Operation
Unified Protector, to both the House and tbe Committee.
On Wednesday, June 15, 2011, the Departments of State and Defense transmitted to
Congress a report on behalf oftbe Administration, entitled "United States Activities in Libya,"
which contains both unclassified and classified sections. The report was accompanied by COs
containing electronic copies of documents intended to provide additional background and
context regarding our efforts in Libya. Our understanding is tbat tbe CDs include an Office of
Legal Counsel opinion, dated April I, 2011, concerning tbe United States' Authority to Use
Military Force in Libya, which was previously provided to the Committee.

We appreciate tbe Committee's interest in this matter and hope tbat these materials are
helpful to your understanding oftbe government's military operations in Libya. The Department
of Justice participated in deliberations and provided legal advice to others within the Executive
Branch involved in decisions about those operations. The Executive Branch has substantial
confidentiality interests in these deliberations and legal advice provided by the Department in
connection with this matter. We believe that disclosure of that type of information, in documents
or otherwise, would chill the candid exchange of views that is essential to sound decisionmaking by senior officials and would inhibit them from seeking our legal advice in the future.
We are, however, trying to determine whether there are responsive documents that we can
disclose in response to your request without jeopardizing these interests.

The Honorable Lamar Smith
Page Two
We hope that this information is helpful. Please do not hesitate to contact this office if
we may provide further assistance with this or any other matter.
Sincerely,

Ronald Weich
Assistant Attorney General
cc:

The Honorable John Conyers, Jr.
Ranking Member

U.S. Department of Justice
Office of Legislative Affairs

Office of the Assistant Attorney General

Washington. D.C.l0530

June 14, 2011

The Honorable Lamar Smith
Chainnan

Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chainnan:
This responds to your letter to the Justice Deparunent dated April27, 2011, regarding the
decision not to prosecute certain individuals named as unindicted co-conspirators in United
States v. Holy Land Foundation for Relief and Development et al.
As you may be aware, this case was originally charged in 2004. The subsequent trial
resulted in the conviction of the Holy Land Foundation for Relief and Development and five of
its leaders for providing material support to Hamas. During his testimony before your
Committee on May 3, 2011, the Attorney General assured the Committee that political pressure
played no role in the decision whether to prosecute the unindicted co-conspirators in this case.
Instead, charging decisions in the case were made based on the facts and the law by professionals

within the Department's National Security Division (and, prior to September 2006, the Criminal
Division), in consultation with the U.S. Attorney's Office in the Northern District of Texas. The

Department's Principles of Federal Prosecution provide that we will charge a case only if we
believe that ""the admissible evidence will probably be sufficient to obtain and sustain a
conviction." That is the standard under which all prosecutorial decisions in the case were made.
In addition, the U.S. Attorney for the Northern District of Texas, who tried the case as an
Assistant United States Attorney, has also stated that no political pressure or influence played a
role in the prosecution decisions in the case.
As you know, outside of materials that are publicly filed as part of active litigation, the
Department has a longstanding policy of neither confirming nor denying whether any particular
individual or entity is or was the subject of an investigation. The Department also does not
comment on, or produce deliberative documents regarding, internal investigative or prosecutorial
deliberations. These policies help ensure the integrity of the Department's investigation and
prosecution functions. We can assure you, however, that no organization is prosecuted for its
political views, nor is any organization immune from prosecution because of its political views.
Consistent with these core principles, the Department's investigation and prosecution of this case
-including all charging decisions made in the case- were guided only by the relevant facts and
the applicable law.

The Honorable Lamar Smith
Page Two
We hope this infonnation 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
cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

U.S. Department of Justice
Office of Legislative Affair~

Office of the

A~~1stant

Attorney General

"'ltshiugtml, D.C :!053U

May 27' 2011

The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 205 IS

Dear Mr. Chainnan:
This responds to your letter to the Attorney General dated May 12, 2011, which followed
up on your earlier letter, dated February 11,2011, requesting documents and other materials

from the Civil Rights Division's "Redistricting Summit" held on January 18 and 19, 2011.
In response to your February I I request, the Department produced 70 pages of
documents consisting of all handouts that were distributed and PowerPoint presentations that
were shown at the Summit. as well as the prepared address of Assistant Attorney General
Thomas E. Perez. We also made available for review an additional, smaller number of
documents consisting of prepared remarks by individuals who addressed the Summit, but we did
not provide the remaining informal documents that were prepared by other speakers in
connection with their presentations.
We are concerned that disclosure of the remaining informal documents, including
handwritten notes. prepared by career staff for use at a closed training session exclusively for
Voting Section personnel could chill the candid exchange of ideas and recommendations of our
attorneys. We have discussed these concerns and our interest in accommodating the
Committee's oversight needs with your staff. Based upon those discussions, we have agreed to
make the remaining materials available for review at the Department with the understanding that
their contents will not be disclosed outside of the Committee without prior consultation with us.
The documents bear limited redactions to protect nonpublic information about pending matters
and other law enforcement sensitive information. As indicated in our previous response, the
Division did not make any audio or video recordings of the training.

The Honorable Lamar S. Smith
Page Two
It is the policy ofthe Civil Rights Division to enforce the law in a fair, independent, and
evenhanded manner. As reflected in materials produced to the Committee, this policy has heen
communicated by Division leadership to staff on numerous occasions, and has been reflected in
the Division's enforcement actions. The Division's enforcement decisions have been- and will
continue to be- based on the legal merit of individual matters. In enforcing the federal civil
rights laws, the Division has brought enforcement actions on behalf of victims of all races, as
well as against defendants of all races. We are unaware of any instructions to Voting Section
employees that would be inconsistent with this policy and practice. If you have information
relating to any such instructions, we request that you provide it to us with specificity so that we
can conduct an inquiry and take any action that may be necessary.
In your May 12 letter, you suggested that the Department migbt "be eager to put to rest
allegations that voting rights enforcement within the Department is not being carried out in a
neutra1 manner." Toward that end, we believe we responded fully to the Committee's inquiry:
by addressing at some length, in our January 31 letter, the allegations set forth in the January 6
letter initiating your inquiry; by describing the Division's voting enforcement policies and
practices in that same January 31 letter; and by providing to the Committee and making available
to its staff over 850 pages of documents responsive to your requests. In addition, toward that
same end, on April 6, 2011 , at your request we provided you the March I 7, 2011, Report of the
Office Professional Responsibility (OPR) on its investigation of the New Black Panther Party

case.
We hope that 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
cc:

The Honorable Jobn Conyers, Jr.
Ranking Minority Member

U.S. Department of .Justice
Office of

Legi~lative Affair~

a;1.1lringull/. /J.

c. 2053o

May 2, 2011

The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This responds to your letter dated February 7, 2011, which requested information about
defendants charged with terrorism offenses.
Enclosed are spreadsheets that set forth information about the individuals who were
publicly charged in calendar years 2009 and 2010 with Category I terrorism offenses, which are
those involving federal statutes that are directly related to international terrorism. It is important
to note that there are additional defendants who were charged under seal with such violations
during this period. but those defendants are not listed in the attached documents. The enclosures
identifY the publicly charged individuals, the districts in which they were charged, and the
charged offenses. These enclosures differ from previous versions that were disclosed in response
to requests from other Members because they include updated information.
We want to follow up on the Attorney General's remarks during an appearance on ABC
news in December 2010. While our tracking systems do not record the nationality and dates of
birth of charged individuals, background information about these defendants, including
information from federal court proceedings and Department press releases, indicates that
approximately fifty of the individuals publicly charged in 2009 and 2010 with Category I
terrorism offenses were American citizens.
Lastly, we appreciate your understanding that all defendants, including those identified in
these enclosures, are presumed innocent unless and until proven guilty in court. Since the
proceedings against many of these defendants remain pending, we have also enclosed here the
spreadsheets m a torm that protects their identities. As we have discussed with your staff, we
request that you use these redacted spreadsheets if, for any reason, you wish to disclose this
information outside of the Committee.

The Honorable Lamar S. Smith
Page Two
We hope that this information is helpful. Please do not hesitate to contact us if we may
provide additional assistance regarding this or any other matter.
Sincerely,

/ft/\

~\

Ronald Weich
Assistant Attorney General
Enclosures
cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

U.S. Department of Justice

Office of Legislative Affairs

Office of the Assistant Attorn<!)' G.meral

il'ashington, D.C. ]()53()

April 29, 20 II
The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives

Washington, DC 205 I 5

Dear Mr. Chairman:
This responds to your letter to the Attorney General dated April 18,2011. urging the
Department of Justice to file suit against the State of Utah on the ground that Utah H.B. 116, the
state's new immigration statute creating a guestworker program, is preempted by federal law.

The Department is aware of this state law and is in the process of evaluating it. As you
know, the Department's deliberations regarding whether or not to initiate litigation are
confidential. We can tell you, however, that Departmental policy. set in 1981 and applied most
recently with respect to Arizona's immigration statute (Arizona S.B. 1070), is, whenever
possible, to avoid intergovernmental litigation and to attempt to resolve issues on terms

acceptable to the United States in advance of instituting such litigation. That is the process that
the Department followed in connection with its review of Arizona S.B. l 070 and other state laws
raising preemption concerns, and the process it will follow in connection with its review of Utah
H.B. 116. We can also assure you that whatever decision is reached on this matter will be based
solely on the legal merits.
Although you asked that we communicate a decision to you by May l. please note that
the guest worker program created by Utah H.B. 116 does not go into effect unless the United
States Government grants a waiver to allow implementation of the voluntary worker program, or
until July I. 2013.
We hope that this infonnation 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
cc:

The Honorable John Conyers. Jr.
Ranking Minority Member

-

U.S. Department of Justice

\ iii

Office of Legislative Affairs

Office ofthe Assislant Attorney General

Wmhington, D.C. 20530

April 22, 20 ll

The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, DCC 20515

Dear Mr. Chairman:
This is in response to your April2l, 2011 letter concerning an event on April28, 2011
co-sponsored by the American Constitution Society and Teaching for Change, "The Civil Rights
Movement Author Event: Count Them One by One." The featured speaker is retired
Massachusetts Judge Gordon A. Martin, Jr., who served as an attorney in the Department of
Justice Civil Rights Division in the 1960's. Your letter raises concerns that the IJepartment of
Justice Civil Rights Division is co-sponsoring this event. ln fact, the Department of Justice
Civil Rights Division is not now nor bas it at any point been a co-sponsor of this event. To the
best of our knowledge, such co-sponsorship was never requested or considered.
After receiving your letter, aud making some inquiries, the Department learned that the
event's organizers mistakenly identified the Civil Rights Division as a co-sponsor in their
original announcements for the event. We have also learned that that error was corrected prior to
our ~pt of your letter. We were unaware of any such misrepresentation of the Division's
involvement or the conection until we received your letter. And while you may have seen some
advertisements published before that correetion was made, the materials you cite in your letter
and the advertisements we were able to access on the Internet do not currently indicate such cosponsorship.
Please be assured that we take our ethical obligations, including those applicable to
relationships with non-fedem parties, very seriously. We hope that this letter resolves your
concerns. Please do not hesitate to contact this office if we can be of assistance with this or any
other matter.
Sincerely,

t/Vl~
Ronald Weich
Assistant Attorney Genem
cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

