Responsive Documents: CREW: DOJ: OIP 11-6-14

8/10/2019 Responsive Documents: CREW: DOJ: OIP 11-6-14

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U.S. Department of Justice Office of Information PolicySuite 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, NWSuite 450

Washington, DC 20005 Re: OLA/14-01844 (F)

[email protected] VRB:VAV:GSA

Dear Ms. Weismann.:

This is an interim response to your Freedom of Information Act (FOIA) request datedFebruary 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 thisOffice 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 constituentcorrespondence from the scope of your request. Additionally, Mr. Alvarez informed you thatwe 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 OLArecords, 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 ofthe 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.

mailto:[email protected]





-2-

Once you have had a chance to review the enclosed material, please contact Greg

Alvarez of our Office, at [email protected], 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 therequirements 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 ofJustice, 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/efoia-

portal.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




http://www.justice.gov/oip/efoia-portal.html









U.S.DepartmentofJustice

Office

of

LegislativeAffairs

Office

of

theAssistantAttorneyGeneral

Wushington.

D C

20530

UN

Z 11

TheHonorableFrankR. Wolf

U.S.House

of

Representatives

Washington,DC 20515

DearCongressmanWolf:

Thisrespondstoyourletter,datedMarch30,2011,totheAttorneyGeneral,regarding

thereportof theDepartment'sOfficeof ProfessionalResponsibility(OPR)onitsinvestigation

of thegovernment'svoluntarydismissalof claimsagainstthreeof thefourdefendantsinUnited

States v New Black Panther Partyfor Se f-Defense, Inc., et al., No.2:09cv0065(E.D.Pa.

May18,2009). Yourletterrequestedthatweprovidemoreinformationinresponsetoyour

previousletterstotheDepartmentdatedJune6,July17 July22,andJuly 31 2009 andJune8

2010. Youalsoaskedthat

we

provideacopy

of

alldocumentsrequestedbytheUnitedStates

CommissiononCivilRights(USCCRorCommission)since2009.

AlthoughtheDepartmentinitiallyindicated,inNovember2009,thatwewishedtoawait

theoutcome

of

theOPRinvestigationbeforeprovidingfurtherdetailonthismatter,recognizing

yourinterestinthistopic,theDepartmentthereafternonethelessprovidedyouwithsubstantial

informationaboutthe

New Black Panther Party

litigationgenerallyandthespecificissuesraised

inyourlettersreferencedabove. Soonaftertheinitialdecisiontodismisscertainclaimsfromthe

New Black Panther Party case,weprovidedyouwithabriefingbykeydecision-makersfromthe

CivilRightsDivisionandarepresentativeof theFederalBureauof Investigation(FBI). Wealso

providedyouandotherinterestedMembers

of

Congressacopyof allof thedocumentsshared

withtheUSCCRaboutthecase. Thesematerialsinclude:

• theDepartment'sdocumentproductionsto theCommissionof January11,2010,

February26,2010,andApril16 2010totalingover4,000pages;

• theDepartment'sJanuary11,2010responsestotheCommission'sinterrogatories;

• theDepartment'sApril 16,2010supplementalresponsestointerrogatories;and

• thedetailedwrittenstatementof

theAssistantAttorneyGeneralforCivilRights

of

May14,2010.



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

t

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 ew 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.

,'

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 lf 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,

ivi

I DiVision, U.S. Department

of

Justice,



The

H,lnorableFrankR Wolf

Page

toDavIdP

Blackwood,

GeneralCounsel,CSCCR (SupplementalResponses);

and

thewritten

Statement

provided to theCornnllSsionby Thomas

E

Perez, in

connection

with hisMay 14,

2010 testlmony,which cont1linsdetailedinformationconcerningour litigationof\he New lack

Pal filer Purl]

case. Mostof these

materials were

previously

provided

toyou,

butforyour

convenience

we

enclosethem withthis letter,

All

of

them

arecontainedon the

enclosed

CD,

withtheexception of

AssistantAnorney

General

ThomasE.

Perez's wntten

testimony,

and

several

declarations and

photographs

thatwere submitted

to

theCommissionfollowing

our

April

tf 2010 suhmis$iol1. The testimony, declarations, and photographsarcenclosed inhardcopy.

Wehope tIlls informationishelpful toyou

If

we

canbe

of

funher

assistance,

please

let

us know.

Sincer,, ,)',

Ronald

Weich


Enclosures

cc: The

Honorable

Alan8. Mollohan

Chainnan



U.S. epartment of Justice

Office of Legislative Affairs

Office

of the


Washington D.C.

2 53

DE

S l 12

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 m y be of additional assistance regarding this or any other matter.

Sincerely,

~ J J

,

f t t

~ ~ Appelbaum

Acting Assistant Attorney General

Enclosures

cc: The Honorable Charles E. Grassley

Ranking Minority Member



u s epartment o Justice

Office

o

Legislative Affairs

Office o the Assistant Attorney General

Washington D.C 20530

July 20, 2012

The Honorable Patrick

J

Leahy

Chairman



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

o

Ms.

Stephanie Rose's nomination to be a United States District Judge for the Southern District o

Iowa.

Pursuant to our further conversations with staff, we have enclosed additional documents

for the Committee's consideration. While our public disclosure

o

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

i we may provide additional assistance regarding this or any other matter.

Sincerely,

t ~ ~


Enclosure

cc: The Honorable Charles E Grassley




U S epartment

o

Justice

Office

o

Legislative Affairs

Office o

the


Washington D C 20530

UL 32 12

The Honorable Patrick J. Leahy

Chainnan




Dear Mr. Chainnan:

This responds to your letter to the Attorney General dated June 26, 2012, which requested

the transcript

o

an interview

o

Ms. Stephanie Rose in connection with the Committee's

consideration

o

her nomination to be a United States District Judge for the Southern District

o

Iowa. The interview o Ms. Rose was conducted during the course o an investigation o

complaints that are now the subject o litigation pending in the Northern District o Iowa, agg

v Holder

While our public disclosure o 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

i we may provide additional assistance regarding this or any other matter.

Sincerely,

Judith C. Appelbaum


Enclosure

cc: The Honorable Charles E. Grassley




Please be advised no

additional pages to this

letter were located



Office

o he

Assistant

Attorney Genc ral

The Honorable Bob Goodlatte

Chairman


U.S. House o Representative

Washington, D.C. 20515

The Honorable Lamar Smith


U.S. House o Representative


Dear Mr. Chainnan and Congressman Smith:

U.S. epartment of ustice

Office o Legislative Affairs


June 6 2013

This responds

t

Chairman Goodlatte s letter o June 3 2013, following up on then

Chainnan Smith s letters o November

13

2012,

t

the Attorney General and the Director o he

Federal Bureau

o

Investigation (FBI). These letters concern an FBI investigation into matters

relating

t

former CIA Director David Petraeus.

We

apologize for the delay in responding to

your letters.

As you may know, longstanding Department o Justice policy precludes discussion o

ongoing law enforcement investigations, including

the

specific information sought in your

letters. This policy protects the integrity o our investigation. Inasmuch as this is an ongoing

investigation, we are unable

t

provide you with a briefing or provide answers

t

the specific

questions set forth in your letter at this time. Please do not hesitate t contact this office i 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




The Honorable Frank R Wolf

The Honorable Charles E Grassley

Page Two

hank you for considering this request. Please do not hesitate to contact us i we may

provide additional assistance regarding this or any other matter.

cc: The Honorable Eddie Bernice Johnson


Committee on Science Space

and Technology

U.S. House

o

Representatives

Washington DC

20515

The Honorable Chaka Fattah


Committee on Appropriations

Subcommittee on Commerce Justice

Science and Related Agencies

U.S. House o Representatives

Washington DC

20515

The Honorable Patrick

J

Leahy

Chairman



Washington

DC

20510

Sincerely

~ ~ \ \ . 1

Peter J Kadzik •

Principal Deputy Assistant Attorney General



Ofli.:.: ofth.:

s ~ i s l a m

r \ t t o m : ~ (icncral

The Honorable Daniel

E.

Lungren

Chairman

Committee on House Administration

L:.S.

House of Representatives

The Honorable Howard

P.

Buck McKeon

Chairman

Comminee on Armed Services

U.S. House

of

Representatives

l .S. Department o Justice

Oftice of Legislative Affairs

ll w iJtngtvn. D

C

] 53

October 25. 2012

The Honorable Lan1ar S. Smith

Chairman


L.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 t have their votes counted. For the 20 I 0 general election. the Department obtained

oun 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 ekct ion. we continued to prioritize the enforcement of

UOCAVA ·s protections and to build upon the Department s earlier MOVE Act enforcement

actions.

With regard t 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

t

the general election.



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 UOCAVA 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 rek se 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.

ee

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 ballot

receipt 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 UOCAVA violations during the 2012 federal primary election

required the state to report on UOCAVA 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 I

0

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 ofUOC V 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 UOCAVA 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.

Endosures

cc: The Honorable Robert Brady

Ranking Minority

Member

Committee on House Administration

The Honorable Adam Smith


Committee on nned

Services

The Honorable John Conyers. Jr.


Committee

on the Judiciary

Sincere ).

