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As former Chairman and 35-year veteran of the House Judiciary Committee, I’ve sought answers to tough questions from both Republican and Democrat-appointed cabinet members. I am not motivated by partisanship, but by truth.  And once again, Eric Holder is hiding from the truth. 

On May 29, Chairman Goodlatte and I sent a letter to Holder which included a list of questions that gave the Attorney General the opportunity to clarify his May 15 testimony to the Judiciary Committee.  Unfortunately, in lieu of a genuine response, he tasked Principal Deputy Assistant Attorney General Peter J. Kadzik with drafting a defense. 

This is insulting and further proof that the buck doesn’t stop with Attorney General Holder. Not only did the letter come from a low-level staffer at DOJ, not Holder himself, it fails to answer the questions raised by his misleading testimony. 

Here are just a few problems with the Department’s response

“[T]he President has directed the Attorney General to conduct a review of Department policies regarding investigations involving the media.”
Problem: The Attorney General is in charge of investigating himself.

“[T]he Attorney General has initiated a dialogue with new media representatives.” 
Problem: The meeting was off the record and most members of the press declined the invitation.

“[Eric Holder] supports media shield legislation currently under consideration by the Senate.”
Problem: The Administration promoted the legislation in a blatant response to the AP scandal.  Even if it was law, it probably would not have protected AP reporters or James Rosen of Fox News.

“The Attorney General’s testimony before the Committee on May 15, 2013, with respect to the Department’s prosecutions of unauthorized disclosure of classified information was accurate and consistent with these facts.”
Problem:  Only a building full of lawyers can split hairs so finely to argue the Department’s investigation of Rosen did not rise to the level of a potential prosecution.  Every first year law student understands the difference between an investigation and a prosecution, but if the Department’s broad and open-ended warrant of Rosen’s emails was not part of a potential prosecution, then the Department has no regard for the First or Fourth Amendments. 

Congress and the American people deserve an explanation, on the record, from Attorney General Holder. It is clear Eric Holder is dodging accountability and the truth. He is unfit to lead the Department of Justice. 
Top Republicans on the House Judiciary Committee openly challenged Attorney General Eric Holder on Wednesday over his testimony two weeks ago in which he claimed to be unaware of any "potential prosecution" of the press, despite knowing about an investigation that targeted a Fox News reporter.

Committee Chairman Rep. Bob Goodlatte, R-Va., and Rep. James Sensenbrenner, Jr., R-Wis., voiced "great concern" in a letter to Holder. They asked a litany of questions about the department's dealings with the press, and pointedly alleged that the Fox News case "contradicts" his testimony at a May 15 hearing.

"It is imperative that the committee, the Congress, and the American people be provided a full and accurate account of your involvement," they wrote.

The letter comes a day after the committee confirmed it was looking into Holder's testimony. Appearing before the House Judiciary Committee on May 15, Holder insisted that "the potential prosecution of the press for the disclosure of material" is not something he was involved in or knew about.

But days later, it emerged that the Justice Department obtained access to the emails of Fox News reporter James Rosen -- after filing an affidavit that accused him of being a likely criminal "co-conspirator" in the leak of sensitive material regarding North Korea. Rosen was never charged, and never prosecuted. But he was effectively accused of violating the federal Espionage Act.

"The media reports and statements issued by the Department regarding the search warrants for Mr. Rosen's emails appear to be at odds with your sworn testimony before the Committee," Goodlatte and Sensenbrenner wrote in the letter Wednesday. They did not accuse Holder of committing perjury, but noted he was "under oath."

Among other questions, they asked Holder how he could claim to have never heard of the potential prosecution of the press. And they asked him to clarify whether he "personally approved" the search warrant request. Sensenbrenner, in an interview on Fox News, threatened to subpoena Holder to come before the committee if necessary.

White House Press Secretary Jay Carney, though, said on Wednesday that it appears Holder testified truthfully. He said President Obama "absolutely" has confidence in him.

The top Democrat on the Judiciary Committee, Michigan Rep. John Conyers, said he thinks Holder "was forthright and did not mislead the Committee."

"Certainly, there are policy disagreements as to how the First Amendment should apply to these series of leak investigations being conducted by the Justice Department, and that is and should be an area for the committee to consider.  However, there is no need to turn a policy disagreement into allegations of misconduct," he said.

Holder could argue that, in fact, Rosen was never prosecuted -- and so his testimony was not misleading.