•,

U.S. Department of Juslire

Office of Legislative Affairs

Office of the Assistant Attome} General

Washington, D C 20BO

Aprill4, 2011

The Honorable Lamar Smith
Choirman
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515
Dear Mr. Choinnan:
This responds to your letter to the Attorney General, dated March 2, 20 II, inquiring into
the Department's efforts to ensure compliance with the Freedom oflnfonnation Act (FOlA) and
allegations that the Department has politicized the manner in which it responds to FOIA
requests. Your letter refers to allegations by a blogger claiming that the Department's Civil
Rights Division (Division) provides information in a timely manner to some, while delaying its
replies to others, based on political favoritism. As discussed below, it appears that the
allegations rest on comparisons of dissimilar requests.
As your letter notes. President Obama and the Attorney General have emphasized the
benefits of open government and the importance of responding to FOIA requests effectively and
with a presumption of disclosure. While more remains to be done, we have made significant

strides over the past two years. ln responding to over 37,000 requests in which the Department

analyzed responsive records for potential release during FY 2010, our disclosures increased for
the second consecutive year, releasing infonnation in 94.5% of such requests--the highest
release percentage since f'Y 2002.

The Attorney General's FOIA Guidelines, dated March 19, 2009, require thot each
agency's Chief f'OIA Officer submit a report each year ''on the steps that have been taken to
improve f'OlA operations and facilitate infonnation disclosure at their agency." The
11erartment's Office of Infonnation Policy (OIP) issued guidelines advising agencies that these
reports should focus on steps taken in five specific areas: (I) to apply the presumption of
openness; (2) to ensure that there is an efficient and effective system in place for responding to
requests; (3) to increase proactive disclosures; (4) to improve use of technology; and (5) to

reduce any hocklogs of pending FOIA requests.' OIP also provided training for Chief FOIA

1

See hlto:llwww justK:e.gov/oipjfoi!I.OOst/2009foiaposll8.htm

The Honorable Lamar Smith
Page 2
Officers to discuss the requirements of the rcports. 2 After receiving the reports, OIP compiled
the enclosed summary. which includes OIP's findings and guidance regarding each area.
In addition to the agency ChiefFO! A Officer reports, OIP has been actively engaged in a
variety of initiatives to infonn and educate agency personnel on the new commitment to open
government and to encourage compliance with the key directives from the President and the
Attorney General. After President Obama's FOIA Memorandum on the presumption of
openness in FOIA decision-making and the Attorney General's FOIA guidelines, OIP held a
government-wide 1raining conference, attended by more than five hundred agency personnel, and
provided guidance on how to implement the presumption of openness.' In addition, OIP has
conducted numerous training sessions specifically focused on the President's and Attorney
General's transparency initiatives. Enclosed please find the relevant section of the Department's
20 II Chief FOIA Officer Report detailing OIP's efforts to provide training concerning the
President's FOIA Memorandum and the Attorney General's Guidelines. The Department's
Reports are available online. 4
With respect to the questions about the Civil Rights Division's FOIA compliance raised
in your March 2letter, the Department's policy is to process records requests without taking into
account any ideological or political affiliations of the requester. We are conducting an in-depth
review of the Civil Rights Division's files regarding FOlA requests and requests for submissions
under Section 5 of the Voting Rights Act of 1965. Our review to date has not found evidence to
support the claims discussed in your letter.
The blog post referenced in your letter did not note the significant differences between,
on the one hand, the Department's practices in responding to FOIA requests, and, on the other
hand, its longstanding procedures for implementing Section 5 of the Voting Rights Act of l%5.
In fact, the vast majority of the allegations cited in the blog post involved pending Section 5
submissions, which are not comparable to FOlA requests for the following reasons.
Section 5 provides, inter alia, that a jurisdiction covered by Section 5 can obtain
preclearance of a change to its voting procedures if it submits the proposed change to the
Department, and the Department does not interpose an objection within 60 days of the receipt of
a completed submission. lbe Department's procedures for administration of Section 5 allow for
public comment on proposed changes for which preclearance is sought. See 28 C.F.R. §§ 51.2930. To facilitate public input. the Department's procedures provide for public access to Section
5 submission files to the extent they are not exempt from inspection under the FOlA. See 28
C.F.R. § 51.50(d). Due to changes in the Department's technology systems and security policies,
il ht>l'Hmr njllongt"r fl"asible fur tht." Votiug s~·tiuu to (lWVilk' fi_n· pllysil·al iuspl'clillll auU
copying of Section 5 submission tiles. Thus, since 200 I. the Voting Section's practice has been

2

See hnp://www.justice.gov/oip!foiapostt2009foiapost29.htm.
See htlp://www.justice.gov/oiDifoiapo!it/2009foia.oosl6.htm and
hrtp:11www.justice go\lloiolf'oiaoost/2009foia.oost8.htm.
4
See hup:l/www.justice.govloiplreports.hrml
1

The Honorable Lamar Smith
Page 3
to mail or email a copy of the file to each requester. Where redactions are needed. the Division's
FOIA Oflice further processes the records.
The Voting Section priorilizes requests for Section 5 submission tiles when the
jurisdiction's submission is pending before the Attorney General-i.e., where the statutorily
allotted 60-day review period has yet to expire, or where the Attorney General has requested
more infonnation or interposed an objection. This helps ensure that interested parties have a
meaningful opportunity to receive and·review a pending submission, and prepare and present a
comment on that submission, as Congress provided in the Voting Rights Act of 1965, in time to
be considered during the statutorily mandated 60-<lay review period. If the request letter cites the
FOIA but seeks pending Section 5 files, it is treated as a pending Section 5 request and processed
accordingly. Because of these procedures, it is not meaningful to compare the handling of
requests for pending Section 5 records with the handling of requests for closed Section 5 files or
FOJA requests for other types of records'
For example, the blog post cited in your letter alleges that Eugene Lee received responses
to his FOIA requests only three days after submitting them. The log that we provided with our
letter to you of August 12, 2010 included three requests to the Division by Mr. Lee. Two of
these three requests, however, were requests for copies of pending Section 5 submission files that
were handled under the procedure described above. On the other hand, Mr. Lee's third request
was for a closed Section 5 submission file (which was processed by the FOlA office due to the
need for redactions). {t did not receive the same priority as pending Section 5 requests, and took
l72 days to fill. Another example is the request of Raul Arroyo-Mendoza, who is also alleged to
have received "same day service." Mr. Arroyo-Mendoza has made many requests over the last
two years. While he received quick turnaround for requests relating to pending Section 5
submissions, he waited 18 months for the Division to complete processing on his request for a
closed Section 5 submission tile, which included voluminous records and required numerous
redactions.
The blog post referenced in your letter alleges that Chris Ashby received completed
responses more slowly than Susan Somach because of political favoritism. However, our files
indicate that Mr. Ashby's request was for closed Section 5 submission tiles, and thus was treated
in the same manner as other requests for Section 5 submission files not pending at the time of the
request. Ms. So mach, by contras~ often requested records relating to pending Section 5
submissions. In some instances, she asked for both pending and closed submission records in the
same request. In all those instances but one, she received a prompt response under the
longstanding practice relating to pending Section 5 submissions, white her requests for records

s Th~ Voting Section also aims to reply promptly where praclicabl~ to requests for closed Section 5 submission
files i.e.. submissions with regard to which the 60-day re\liew period has already e~~.:pired where the requester
demonstrates a need due to factors such as a litigation deadline, or other Section 5 issues such as potential
unprecleared v<ting changes or a related pending file. as well as other requests that are simple or do not involv~
voluminous records.

The Honorable Lamar Smith
Page 4
relating to closed submissions took longer to process. 6 To take a specific example, in a request
she made on May 19, 2009, Ms. Somach received responsive records on May 27, 2009 for the
four requested pending Section S submissions. However, the processing of the records from the
closed submissions requested on that same date was not completed until two months later, on
July 29,2009. One of Ms. Somach's requests for a pending submission file took over a month:
she did not receive a response to her request dated December 7, 2009 until January 29, 2010.
In certain cases, to be sure, FOIA requests may be completed in a matter of days. But
this typically occurs when the requested records are easily identifiable, are not voluminous, and
are releasable without requiring many redactions. Our initial review indicates that this was not
the case in the instances in which the Department was criticized for delay in the blog post
referenced in your letter.
For example, it is alleged that two FOIA requests for resume>r--one submitted in
February 2006 by a Boston Globe reporter and one submitted in 2010---received different
treatment despite requesting ..the exact same information," and, specifically, that a response to
the 20 I0 request was unduly delayed. These two requests, however, were quite different in
scope. The 2006 request was for copies of resumes and application~related documents for career
attorneys hired into three of the Civil Rights Oivision's Sections from January 2001 to
approximately January 2006. By contrast, the 2010 request sought nearly a decade's worth of
resumes for the entire Division, including all 12 Sections as well as the Office of the Assistant
Attorney General-·in sum, nearly seven times as many new hires as the 2006 request. In
accordance with the Division's usual protocol, the FOIA Office began ~rocessing that request
immediately, sending an interim response the day after it was received. That process requires a
time~consuming line-by~line review of the resumes before public release, consistent with our
obligation to protect the privacy of attorney hires.
In short, based on our initial review of the allegations that are referenced in your letter,
we are not aware of evidence that the Civil Rights Division allows politics or any improper
factors to play a role in the handling of records requests.

As you have requested in your letter, an updated log ofFOIA requests is enclosed. We
would like to call your attention to a difference between the enclosed log and the log that we
provided to you on August 12, 2010, in response to your July 29, 2010 letter. In response to that
letter. we provided the log maintained in the normal course of business by the Voting Section,
which contained both FOlA requests (designated there with a number in the column titled "FOIA
No."), and also requests processed under Section 5 (designated there with "NA"). The log that
Wt: ale: pwvidiug yuu tuday shuuld induc.lt: all FOIA tcqucsts to thr Votiug St"f.tion, "·" w~ll a~
' The exception we have identified was a request for five pending submission files and one closed file. In that
instance. the dosed file consisted of a IOtal of only nine pages requiring no redactions. and was included along wilh
the pending files.
7
Although lhe blog post referenced in your lener states that this requcsl was originally submitted in the spring of
20 I 0, our records indicate that it was first submitted on October 6, 20 I0. and received in the Division on October
13. 20###BOT_TEXT###.