~ . ~

Judith C Appelbaum




T h ~ Honorable Lamar S. Smith

Chairman


L.S. House

of

Representatives

Washington. D.C. 20515

Dear \1

r

Chairman,

OCT 5 2 12

Thank you for your letter

to

.Anorney General u l d ~ 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 convic tion 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

~ \ ~ ~ : : :


Office

of

Legislative Affairs

t:.s. Department

of

Justice

Sincerely.

cc: The Honorable John A Boehner

Speaker of the House of Representatives

The Honorable John Conyers,

Jr

Ranking Minority \1ember

--

I //

?:u:

/

~

David S Adams

Assistant Secretary

Legislative Affairs

L.S. Department of State



Office oftbe Assistant Attorney eneral

The Honorable Lamar S. Smith

Chairman


U.S. House ofRepresentatives


Dear Mr. Chairman:



Washington

D.C. 20530

SEP

8 2 12

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 raham 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

he

Department's administrative decision.

n

the trial

that just concluded in that case, the evidence and arguments of the parties are matters of public

record. n

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 th t Act

R54

would allow some voters to cast provisional ballots

i

they

complete an affidavit swearing that they suffer

from

a reasonable impediment th t prevented

them from obtaining an allowable 10. South Carolina's interpretation o this exception evolved

over the course o the litigation, and the United States' position is th t 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 th t 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 th t

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 th t 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 o the importance o 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 o the review process. This had been the longstanding tradition in the

Voting Section in prior administrations for decades until it

w s

changed in 2005 - in connection

with the specific submission your letter references-

to

exclude career attorneys and analysts

from full participation in the process. n 2009, the Civil Rights Division restored its practice o

providing every person working on a submission the opportunity

to

express his or her views,

because Assistant Attorney General Perez believes th t a robust and honest exchange o 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 o Columbia

is now considering the evidence in the litigation that South Carolina filed. Accordingly, we will

follow our longstanding practice o not commenting further on pending litigation outside that

setting.

We assure you that the Department's review o Section 5 submissions will continue to be

thorough, fair, and fact-based. States covered by Section 5 bear the burden o 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 th t were recently blocked by federal courts.




Page

We hope this infonnation

is

helpful. Please do not hesitate t contact this office if we


Sincerely

l : : : : : : I ~


Enclosure

cc: The Honorable John Conyers Jr.




Office

o

he

Assistant Attorney

General

The Honorable Lamar

S.

Smith



Dear Mr. Chairman:

U.S.

epartment

o Justice

Office o

Legislative Affairs

Washington

D C 20530

September

11 2012

This responds t your letter dated June

13

2012

regarding the State Criminal Alien

Assistance Program (SCAAP).

We

are

sending an identical response

t

the other Members

o

Congress who signed the letter.

Although the Department's Bureau o Justice Assistance (BJA)--the agency currently

charged with implementing the SCAAP Program-notified SCAAP applicants more

th n

one

year ago regarding the proposed change in the program that would eliminate reimbursement o

costs associated with the detention o suspected criminals o unknown citizenship, the

Department has decided to postpone this change for one additional year, allowing agencies

additional time t prepare for this change.

· The rationale for this decision

is

that

many local

agencies, despite their best efforts to

reduce the number o unknown detention

days

through closer collabomtion with the U.S.

Department

o

Homeland Security (DHS) and through other efforts, may not have been

successful in improving the nationality determinations o

detainees. Although elimination

o

payment for ''unknowns would result in increased federal funding t some states, it would result

in a significant redistribution in federal funding that many local governments may not be

anticipating this year. The delay o 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 o discontinuing payment for unknowns in the

future.

We hope this information is helpful. Please

do

oot hesitate t contact this office

i

we


Sincerely,

~ c r

Judith

C.

Appelbaum




Office

of

he

Assistant

Attorney General

The

Honorable Lamar

S.

Smith

Chainnan

Committee on

the

Judiciary

U.S. House

of

Representatives


Dear

Mr.

Chairman:


Office ofLegislative Affairs

Washington

D C

20530

August 30,2012

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.

he

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

I01 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




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 I 0 I individuals, Mr urlJam 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 ofwhich was highly classified. n 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 ofphysical 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.




Page

We hope this information s helpful. Please do not hesitate

t

contact this office ifwe


Sincerely

J t : A ~ ; b a ~






Office

of

tbc

s s i ~ l l l l

Attorney

O..ml

The

Honorable

Lamar S. Smith

Committee

on

the Judiciary


Washington,

D.C.

20515

Dear Congressman Smith:

U.S. epartmeat

r

Justice

Office

of Legislative Affairs

WaJhingtOII DC ] 53

UL 2 13

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 ndividuals 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/about-

us/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

he

instances where individuals

were

denied a firearm purchase because

of

a

NI S

check:

the

number

of

ndividuals referredfar prosecution;

the

number actually

prosecuted; and the number

of

prosecutions resulting in a conviction

Neither the ATF Denial Enforcement nd

NICS

Intelligence DENI) Branch nor the

Executive Office for United States Attorneys EO

USA)

specifically tracks the number o 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




Page2

has compiled a table (Attachment I) showing the

nwnber

ofprosecutions under 18 U.S.C.

§§

922(

aX

6)

and

924(

a)( I)(

A) the statutes

under

which

offenses

of

misrepresentations during

the background check process, including on A

TF

Fonn 4473, are prosecuted). This table

indicates the nwnber o

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. n

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

o

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 o 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

of

cases referred

for

prosecution;

Jww

many were actually prosecuted; and

how many of hese prosecutions resulted in a conviction for violations of he 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 o

suspects in matters investigated by the USAOs under these statutes for

FY2004

througb FY20

12;

the number

o

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. n 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

counterparts

have

concluded that it is

more advantageous for

a firearms-related prosecution

t occur

at

the

state level.

We hope

this

information is

helpful.

Please do not hesitate to contact this office ifwe

m y provide additional

assistance regarding

this

or

ny

other matter.

Sincerely

Peter

J.

Kadzik

Principal Deputy Assistant

Attorney General

Enclosures



fficeo the

ssistant

ttorney General


Chairman




Dear Mr. Chairman:

U S

Department of Justice

Office

of

Legislative Affairs

Washington

D C 20530

UL 5

2 12

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 ofTexas' 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

th t

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 act ion

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.




Page

We hope that this infonnation is helpful. Please do not hesitate

t

contact this office if

we may provide additional assistance regarding this or any other matter.

Sincerely

t : . ~ ~



Ranking inority ember



I l k ~

of

Assistant A t t o m : ~ Gi ncral


Chairman




Dear Mr. Chairman:

li.S. Department of Justice


H s h w ~ t o n J C l05J )

JUL 4

12

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) (three

judge

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

F R

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




Page

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. Catalis t'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.

ur

expert testified that he recommended the use ofCatalist 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 ofColumbia

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.

~ ~

Judith C. Appelbaum


Enclosure

cc: The Honorable John Conyers. Jr.




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



Dear Chainnan Smith and Senator Grassley:

l'.S. Ucpartmcnt of .Justice

Onice

of

I cgislati\ c Alhlirs

UN 0 6 2 12

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 staf f 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

1

In

the

li fth

case. l ocelsanxn·

,.

Holdl r.

( \

No. I - 7 0 6 ~ ) (9

1

'

Cir.

).

the parties agreed.

independent of the Court· s February ll 2012 order. to tile a joint motion to r ~ o p n

pwcecdings

1\ith the l:loard nf Immigration Appeals.



I llmwrabk l.amar Smith

I he l l , ~ t w r a b k Charles I . lira"IC)

Pagt.. h l

i n u n i g r u t i ~ H l H : . J t h . : r s allo\\..;l(T.lo priorili/t..' iLs n.· u n . . · ~ s to promntc

naLional

~ . < . : n r i L ~ .

h o r J ~ r

s t : t : u r i t ~ . anJ puhlk s a f l · L ~

i i l l l r ~ s t s

as

\\ ll

as the

i n t ~ g r i L ) o

lht.. imt11igrarion S)Sk m itsdt .

2

It is uur unJcrswnJing thatiCL s dcrisitHl to cxcn.:isc ils

J i ~ . . : r t : t i o n

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.

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\1 (I'OIR). within L h ~ l k p a n m ~ n l 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

e l ~

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 . h i ~ 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.

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.

Enclosure

cc: l'hc Honorahlc John Con)ers. Jr.

Ranking Minority Memhcr

cc: l'hc

llonorabk

Patri<:k

L e a h ~

Chainnatf

Sineerely.

J J : : : p : l ~ a ~

Acting Assistant Attorney tieneral

'

See

generally. memoranda. dated

M a r c h ~ .

20

II.

ti·om J,•hn Monon. Director

or

ICL

entitled

( il•i/lmmigratioll r : , ~ t h n : e m e n l : / rioriti£ S /hr I

he Apprdu.•Jl. ii011,

/)£ {( 11/ioo. nd Rt lllill £11 nl

ieus .. :

anJ

dated June I7. 2 l II. cnlilkd r ~ r e r d 1 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. wl

lntll l'al a/Aliens. (iuidcmce to/< f Auomey.\

Rnieu

ittg the ( '/1/'. I Sl

IS. ood

/(

f_

('use.\'

/Jefiwc the

Fxecmire (

J(iice

/or

l m n t i ~ r a t i c m

Rt-rh·u·:·



Office

of

the Assistant Attorney General


Chairman




Dear Mr. Chairman:

U S

epartment of Justice



UN

6

2 12


th

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 staf f 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

t

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 o not hesitate to contact this office ifwe may provide additional assistance

regarding outstanding oversight letters or any other matter.

Sincerely,

C ~ ~

cting Assistant Attorney General

cc: The Honorable John Conyers, Jr




Office o

the

ssis[an[ norney

General





Washington DC 20515

Dear Chairman Smith:

U.S.

Department o Justice

Office

of

Legislative Affairs

\ uhingtvn.

D

C 20530

UN

42 12

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,

w

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 h s never involved lying, as some have suggested, the Department

believes that the past practice could

be

made more transparent. Accordingly, as part o an effort

to update its FOIA regulations and other aspects o its Open Government initiative, the

Department took a number o steps designed

to

bring its handling o 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) o

the

proposed regulations requires that the head o

the

FOIA office o any

Department o Justice component contemplating the use o 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

o

any uses

o

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 o times that they invoke exclusions.

• Third,

to

promote greater public awareness

o

exclusions

than

existed under the 1987

Attorney General Meese policy, Sections

16.4

and 16.6(f)(2) o the proposed regulations

sough

to

advise requesters o 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 o 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




Page Three

comment period

on these

regulations closed last year, with

no

public comment on the provisions

in question.

As

a result, however,

o

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

o

reviewing those submissions.