A federal law enforcement official said last week that the department had to establish probable cause in the affidavit in order to obtain the search warrant, per the terms of the Privacy Protection Act.

"Saying that there is probable cause to believe that someone has committed a crime and actually charging the person with that crime are two very different things," the official said.

Meanwhile, one of the country's most prominent liberal legal scholars called Wednesday for Holder to be "fired," joining the growing list of left-leaning pundits slamming his department's pursuit of journalists' phone and email records.

Jonathan Turley, an attorney and law professor at George Washington University, hammered Holder in a USA Today column Wednesday. He charged that Holder has "supervised a comprehensive erosion of privacy rights, press freedom and due process," aided by Democrats who looked the other way.

But in the wake of the reporter records scandal, Democrats are starting to join with Republicans in questioning whether Holder continues to be the right man to lead the Department of Justice in President Obama's second term.

Turley, in his column, referenced a recent call by the Republican National Committee chairman for Holder's resignation. "Unlike the head of the RNC, I am neither a Republican nor conservative, and I believe Holder should be fired," Turley wrote.

While Democrats largely defended Holder when his department came under fire for the botched anti-gunrunning sting Operation Fast and Furious, they've been less forgiving over the move this year to seize two months of phone records from Associated Press offices. That bombshell was compounded by the revelation that the department seized phone and email records for Fox News offices. The scandal grew as the department acknowledged Friday that Holder was involved in the court document that accused Rosen of being a likely criminal "co-conspirator," as part of the department's successful argument for obtaining a search warrant for Rosen's emails.

According to a report in The Daily Beast, aides say Holder has started to feel regret for the investigations. Under Obama's direction, he is starting a review of DOJ policies and meeting with representatives from the media.

A Justice Department official said Wednesday that Holder will hold meetings with several Washington bureau chiefs of national news organizations over the next two days.

"These meetings will begin a series of discussions that will continue to take place over the coming weeks. During these sessions, the Attorney General will engage with a diverse and representative group of news media organizations, including print, wires, radio, television, online media and news and trade associations," the official said.

Turley, in his column, scoffed at this course of action, since Holder was involved in the surveillance -- at least the surveillance involving Fox News -- in the first place. "Such an inquiry offers no reason to trust its conclusions," Turley wrote.

He described Holder as a trusted Obama "sin eater," swallowing the worst criticisms to shield the president.

"Indeed, these sins should be fatal for any attorney general," Turley wrote.

View online: here
The Internal Revenue Service’s (IRS) political targeting of conservative and patriotic groups is disgraceful and potentially criminal. The IRS abused its authority by holding certain tax-exempt groups hostage that don’t agree with the Obama Administration’s progressive agenda. How high up the ladder this scandal went is currently being looked into by two House committees and a special investigation should be conducted.

Even after the IRS admitted wrongdoing and offered a half-hearted apology, White House press secretary Jay Carney refused to confirm any wrongdoing. Then Sunday, White House senior advisor Dan Pfeiffer told George Stephanopoulos that whether the law was broken is “irrelevant” in this case.
 
I want those responsible held accountable, and I want to know who is going to jail.

It appears Senate Democrats also played a role in the scandal. In 2010, Senator Max Baucus of Montana asked the IRS to investigate political non-profits for violating tax laws. And last year, Senator Schumer and several other Senate Democrats threatened the IRS if it failed to “prevent abuse of the tax code by political groups.”

Senate Minority Leader Mitch McConnell says, “we’ve only started to scratch the surface of this scandal.”

The Rock River Patriots, a Wisconsin conservative group, also claim to be a target of the scandal. The IRS allegedly asked for names of donors and volunteers. 

According to an article published in the Milwaukee Journal Sentinel, the IRS asked a Texas tea party group if it participated in verifying signatures for Scott Walker’s recall election last year. And the leader of True the Vote, who provided the computer application used to verify signatures for the recall by the Wisconsin groups GrandSons of Liberty and We the People, said she too was extensively questioned by the IRS.

As Americans, there are few things more frightening than a letter from the IRS.  The targeting of “political enemies” by this agency is Nixonian. It was wrong when Nixon did it, and it’s wrong now.

I am also incredibly concerned with the IRS’s role in the implementation of ObamaCare, which the House voted to repeal again last week. The individual mandate will require every American to verify they have obtained government-dictated healthcare coverage to the IRS. And Sarah Hall Ingram, the overseer of the tax-exempt organization at the IRS while conservative and patriotic groups were targeted, is now in charge of the IRS’s ObamaCare office.  It is clear the IRS should not have any part in Americans’ healthcare.