The Honorable Lamar Smith
Page 5
Section 5 requests that the Voting Section received and, for record·k.eeping purposes, transmitted
to the Division·s FOIA/PA Branch for assignment of a tracking number.
We hope that this infonnation is helpful. Please do not hesitate to contact this office if
we may provide additional assistance regarding this or any other matter.
Sincerely,

~vJ\
Ronald Weich

Assistant Attorney General
Enclosures
cc:

The Honorable Jotm Conyers, Jr.
Ranking Minority Member

U.S. Department of Justice
Office of Legislative Affairs

Offke ol" the

Assi~la.nt

Altorlk") Grneral

IV<1.1hing/f!l1. D. (. 20530

April 13, 2011

The Honorable Lamar S. Smith
Chairman
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This responds to your letter to the Attorney General dated February 28,2011, which
requests thst the Executive Office for Immigration Review (EOIR) revise its regulations at
8 C.F.R. §§ 1003.2(c)(3)(ii) and 1003.23(b)(4)(i). These regulations govern the circumstances
under which an alien, who is subject to a final order of removal, may seek to reopen his or her
removal proceedings. Your letter also asks for the status of the Petition for Rulemaking on this
subject submitted by the Washington Legal Foundation.
In your letter, you express concern that these regulatory provisions do not comport with
section 240(c)(7) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1229a(c)(7), because
they permit the successive filing of motions to reopen to apply or reapply for asylum or
withholding of removal based on changed circumstances arising in the country to which
deportation has been ordered. You state that these regulations are in conflict with section
240(c)(7)(C) of the INA, which does not exempt such motions from the limitation imposed by
section 240(c)(7)(A) of the INA.
We appreciate your interest in this important matter, which remains under review in the
Departtnent. The legal issue you raise is being considered as part of the Petition for Rulemaking
submitted by the Washington Legal Foundation. As you know, any proposed change to an
agency's regulations requires a comprehensive review to ensure compliance with statutory
requirements and consistency with related regulations. Finally, any proposed changes to the
regulations in question will be noticed and published for comment in the Federal Register.
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
cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

U.S. Department of Justice
Office of Legislative Affairs

Office of the Assistant Attorney General

Washington, D.C. 20530

April 6, 20 ll

The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, DCC 20515
Dear Mr. Chairman:
This responds to your letter, dated AprilS, 2011, which requested a copy ofthe report of
the Department's Office of Professional Responsibility (OPR) on its investigation ofthe
voluntary dismissal filed by the Civil Rights Division of claims against three of the four
defendants in United States v. New Black Panther Party for Self Defense (NBPP), et al., in the
Eastern District ofPennsylvania on May 18,2009.
As you may recall, OPR's investigation was undertaken in response to the letter to the
Department's Inspector General, dated June 9, 2009, signed by you, now-Chairman Wolf of the
House Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies, and
the other Members of your respective Committees. Since the concerns you raised pertained to
the conduct of Department attorneys, the matter was referred to OPR, which informed each of
you ofthe results of its investigation by letter, dated March 29,2011. That letter reported OPR's
conclusion "that Department attorneys did not commit professional misconduct or exercise poor
judgment, but rather acted appropriately, in the exercise of their supervisory duties in connection
with the dismissal of the three defendants in the NBPP case." OPR found no evidence that the
decision to dismiss "was predicated on political considerations." OPR also concluded that the
decision to initiate the NBPP case was based upon a good faith assessment of the facts and the
law and found no evidence that political considerations were a motivating factor in authorizing
the civil action against the four defendants. Finally, OPR found no evidence to support
allegations that the decision makers, either in bringing or dismissing the claims, were influenced
by the race of the defendants, or any considerations other than an assessment of the evidence and
the applicable law.
We appreciate your interest in additional information about OPR's process and findings,
as set forth in its report. OPR reports are generally not disclosed outside of the Department
because they frequently contain information that is sensitive from a law enforcement and
personal privacy standpoint and often contain discussion of internal deliberations. We have
determined in this instance, however, that it is important for the Committee to receive the report
so that it may fully understand OPR's conclusions about this matter, which entailed significant

The Honorable Lamar S. Smith
Page Two
questions about the Department's enforcement of the civil rights laws. Accordingly, while our
public disclosure of parts of the report might be prohibited by the Privacy Act, we are providing
it to you in response to your request as Chainnan of the Committee. See 5 U.S.C. 552a(b)(9).
Because of the privacy interests that are implicated by the report, however, we request that you
not publicly disclose it.
The report bears some limited redactions to protect the identities of non-supervisory
employees and individual third parties, law enforcement sensitive infonnation, and limited
internal deliberations. We b~lieve disclosure of the redacted report to the Committee reflects an
appropriate accommodation of your oversight needs, consistent with the Department's
confidentiality interests. Our disclosure under the special circumstances of this request should
not be construed to represent a change in the Department's long-standing interest in protecting
the confidentiality of internal deliberations, including those pertaining to OPR reports.
We hope that this infonnation is helpful. Please do not hesitate to contact this office if we
may be of further assistance regarding this, or any other matter.
Sincerely,

Ronald Weich
Assistant Attorney General
cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

U.S. Department of Justice
Office of Legislative Affair.,

Urhce or the A)sb!ant AUorney Gerterol

~1.1hi11gJon.

D. C. 10530

March 24, 2011

The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:

(b) (6)

This responds to your letter dated February 8, 2011, recommending
for the
position of United States Attorney for the Western District of Texas. As you have noted in your
letter, (b) (6)

Your input is appreciated as we evaluate candidates for this most important position.
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
cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

V.S. Department of Justice
Oflict: of Legi~lative Affuirs.

March 10, 2011
The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives

Washington, D.C. 20515
Dear Chairman Smith:
This responds to yow letter of January 27,2011, which requested information and
documents about the Departtnent's new Professional Misconduct Review Unit (PMRU). You
asked for information about how the PMRU will achieve its goal of more timely and consistent
resolution of allegations of professional misconduct against Department attorneys.
It may be helpful to provide some background information about the federal disciplinary
process and existing Department procedures. The statutes and regulations establishing the
disciplinary process pertinent to career Department attorneys provide generally for three types of
disciplinary actions: written reprimands, suspensions, and removals. Imposition of discipline
requires multiple levels of supervisory involvement. An employee who is issued a written
reprimand as a sanction for misconduct has the right to grieve that reprimand to the next higher
level supervisor. However, disciplinary action more severe than a written reprimand requires
that the employee be afforded the right to respond to proposed discipline. Thus, the lowest level
supervisor with disciplinary authority (proposing official) can propose a suspension or removal
of an employee. The employee then can respond to the next level supervisor (deciding official),
who then issues a decision on the proposal. For suspensions of 14 days or less, the employee can
grieve the suspension to the next level supervisor (grieving official). For suspensions of more
than 14 days or removal, the employee can appeal the discipline to the Merit Systems Protection
Board (MSPB). Underlying any disciplinary action is a charge or charges of misconduct. The
disciplinary system requires that the proposing official and deciding official have the authority to
proffer only those charges that each official determines to be supported by a preponderance of
the evidence and to impose a level of discipline that the official determines is appropriate based
on the facts and the law. For this reason, it would be inappropriate for a supervisor to direct a
subordinate supervisor to propose or impose discipline based on a charge of misconduct that the
subordinate supervisor did not believe was supported by the evidence.

Authority to take personnel actions against Department attorneys is vested in the
Attorney General, but is delegable. Within the Executive Office for United States Attorneys
(EOUSA), the authority to issue reprimands and to propose suspensions of 14 days or less is

The Honorable Lamar S. Smith
Page Two
delegated to the First Assistant United States Attorneys (FA US As). United States Attorneys
(US As) are delegated authority to issue decisions on suspensions of 14 days or less and to
propose suspensions of more than 14 days or remova1. 1 The decision on a proposed suspension
of more than 14 days or removal would be issued by the Director ofEOUSA or one of a limited
number of delegees within EOUSA. For example, if a FAUSA proposed a 10-day SUSPension of
an Assistant United States Attorney (AUSA), the AUSA would then respond to the USA. The
USA could then issue a 10-day suspension, reduce the time of the suspension, issue a written
reprimand, or decline to impose any discipline at all. Because in that example the proposed
suspension is less than 14 days, the AUSA could grieve the USA's decision to EOUSA.

For the Department components., authority to impose discipline involving suspensions of
14 days or less has been delegated to the Assistant Attorneys General (AAGs), and authority to
impose suspensions of more than 14 days or removals resides in the Office of Attorney
Recruitment and Management (OARM). The AAGs are authorized to delegate their disciplinary
authority to subordinate supervisors.
Under existing procedures, when the Office of Professional Responsibility (OPR) finds
that a Department attorney has engaged in professional misconduct, the responsibility falls to the
supervisory persotulel in the employing component to impose discipline. PW'Suant to
longstanding Department policy, however, any supervisor who wants to depart from OPR's
findings of misconduct or recommended range of discipline is required to notify the Office of the
Deputy Attorney General (ODAG). In response to such a notification from the employing
component, ODAG solicits a response from OPR. Upon reviewing the response, ODAG either
authorizes the component to depart from the OPR findings or delegates the matter to another
Department component-often OARM---to make the disciplinary decisions unconstrained by the
OPR findings. All of this review occurs prior to any actual disciplinary proposal and the
Department attorney's chance to respond to that proposal and to file a grievance or appeal. In
addition, when an attorney whom OPR found to have engaged in misconduct has left the
Department prior to imposition of discipline, ODAG reviews and decides any challenge to the
OPR finding of misconduct to determine whether to authorize a referral to the subject attorney's
state bar disciplinary authorities.
As a general role, the Department believes that delegation of disciplinary authority to the
managers in the USAOs and components best allows the USAs and AAGs to effectively manage
those offices. However, the multi-level process triggered by OPR findings adverse to the
employee is cumbersome and has become so time-consuming that it is no longer consistent with
responsible management. The process also poses certain risks of inconsistency in disciplinary
matters insofar as outcomes might depend on whether the supervisor agrees or disagrees with
OPR's finding because ODAG review is triggered only in the latter instance. The PMRU will
significantly improve this process. First, with respect to disciplinary actions resulting from OPR
findings of professional misconduct, the PMRU will assume the disciplinary authority previously
delegated to the FA US As, US As, and the AAG for the Criminal Division. Second, the PMRU
will have the authority to endorse or reject OPR's findings of professional misconduct. As a
1

Of course, each supervisor also retains the disciplinary authority delegated to lower level supervisors, so that any
action that could be taken by a FA USA could also be taken by a USA.