We

are also taking a fresh look internally to see i

there are other options available to implement Section SS2(c)'s requirements in a manner that

preserves the integrity

o

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

o

the Meese Guidance, responses involving excluded records are worded differently th n

responses where the

agency

states it can neither confirm

nor deny

the existence

o

the

requested records. Second,

while

no statistics were previously

kept

on the number

o

times

exclusions were used, the Department has for the first

time

this year required public reporting

o

use o exclusions. The Department reported using exclusions in 147 requests out o 63,992

requests that were processed in Fiscal Year 20 II. Third, since enactment o the statutory

provision containing exclusions, the Department has employed the same approach in responding

t 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

o

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 o protection, sometimes must

be employed.

The

exclusions themselves describe the three narrow categories

o

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


cc: The

Honorable John Conyers,

Jr.




Office o h As sistont

Attorney General


Chairman

Committee

on the

Judiciary

U.S. House

of

Representatives

Washington,

DC

20515

Dear Mr. Chairman:

U.S. Department

o

Justice

Office

of

Legislative Affairs

Washington D.C 20530

UN

4 2 12

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.

he

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




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 o government approach has led to a number o remarkable successes.

Some recent examples

o

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

o

I ,985 individuals;

• Operation Bombardier (20 II): This disruption operation

was

a multi-agency

coordinated response to the murder o one

U.S.

agent and wounding o another by

members o 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

o

specific cartel affiliation resulted

in 676

arrests;

• Project Deliverance 20 I0): 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

th n

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 o more th n

750

individuals; and

• Project Reckoning (2008):

This

18-month multi-agency operation targeted the

then combined Gulfand Los Zetas Cartels and resulted

in

621 arrests.

Combined, these six Department o Justice-led SOD and OCDETF investigations over

the past four years resulted

in

more th n 7,700 arrests and the seizure o more than

$423,000,000 in U.S. Currency; 311,000 pounds

o

marijuana; 37,800 kilograms

o

cocaine;

2,500 pounds

o

heroin;

and

I 0,400 pounds

o

methamphetamine.

Likewise, the Department has secured a number o notable extraditions and convictions

over the past year. For example, in January, narcotics kingpin Alberto Benjamin Arellano

Felix, head

o

the Tijuana Cartel, pleaded guilty in the Southern District

o

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




Page 3

for a conviction

there.

Similarly,

when thr 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 o over 30 members and leaders o he 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

o

Agent Zapata,

the

Criminal Division

and the U.S.

Attorney s

Office in

Washington, D.C., spearheaded the

investigation and prosecution

o

the

members o he

Zetas responsible for the

murder o

Agent

Zapata

and

the shooting

o

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

o

problem.

t

is only

through a long-term, cooperative partnership with our own agencies, legislators, and neighbors

in

Mexico that

we will

weaken

the

influence

o

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 i we

may be

o

assistance

with

this or any other

matter.

Sincerely,

J A ~ I ~


cc:

The Honorable John Conyers Jr.





Chairman


Cnited States House of Representatives




Wushmgton L

·

: 053f

UN

42 12

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.

ee

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 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.

ee

Memorandum. Oflice

of

the Attorney General. dated May

6.

2 5 (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.




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.

t

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. t 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 just ice 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




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. crime

victim 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.

ee

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 sta ff 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




Page Four

Jakarta. Indonesia hotel bombings. and the kidnap and murder

o

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 hose requests has 0 VT acted upon nd with

what result?

OVT receives numerous referrals from a wide variety o sources and endeavors to act on

all referrals. whether formal or informaL Examples include:

Creating password-protected informational websites lor victims six websites for

nine cases that serve hundreds

o

victims).

Providing victims with information about foreign prosecutions and other matters

o

interest through emails. phone calls. and personal meetings hundreds

o

individual contacts).

Supporting victim travel to foreign criminal justice proceedings 0

victims/support persons in three cases).

Advocating for victim participation in foreign proceedings numerous cases).

Coordinating meetings between victims and Justice Department and other

government agency officials hundreds o victims have participated in meetings.

including two large meetings with victims o

al

Qaeda-attributed attacks and

several group meetings with victims from attacks in Israel. Gaza and the West

Bank).

Coordinating the designation process for the International Terrorism Victim

Expense Reimbursement Program ITYERP). as discussed further below. 166

attacks designated).

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

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 5 cases with daily

updates).

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).




Page Five

5

The conference report cited above also directed VT to create a Joint Agency Task

Force consisting ofDepartment ofJustice 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 hat 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 \1ay 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. t 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 \1umbai. 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 VT accomplishments in furtherance

of

ts 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

\1aintaining Case Priorit'




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

S e c u r i t ~

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·

righ s

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 n d e r s t a n d i n ~ 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

~ N i t h

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 n 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 ~ N i t h the types

of

rights and sen· ices in connection with overseas

prosecutions that they would receive in l;.s.-bascd prosecutions.




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 2008 Mumbai attacks

c 20 I 0 Kampala World Cup soccer bombings

c 2002 Bali bombings

c 2009 Jakarta hotel bombings (archived. proceedings completed)

o 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 non

attorneys. (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




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

I0 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.\1C)

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 OMC 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 ~ i n

• Provided email and website notification

to

9/ll victims concerning transfer of the 9 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

~ e e d s

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

t

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 t 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.




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. n 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

OJ 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


Sincerely.

t A p ~ b ~


cc: The I Ionorable John Conyers. Jr.


Enclosure



Office o

he

ssistant

ttorney General


Chairman


U.S. House

of

Representatives


Dear Mr Chairman:

U S epartment o Justice

Offiee ef e g i s l a t i ~ e Affairs

Washington D.C. 20530

JUN 1 2 12

This responds to your letter to the Attorney General dated June 15,2011, requesting

clarification

of

the Department's position on

th

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 th 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 ofa recommended treatment regimen consistent with applicable state law,

or

on individual caregivers who are not engaged in

th

commercial cultivation, sale, or

distribution

of

marijuana.




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 o prosecutorial

discretion will continue to focus their limited resources on the investigation and prosecution o

significant traffickers o illegal drugs including marijuana and on disrupting illegal drug

manufacturing and trafficking networks.

We hope this information is helpful. Please

o

not hesitate to contact this office i we




Enclosure

Sincerely

IL t t?vt ·

J J ~ ~ Appelbaum




Office

o

the Assista lt Attorney General


Chairman


U.S. House

o

Representatives


Dear Mr. Chairman:

U.S. Department of ustice

Office of

Legislative

Affairs

Washillgton D 20J30

MAY

8 2 12

This responds to your letter to the Attorney General dated March

16

2012, concerning

the Justice Department's enforcement

o

federal firearms

laws.

The Department shares your

views on the importance

o

transparency in government operations. Below are responses

to

your

questions.

I.

Does the

Department

track

or retain

data

on

the number of

charges 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?

f o

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

o

whether the count is a lead charge against a particular defendant. The Department

has

tracked firearm/weapons information in some

form

since 1955.

his

data

is

publicly available

by

Fiscal Year in

Table

3 o he

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? f

o

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 nd

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. f he epartment 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

ret ins

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 ifwe

may provide additional assistance regarding

this

or any other

matter.

Sincerely

Ronald

Weich


cc: The

Honorable John Conyers Jr




Office

o

the Assistant Attorney General


Chairman


U.S. House

o

Representatives


Dear Mr. Chairman:

U.S. Department o Justice



MAY 1 Z0\2

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 o the Inspector General (OIG).

n our letter o March 12 2012 we advised you that we are not in a position to respond to

the specific allegations made in the article because o the OIG's pending inquiry into the Civil

Rights Division's Voting Section. Your letter o 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

o

assistance in this matter. Please do not hesitate to contact

this office i we

rna

y be o assistance in any other matter.

Sincerely

llVlcz

Ronald Weich


cc: The Honorable John Conyers, Jr.




l

.S.

Department o Justice

t

) T h_c ,

r

tilL'

\ 1 '- ldi . ' l \1 ••111<'\

I

· ~ · r k ' t . l

The llonorahlc Lamar Smith

Chairman


U.S. House

of

Representatives


Dear Mr. Chairman:

PR

7 2 12

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 ~ n l o s u r e s 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 .\'S.

Ocrober / w. 0/0 ,\larch 31. lOJ I.

http. \ Y \ \ _ \ \ j q ~ l i L : I : : - g Q _ ~ ~ ~ ~ b . _ ~ ~ o · t l l . i a J H L U < I I 110: l.)n.tJj),jj) pg. 57



lhe

llonorahlc

Lamar

Smith

P ~ t g c

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.

\

Jv G-_}\

Ronald

Weich


Enclosures

cc:

The

Honorable John Conyers. Jr.


1

.VASA s (jranl Administration un u n a g ~ t m e n t Audit Report 16-11-026. Septemher 12. 2011

(

hi JL_.

l _ i g _ n u S i J , ~ u \ : _ t ~ u i l f l 1 _ _ _ f J U J r L ' . _ L l _ - : - ' I

j i- 1-0;,__fy}_sjjj

pgs

iv

and f.l



fficeo

the

ssistant

ttorney

General


Chairman




Dear

Mr.

Chairman:

U.S.

Department

of

Justice


Washington

D C

20530

PR 0 9 2 12

This responds

to

your letter

to

the Attorney General d ted February 27, 2012, requesting

information

on

the Department

o

Justice's approach

to

enforcing the Civil Rights

o

Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997. Specifically, you request

I)

copies

o

all

CRIPA investigative findings letters

from

January I, 2009 to

the

present,

2)

information on

all

cases

in

which the DOJ

h s

intervened, pursuant to our

CRIPA

authority,

from

January

I,

2009 to the present, 3) the number o CRIPA investigations instituted, per year, since 2006,

and

(4) copies o 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 o

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 CRIPA authority from January

I, 2009 to the present. Regarding your third request,

w

have provided a table listing

a)

the

number o CRIPA investigations opened (officially noticed), (b) the number o CRIPA findings

letters issued,

c)

and the number o 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

o

our cases. Lastly, we have included

hard copies

o

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

i we

may provide additional assistance regarding this or any other

matter.