At a Judiciary hearing last week, Eric Holder testified regarding the slew of ongoing scandals plaguing the White House. Holder said at the hearing, “anybody who broke the law will be held accountable.” Unfortunately, Holder, the Department of Justice and the rest of the Obama Administration lack any acceptance of responsibility. I urged Holder to visit the Harry S. Truman library to see the placard on his desks that says, “The Buck Stops Here,” because right now, nobody in this Administration is willing to take responsibility for government mismanagement and corruption.

Crime, Terrorism, Homeland Security and Investigations Subcommittee Chairman Jim Sensenbrenner (R-WI) prepared the following opening statement for today’s hearing on “Eyes in the Sky: the Domestic Use of Unmanned Aerial Systems”:

Welcome to the Subcommittee on Crime, Terrorism, Homeland Security and Investigations’ hearing, “Eyes in the Sky: the Domestic Use of Unmanned Aerial Systems.”  Today we will explore the use of unmanned aircraft within the United States.  We will discuss the possible uses and capabilities of such unmanned aircraft, and we will learn about the effect such use may have on the privacy of Americans.  We will also discuss the constitutional issues that may arise when the government uses unmanned aircraft for law enforcement and public safety purposes.  

The United States remains at the forefront of technological progress.  Every day we hear of some advancement in communications or computer technology that promises vast improvements in our daily lives.  We have become a much more interconnected and informed population than we were just 10 years ago.  

Within the last few years, high powered computers and data networks have been combined with aircraft, allowing them to be piloted remotely. Now, we are witnessing a boom in unmanned aerial systems, or UAS.  Small, maneuverable UAS promise benefits in many fields that used to rely on manned aircraft.  Law enforcement and public safety are increasingly becoming the most prevalent uses for UAS.

Unmanned aircraft can now be flown for longer times and for longer distances than ever before.  Improved technology enables ground operators to both control UAS and to receive images and data from the aircraft.  UAS are safer and less expensive to operate.  It is now possible to purchase a UAS helicopter from a hobby store for a few hundred dollars and pilot it remotely from your smart phone or computer tablet.

The ability to fly a small, unmanned aircraft with cameras and sensors can also profoundly affect privacy and civil liberties in this country.  No longer restricted to the high cost and short flight time of manned flight, UAS can hover outside a home or office. Using face recognition software and fast computer chips, a UAS may soon be able to recognize someone and follow them down the street.  These new surveillance capabilities, in the hands of the police, may be intrusive to our concepts of individual liberty.  

That is why I have cosponsored the ‘‘Preserving American Privacy Act of 2013”, a bill sponsored by Representative Ted Poe of Texas and Representative Zoe Lofgren of California.  

As UAS becomes more prevalent in our lives, we need to look at the 4th amendment and privacy implications of technology that enables prolonged remote flight.  It has been well-settled in Supreme Court cases that the “reasonable expectation of privacy” applies to the home and surrounding curtilage .  In contrast, generally speaking, a person that walks down the street no longer enjoys that expectation of privacy.  This is commonly referred to as the open fields doctrine.

The distinction between one’s home and curtilage versus the open fields is an important legal concept for understanding how the 4th amendment is applied to our daily lives. 

UAS capabilities may affect how we decide the extent of the curtilage, along with the position of fences and walls.  This is a subject that has great relevance today.  This past March, in the case of Florida v. Jardines, the Supreme Court ruled that a police dog sniffing for marijuana at the front door of a house qualifies as a search under the 4th amendment.  Justice Scalia, in that opinion, wrote about the importance of the curtilage, saying that the curtilage is “part of the home itself for 4th amendment purposes.” 
 
UAS may affect the debate where curtilage ends and the 'open fields’ start. Any technology carried by a UAS that will magnify or enhance human senses could affect privacy concerns under the 4th amendment.
  
Every advancement in crime fighting technology, from wiretaps to DNA, has resulted in courts carving out the constitutional limits within which the police operate.  With us today are several experts in UAS and constitutional law, and we will discuss the implications for this new technology and the constitution.  We will discuss the directions in which constitutional legal theory is likely to go, and what the implications are for this promising, and potent new technology.  