The Honorable Lamar S. Smith
Page Three
result of this authority, the PMRU will determine both the misconduct findings and the range of
discipline, thereby avoiding procedural flaws that may arise under the current process. Third, the
PMRU will be able to resolve these matters more quickly than the current system, which requires
action by officials with other responsibilities. Fourth, the PMRU will-initially for the USAOs
and the Criminal Division only-resolve all disciplinary matters arising out ofOPR findings of
professional misconduct, which will eliminate the risk of inconsistent resolutions that is inherent
in the current process. 2
The PMRU's independence will be protected because the authority to impose discipline
will he delegated without restriction. In instances where a letter of reprimand is issued to an
attorney, the disciplinary process will be handled entirely within the PMRU. If the PMRU Chief
imposes a suspension of 14 days or less, the attorney subject to the discipline may file a
grievance with ODAG. If the PMRU Chief imposes a suspension of 15 days or more, or if the
PMRU Chief removes the employee, the attorney subject to the discipline may file an appeal
with the MSPB. The transparency of the PMRU will depend in large measure on the privacy
interests of the individuals involved, and Departmental interests in SOWld management. We will,
of course. seek to accommodate the Committee's oversight needs for information about these
and other Department activities, consistent with these interests.
Finally, we expect that the PMRU will be funded through existing Departtnent
appropriations and staffed by current Department employees. We will examine staffing and
related resource needs after we develop some experience with PMRU operations.
The Department has substantial confidentiality interests in documents reflecting the
internal deliberations that resulted in establishment of the PMRU. We think it is important to
protect the candid exchanges of views within the Department about the disciplinary process in
order to assure that participants will not be chilled in future debates about important issues
relating to these matters. We have enclosed the Acting Deputy Attorney General's memorandum,
establishing the PMRU, which we believe will be helpful, and we are prepared to schedule the
requested briefing to accommodate the Committee's needs for any additional infonnation about
the PMRU.
We hope that this information is helpful. Please do not hesitate to contact this office if
we can provide additional assistance regarding this or any other matter.

Sincerely,

Ronald Weich
Assistant Attorney General
cc:

2

The Honorable John Conyers, Jr.
Ranking Minority Member

OPR findings of poor judgment or mistake will continue to be handled by Ihe USAOs and components.

U.S. Department of Justice

Office of Legislative Affairs

Office of the Assistant Attorney General

Wtuhington, D.C. 20530

March 2. 20 II
The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515
Dear Mr. Chairman:
This resporuls to your letter to the Attorney General dated February 16, 20 II, regarding
our response to your previous request for docwnents and information relating to the policies and
practices of the Civil Rights Division with regard to the bringing of cases under the Voting
Rights Act
First. we want to assure you that. in keeping with the Attorney General's statements to
you, the Department is fully committed to working with the Committee to accommodate its
oversight needs for infonnation, consistent with our responsibilities. In response to your January
6, 2011, request, we produced over 450 pages of documents ami made an additional29 pages
available for review by your staff at the Department.
We are pleased to elaborate on the confidentiality interests that led us to make a small
number of additional documents available for review by Committee staff, instead of copying
them ami providing them to you. The documents in question set forth internal deliberations ami
communications about policy, budget, law enforcement, ami litigation matters, including
particular cases in some instances. We are concerned that further disclosure of these docwnents
would chill their preparation in the future and otherwise complicate our law enforcement efforts.
Accordingly, in an effort to accommodate your request, we made these documents available for
review by Committee staff.
For example, we made available for review handwritten notes about informal Voting
Section meetings with the Division's new leadership. We are concerned that releasing these
documents would discourage attorneys from taking notes at such gatherings or even from
participating in them at aiL (Their release also could permit identification of career staff in
attendance, which is problematic for reasons explained below.) Instead of withholding these
documents altogether, however, we sought to accommodate the Committee's needs by making

The Honorable Lamar S. Smith
Page Two
them available for review. We are prepared to make them available for further review by your
staff ifthat would be helpful.
We have similar concerns about identifying career Section attorneys who prepare
memoranda intended for internal purposes or haodwritten notes relating to informal, internal
meetings. We do not want to chill employees from preparing documents that set forth their
candid views about matters of concern to them or informal notes about Section meetings with
Division leadership. We want them to feel free to prepare frank internal memoranda or notes as
they see fit without concern that the Department will identify them or release the documents.
We also Ul1derstsnd that you would like to interview the author or authors. We believe, however,
that asking career Section attorneys to explain their handwritten notes and other internal
documents to Congress, or to report to Congress on who said what at internal Section meetings,
would exacerbate the chilling effect on the performance of their duties. We made the documents
available for review in an effort to accommodate the Committee's information needs, consistent
with our interests in protecting Section attorneys aod the confidentiality of their internal
communications. We are prepared to work with staff to discuss other options for meeting the
Committee's needs, but we ask that you provide more information about your interests. lf you
can advise us about the particular information you seek, we can work with you to explore
possibilities for accommodating the Committee without sacrificing the Department's legitimate
interests in avoiding a chilling effect on career Section attorneys in performing their
responsibilities.
We appreciate your interest in the documents that were neither produced nor made
available for review. However, we have not prepared a log, in part because detailed descriptions
of those documents would in many instances compromise the confidentiality interests that we
want to protect. We also believe that we can accommodate your information needs by describing
the documents by category, consistent with usual oversight practice. Those categories are:
l) draft regulations, which we will provide in fmal form when they are published, and a few
other draft internal documents, such as the Strategic Goals document that Committee staff
reviewed in final form at the Department; 2) portions of the Section 5 manual that are law
enforcement sensitive, aod marginally responsive to your request; and 3) highly deliberative
internal communications, including emails about specific litigation issues, in which we have
significant confidentiality interests. There are also a few additional, marginally responsive
internal deliberative documents, such as one about resources aod staffing. While we believe that,
in addition to the information provided in our January 31st cover letter, the description above
should be sufficient, we remain available to confer with your staff if that would be helpful.
We are enclosing training materials responsive to your request with minor redactions. In
addition, we will make available for review another document, also with a minor redaction,
requested by your staff that was referenced in the memorandum from Assistant Attorney General
Thomas Perez, dated January 14,2011, which we made available forthe Committee's review.
The January 14" memorandum described a policy change that the Division made in the spring of
2009 to allow each professional working on a Section 5 submission to provide his or her

The Honorable Lamar S. Smith
Page Three
recommendation in writing about that submission. This change restored what had been the
longstanding practice in the Voting Section, during multiple Administrations, until it was
changed in 2005 to eliminate the recommendations of career professionals besides the Section
Chief.
Finally, the document that you suggested had been retyped had been redacted with
ellipses, which is different from our usual method of making redactions. It has now been
redacted in our usual manner and, although the redacted text is unchanged, we will again make it
available for your review at the Department at your convenience. Most of the redactions pertain
to non-responsive text and a few pertain to references to specific Voting Section investigations.
We hope that this information is helpful and that your staff will continue discussions with
us about your particular information needs in order to facilitate our efforts to accommodate them.
Please do not hesitate to contact this office if we may provide additional information regarding
this or any other matter.
Sincerely,

*100\
Ronald Weich
Assistant Attorney General
cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

U.S. Department of Justice
Office of Legislative Affairs

Office of !he Assis1ant Attorney General

Washing/an, D.C. 20530

January31,20ll

The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This responds to your letterto the Attorney General dated January 6, 2011, concerning
the policies and priorities of the Department of Justice (Department) relating to the enforcement
of federal voting rights laws. In your letter, you raise concerns regarding whether the Civil

Rights Division is enforcing voting rights laws in an evenhanded fashion, and whether the
Division has adopted a practice of racially biased enforcement of voting rights laws. In
responding, we want to be clear on this point: the Department is firmly committed to the fair,
vigorous, and evenhanded enforcement of all of the civil rights laws within its authority,
including federal laws protecting the right to vote.
As the Attorney General and other officials of the Department have stated, the
Department makes enforcement decisions, including in the area of voting rights, based on the
merits of the case, not the race, gender, ethnicity, or political affiliation of any party involved.
Since its enactment, nearly all cases brought by the Justice Department alleging racial
discrimination underthe Voting Rights Act of 1965 (VRA) have challenged practices that deny
or abridge the right to vote of racial or language minorities. This record of enforcement under
both Republican and Democratic administrations, over 45 years, does not suggest reticence to
pursue meritorious cases in which white voters are the victims. Rather, it reflects the historical
origins and role of the VRA, which was enacted in response to the history of discrimination
against Africao Americans and other minorities and the civil rights struggles of the 1950s and
1960s. As former Judiciary Committee Chairman Sensenbrenner said, after leading the
successful effort to reauthorize the VRA in 2006. the VRA "is accurately described as the ·crown
jewel' of the civil rights movement for having been successful in protecting minority voters who
were disenfranchised in certain parts of the COWltry ..•• Racial discrimination in the electoral
process continues to exist and threatens to undennine the progress that has been made over the
last 40 years."' These historical facts. however. do not restrict enforcement policy under the
VRA, which remains focused on the legal merits of each potential enforcement action.

1

http://seneenbrenner.house.gov/News/DocumentSingle.aspx?DocumentiD:::55494.