Sincerely

Ronald Weich


nclosures

cc:


Ranking Minority

Member



Office of the ssismnt ttorney General


Chairman

Committee on

the

Judiciacy



DearMr

Chairman:

U.S.

epartment

o Justice


Washington D.C. 2 53

M R

3 2 1 ~

This responds to your letter to the Attorney General d ted 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

nd

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

o

the Cook County Board

o

Commissioners on Januacy

4 20

12 expressing serious

concern about this matter, and it is our understanding that ICE

nd

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

i

we may

provide additional assistance

regarding

this or

any

other matter.

Sincerely,

Ronald Weich


cc: The Honorable Jobn Conyers, Jr.




Oftlcc o

he

Assi ltant

ttorney

General

The Honorable Lamar

S.

Smith

Chairman


U.S. House

of

Representatives

Washington,

DC 20515

Dear Mr. Chairman:


OfficeofLegislative Affairs

Wcuhington D C

1 53

March 12, 2012


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 he

Inspector General (OIG).

Since the Inspector General's inquiry into

th

Civil Rights Division's Voting Section is

ongoing. we are not in a position to respond to the specific allegations

m de

in

th

article. At

this time we can confmn that the employee named in your letter currently serves as an analyst in

the Voting Section of he Department's Civil Rights Division. n 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

th

Department does not track that type of nformation.

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



Jr.




Office

of he Assistant t t o r n ~ General


Chainnan


U.S. House

o

Representatives

Washington,

DC

20515

Dear Mr. Chainnan:

U.S.

Department of

Justi<e


Ww/Ungtott

D C

20530

March 7 2012

This responds to your September 21, 20 II request for the travel records of he

Department s Assistant Attorneys General of he 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.

lso

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 o

heir 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 o time,

those

swnmary

entries were the only information

cWTently

available.

n

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 he

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

b

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 b the Department

The following information is enclosed:

Enclosure I: Travel

data

of he 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

he 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

odging 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 o Non-Contract Airfares. Enclosed

in

that



The Honorable Lamar

Smith

Page3

directive was Policy and Procedures Bulletin 01-02, October 2000, Use o

Contract Airfares.

•

January

21 2011- Attorney

General memorandum

Temporary Freeze

o

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

o

Justice

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


we

may provide additiooal assistance

regarding

this or any other

matter.

Rooald Weich


Enclosures 5)

cc:

The Honorable Jobo Conyers,

Jr.



Office o the

ssistant

ttorney

General


Chairman


U.S.

House

of

Representatives



U.S.

Department

o

Justice

Office

of

Legislative Affairs

WashingtOII D.C.

20530

M R

1

2 12

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

l-

l

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 ecember

28.

The consent order requires the

defendants to establish a 335 million settlement fund. The purpose

of

his fund is to

compensate the more than 200,000 African-American and Hispanic borrowers

who

were victims

of

he 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

he 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

y an independent Settlement Administrator under a contract with the defendants.

The

Countrywide

consent order

is

available at

http://www.justice.gov/crt/aboutlhceldocumentslcountrvwidesettle.ndf.




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

o

fraud

in the claims process.

Aggrieved persons or applicants are persons wbo suffered damages as a result

o

violations

o

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

o

illegal

discrimination

based

on race or national origin.

Under

the terms

o

he consent order, the

Department will provide information to the Settlement Administrator identifying aggrieved

persons

based

on loan-specific infOrmation obtained

from

the defendants.

he

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

i 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

o

he

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

o

such

funds

must not

be

related

to

Bank

o

America, they

may

include nonprofit organizations, o

he

typ

specified, to which Bank o

America previously has provided financial support. Once the defendants have selected the

organizations,

the

consent order requires that defeudartts consult with and obtain

the non-

objection

o

he United States ...

and

the parties shall obtain the Court's approval. This

typ o

provision

has been

used

by

the Department in settling

civil

rights cases under a variety

o

statutes

for

many years.

Your letter expresses concerns about

how

organizations will be selected as potential

recipients

o

any

remainder

funds

in the

ountrywide

settlement

and

whether organizations with

a political ntission would qualify. s 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

i f here is any o ~ e c t i o n The

parties must obtain court approval

o

he agreed-upon

recommendations before any

funds may

be distributed to the qualified orgartizations selected by

the

defendants. The requirement

o

court approval provides an additional safeguard to prevent



The Honorable Lamar S.

Smith

Page

any inappropriate selection of

recipient organizations.

Thus the

Department

bas no unilateral

ability

t

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

t

require

each

fund

recipient

t

report

to

the parties within one year on how it

bas

utilized

those

funds.

We

hop

this information is helpful.

Please

do

not

hesitate

t contact this

office i

we

may provide additional

assistsnce

regarding this or

any

other matter.

Sincerely

rvu.J

Ronald Weich


cc:

The Honorable John

Cottyers Jr.




Office of the Assistant Attorney General


Chairman


U.S. House

of

Representatives

Washington,

D

20515


U.S.

Department

of

Justice



February 13,

2012

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

o

Recess Appointments During a Recess

o

he 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

he recess at issue.

he

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




Page Two

conclusion. See Steven G. Bradbury John P. Elwood

Call the

Senate s Bluffon Recess

Appointments, Washington Post,

ct

15,2010,

available

at http://www.washingtonpost.com/

wpcdyn/content/article/20 I 11 0/14/AR20 I 0 I 0 140544l.html. They stated that the Senate

cannot constitutionally thwart the president's recess appointment power through pro forma

sessions.

d

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

he

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

i

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.

he

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 ofhis

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.




Page Three

We hope this information

is

helpful. Please do not hesitate to contact this office

i

we

may provide further assistance regarding this or any other matter.

Sincerely

d ~ ~ ~

eputy Assistant Attorney General

Enclosures

cc: The Honorable John Conyers

Jr

Ranking Member



Office

of

the

ssistaot ttorney GcncraJ

The Honorable

Lamar

Smith

Chairman


U.S. House

of

Representatives

Washington, D.C.

20515

Dear

Mr. Chairman:

U.S.


Office of

Legislative Affirirs


FE I

ZOI

This responds

to

your letter

to the

Attorney

eneral 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 t the three specific questions posed in your most recent letter are set forth

below.

Question 1: How

many

instances has OPR investigated Immigration

udges based

on

dbagreements over

an

interpretstion of the law by the Immip-ation udge

found not to be reasonable by OPR since anuary 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

aw

by an

Immigration Judge or a

member

of

he 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

hese

two

OPR reports of

nvestigation.

The remainder ofOPR s investigations concerning Immigration Judges are unrelated t

the issue highlighted

in

your letter,

i.e.

what you have

characterized

as a disagreement over the

inteipretation

of

he

law. s

noted

in

our

August

12, 2011

letter, those other matters include

making ethnic or racial slurs; making obscene comments off

he

record; using

profanity;

verbally

accosting parties and lawyers; engaging

in

improper ex

p rte

communications; disregarding




Page Two

procedural regulations; materially misstating the evidentiary record; improperly assisting a

respondent

in

presenting their case; falsely certifying to m int ining an active law license; and

conflicts

o

interest.

Question 2: How

i

OPR better qlllllifled

than

an Immigration

Judge

t

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

c ny

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

he

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 he

law. As a result, over the

p st

several years, OPR b s assigned immigration matters to a select

team

of

attorneys.

Question

:

Information

oneeming each ue 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

he

Chieflmmigration Judge

(OCU)

maintains a

system

for receiving and processing complaints

g inst

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.

s

noted above,

OPR

b s conducted

two

investigations since January 20, 2001 based

upon serious judicial criticism concerningan interpJetation

of

he

law by an Immigration Judge

or a member

of

he BIA. Neither

one

of these cases resulted in a fioding

of

professional

misconduct and, thus, no disciplinary action

w s

taken.

s

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 Departmentb s 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

he




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

identitiesof

he

individuals involved.

The Department also has significant confidentiality interests in the internal deliberations

contained

in OPR reports.

We

believe that

the

disclosure

of

hose

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 heir remarks

may

well temper candor with a concern

fur appearances

and for their own interests

to

the

detriment of

he

decisionrnaking process." nited tates

v

Nixon

418 U.S.

683,705 (1974).

Similarly,

we

believe that

the

disclosure of nvestigative

materials developed during

the

OPR investigative process, including

interview

transeripts and

witness statements, would discourage individuals

from

providingcandid

and

complete

infonnation in future investigations. s 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 ofDepartment 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 BI

members.

We hope that this infurmation is helpfuL Please do not hesitate

to

contact

this office if

w

can provide additional assistance regarding this or

any

other matter.

Sincerely,

tML J\

Ronald Weich

Assistant Attorney eneral

cc: The Honorable John

Conyers, Jr.

Ranking

Minority Member




Chairman. Committee on the Judiciary

U.S. House

of Representatives


Dear Chainnan Smith:

lJ.S. Department of Justice


January 12,

2012

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


Sincerely,

Ronald Weich


Enclosure

cc:

The Honorable John Conyers. Jr.



Office o

the

Assistant

ttorney

General

The

Honorable

Lamar

S. Smith

Chainnan



Washington, DC

20515

Dear Mr. Chainnan:

U.S. Department of

Justiee


Warhingron D.C.

20530

January

6

2012

This responds

to

your letter o 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 o 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 pre-

confmnation activities o 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

o inappropriate encroachment

upon

the judicial bnsncb. We adhere

to

th t position.

Your recent letters have made it clear that

the

Committee's inquiry is also

hased

on a

purpose that falls outside

the

scope

o

Congress's oversight authority. The Department has long

recognized, as it st ted 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

effe tiveness o

current laws.

Scope o ongressional 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 th t an oversight request must be for a

legislative purpose, i.e. to obtain information in aid

o

he 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




Page2

oversight activities must be related to, and

in

furtherance of, a legitimate task of the Congress ).