I look forward to hearing more about this issue and thank all of our witnesses for participating in today’s hearing.  
The U.S. Department of Justice of the Inspector General released a report today highlighting the gross mishandling of known or suspected terrorists in the federal Witness Security Program (WITSEC). Participants of the WITSEC program are relocated, provided a new identity, financial aid and occupational training. 

It is unknown how many terrorists have been admitted into the program, but we do know it includes individuals trained in aviation and explosives, involved in bombing attacks and guilty of conspiracy to murder American citizens. While these individuals were included on the Transportation and Security Administration’s (TSA) “No-Fly List,” their new names are not listed. As a result, they have been able to fly on commercial planes in the United States. The location of at least two of the known or suspected terrorists in the program is unknown. 

Congressman Sensenbrenner: “I am outraged by the cosmic mishandling of terrorists in the Witness Security Program.  While someone must be held accountable, rest assured that Holder and the Obama Administration will once again pass the buck. Meanwhile, terrorists travel freely under new identities unknown by TSA. Like Boston, the failure to share pertinent information between agencies endangers American lives.  This is yet another example of the complete lack of leadership and adequate oversight by Attorney General Holder and the Justice Department. As we heard at this week’s Judiciary hearing, Attorney General Holder admittedly does not know what is happening under his watch.”  
Congressman Jim Sensenbrenner’s (R-WI) response to Attorney General Eric Holder’s testimony today at the oversight hearing on the U.S. Department of Justice before the House Judiciary Committee:

“As the head of the Department of Justice, it is Attorney General Holder’s responsibility to ensure the agency operates properly. But recent events further demonstrate that DOJ is inefficient and lacks adequate oversight and leadership. While the buck should stop with Attorney General Holder, he continues to pass the buck. He was not forthright at today’s hearing and refuses to hold himself or the Administration accountable. 

“We still need an adequate explanation on why the phone records of more than 20 AP reporters were subpoenaed.  The regulations place the responsibility for approving these requests directly on the attorney general. The Obama Administration claims to value the freedom of the press, but contradictorily, it has violated its own regulations regarding media subpoenas. While in certain instances, actions must be taken in the name of national security, the scope of this subpoena was an obvious abuse of power.

“The AP subpoena scandal also highlights the need for ECPA reform.  I have previously called for a warrant requirement before the government can request email content.  This scandal makes clear that the government should also have to pursue a warrant before obtaining phone records.  Americans, whether in the media or just ordinary citizens, should be protected from unnecessary government intrusions into their private lives.”

Over-Criminalization

May 11, 2013

Throughout my time in Congress, I have been concerned with the encroachment of government into the everyday lives of Americans. And as a long-serving member of the Judiciary Committee and current chairman of the Crime Subcommittee, I’ve seen first-hand how muddled the criminal code is.  It’s time to scrub it clean and reduce federal spending by eliminating unnecessary criminal laws. Criminalization is the bluntest tool Congress wields.  And over-criminalization is a threat to personal liberty and an expensive and inefficient way to deal with a lot of our nation’s problems. 

It has been over 50 years since the criminal code was last revised.  Today, there are roughly 4,500 federal crimes on the books because Congress has passed criminal laws with increasing regularity that include duplication between federal and state law and lack an adequate mens rea – the intent to commit a crime.  And many regulations and rules exist that, if not abided by, result in criminal penalties, including incarceration.

Therefore, I am proud to announce that this week the House Judiciary Committee passed a resolution establishing the Over-Criminalization Task Force, which I will co-chair with Congressman Bobby Scott. The bipartisan task force will focus on reforms to streamline our criminal code – reviewing federal laws in Title 18, and addressing the codification of crimes outside it that have not gone through the Judiciary Committee, to modernize our criminal code. We will examine the extent of the problem, eliminate some of the most egregious examples from the code and establish guiding principles for future Congresses to foster better uniformity and consistency in criminalization. 

A concerted effort to reform the federal criminal code has resulted in a bill that exceeds 1,200 pages in length – the Criminal Code Modernization and Simplification Act, which I reintroduced this week.  If nothing else, the sheer volume of this bill brings the breadth of the criminal code and the need to reform it to light. The bill cuts over one-third of the existing criminal code and consolidates criminal offenses from other titles so that title 18 includes all major criminal provisions. We should ensure that the federal government’s role continues to be limited so state and local offenses are not subsumed within an ever-expanding criminal code.  

On Thursday, I discussed over-criminalization with Pat Robertson.