The Honorable Lamar S. Smith
Page Two
Furthermore, the Department does not choose which provisions of the voting rights laws
to enforce or not to enforce. Indeed, since Thomas Perez was sworn in as Assistant Attorney
General for Civil Rights in October 2009, he has made clear to all the employees of the Civil
Rights Division that the Division must recommit itself to enforcing all the laws that it is
empowered to enforce, and not pick and choose among them That was a central part of his
address to the Division on October 14, 2009, shortly after be arrived, in which he said, "we must
and will restore public confidence in the Division, and we can do so by enforcing the laws, all
the laws, fairly and aggressively ...." He reiterated this fundamental message at his installation
ceremony; in his visits to every section in the Division. including the Voting Section; in

testimony before the House and Senate; in public speeches; and in meetings with U.S. Attorneys'
offices. Some of the documents that are being provided under separate cover in response to your
letter reflect Mr. Perez's statements to Division employees and the public regarding the
Division's enforcement polices and responsibilities.
Your letter asks whether Deputy Assistant Attorney General (DAAG) Julie Fernandes
explicitly or implicitly directed Voting Section staff not to enforce any section of any federal
civil rights statute based upon the race of the alleged victim or perpetrator, or not to enforce
Section 8 of the National Voter Registration Act (NVRA). Ms. Fernandes denies issuing any
such directions_ Specifically, Ms. Fernandes has infonned the Assistant Attorney General for
Civil Rights that she did not direct, nor did she intend by implication to direct, any staff member
of the Voting Section not to enforce any provision of law within the Section's jurisdiction.
When these allegations first arose, Assistant Attorney General Perez took them very seriously.
He spoke with Ms. Fernandes, reviewed relevant materials in connection with requests from the
United States Commission on Civil Rights, and undertook additional inquiries within the
Division consistent with his responsible management of the Division. Ms. Fernandes also
assured Mr. Perez that she has always made, and will continue to make, enforcement decisions
based on the merits. Whatever incorrect inferences about Department policy some may have
drawn from anything Ms. Fernandes said, the Department does not predicate enforcement
decisions on the race of the alleged perpetrators or of the victims.
As you know, since Mr. Perez's initial review, the Department's Office of the Inspector
General has initiated an inquiry into the enforcement of civil rights laws over time by the Voting
Section, which may address some of the matters raised in your letter. In deference to the
ongoing OIG investigation, and in light of the infonnation provided to the Assistant Attorney
General for Civil Rights as described above, the Department has not undertaken further detailed
investigation of this matter for purposes of responding to your questions. We have reviewed the
acrions of the Voting Section during Ms. Fernandes' tenure. That record is consistent with her
stated commitment, and the Division's stated commitment, to evenhanded law enforcement.
During Ms. Fernandes' tenure as DAAG, for example, the Voting Section has requested
additional relief on behalf of white voters in United States v. Ike Brown. Noxubee County
Democratic Executive Committee, and Noxubee County Election Commission_ In 2007, the
district court had found that these defendants had violated Section 2 of the Voting Rights Act by
discriminating against white Noxubee County voters. The Court entered an Order prohibiting
the defendants from engaging in discriminatory conduct, and retaining jurisdiction in the matter

The Honorable Lamar S. Smith
Page Three
until November 20 II. Upon learning last year that the defendants had taken recent actions that,
in the judgment of Division attorneys, violated both the letter and spirit of the 2007 Court Order
prohibiting discrimination, Ms. Fernandes authorized a series of actions that included the motion,
filed in July 2010, seeking additional relief on behalf of the white voters who bad been victims of
the defendants' continuing course of discriminatory conduct This motion awaits a ruling by the
Court.
The Division's actions are also inconsistent with the alleged policy against enforcement
of Section 8 of the NVRA. Under Ms. Fernandes' direction. in 2010 the Voting Section, for the

first time ever, issued comprehensive written guidance on compliance with the NVRA. The
guidance explained every provision of the NVRA enforced by the Departtnent that imposes
obligations on states, and provided a straightforward roadmap for comp~ance. The guidance
included discussion of the voter registration and list maintenance requirements of the NVRA, ·
including the procedures for removing voters' names from the rolls as set forth in Section 8 of
the statute. This document will serve as an important resource to states seeking to voluntarily
comply with the Act's requirements. In addition, the Division bas undertaken enforcement
matters under both Section 7 and Section 8 of the NVRA in accordance with the guidance. For
instance, the Division sent letters to a nwnber of states seeking information regarding
compliance with Section 7 and Section 8, based on data contained in recent Election Assistance
Commission reports. Thus, the Division's actions demonstrate the inaccuracy of any suggestion
that the Division is following a policy of selective enforcement of the NVRA.
Each Attorney General and his designees establish enforcement priorities for the
Department, and the setting of enforcement priorities has never been interpreted to mean that
other statutes should not he enforced or that meritorious cases should not be brought. Section 7,
which is designed to increase access to the ballot by requiring state and local governments to
make voter registration materials more readily accessible in various government offices, is a
critical provision of the NVRA. The Division has exercised, and will continue to exercise, its
prosecutorial discretion to focus on cases regarding Section 7 given its importance, but this of
course does_ not mean that other provisions of the Act are being ignored.

Your letter further asks whether the Department has disavowed directives attributed to
Ms. Fernandes or provided any instructions to Ms. Fernandes in connection with such a
directive. As noted above, Ms. Fernandes denies directing any Voting Section staff member not
to enforce any provision oflaw within the Section's jurisdiction. The Voting Section's actions
during her tenure are consistent with the Division's policy of fair-minded enforcement. The
Assistant Attorney General for Civil Rights thus determined that the Division's and the
Department's policy was not in need of clarification. Nonetheless, from the outset of his tenure,
he also bas recognized the importance of reaffirming the policy. As noted earlier, he made clear
in his very first address to Division employees in October 2009, that the Division will "enforce
the laws, all the laws, fairly and aggressively." Mr. Perez has delivered this same message on
many different occasions.

The Honorable Lamar S. Smith
Page Four
Your letter also references statements by Ms. Fernandes that appear in an October 22,
2007 article referencing an upcoming hearing on oversight of the Voting Section of the Civil
Rights Division. While the cited quotation appears in the article, a review of Ms. Fernandes'
testimony at the hearing a week later provides important context. Before the Subconunittee, Ms.
Fernandes stated: "The only case brought [during the Bush administration] alleging racial
discrimination in the deep south was a case to protect White voters in Mississippi. Of cowse,
White voters are protected by the Voting Rights Act. But it strains the imagination to believe
that the only example of racial discrimination in voting in the deep south for the past 6 years was
a case involving White voters."[IJ Her testimony illustrates that Ms. Fernandes recognized that
the VRA protects white voters as well as minority voters, while also acknowledging the reality
that the statute was enacted in response to pervasive discrimination in voting against African

Americans and other minority citizens.
With respect to the claim that Ms. Fernandes said that "it was up to the U.S. Attorney"
and not the Civil Rights Division to bring certain voter intimidation cases, Ms. Fernandes
advises that the claim may reflect a misunderstanding of comments about the allocation of
enforcement responsibilities under Department regulations in effect since 1969. The assertion
may relate to a conversation concerning a specific investigation under Section II (b) of the
Voting Rights Act that involved allegations of intimidation of voters who planned to vote for a
particular candidate, but did not involve any suggestion that race was a factor. Department
regulations provide that the Criminal Division, and not the Civil Rights Division, has the
responsibility for enforcing voter intimidation matters under Section ll(b) "insofar as they relate
to voting and election matters not involving discrimination or intimidation on grounds of race or
color." See 28 C.F.R. § 0.50(aX2); see also 28 C.F.R. § 0.55(m)(l)(sarne). Ms. Fernandes'
description of what those regulations provide, including her statement that United States
Attorneys had jurisdiction to handle certain types of voter intimidation cases, in no way suggests
that the Division would not bring certain kinds of cases based on the race of the victims.
In sum, based on Mr. Perez's discussions with Ms. Fernandes, as well as on the actions
the Voting Section has taken during her tenure as Deputy Assistant Attorney General, Mr. Perez
has full confidence that the Division continues to sustain its commitment to the evenhanded
enforcement of all of the civil rights laws within its enforcement authority.
Although the specific questions in your letter pertained to the Voting Section, the
Division's enforcement efforts across the civil rights spectrum likewise evidence this
commitment to evenhanded application of the civil rights laws. For this reason, and to assist the
Committee in understanding the Civil Rights Division's practices, we are providing the
following brief summary of some of its enforcement efforts in the last two years.

[ll Hearing Before the Subcommittee on the Constitution, Civil rights, and Civil Liberties of
the House Committee on the Judiciary, BOth Cong. at 61 (Oct. 30, 2007) (statement of Julie
Fernandes, Senior Policy Analyst and Special Counsel, Leadership Conference on Civil Rights).

The Honorable Lamar S. Smith
Page Five

Criminal Enforcement
Over the last two years, the Civil Rights Division's Criminal Section has filed a record
number of criminal cases. In fiscal year 20 I0, the Criminal Section filed 125 cases, a number
that surpassed the previous record set in fiscal year 2009 (112). This was almost twice the
number of cases filed in 2003 (63). In Fiscal Year 2010, the Criminal Section, working in
concert with United States Attorneys' offices, filed more human trafficking cases (52) than at
any other time in its history, including its largest ever trafficking case, involving over 400
victims. Also in Fiscal Year 2010, the Criminal Section filed more law enforcement misconduct
cases (52) than ever before, including a number of high profile cases in New Orleans. In
addition, the Division continues to prosecute a steady docket of hate crimes cases, including a
recent case in which a defendant pleaded guilty to threatening to kill the leaders of a number of
national civil rights organizations that advocate on immigration issues. The Division has been
working tirelessly to implement the Matthew Shepard and James Byrd, Jr., Hate Crimes
Prevention Act of2009 and has opened more than 80 investigations under this historic law.

Fair Housing and Fair Lending
In response to the mortgage crisis, the Division, for the first time, established a dedicated
Fair Lending Unit and significantly increased the staff and resources devoted to fair lending
enforcement. Last year, the Department announced the largest monetary settlement for
borrowers in the Department's history in a fair lending case that involved allegations of
discrimination against African American borrowers by two subsidiaries of AI G. In November
2009, the Division secured the Department's largest ever monetary settlement of rental
discrimination claims, requiring the owners of numerous apartment buildings in the Koreatown
neighborhood of Los Angeles to resolve claims of racial discrimination against African
Americans and Hispanics seeking rental homes. In Fiscal Year 2010 alone, the Division filed
more settlements in cases involving a pattern or practice of discrimination than in any year in
more than a decade.

Protecting Students from Harassment

Over the last two years, the Civil Rights Division has investigated several allegations of
harassment of students and the failure of school districts to take the necessary steps to ensure the
safety of targeted students. The Division has reached important settlement agreements with
school districts that knew about and were deliberately indifferent to harassment by failing to
respond appropriately. In a matter involving the Philadelphia, Pennsylvania school district, after
conducting a thorough investigation, the Civil Rights Division filed a complaint, along with a
negotiated settlement agreement, alleging that the school district was deliberately indifferent to
severe and pervasive harassment and physical abuse of Asian-American students at the hands of
African-American students. In one incident, more than 30 Asian-American students were
attacked, 13 of whom were sent to hospital emergency rooms. The Division's docket includes
numerous harassment cases involving victims and perpetrators of many different backgrounds,
and all such cases are investigated with equal vigor and independence.