The Committee h s shown over the cour.;e of its four letters to the Department on this

matter that its inquiry regarding Justice Kagan does not

seek f cts

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 st ted

legal

opinions about the

legislation while she served

as

Solicitor General. That letter w s

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 he letter clearly ststed the non

legislative purpose

of

he inquiry: The results

of

that oversight would have a bearing on

whether Jtistice Kagan h d a possible conflict

o

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 w s serving as the United States Solicitor

General. Similarly, your initial letter of July 6 stated that the request w s 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 e t e d 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

m tters

that are exclusively the concern of he Judiciary );

Kilburn v

Thompson 103 U.S.

168, 192 (1881) ( The matter was still pending in a court, and what right h d the Congress of he

United States

to

interfere with a suit pending in a court ofcompetent 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. j

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 he

request is to influence the outcome of the litigation y affecting the recusal decision of Justice

Kagan. Indeed, over two-thirds of he 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 ffect 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 amar S. Smith

Page

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






®

Office oflbe Assistant Attorney General


Chairman

Committee on

the

Judiciary

U.S.

House o Representatives

Washington, DC 205

IS

ear

Mr. Chairman:



WaJhingron

D C 1 53

December 6 20 I I

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 o other Members who asked you

to

seek documents and other information about activities

o

Supreme Court Associate Justice

Elena Kagan while she served as Solicitor General o 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 o

documents that the Department has already released

in

response

to

Freedom o 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

o

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 o

a sitting Supreme Court Justice. That is especially so in cormection with a pending case in which

many Members o Congress submitted amicus briefs

in the

lower courts. We

are

unaware o any

precedent for the Department to participate in such an inquiry, which poses an unacceptable risk

o inappropriate encroachment upon the judicial branch.

For the foregoing reasons, we regret that we cannot be o further assistance in this matter.

Please do not hesitate to contact this office i we may provide assistance regarding any other

matter.

Sincerely,

tJ\ \ \

Ronald Weich




The Honorable Lamar

S

Smith

Page Two


Ranking

Minority Member




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

o

resumes.

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 o

applications

by

those career reviewers, and discourage their participation in

future hiring efforts. l is is particularly important because many of those involved were non-

manager

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 ivision

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 he 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 i

we can provide additional

assistance

regarding this or any other matter.

Sincerely,

V \ ~

Ronald Weich


cc: he Honorable John Conyers

Jr.


1

Moreover, as

disclosed

in the spreadsheet we are enclosing in

this

production

specifying

the

number

o

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 t would

be possible to

appropriately redact these resumes while protecting

these

individual s privacy interests, identifylng,

reviewing,

redacting. and other processing o hese reswnes

would

be

labor

intensive and unn:asonably bmden

the

limited

resources

o

he

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.



Office oflhc

Assistant

Attorney

General

The Honorable Lamar

S.

Smith

Chairman

. Cnmrnittee

on

the Judiciary



Dear Mr. Chairman:

U.S. Department of Justice


Washington D.C. 1 53

December

5,

20 II

This is in response

to

your letter

to

the Attorney General dated September 8, 20 II,

regarding hiring practices of

he

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 h s 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 o 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.

U.S.

Department o Justice, Office oftbe lnsp«tor OeneraVOfftcc o Professional Responsibility, An

lnvestigation o

Allegations

o Politicized

Hiring

and Other lmproper

Personnel

Actions n the

Civil

Rights

Division (July2, 2008) ( July 2008 Report ).

2

/dat64.




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. o

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

he

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 o

ob-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

he 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

he 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 Chi efs 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

o

hese fonner employees who left

ihe

Division in

January

2006 worked in

the

Office

o

the

Assistant

Attorney

General

while

the illegal

hiring practices

documented in

the July 2008

Report

took place. This

individual declined

to

cooper te 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.




Page3

which was issued at the direction

o

former

AAG

R. Boyd. In 2003, that process was modified

further nd 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 o control over the hiring process from career

managers

to

political appointees, the July 2008 Report included a number

o

specific findings

o

improper consideration o political and ideological affiliations in hiring decisions. Specifically,

the July

2008

Report found that

Mr.

Schlozman actively sought nd 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 o 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 o

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 o nterviews

and

discouraged

from

asking questions during interviews;

Section Chiefs were denied access to information about the

full

pool

o

applicants; and the

assessments

and

recommendations o

Section Chiefs were ignored, as were

their

objections to

the hiring o 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 o the behavior

documented in the July 2008 Report and elsewhere. The improper consideration o 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 o a ''single specific

hiring manager, namely Mr. Schlozman. Although the July 2008 Report's findings focused on

his misconduct, the Report furth r concluded that several other political appointees, including

two AAGs and

two

Principal DAAGs

had

knowledge or some indication

o Mr.

Schlozman's

improper consideration

o political nd 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

o the team, and

disfavored applicants witb

civil

rights or

hWIUl

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 o

'the

team'

yesterday. And still another ideological

comrade will

be staning in one

month.

So we

are

making

progress.

ee

July 2008 OIG Report at

14-35.




Page4

that was closer to 50-50. f he 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 o Allegations

of

Politicized

Hiring by Monica Goodling and Other Staff in the Office of the Attorney General, July

28,

2008;

OIG/OPR Report, An Investigationof 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 he 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 e p a r t m e n ~ 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 o these policies,

in

2009,

the

Division

convened

a

Working Group comprised of he career Section Chief or a career

Deputy

Chief

from

each of he

Division· s sections,

the irector o the

Division s

Professional evelopment

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 nd

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 o 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




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 ofwritten policies designed

to

restore credibility,

transparency and fairness to the process used

for

hiring career attorneys.

6

Each of hese 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, non-

managerial, 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:

6

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.

t t Q _ ; i / w ~ _ w . j u s t i c e . g o v / c n i e m p l o v m e n t l (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 experiencedattorney hiring process,

we

have

not gone into detail about

dle

conclusions

of

he

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 p r o d ~ K : i n g diose documents,

we

nole that the Department and OARM which oversees the Honors

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

recommendationsof dlc

1

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 he 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 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 .. rial attorney announcements will no

longer

e

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

ob vacancies and inviting all

employees

to

notify organizations

of these

openings.

• 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

n

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.

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 noI limited to b r 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. Ifyou are, or

know of, an organization that might

be

interested

in

receiving these annnuncements, please e·mail

. http: '' 'ww-iustict:

g o v : c r t . ' e m p l _ 9 ~ ~ . l l i

(last visited

Oct.

31 20 II).




Page?

knowledge and expertise in

the

laws rules

and

regulations applicable

to

the work

o he

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

o

political affiliation:

The Civil Rights Division

is an

equal opportunity reasonable accommodation employer.

All

hiring is based on merit; consistent with applicable federal

law

and Department o

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 o 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

o

Special Counsel.

In addition, a key componento he revamped hiring process was the creation o 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 o 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 o 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 o political or ideological affiliation in hiring.

The training also includes specific discussion oftbe findings o the OIG/OPR

repons

including

reports documenting improper hiring practices elsewhere in

the

Department- and examples

o

the illegal hiring practices identified in those reports

to

make clear the types

o

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

o

he Division's annual Professionalism Training program, which

employees are

required

to attend.

2

The

January

20 2010

guidance memorandum and the

April28 2009

and

July

13

2010 Division policy

statements specifically list

all o the

prohibited

personnel practices.



The Honorable Lamar

S.

Smith

Page 8

You asked what guidance

b s

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 nformation 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

enforcementof 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 h d previously worked for civil rights organizations- reflect nothing more th n 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 o the

political contribution

and voter registration

records

o

candidates for

career positions, as

well as internet

searches o candidates for career

posidons

using the

following

internet search

string:

lfirst

name

o

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

N Ff

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, n Investigation o Allegations o Politicized Hirins by Monica Goodling and Other

Staff in tbe Offi." o

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.

~ T r a i n i n g 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

t

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 p rty 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 practice

official 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 o he Division s attorney

hires

since 2009, which we

are

providing to you today,

reflect

a diverse array oflegal experiences.

Experience, sound judgment,

nd

a demonstrated commitment to full

nd

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

nd

criminal defense experience; lawyers with civil litigation backgrounds on both

the plaintiff

nd

defense sides;

nd

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 ofwtit ten 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

he section;

experience conducting investigations

nd

developing cases

for

litigation; wtinen

nd

oral

communication skills; oral advocacy skills; and negotiation skills. Those policies draw no

distinction between skills and experience gained representing plaintiffs or defendants, nd

employees involved in the hiring process were not instructed- officially or unofficially

to

make

such

a distinction.

16

As

part

o

our production ro you today, we

are

providing

all

o

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

t

was

not

mentioned in the blog

poslings

c:ited n your

letter.




Page 10

Your letter also suggests that the Division's recruiting for career positions has been one

sided, 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 he recipients of the announcements.

fcourse, 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 he authutiL.cd

h.itiug

i n t ~ ~

costs for items such as rent and equipment have further strained the Division's resources. In

response, the Division, along with the rest of he 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


cc:

The Honorable John Conyers, Jr.

anking Minority Member

17

h.up:::ww

.c-spauan.:hives.oruprogram

2Q0782·1 (last

visited October 29, 2011),



Office

of the Assistant Attorney eneral

The Honorable Lamar

S.

Smith

Chainnan



Washington. DC 20515

DearMr Chairman:

U.S.

epartment o Justice



November 10. 2011

This responds to your letter dated October 28,2011, which followed

up

on our previous

correspondence regarding your July

6 2011

request on behalf

o

49 Members

o

Congress

who

wrote

to

you asking that you see k documents

and

other information about activities o Supreme

Court Associate Justice Elena Kagan while she served as the Solicitor General o he United

States. We regret that you are dissatisfied with our response o October 27,2011.

We

have carefully reconsidered your request, but we must again respectfully decline to

comply with your requests because

o

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

o

his

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 o 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

o

the case itself.

In any event,

based

upon the record searches we

have

conducted in response to Freedom

o Information Act (FOIA) requests, we are not aware

o

any infurmation that raises questions

about t h e n ~ o l i c i t o r 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

o

which changes our view.

The

materials withheld under FOIA

implicate substantial Executive Branch confidentiality interests relating to internal deliberations.