The Honorable Lamar S. Smith
Page Six
Combating Discrimination in the Workplace

The Civil Rights Division recently won a significant victory when a federal District Court
found that the hiring practices ofNew York City to select entry-level firefighters unlawfully
discriminated against African Americans and Latinos, and is pursuing appropriate relief in this
case. In 2009, the Division entered into a consent decree with the City of Gary, Indiana, to
provide relief for five white individuals who had applied for Emergency Medical Technician
(EMT) positions and were passed over in favor of lower-ranked African American applicants on
the City's hiring list.
Protecting tbe Civil Rights of Military Personnel

The Division also has been vigorously and successfully enforcing the laws that protect
the rights of members of the uniformed services. The Division has worked to promote
expeditious resolution of discrimination complaints under the Unifonned Services Employment
and Reemployment Rights Act (USERRA) to ensure that service members returning from active
duty are not penalized by their civilian employers. During the most recent election cycle, the
Division worked aggressively and successfully to enforce the Unifonned and Overseas Citizens
Absentee Voting Act (UOCAVA), as amended by the Military and Overseas Voter
Empowerment (MOVE) Act of2009. The Voting Section's enforcement actions under the
MOVE Act, consisting of court orders, court~approved consent decrees, or out.of-court letter or
memorandum agreements in 14 jurisdictions, ensured that Americans serving in our armed
forces and citizens living overseas received their absentee ballots in time to have the opportunity
to vote and to have their votes counted. In addition, the Division has taken aggressive actions to
enforce the Servicernemhers Civil Relief Act (SCRA), which provides a panoply of protections
to active duty military personnel in the foreclosure, eviction, repossession and other credit
contexts.
Protecting Voting Rights

In addition to the voting rights matters addressed above, the Division is engaged in a
wide range of effurts to protect the right to vote. It is undertaking intensive efforts to prepare for
the upcoming round of redistricting that will follow the release of the 2010 Decennial Census
data. Recently, the Division has published for comment the first major proposed revisions since
1987 to its procedures for the administration of Section 5 of the VRA. Likewise, the Division is
preparing updates to its 2001 published guidance concerning redistricting and Section 5 oftbe
VRA. We anticipate that the new guidance and revised procedures will be completed soon, and
we will provide a copy of the final guidance and final procedures to the Commirtee. The
Division is vigorously defending the constitutionality of Section 5 of the VRAin the courts, and,
in December 2010, the D.C. District Court granted the Division's motion to dismiss a
constitutional challenge brought by private plaintiffs in North Carolina. The Voting Section is
heavily engaged in conducting reviews of requests from covered jurisdictions for bailout from
the coverage requirements of Section 5, and recently consented in federal court to bailout by
several jurisdictions. The Division also has reached groundbreaking settlements affecting

The Honorable Lamar S. Smith
Page Seven
thousands of citizens to ensure they get the language assistance they need to cast an infonned
vote, including reaching an innovative settlement in South Dakota protecting Native American
voters with limited English proficiency.
Safeguarding Religious Liberty
The Department recently marked the lOth anniversary of the enactment of the Religious
Land Use and Institutionalized Persons Act (RLUIPA). The Civil Rights Division continues to
pursue a steady stream of cases involving religious discrimination, especially in the land use
setting. In June 2010, the Department obtained a consent decree permitting the continued
operation of a "Shabbos house" next to a hospital in a New York village. The facility in question

provides food and lodging to Sabbath-observant Jews to enable them to visit sick relatives at the
hospital on the Sabbath. The Division reached a successful settlement in 2009 in a case
involving the effort of a Christian group in Tennessee called Teen Challenge to purchase land to
build a residential substance abuse center.
Empowering People with DisabiHties

During the past year, the Civil Rights Division has entered into landmark settlements
under the Americans with Disabilities Act (ADA) to make movie theatres, hotels and other
places of public accommodation accessible to people with disabilities. The Division a1so
continues to actively pursue cooperative agreements with municipalities through its Project Civic
Access (PCA) initiative, ensuring that streets, libraries, government buildings and other critical
community infrastructure are accessible. The Civil Rights Division has launched an aggressive
effort to enforce the Supreme Court decision in Olmstead v. L.C., a 1999 ruling recognizing that
the unjustified isolation of people with disabilities in institutional settings is a form of
discrimination under the ADA. A few months ago, the Division reached a groundbreak.ing
settlement with Georgia that will enable thousands of eligible people with disabilities to receive
care and treatment in community based settings.
These cases represent just a small a sampling of the work of the Civil Rights Division. As
you can see, these efforts involve a wide range of critical issues and a diverse array of victims
whose rights the Division is working to vindicate.
In conclusion, we want to assure you again that the Civil Rights Division is committed to
evenhanded enforcement of civil rights laws, its staff has received clear guidance to that effect,
and its actions provide compelling evidence of that commitment. As Assistant Attorney General
Perez said in his installation ceremony, "Our job is to enforce the civil rights laws-all the laws.
Civil rights enforcement is not like the buffet line at the cafeteria. You can't pick and choose
which laws you like, and which ones you don't. We will enforce all the laws in fair, aggressive
and independent fashion, and we will use all the tools available to us."

The Honorable Lamar S. Smith
Page Eight
Thank you for bringing your concerns to our attention. We will respond under separate
cover to the docwnent request set forth in your letter. Please do not hesitate to contact this office
if we may be of further assistance regarding this or any other matter.
Sincerely,

Ronald Weich
Assistant Attorney General
cc: The Honorable John Conyers, Jr.
Ranking Minority Member

U.S. Department of Justice
Office of Legislative Affairs

Offke of the A~~isJanl Allomey General

Wrnlriugtrm.

n. C

20530

January3l,20ll
The Honorable Lamar S. Smith
Chainnan
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515
Dear Mr. Chairman:
This responds to the portion of your letter dated January 6, 2011, which requested
documents, including emails, produced since February 2009 that relate to the Department of
Justice's policies and practices with regard to the bringing of cases uoder the Voting Rights Act.
We are responding under separate cover to the other requests set forth in your letter.
We forwarded your request for documents to the Civil Rights Division and current staff
with responsibilities for civil rights matters in the Offices of the Associate Attorney General, the
Deputy Attorney General and the Attorney General. In addition, we requested that a search be
conducted within the Departmental Executive Secretariat, which is the official records repository
for the Offices of the Artomey General, the Deputy Attorney Geoeral, and the Associate
Attorney General. Within the Civil Rights Division, we circulated the request to approximately
thirty individuals who serve or have served in the Office of the Assistant Attorney Geoeral or the
leadership of the Voting Section since February 2009. In accordance with your letter and our
informal conversations with Committee staff, our search focused on documents regarding
policies and practices that would guide the determination about whether or not to bring a case
under the Voting Rights Act. We will supplement this response if additional responsive
documents are identified.

Enclosed are 459 pages of documents responsive to your request. We also have identified
additional document!' in which the Department has substantial confidentiality interests because
they set forth internal deliberations about policy, budget, law enforcement or litigation matters,
including particular cases in some instances. We are prepared to make some of these documents
available for review by Committee staff at the Department at any convenient time. The limited
redactions we have made in these documents pertain to pending matters or matters in which the
Department has not disclosed its interest, internal deliberations, and non-responsive text in
documents that address multiple topics.

The Honorable Lamar S. Smith
Page Two
We hope that this information is helpful and we would be pleased to confer further with
Committee staff about this request. 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
cc:

Tbe Honorable John Conyers, Jr.
Ranking Minority Member

Enclosures

Related Interests

e proceedings, as well as time EOIR adjudicators and
P"rsonncl spend administrati vel~ processing. reviewing. and evaluating cases ouL,idc of the
courtroom setting.
As Lo your questions regarding the time spent on this initiative by Ol IS personnel and the
sragc aL v.hi~h ICF rna) decide lo exercise its proseclatorial dlsnetion in an· immigration cas(!, we

refer you to l>f!S' s response Lu your lener dated April

n. ~0 12.

We hope this inlimnaliun is helpful. Please du nut hesitate to eunlaclthis ollice if we
may provide additional assistance regarding this ur any other matler.
Sineerely.

JJ:::p:l~a~

Acting Assistant Attorney tieneral
Enclosure

cc:

l'hc Honorahlc John Con)ers. Jr.
Ranking Minority Memhcr

cc:

l'hc llonorabk Patri<:k
Chainnatf

Leah~

' See generally. memoranda. dated March~. 20 II. ti·om J,•hn Monon. Director or ICL entitled
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AI ieus .. : anJ dated June I 7. 2!l II. cnlilkd .. r~rerd1 i11g /'msemtor iol /Ji.,actioll ( 'm•.,·i.•·tetl/ ll'itlt
the ( 'h·i/luwiiKI'Otiwt /:'J!forcemem l'rioritie., 1~/ tlu.• .·lJ.,:ellly /or the .·lPf'rehl'll.\itJII, Detention. awl
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/Jefiwc the Fxecmire ( J(iice /or

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U.S. Department of Justice
Office of Legislative Affairs

Office of the Assistant Attorney General

The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515

Washington, D.C. 20530

JUN 06 2012

Dear Mr. Chairman:
This responds to your letter to the Attorney General dated May 25, 2012, which asked the
Department to respond to all outstanding oversight letters by June 6, 2012.
In the past week, we have coordinated with Committee staff to confirm your receipt of
responses to several oversight letters. We have also advised staff that we are not yet in a position
to respond to a few letters because we have not completed the steps necessary to answer your
questions, although our efforts are under way in each instance. We appreciated the opportunity
to confer with your staff to resolve questions about outstanding oversight letters in advance of
the Attorney General's hearing before the Committee on June 7, 2012.
Please do not hesitate to contact this office if we may provide additional assistance
regarding outstanding oversight letters or any other matter.
Sincerely,