The Honorable Lamar

S.

Smith

Page

While w must

respectfully disagree with

you on

this

matter we would

e

pleased to

confer with you about it further if that would

e

helpful.

Sincerely

Ronald Weich


cc: The

Honorable

John

Conyers Jr.

Ranking Member



Office

of

the As

~ t a n t

n u r n e ~ Gcnernl

The Honorable Lamar

S.

Smith

Chairman



Washington, D.C. 205 I 5

Dear Mr. Chairman:

U.S.

Department

of

Justice


W r 1 ~ h i 1 1 g t r m D C 2 53

November 1

2011

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 h s

provided

extensive information

to the

Committee over

the p st 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 w s

not accepted until August

24.

The Department and Ms. Fernandes

h d

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

w s 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

w s

greed 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.




Page Two

u 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 i we


or any other

matter.

Sincerely

M ~

Ronald Weich

rusistant Attorney General

cc: The Honorable John Conyers Jr




l

•

ffice

of he Assistaot Attorney General


Chairman




Dear

Mr.

Chairman:


Office

o

Legislative Affairs

WashingtorJ D C

20530

October 27 2011

This responds to

your

letter to the Attorney General, dated

July 6 2011 on

behalf

o

49

Members o Congress who wrote to you requesting that you seek documents nd other

information about activities o Supreme Coun Associate Justice Elena Kagan while she served

as

the Solicitor General

o

the Unired States.

s

noted in the letter you received

from

your colleagues,

the

Department

h s

disclosed

records relating to the Patient Protection and Affordable Care

Act

(PPACA) in response to three

Freedom o Information Act (FOIA) requests, tw o which were consolidated in Media

Research enter v

Department o ustice

(D.C.D.C.).

The

U.S. District Court for the District

o

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

o

the

Solicitor General. If you are not already in possession

o

hese 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 pre

confirmation activities o a sitting Supreme Court Justice. The Senate confirmation process is a

rigorous, in-depth inquiry into the background and activities o nominees, particularly for the

Supreme Court. s you nore then-Solicitor General Kagan answered questions about the topics

described in your letter during the course

o

her confinnarion.

We

are unaware

o

any precedent

for

Congress

to

conduct a post-confirmation investigation regarding the pre-confirmation

activities

o

a sitting Justice, and we would regard such a course

o

action

as

an unseemly

encroachment on the judicial

branch o

government.

Moreover, any questions about participation

in

cases

by

sitting Justices are more properly

addressed

in

the conrext

o

specific litigation, where the parties have an opportunity to seek

recusal i hey choose to do so. In that regard, we nore that many o the Members who signed the

letter to you have signed

amicus

briefs challenging the constitutionality

o

the legislation.



The Honorable amar 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 i that would be helpful.

Please do not hesitate to contact this

office

i we may

provide

additional assistance


Sincerely

Mc \

Ronald Weich


cc:

The

Honorable

John

Conyers Jr.

Ranking Member



Office o lhe A s s i ~ a n t Attorney Geneml


Chairman


U.S. House

o

Representatives

Washington,

DC 20515

Dear Mr. Chairman:



W < ~ s h i n , l ( l l m , D C 205JU

October 17, 2011

This responds to your letter to the Assistant Attorney General for Civil Rights dated

August

17

2011, about the Department's enforcement o the Freedom o 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

o

violence

at

abortion clinics around the country.

As

stated

n

the Purpose section

o

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 o 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 o the evidence and the relevant

law

and

never on any desire to chill protected speech.

Your

letter focuses particular attention on our civil enforcement o 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 o

2009.

This by

no

means represents every incident

brought to the Division's attention. but only those where it was determined that the evidence




Page Two

would prove an actionable violation. The

earliest

such case, Holder v. r a n c ~

grew

out o 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 n ~ 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 o the threats posted by defendant Dunkle in the earlier case.

In

both cases, the sole remedy

was

the removal

o

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 aphysician 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 e "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

o

force and/or physical obstruction activities

that

do not

raise

First Amendment issues. Two

cases

5

involved defendants entering clinic buildings and throwing their bodies

against

the doors

to prevent

access

with

one defendant also pounding

on

the door n an attempt to get into

the

patient examination area. Two

pending

cases involve

defendants

pushing

6

or chest·butting

7

people accompanying

patients

into

reproductive

healthcarc facilities. The other

pending

cases

allege physical obstruction

o

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

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).




Page Three

Each o the civil cases narrowly targets the specific actions o a specific defendant. n

every instance, the defendant crossed the line from protected expressive activity to activity that is

appropriately prohibited by FACE n every instance, numerous other anti-abortion protesters

enjoyed the

free

exercise

o their

constitutional rights without

engaging

in the use

o

force,

threat

o force, or physical obstruction.

The

Division recognizes and supports the constitutional rights

o

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 o court

established 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

o 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

o

possible FACE

violations, nd

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 o

the

offense; the

deterrent

effect

o

prosecution; the

person s history with

respect to criminal activity; nd the

person s

culpability

in connection with the offense. For both civil and criminal cases, the

Division

hee s

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

geogr p

hie

scope

o

njunctions

the

Department has obtained have been

quite narrow,

consisting

o

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 b rs the defendant from engaging in certain activities

within 100 feet o any open polling place in Philadelphia. The Department considers that

injunction to be tailored appropriately to the scope

o

the Voting Rights Act violation that

occurred in that

case.

as

well

as

the

requirements o

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 o the decision on the attorney s own

professional or personal circumstances. USAM 9-27.260.

Your letter

also

asks

for

an

explanation

o

h

''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

th

Clinton Administration, 17 civil FACE complaints

were filed; in

th eight years of

he

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 o

the

laws within its jurisdic.tion.

We hope

this information

is

helpful. Please do not hesitate to contact this office ifwe

may provide additional assistance

regarding

this or any other matter.

Sincerely,

Ronald Weich


Enclos\U e

cc:

The

Honorable

John Conyers, Jr.

Ranking Minority

Member



Office of the

Assistant

Attorney General

The Honorable

Lamar

Smith

Chainnan, Committee on the Judiciary

U.S. House

of

Representatives


Dear Mr. Chairman:

U.S. Department of Justi te

Office of Legislative

Affairs

Washingtan

D.C.

20530

September

20, 2011

This responds

to

your letter, dared August I, 2011,

to

the Department of Justice,

concerning AT T Inc.'s proposed acquisition

of

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

of

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 he

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. t 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

T

Mobile

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 h d 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 he

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


or

any other matter.

Sincerely,

Ronald Weich


Enclosure

cc:

The

Honorable John Conyers, Jr

Ranking Minority

Member



Office

or he:

Assistant

Attorney

General

The

Honorable Lamar S.

Smith

Chairman




Dear Mr. Chairman:


Office

of

Legislative

Affairs

r-fiashington

D.C

1 53

August 12, 2011

This responds to your letter to the Attorney General,

dated

May 9,

2011

which requested

additional information pertaining to investigationsof 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

th

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 J 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 PR 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 engaged in professional

misconduct, a copy of the draft report of investigation is provided to the

J

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 judge s 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

J

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.

ee

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.

n

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 PR 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

in-

depth 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 p rte 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 PR 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 ~ v f :

~ 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

he

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 thr ough 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

J

based

on

an

appellate court's disagreement over

an

interpretation of

the

law by

an

J

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 l

blatantly disregarded the law or controlling precedent. Enclosed are 52 pages

o 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 o

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 o Us because they reflect internal deliberations and implicate

substantial individual

privacy

interests. They include documents containing information

provided to OPR with

an

expectation o confidentiality, such as interview transcripts. the

disclosure o which would chill individuals from providing information to OPR in future

investigations, which in turn, would compromise OPR s ability

to

investigate allegations o

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

i

we can provide additional assistance regarding

this

or any other matter.

Sincerely,

Ronald

Weich


cc: The Honorable John Conyers. Jr.




Office of the Assistant

Attorney

General

The

Honorable

Lamar S. Smith

Chairman




Dear Mr. Chairman:

U.S.




ugust 2 2 11

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).

n

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 he United States Code Section 2252 b) l),

the defendant is

subject to

a

mandatory

minimum

term

o mprisonment o 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


cc:

The Honorable John Conyers,

Jr.




bee: The Honorable Lorena E Lynch

United

States Attorney

Eastern District

o New

York

271

Cadman Plaza East

Brooklyn NY 112 I



Office of

the Assistant

Attorney

General

The Honorable Lamar

S.

Smith

Chainnan

Committee

on the Judiciary

U.S. House

of

Representatives


Dear Mr. Chainnan:

u.s.

Department

or

Justiee


WaJhington D C 10530

uly

27, 2011

This responds to your letter dated May 24, 2011, regarding a March 9, 2011 article that

appeared

in

The merican Banker about ongoing negotiations with mortgage servicers. Your

letter raised questions regarding the Justice Department's authority to participate

n

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

he Department

of

Justice

to

conduct nd 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 nd authority to act in the public interest to protect

the integrity nd efficiency of the bankruptcy process and deter abuse. The settlement

negotiations referenced

n

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

he 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 h s 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.




Page Two

If a coordinated settlement is reached any remedy that it imposes will also he based on

the authorities o the state attorneys general

with

whom the Departmento Justice is working.

These officials enforce

the

consumer-protection

laws o

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

o

consumers. Taken together the members

o

the

Financial Fraud

Enforcement Task Force and their state pattners have court-recognized authority to seek as part

o

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 o bankruptcy laws. The Department through USTP has a long history

o

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

o

law.

but these agreements will

not

hamper the uniform application o 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 2 1

that

required

the

servicer

to

take a number

o remedial

steps

and

imposed a consent decree on the servicer

to

ensure future

compliance. Our

goal is to

address violations

o

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 n 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

he

Department will continue to pursue its goal o 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


cc;

he

Honorable John Conyers

Jr.




OffiCe aj As.risttJIIt l l o r ~ ~ c y C,e ftral

he Honorable Lamar Smith

Chairman

Committee on the 1udiciary

U.S. House

o

Representatives


Mr. Chairman:

U.S.