C~:~

Acting Assistant Attorney General

cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

U.S. Department of Justice
(

Office of Legislative Affairs

Office of the Assis[an[ Anorney General

\*uhingtvn. D. C. 20530

JUN 042012

The Honorable Lamar S. Smith
Ranking Minority Member
Committee on the Judiciary
U.S. House of Representatives
Washington DC 20515
Dear Chairman Smith:
This responds to your letter to the Attorney General dated November 2, 20 II, regarding
concerns with one of the provisions concerning statutory exclusions that was contained in the
Department's proposed revisions to its Freedom oflnformation Act (FOIA) regulations and
inquiring about how exclusions are typically invoked We apologize for the delay in responding
to your letter.
Since issuance of Attorney General Holder's March 2009 FOIA Guidelines, the
Department has taken a number of steps to become more transparent in its handling of records
that are, by statute, excluded from the FOIA. Having now received a number of comments on
the Department's proposed regulations in this area, the Department is actively considering those
comments and is reexamining whether there are other approaches to applying exclusions that
protect the vital law enforcement and national security concerns that motivated Congress to
exclude certain records from the FOIA and do so in the most transparent manner possible. If the
proposed regulations can be improved in these respects, we will work to improve them. As to
Section 16.6(f)(2) of the proposed regulations, we will not include that provision when the
Department issues its final regulations.
Exclusions, which by statute can be applied only in very specific contexts, are different
from exemptions, which are more common. Congress excluded certain records from the FOIA
in 1986 to protect three narrow categories of law enforcement and national security information
that, if disclosed, could compromise vital interests. To take the simplest example, Section
552(cXI) of the FOIA recognizes that if a requester seeks information relating to an ongoing
criminal investigation, of which the target is unaware, and when even acknowledging the
existence of responsive documents would tip off the criminal to the ongoing investigation, those
records are not subject to the requirements of the FOIA.
Since 1987, the Department has handled records excluded under these provisions
according to guidelines issued by Attorney General Meese, which necessarily differ from the

The Honorable Lamar S. Smith
Page Two
"neither confirm nor deny" response. The Meese Guidance provided, among other things, that
where the only records responsive to a request were excluded from FOIA by statute, "a requester
can properly be advised in such a situation that 'there exist no records responsive to your FOIA
request,'" and that agencies must ensure that its FOIA responses to requests that invoke
exclusions and those that do not involve exclusions "are consistent throughout, so that no telling
inferences can be drawn by requesters." The logic is simple: When a citizen makes a request
pursuant to the FOIA, either implicit or explicit in the request is that is seeks records that are
subject to the FOIA; where the only records that exist are not subject to the FOIA, the statement
that "there exist no records responsive to your FOIA request" is wholly accurate. These practices
laid out in Attorney General Meese's memo have governed Department practice for more than 20
years.
While this approach has never involved "lying," as some have suggested, the Department
believes that the past practice could be made more transparent. Accordingly, as part of an effort
to update its FOIA regulations and other aspects of its Open Government initiative, the
Department took a number of steps designed to bring its handling of exclusions in line with
Attorney General Holder's commitment to open government.

First, to ensure that exclusions are invoked only when absolutely necessary, Section
16(f)(1) of the proposed regulations requires that the head of the FOIA office of any
Department of Justice component contemplating the use of an exclusion obtain approval
for such use from the Office oflnformation Policy.

Second, to promote greater accountability, Section 16.6(f)(3) requires components to
maintain records of any uses of an exclusion and its approval, and the Department has,
for the first time, required agencies to publicly report in their ChiefFOIA Officer
Reports on the number of times that they invoke exclusions.

• Third, to promote greater public awareness of exclusions than existed under the 1987
Attorney General Meese policy, Sections 16.4 and 16.6(f)(2) of the proposed regulations
sough to advise requesters of how exclusions may be used. Section 16.4 reminded
requesters that, under the FOIA, records that are excluded from FOIA are not subject to
the FOIA's requirements and are not considered responsive to a FOIA request.
Section 16.6(f)(2), in turn, sought to remind requesters that the exclusion of records from
a particular FOIA request is not noted in the response. As the 1987 Meese Guidance
recognized, consistent responses are necessary to avoid disclosing the ongoing criminal
investigation or other sensitive law enforcement or national security information that the
FOIA excludes.
Taken together, these steps were aimed at shining further light on a practice that, while
expressly contemplated by statute and necessary to protect vital law enforcement and national
security interests, operated for years with much less transparency. As you know, the initial