Department

o

Justice


WaU illglon. D.C. 20530

June 30,

2011

This responds to

your

letter to

the

Attorney

General

dated

May 13

2011, regarding press

reports that the Departmento Justice had declined prosecution o Thomas Tarnm for the alleged

disclosure o 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.

he

Department does

not

believe that holders

o

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 o the Federal Bureau

o

Investigation. After a thorough investigation that involved interviews

o many

witnesses and

the review o thousands o documents over a span o approximately four years, the evidence

developed did not warrant prosecution

in

this matter. While

as

a matter

o

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




Page Two

o

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

o

he

ew York Times article

referenced in your letter

We hope that this infonnation is helpful. Please

do not

hesitate

to


we

may

provide additional assistance

regarding this

or

any other

matter

Sincerely

Ronald Weich


cc:


Ranking Minority

Member



Office o

the



Chainnan


U.S.

House

of Representatives

Washington,

DC

20515

Dear Mr. Chairman:

U.S.




June 30,2011

This

supplements

our

previous responses

nd

docwnent productions, including those o

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

o

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, th final version of which was published at 76 Fed. Reg. 21239; 2 draft

revisions

to the

Department o

Justice

Redistricting Guidance,

the

final version o which was

published at 76

Fed.

eg 7470 and provided

to

the Committee on February

9,

2011; and 3)

proposed amendments to 28 C.F.R. Part 55, Implementation of he 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 enforcem ent

o

Section 5

o

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 Com mittee 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

o which

remain

unresolved. We

believe

that the

confidentiality

o internal

deliberations about specific legal issues is important to

preserving

the

candid exchange

o

views about

such matters

that we believe is essential

to

sound d e i s i o n ~

making.

The m ajority o the

responsive

portions o the Section 5 Manual have already been made

available for review, except for certain law enforcement sensitive

and

deliberative portions,




Page Two

which the Department h s 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 st ff about document matters.

We hope that this

information is

helpful.

Please

do

not

hesitate

to

contact

this office

if

we can prov ide additional

assistance


Sincerely,

Ronald

Weich

Assistant

Attorney General

cc:






Chalnnan

Committee on 1he Judiciary



ear Mr.

Chairman:

U.S. epartment of Ju•tice

Office

of

Legislative

Affail'li

Wa.rhilfBW I.

v c zrmo

June 22,

2011

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 he 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 i n t r v i w s ~

would have strong privacy interests.

We

are concerned that any disclosure of hese 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 st ff 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




Page

Two

the

briefing will meet your

needs. e

will make ammgements to scbedule

it in

the near future i

you

believe

that would be helpful.

We

appreciate your interest

in

this

matter

Please do not hesitate to contact this

office i

you would like additional assistance

regarding

this

or any other matter

Sincerely

I V \ ~

Ronald Weich


cc:

Tbe Honorable John Conyers Jr.

Ranking

Minority Member




Page Two

e hope that this information

is

helpful. Please do not hesitate

to

contact this office

i

we may

provide

further assistance with this or any other matter

Sincerely

Ronald Weich

ssistant

Attorney

General


Ranking Member



Office of he Assistant Attorney General


Chainnan

Committee

on the Judiciary

U.S. House

of

Representatives


Dear Mr. Chainnan:


Office

of

Legislative Affairs

Washington D C l05 30

June

14

2011

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

he 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 Depar tment'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 wit these core principles, the Department's investigation and prosecution of his case

-including

all

charging decisions

made

in the case- were guided only by the relevant facts and

the applicable law.




Page Two

We hope this infonnation is helpful. Please do not hesitate to contact this office i we

may provide additional assistance regarding

this

or

any other

matter.

Sincerely

Ronald Weich


cc: The Honorable John Conyers Jr




Office of the A ~ ~ s t a n t Attorney General


Chairman




IS

Dear Mr. Chainnan:


Office of Legislative f f a i r ~

'ltshiugtml, D C : 053U

May 27

2011

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 y 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 e 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

staffon 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

ndividual

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 t ke 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; nd 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

o he

Office Professional Responsibility

OPR)

on

its

investigation

o

he New

Black

Panther

Party

case.

We

hope that this information

is

helpful.

Please

do not hesitate to contact this office

i

we may provide additional

assistance


Sincerely,

Ronald

Weich


cc: The

Honorable Jobn

Conyers,

Jr.

Ranking Minority

Member




Chairman




Dear Mr. Chairman:

U.S. epartment of .Justice

ffice

o

e g i ~ l a t i v e f f a i r ~

a;1 1lringull/ /J

c 2 53o

ay

2

2 11

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.




Page Two

We hope that this information is helpful. Please do not hesitate to contact us i we may


Sincerely

/ft/\

~

Ronald Weich


Enclosures





Office of the Assistant Attorn< )' G.meral


Chairman



Washington,

DC

205 I

5

Dear Mr. Chairman:



il ashington, D.C. ] )53 )

April 29, 20

II

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

his 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


cc:

The Honorable John Conyers.

Jr.




i i i

Office ofthe Assislant Attorney General

The

Honorable

Lamar

S

Smith

Chairman



Washington, DCC 20515

Dear

Mr Chairman:

U S

Department

of

Justice


Wmhington

D.C.

20530

April 22, 20 ll

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 his 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 th t that

error

was corrected prior to

our

~ t of

your letter.

We

were unaware

of

any

such misrepresentation

of

he

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 co

sponsorship.

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 V l ~

Ronald Weich

Assistant Attorney Genem

cc: The Honorable John Conyers, Jr




•

Office

of he

Assistant Attome} General

The Honorable amar Smith

Choirman

Committee

on the

Judiciary

U.S.

House

of

Representatives


Dear

Mr.

Choinnan:

U.S. Department of Juslire


Washington D C

2 BO

Aprill4,

2011

This responds

to

your letter to the Attorney General,

dated

March 2, 20II, 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

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 he

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.

§§

51.29-

30.

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.

ee 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 ~ · t u u

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.

1

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




Page 3

to

mail or email a copy o 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 o 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 o these procedures, it is

not

meaningful

to

compare the handling o

requests for pending Section 5 records with the handling o requests for closed Section 5

files

or

FOJA

requests for other types o 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 o August

12

2010 included three requests to the Division by Mr. Lee. Two o

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

w s

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 o

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 o 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

o

the

request. Ms.

So mach

by c o n t r a s ~ 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 Voting Section also

aims

to

reply promptly

where

p r a c l i c a b l ~

to requests

for

closed Section 5 submission

files

i e

submissions with regard to

which the

60-day re\liew period has already e ~ ~ : p i r e d 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 i n v o l v ~

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 w s 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 oston 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 a p p l i c a t i o n ~ r e l a t e d documents

for

career

attorneys

hired

into

three of he 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 ~ r o c e s s i n g that

request

immediately, sending

an

interim response

the

day after

it

was

received.

That process requires a

t i m e ~ c o n s u m i n g

l i n e b y ~ l i n e 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 ). he log that

Wt: ale:

pwvidiug

yuu tuday shuuld

induc.lt:

all FOIA

tcqucsts

to

thr

Votiug St f.tion, ·

w ~ l l

' 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\0.



The

Honorable

Lamar Smith

Page

Section 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


we may

provide additional assistance regarding

this

or

any

other

matter.

Sincerely

~ v \

Ronald Weich


Enclosures

cc: The Honorable Jotm Conyers Jr.




Offke ol" the

A s s i ~ l a n t

Altorlk ) Grneral

The Honorable Lamar

S.

Smith

Chairman

U.S. House

of

Representatives


Dear Mr. Chairman:

U.S. Depar tment of Justice


IV<1.1hing/f l1. D .

20530

April

13 2011

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 wit

section 240(c)(7)

of

he 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

th

country to which

deportation has been ordered. You state that these regulations are in conflict with section

240(c)(7)(C)

of

he

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 th Washington Legal Foundation. As you know, any proposed change to an

agency s

regulations requires

acomprehensive

review to ensure compliance

wit 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

w

may


Sincerely,

Ronald Weich


cc:

The

Honorable John Conyers, Jr.




Office of

the

Assistant

Attorney

General


Chairman


U.S. House

of

Representatives

Washington, DCC 20515

Dear Mr. Chairman:

U.S. epartment o Justice

Office

of

Legislative Affairs

Washington

D.C.

20530

April 6, 20 l l

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 ~ l i e v e 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

PR

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






rhceor the A)sb ant Uorney Gerterol

The Honorable

Lamar S.

Smith

Chairman

Committee

on the Judiciary

U.S. House

of

Representatives

Washington,

D.C.

20515

Dear Mr. Chairman:

U.S.

Department

of Justice

Office of Legislative Affair.,

~ 1 1 h i 1 1 g J o n D C

1 53

March 24,

2011

This responds to your letter dated February

8

2011, recommending

for

the

position

o

United

States

Attorney

for

the Western

District

o

Texas.

As

you

have noted

in your

letter

Your input is

appreciated

as we evaluate candidates for this most important position

Please do not

hesitate to

contact this office i

we may provide

additional assistance

regarding

this

or any

other

matter

Sincerely,

Ronald Weich


cc: The Honorable John

Conyers

Jr.


(b) (6)

(b) (6)




Chairman





V S Department of Justice

Oflict: o

e g i ~ l a t i v e

Affuirs.

March 10,

2011

This responds to yow letter o 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 o more timely and consistent

resolution

o

allegations

o

professional misconduct against Department attorneys.

t 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

o

disciplinary actions: written reprimands, suspensions, and removals. Imposition

o

discipline

requires multiple levels o supervisory involvement.

n

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 th n 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

o an employee. The employee then can respond to the next level supervisor (deciding official),

who then issues a decision on the proposal. For suspensions o

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

o

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 o

the evidence

and to

impose a level

o

discipline that

the

official determines is appropriate based

on the facts nd 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 o 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




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

o 14

days or less and to

propose

suspensions o more than

14

days or remova1.

The decision on a proposed

suspension

o

more than

14

days or removal would

be

issued

by

the Director ofEOUSA

or

one

o

a limited

number o delegees within

EOUSA.

For example, i a FAUSA proposed a 10-day SUSPension o

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

o

he 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

o

14 days or less has been delegated to the Assistant Attorneys General (AAGs), and authority to

impose

suspensions o more than 4 days or removals resides in the Office o

Attorney

Recruitment and Management

OARM).

The AAGs

are

authorized

to

delegate their disciplinary

authority

to subordinate

supervisors.

Under existing procedures, when th Office o 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

o

misconduct or

recommended range o

discipline is

required to

notify

the Office o

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 o discipline, ODAG reviews and decides any challenge to the

OPR finding o 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

o

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

o

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

o

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 o 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 th misconduct findings and th 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

o

inconsistent

resolutions

that

is

inherent

in the current

process.

2

The PMRU s independence will

be

protected because

th

authority

to

impose discipline

will he delegated without restriction. In instances where a letter of reprimand is issued

to

an

attorney, th disciplinary process will be

handled

entirely within the

PMRU.

If

the PMRU

Chief

imposes a suspension

o

4 days or less the attorney subject

to

the discipline may file a

grievance with

ODAG. f

h

PMRU

Chief imposes a suspension

of

15 days or more, or if the

PMRU Chief removes the employee, the attorney subject to

th

discipline

may

file

an

appeal

with th MSPB. The transparencyof h

PMRU

will depend in large measure

on

th privacy

interests

o

the individuals involved,

and Departmental

interests in S Wld management.

We

will

o

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 th 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 th

internal deliberations that resulted in establishment

of

the PMRU.

We

think it

is

important to

protect the candid exchanges o

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 th 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

th PMRU.

We

hope

that

this information is helpful. Please

do

not

hesitate to contact this

office i

we can

provide additional

assistance

regarding this

or any other

matter.

Sincerely,

Ronald Weich



Jr.


2

OPR findings o poor judgment

or

mistake will continue to

be

handled by

I

he USAOs and components.



Office

of

he

Assistant

Attorney General

The


Chairman



Washington, DC

20515

Dear Mr. Chairman:

U.S. Department

of

Justice


Wtuhington D.C.

2 53

March 2. 20 II

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

hese 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 y 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


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 t chill employees

from

preparing documents that set

forth

their

candid views

about

matters o

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 t report t 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 prep red 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 th t

were neither

produced nor m de

available for review. However, we have

not prep red

a log, in part because detailed descriptions

o those documents would

in

many instances

compromise

the confidentiality

interests that

we

want to protect. We

also believe th t

we can accommodate your

information

needs by describing

the documents by category, consistent with

usual

oversight practice. Those categories are:

l draft regulations, which

w

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 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 t 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 submission

to

provide

his

or her




Page Three

recommendation in writing

about that

submission.

This

change

restored

what h d een the

longstanding practice in the Voting Section, during multiple Administrations, until

it

was

changed in 2005

to

eliminate the

recommendations

of

c reer

professionals besides the Section

Chief.

Finally the document that you suggested had

been

retyped h d been redacted with

ellipses which is different from our usual method of making redactions.

t

has now een

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 o

the

redactions pert in

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





Office o he Assis1ant Attorney

General

The Honorable Lamar

S.

Smith

Chairman



Washington,

D.C. 20515

Dear Mr. Chairman:



Washing/an D.C. 20530

January31,20ll

This responds

to

your letterto

the Attorney

General dated January

6

2011 concerning

the policies

and

priorities of the Department

o

Justice (Department) relating

to

the enforcement

o federal voting rights laws. n 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

o

racially biased enforcement

o

voting rights laws.

n

responding,

we

want to be clear on this

point:

the Department is firmly committed to the

fair

vigorous,

and

evenhanded enforcement

o

all of

the

civil rights laws within

its

authority,

including federal laws protecting the right

to

vote.

As

the Attorney General

and

other officials

o

the Department have stated, the

Department makes enforcement decisions, including

in

the area o voting rights, based on the

merits o the case, not the race, gender, ethnicity, or political affiliation o 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 o racial or

language

minorities. This record o 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

o

he VRA, which

was

enacted

in

response

to

the history

o

discrimination

against Africao Americans

and

other minorities

and

the civil rights struggles o 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' o the civil rights movement for

having

been successful in protecting minority voters who

were disenfranchised in certain parts

o

he

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

o

each potential enforcement action.

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




Page Two

Furthermore, the Department does

not

choose which provisions

o

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 o the Civil

Rights Division that

the

Division

must

recommit itselfto enforcing all

the

laws

that it

is

empowered to enforce, and not pick and choose among them That was a central part o 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 o

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


DAAG)

Julie Fernandes

explicitly

or implicitly directed Voting Section

staff

not

to

enforce any section o any federal

civil rights

statute

based

upon the

race o

the

alleged

victim or perpetrator, or not

to

enforce

Section 8

o

he 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

o the Voting

Section

not

to

enforce any

provision

o law within the

Section s

jurisdiction.

When these allegations

first

arose,


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 o

the

Division.

Ms. Fernandes

also

assured Mr.

Perez

that

sh

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 o he alleged perpetrators or o

the

victims.

As you know, since Mr. Perez s initial review, the Department s Office o the Inspector

General

has initiated

an inquiry

into

th enforcement

o civil rights laws

over time by the Voting

Section, which

may

address

some

o

the matters

raised

in your letter.

In deference

to the

ongoing

OIG investigation, and in light

o the infonnation

provided

to

the

Assistant Attorney

General for Civil Rights

as

described

above,

the

Department

has not

undertaken further detailed

investigation o

his matter for purposes

o

responding to your questions. We

have

reviewed the

acrions o 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 behalfo white voters

in United States v Ike Brown Noxubee County

Democratic Executive Committee and

Noxubee

ounty 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




Page Three

until November 20 II. Upon learning last year that the defendants had taken recent actions that,

in the judgment

o

Division attorneys, violated both the letter

and

spirit

o

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

o

he white voters who bad been victims

o

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

h

NVRA. Under Ms. Fernandes direction. in

2 1

the Voting Section, for

the

first

time ever,

issued

comprehensive

written guidance

on compliance with the NVRA.

The

guidance explained every provision

o the NVRA

enforced

by

the Departtnent that imposes

obligations on states, and provided a straightforward

roadmap for c o m p ~ a n c e

The guidance

included discussion of he voter registration and list maintenance requirements of he NVRA, ·

including the procedures for removing voters'

names

from the rolls as set forth

in

Section 8 o

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

o

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

o

selective enforcement

o

the NVRA.

Each Attorney

General

and his designees establish enforcem ent 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

b s

recognized the importance

o

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.




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

he Civil

Rights Division. While the cited quotation appears in the article, a review ofMs 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 he

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. ee 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 th evenhanded

enforcement of all of he 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 ts enforcement efforts

in

the last two years.

[ll Hearing Before the Subcommittee on the Constitution, Civil rights, and Civil Libertie s

o

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).




Page Five

Criminal Enforcement

Over the last

two

years, the Civil Rights Division s Criminal Section has filed a

record

number o criminal cases. In fiscal year 20 I

0,

the riminal Section filed 125 cases, a number

that surpassed the previous record set in fiscal year 2009 112). This was almost twice

the

number o 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 o high profile cases in New Orleans. In

addition, the

Division continues

to prosecute

a

steady docket

o 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

n

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 o

discrimination against African American

borrowers by two subsidiaries o

AI G.

n

November

2009, the Division secured the Department s largest ever monetary settlement of rental

discrimination claims,

requiring

the owners o

numerous

apartment buildings

in

the Koreatown

neighborhood o 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 h s investigated several allegations o

harassment

o

students

and

the failure of school districts to take the necessary steps to ensure the

safety

o

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 th t the school district

was

deliberately indifferent to

severe

and

pervasive harassment and physical abuse o Asian-American students at the hands o

African-American students.

n

one incident, more than 30

Asian-American

students

were

attacked, 13

o whom were sent to hospital emergency rooms. The Division s

docket

includes

numerous harassment cases

involving

victims and perpetrators o many

different

backgrounds,

and all

such

cases are investigated

with

equal vigor and independence.




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

th t

protect

the rights

of

members

of

he 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, c o u r t ~ p p r o v e d consent decrees, or out.of-court letter or

memorandum agreements in 14 jurisdictions, ensured that Americans serving in our armed

forces

nd

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 t

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 t protect the right to vote t is undertaking intensive efforts t prepare for

the upcoming round of redistricting that will

follow

the release of he 2010 Decennial Census

data. Recently, the Division

h s

published for comment

the

first major proposed revisions since

1987 to its procedures for the administration of Section of the VRA Likewise, the Division is

preparing updates to its 2001 published guidance concerning redistricting and Section 5 oft e

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 constitutionalityof 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




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 n 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

lmstead

v L.C.

a

1999

ruling recognizing that

the unjustified isolation ofpeople 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

h s

received clear guidance to that

effect

and its actions provide compelling evidence of that commitment.

As


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.




Page Eight

Thank you

for

bringing your concerns

to

our attention. We will respond under separate

over to the

docwnent

request

set

forth in your letter. Please do not

hesitate

to contact

this

offi e

if

we may be o further assistance regarding this

or

any

other

matter.

Sincerely

Ronald

Weich


cc The Honorable John Conyers Jr




Offke of the ~ ~ i s J a n l Allomey General

The Honorable Lamar

S.

Smith

Chainnan




Dear Mr. Chairman:

U.S.

Department

of

Justice

Office

of

Legislative Affairs

Wrnlriugtrm n C 2 53

January3l 20ll

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

o the

Associate Attorney General, the

Deputy Attorney

General and the Attorney General. n 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

o

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 h s 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

o 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

w would be pleased

to

confer further with

ommittee 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

Responsive Documents: CREW: DOJ: OIP 11-6-14

Documents

Transcript of Responsive Documents: CREW: DOJ: OIP 11-6-14