The Honorable Lamar S. Smith
Page Three
comment period on these regulations closed last year, with no public comment on the provisions
in question. As a result, however, of this Administration's commitment to openness, the
Department reopened the comment period on these regulations precisely so that it could receive
additional input. The reopened comment period has concluded, and the Department is now in
the process of reviewing those submissions. We are also taking a fresh look internally to see if
there are other options available to implement Section SS2(c)'s requirements in a manner that
preserves the integrity of the sensitive law enforcement records at stake while preserving our
continued commitment to being as transparent about the process as possible.
In response to your specific questions, first, as described above, since 1987 with issuance
of the Meese Guidance, responses involving excluded records are worded differently than
responses where the agency states it can "neither confirm nor deny" the existence of the
requested records. Second, while no statistics were previously kept on the number of times
exclusions were used, the Department has for the first time this year required public reporting of
use of exclusions. The Department reported using exclusions in 147 requests out of 63,992
requests that were processed in Fiscal Year 20 II. Third, since enactment of the statutory
provision containing exclusions, the Department has employed the same approach in responding
to requests as is detailed in the 1987 Meese Guidelines. Lastly, when Congress amended the
FO lA to include exclusions, the "neither confirm nor deny" response was already in existence
and used by agencies for certain categories of requests. As explained in the Meese Guidance, it
was because that response "inadequately protects against the particular harms in question that the
more delicate exclusion mechanism, which affords a higher level of protection, sometimes must
be employed." The exclusions themselves describe the three narrow categories of records where
a "neither confirm nor deny" response would not be adequate.
We hope that 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,

~~~r:r:-Acting Assistant Attorney General

cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

U.S. Department of Justice
Office of Legislative Affairs

Office of the As.sistont Attorney General

The Honorable Lamar S. Smith
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515

Washington, D.C 20530

JUN 0 4 2012

Dear Mr. Chairman:
This responds to your letter to the Attorney General and Secretary Napolitano dated
June 24,2011, regarding the Department's allocation of!aw enforcement resources along tbe
Southwest border. We appreciate your interest in these matters and share your commitment to
keeping our borders safe and secure. We apologize for our lengthy delay in responding to your
letter.
The dismantling and disabling of the transnational criminal organizations (TCOs) that
threaten the integrity of our Southwest border is a priority for this Administration. The
Department of Justice, with our partners at the Department of Homeland Security, is dedicating
unprecedented resources to ensure security along our Southwest border. Key to our response is
multi-agency coordination across state, federal, and international boundaries to target the
criminal networks that threaten our U .S.-Mexico border. Particularly through the use of
intelligence coordination centers such as tbe El Paso Intelligence Center (EPIC), the Organized
Crime Drug Enforcement Task Force (OCDETF) Fusion Center, and the multi-agency
operations coordination center known as the Special Operations Division (SOD), we are
bringing our collective resources to bear against tbe TCOs that operate along our Southwest
border.
The heart of tbe Department of Justice's strategy for addressing drugs and violence on
the Southwest border is through our own investigative and prosecutorial efforts as detailed in
our Strategy for Combating the Mexican Cartels ("Strategy"), issued by the Attorney General
on January 5, 2010. The Strategy emphasizes the use of intelligence to coordinate long-term,
complex investigations to identify all the tentacles of a particular criminal organization.
Through SOD, we are able to execute multi-jurisdictional enforcement actions, 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 destroy or weaken the drug

The Honorable Lamar S. Smith
Page 2
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.
This "whole of government" approach has led to a number of remarkable successes.
Some recent examples of SOD-coordinated investigations involving multiple OCDETF and
other task forces include:

Project Delirium (2011): This 20-month multi-agency operation targeted the
La Familia Michoacana Cartel distribution networks and resulted in the arrest of
I ,985 individuals;

Operation Bombardier (20 II): This disruption operation was a multi-agency
coordinated response to the murder of one U.S. agent and wounding of another by
members of Los Zetas Cartel. Operation Bombardier was a rapid response strike
targeting all Mexico drug trafficking organizations (DTOs) including cartel
members, associates, infrastructure and activity operating in the United States
regardless of specific cartel affiliation resulted in 676 arrests;

Project Deliverance (20 I 0): This 22-month multi-agency investigation targeted
all Mexican DTO transportation and distribution infrastructure along the
Southwest border and elsewhere in the United States, resulting in more than
2,200 arrests;

Project Coronado (2009): This 44-month multi-agency operation targeted the La
Familia Michoacana Cartel's distribution networks and resulted in I, 186 arrests;

Operation Xcellerator (2009): This 21-month multi-agency operation targeted the
Sinaloa cartel and resulted in the arrest of more than 750 individuals; and

Project Reckoning (2008): This 18-month multi-agency operation targeted the
then combined Gulf and Los Zetas Cartels and resulted in 621 arrests.

Combined, these six Department of Justice-led SOD and OCDETF investigations over
the past four years resulted in more than 7,700 arrests and the seizure of more than
$423,000,000 in U.S. Currency; 311,000 pounds of marijuana; 37,800 kilograms of cocaine;
2,500 pounds of heroin; and I0,400 pounds of methamphetamine.
Likewise, the Department has secured a number of notable extraditions and convictions
over the past year. For example, in January, narcotics kingpin Alberto Benjamin ArellanoFelix, head of the Tijuana Cartel, pleaded guilty in the Southern District of California to
racketeering and conspiracy to launder money, and was sentenced to 25 years in prison on April
2, 2012. Once that sentence is served, he will be sent back to Mexico to finish another 22 years

The Honorable Lamar S. Smith
Page 3
for a conviction there. Similarly, when three people associated with the U.S. Consulate in
Juarez were gunned down after leaving a child's birthday party in March 2010, the Criminal
Division and the U.S. Attorney's Office in El Paso stepped in, leading the investigation and
prosecution of over 30 members and leaders of the Barrio Aztecas gang, including the people
responsible for the Consulate murders. And, when ICE Agents Jaime Zapata and Victor Avila
were ambushed in Mexico in February 2011, resulting in the tragic death of Agent Zapata, the
Criminal Division and the U.S. Attorney's Office in Washington, D.C., spearheaded the
investigation and prosecution of the members of the Zetas responsible for the murder of Agent
Zapata and the shooting of Agent Avila. While this highly sensitive case is on-going, we are
achieving remarkable results.
Although we have made great strides against the Mexican drug cartels in recent years,
we cannot achieve success without support and input from congressional leaders like you. We
appreciate Congress' recognition that our efforts in Mexico must be consistent and sustained.
Our experience teaches us that there are no quick fixes to this type of problem. It is only
through a long-term, cooperative partnership with our own agencies, legislators, and neighbors
in Mexico that we will weaken the influence of organized crime on Mexican society and along
our Southwest border, thereby better protecting our citizens.
We hope this information is helpful. Please do not hesitate to contact this office if we
may be of assistance with this or any other matter.
Sincerely,

J::A~I~

Acting Assistant Attorney General
cc:

The Honorable John Conyers, Jr.
Ranking Minority Member

Office of Legislative Affairs

Wushmgton. LH · :!053f!

The Honorable Lamar Smith
Chairman
Committee on the Judiciary
Cnited States House of Representatives
Washington. D.C. 20515

JUN 042012

Dear Chairman Smith:
This responds to your letter to the Attorney General dated February 9. 2012. in which you
request an update on the activities of the Department of Justice's Office of Justice for Victims of
Overseas Terrorism (OVT). In your letter. you ask a series of specific questions about OVT' s
structure and work. We apologize f(lr the delay in our response.
As you note in your letter. Congress directed the Department to create OVT as part of a
2004 appropriations bill. See Consolidated Appropriations Act of2005, Pub. L. No. 108-447, §
126. 118 Stat. 2809. 2872 (2004 ). The conference report accompanying that bill cited the Koby
Mandell Act of 2003 and recommended that ovr s mission be "to ensure that the investigation
and prosecution of deaths of American citizens overseas are a high priority within the
Department of Justice ... H.R. Rep. No. I 08-792. at 780 (2004) (Con f. Rep.).
OVT functions today largely according to the framework set out by former Attorney
General Alberto R. Gonzales when he created the office in 2005. See Memorandum. Oflice of
the Attorney General. dated May 6. 2005 (hereafter "Attorney General's OVT Memo").
enclosed. OVT works to identify L.S. victims of overseas acts of terrorism wherever in the
world the acts are carried out. advocates for victims· rights in both domestic and foreign
prosecutions (including by supporting L.S. citizen victim attendance at and participation in
foreign criminal justice proceedings). arranges victim briefings with Department and other
government otlicials. and ensures that victims are kept informed about proceedings and that their
interests and views are considered by decision-makers. In creating OVT. Congress addressed an
existing gap: OVT serves as the only entity in the L.S. government with specific responsibility
for providing assistance to l".S. terrorism victims as they navigate foreign criminal justice
systems.

The Honorable Lamar Smith
Page Two
1. How many employees does OVT currently have? Please specifY position title as well as
whether it is full or part time.
OVT currently has tour full-time professionals (Director. Attorney Advisor. Victim Outreach
and Training Specialist. and Program Specialist).

2. Please provide OVT's actual budget, by year, since its inception.
OVT was under the Criminal Division from inception until June 6. 2007. It is now pan
of the National Security Division (NSD). Because NSD consists of only one decision unit. OVT.
like other sections within th.: Division. is not reported as a separate. identifiable line item in the
budget.
Note that OVT receives additional, program-specific funding from the Crime Victims
Fund through Interagency Agreements with the Office of Justice Program's Otlice for Victims of
Crime (OVC). This supplemental funding supports the Criminal Justice Panicipation Assistance
Fund (CJPAF). which is discussed more fully below. and a Training and Technical Assistance
lund. lt also provided seed money to establish the Victim Outreach and Training Specialist
position within OVT.

3. How many terrorists who injured or killed V.S. citizens overseas have been investigated
and prosecuted in the United States owing to OVT's efforts since 2005?
Within the Department of Justice. the FBI serves as the lead agency investigating federal
terrorism offenses. and the Counterterrorism Section of the National Security Division (formerly
a section of the Criminal Division) and C.S. Attorney's Otlices have lead responsibility for
prosecuting such offenses. See the Attorney General's OVT 'vlemo at 2. OVT does not have
investigative or prosecutorial responsibilities. !d. OVT's efforts to identify victims, monitor
victim cases. and ensure victims· rights. however. help keep victim cases and issues a priority
with investigators and prosecutors. Moreover. gaining the trust and cooperation of victims is a
key clement in a successful investigation and prosecution. Through its advocacy on behalf of
victims and in serving as a bridge between victims and decision-makers. OVT has made many
valuable contributions to the investigation and prosecution of terrorism offenses domestically as
well as abroad and kept justice for the victims a primary Department goal. Recent examples
include:

OVT assisted tarnily members and victims during the German prosecution of Arid Uka
for murdering two U.S. servicemen and injuring two others outside the Frankfurt.
Germany airport. OVT funded travel expenses tor six victim tamily members to travel
to Germany to attend and participate in the German prosecution. provided information to
the taruilies concerning proceedings and sentencing options. and assisted in obtaining
authorization trom C.S. victims to include personal information in a memorandum to

The Honorable Lamar Smith
Page Three
foreign prosecutors addressing sentencing aggravating factors. The German court
ultimately sentenced the defendant to the maximum sentence available after finding
aggravating factors supporting such a sentence.

OYT funded travel expenses for the victim's parents to anend several court proceedings
in the Israeli prosecution of lyad Fatafa and Kifah Ghneimat for the murder of an
American citizen in Israel. OYT's Allomey Advisor accompanied the parents to Israel
and assisted during meetings with the Israeli prosecutors. a visit to the crime scene.
development of a victim impact statement for presentation to the Israeli court, and a
meeting with the Israeli victim compensation program. The defendants were sentenced
to lite plus twenty years and two life sentences. respectively.

OYT maintains a password-protected website for the C.S. citizen victims of the 2002
Bali. Indonesia bombings that provides regular updates on the ongoing prosecution of
Lmar Patek lor his role in that crime. OVT also provided information on U.S. crimevictim rights to Indonesian ot1icials and worked with the t: .S. citizen victims to draft.
notarize. and properly format victim impact statements from 10 U.S. citizen victims or
their families. Department of Justice ot1icials in Indonesia provided the statements to
Indonesian authorities. OYT supported the travel of one U.S. citizen survivor of the
bombings to testify at the trial in Jarkarta. During his testimony. he provided photos,
medical records. and the ,·ictim-impact statements from all of the t;.s. victims to the
judges.

In the only C.S. prosecution based on the Mumbai. India a!!acks of November 2008.
OYT established a password protected website. The information on such websites
enabks victims to make informed decisions about interacting with the public and the
media and eliminates the need to rely on public sources tor information about the
investigation and prosecution that may be biased or inaccurate. See Allomey General
Guidelines for Victim and Witness Assistance. Art. Y.J.3 (2011 edition).

OYT introduced the family of a U.S. citizen killed in the !985 hijacking of the Achille
Lauro cruise ship to those investigating and prosecuting an arms supplier suspected to
have supplied the hijackers in a case involving unrelated charges. Thereafter, the C.S.
Attorney's Office victim witness coordinator staff assisted the victims in connection with
court proceedings.

OVT assisted l.i .S. victims of overseas a!lacks attributed to a! Qaeda in connection with
military commissions proceedings. OYT maintained a webpage for victims of aJ Qaeda
attacks. supported victim access to proceedings being held at Guantanamo Bay. Cuba.
and coordinated meetings between government officials and victims. Overseas a!lacks
attributed to a! Qaeda or a! Qaeda-atllliated groups include the bombing of the C.S.S.
Cole in Yemen. the East Africa Embassy bombings. the 2002 Bali bombings. the 2003

The Honorable Lamar Smith
Page Four
Jakarta. Indonesia hotel bombings. and the kidnap and murder of a U.S. citizen journalist
in Pakistan.

4. How many cases have been referred to OVT by third parties for action, whether
formally or informally, and how many of those requests has 0 VT acted upon and with
what result?
OVT receives numerous referrals from a wide variety of sources and endeavors to act on
all referrals. whether formal or informaL Examples include:
o

Creating password-protected informational websites lor victims (six websites for
nine cases that serve hundreds of victims).

o

Providing victims with information about foreign prosecutions and other matters
of interest through emails. phone calls. and personal meetings (hundreds of
individual contacts).

o

Supporting victim travel to foreign criminal justice proceedings ( l 0
victims/support persons in three cases).

o

Advocating for victim participation in foreign proceedings (numerous cases).

o

Coordinating meetings between victims and Justice Department and other
government agency officials (hundreds of victims have participated in meetings.
including two large meetings with victims of al Qaeda-attributed attacks and
several group meetings with victims from attacks in Israel. Gaza and the West
Bank).

o

Coordinating the designation process for the International Terrorism Victim
Expense Reimbursement Program (ITYERP). as discussed further below. ( 166
attacks designated).

o

Supporting victims· rights in C.S.-based prosecutions (multiple cases).

o

Providing daily public-source information to Justice Department officials.
prosecutors and investigators about international terrorism cases with C .S. citizen
victims (this service has varied over time: currently there arc 15 cases with daily
updates).

o

Meeting regularly with Justice Department otlicials to raise victim issues and
articulate victim views and needs (OVT staff has met at least three-to-five times
per week. every week for seven years with Justice Department officials for these
purposes).

The Honorable Lamar Smith
Page Five

5. The conference report cited above also directed OVT to "create a Joint Agency Task
Force consisting of Department of Justice and Department ofState personnel to be
activated in the event of a terrorist incident against American citizens overseas."
Please provide details on the history and composition of that task force and any
terrorist incidents in which it has been involved since its inception.
The Joint Agency Task Force was informally established immediately after OVT"s
creation in ay 2005. Soon thereafter. the Task Force was called upon to ensure that
infornmtion and assistance !lowed quickly and efficiently from the State Department's incident
task force to all Task Force members to meet the needs of the U.S. victims of the July 7. :wos.
London subway bombings. On September 27. 2007. the Assistant Attorney General for :"'ational
Security and the Assistant Secretary of State. Bureau of Consular Affairs. signed a memorandum
of understanding (MOl.:) that formally established the Task Force as the "Joint Task Force on
U.S. Citizen Victims of Terrorism Abroad" (hereafter VTA Task Force).
The VTA Task Force provides the platform for agencies with a role in assisting U.S.
overseas terrorism victims to meet on a regular basis and keep current on agency points of
contact. It has met on a regular basis since its creation and addressed a variety of topics.
including: Privacy Act information sharing issues. maintenance of an emergency contacts list.
coordination of responses to victims in specific cases. operation of the ITVERP and how to
publicize the program, presentations on specific topics by experts (e.g.. reunification of hostages,
special tax treatment for terrorism victims). and meetings with victims of acts of international
terrorism.

T"o particularly significant events tor the VTA Task Force were a debriefing covering
the response to the victims of the ""ovember :2008 umbai. India. a \tack and a victim
perspective meeting held in May 2009. The information developed during that meeting has been
used to intorm policy and training for C.S. government personnel working with victims of
international terrorism. The VTA Task Force plans to hold additional victim perspective
meetings in the future to continue the practice of consulting with victims about how the
government is meeting their needs in the aftemtath of terrorist attacks.

6.

Please Jist any other major OVT accomplishments in furtherance of its mission since
its inception