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party, there is a concern up here, a concern shared by both sides of the aisle, that many of the delays are arbitrary, unnecessary, and totally inexplicable. You say you follow the procedures of the previous administration. I do not recall these kinds of delays with the previous administration.

Now, when you were before this committee in June and, as you know, when you are here I make it a point to be here, so we can have a chance to ask questions. You and I discussed your relationships with agency heads within the department, including the Director of the FBI, Judge Sessions.

The CHAIRMAN. Before the Senator goes to that point, I will give him more time. We are not going to vote for 15 minutes.

Senator LEAHY. I am sorry, I was told we were going to vote at 11:30, but maybe that has changed.

The CHAIRMAN. I know, but because you wanted to ask more questions, I had to delay the vote.

Senator LEAHY. I certainly appreciate that.

The CHAIRMAN. Let me ask for a point of clarification, if I may, in responding to your last question. The contentious environment you are referring to, you were not referring to the committee, were you?

Attorney General THORNBURGH. I am referring to the fact that there is a lot more scrutiny, generally, on judicial nominees and that prompts us to be more careful in advising the President as to the individuals that he chooses. Let me just

The CHAIRMAN. I understand.

Attorney General THORNBURGH. You and I have discussed one of these

The CHAIRMAN. I just wanted to make sure

Attorney General THORNBURGH. No, no. What I am saying is that we have a number of issues about which there is considerable controversy and I think, in our responsibilities to the President to advise him with regard to particular nominees, we must apprise him of what is likely to be troublesome about a particular nominee. I do not want to belabor the point, but I think we have discussed some of those.

The CHAIRMAN. And a last interruption, you were not suggesting that these nominees are being held up this long, and you were up to 70-some nominees backlog, because of the Senators who were being asked to recommend them, were you? It is not that they are not sending them to you, is it?

Attorney General THORNBURGH. In some cases, it is.

The CHAIRMAN. Is that right? What percentage of those cases would you suggest it was

Attorney General THORNBURGH. Oh, I can think of maybe a dozen cases where we simply-and in fairness to the Senators, these are recent vacancies that they are in the process of carrying out the same kind of careful scrutiny that we can build upon. So I don't mean to point fingers.

When you talk about 62 vacancies, they have not all been reaching back to 1987. Many of them are recent.

The CHAIRMAN. Senator Leahy, we are adding 2 more minutes on your time, but I can't turn the clock back until that light goes off. Senator LEAHY. I understand, just as long as everyone knows that I am now on the chairman's time.

The CHAIRMAN. Keep right on going.

Senator LEAHY. Mr. Attorney General, we talked about, as I said, your relationships with the department heads, including the Director of the FBI, Judge Sessions, and you said that you felt they should check with you before testifying before Congress.

Now, my concern is we are at the point where not only must they check, but may be afraid to say what is really on their minds if it deviates too much from the line. I think of somebody like Jack Lawn, well respected, former Administrator of the Drug Enforcement Agency.

When he retires, he says that he favors more drug education and prevention programs to stem the demand for drugs, but he never testified that way. Was that because he would have been a textual deviant if he had done that? I mean, is this having to check and clear these statements reaching a point where some of these people might not be able to exercise adequate independence to give us the best information we might need?

Attorney General THORNBURGH. Well, let me correct your characterization, I believe, of our discussions, or, if not, to clarify it. I, as the accountable head of the Department of Justice, ask that I be notified by department heads who work for me and who are accountable to me when they are appearing before the Congress.

They don't have to check with me. They don't need permission, but I think as a manager and as one who is accountable to the President and to the people by dint of my office, I ought to know when these occurrences are taking place, and that has imposed no onerous burden on anybody within the department, to my knowledge. Nobody has ever raised it with me.

And Administrator Lawn's observations are precisely my own. In fact, I repeated them this morning in my opening statement, that law enforcement alone simply can't do the job of dealing with the drug problem. And I think secretary-I keep wanting to elevate him-Administrator Lawn and I are of a mind with regard to the

a need for much more to be done other than simply more fire power in the law enforcement area.

Persons within the Department of Justice, I would hope and expect, are available for candid discussion of their responsibilities with you at any time, and if that is not the case, I would invite you to raise it with me.

Senator LEAHY. At our next hearing?
Attorney General THORNBURGH. Well, give me a call.

Senator LEAHY. If I thought I might get through or if a letter might actually get to you, I would do that.

In the last year, the FBI has reportedly settled three different discrimination suits under terms that prohibit the parties from disclosing details of the agreement. Now, I assume that tax dollars are in there at some point, and tax dollars are going to be expended in that.

If there is going to be accountability, can you really have accountability if the public doesn't have access to the information as to what kind of settlements were made?

Attorney General THORNBURGH. I am not familiar with that case, but I will be glad to look into it.

Senator LEAHY. I will give some specific questions on that.
Attorney General THORNBURGH. Surely.

Senator LEAHY. I thought of that because at the same time I read about the Justice Department going into secret negotiations to settle the Exxon Valdez oilspill case and I commend the Department and the administration for being concerned about that case. But following it, at least in the press, it was very difficult to see.

It appeared, on one hand, your department was pressuring Alaska to enter into some kind of a secret agreement. Then you had a very well-attended press conference when the plea bargaining didn't work out announcing indictments, or your intention to seek them. And then, within a day or so, the informed sources in the Justice Department were saying this whole thing could fall apart because of the intransigence of the Alaskan authorities.

And my only concern is, I understand negotiations go on leading up to a trial or leading up to charges and often are not made public, for good reason. But are we going to be in a position where we can't find out what happens in the final analysis? Are we going to be able to find out at some time just what was the Government's position, secret or public, in the Exxon Valdez case, because certainly nothing has galvanized the environmental scene with so much attention as that in recent years?

Attorney General THORNBURGH. The Justice Department sought, and the grand jury voted, an indictment on five counts of Exxon, and we are prepared to try that case in court. It is really inappropriate to talk about anything in connection with that case until we appear in court, but these are serious charges.

We are going to seek the maximum penalties if we are successful in obtaining a conviction, and I think any speculation, which we are constrained in addressing, about what the evidence is or what is involved in the case will have to await, unfortunately, the determination of the criminal proceedings.

Senator LEAHY. I have no problem with that. I was just concerned about almost the day after seeking the indictments, the articles in the press were suggesting that the Justice Department was saying privately to the press we would have a much better case if it wasn't for the fact that the Alaskan authorities wouldn't plea bargain.

Attorney General THORNBURGH. I don't think anybody said that, Senator

Senator LEAHY. OK.

Attorney General THORNBURGH. I would be surprised if that were the case.

Senator LEAHY. I will accept your statement, but that is the way it came out in the press.

Attorney General THORNBURGH. What we said was this is a tough case. We are using laws that have never been applied, seeking penalties that are new to the judicial process. But we feel we have a good case and we are going to prosecute it as aggressively as

And I think the notion that somehow got abroad that this was some kind of secret sweetheart deal proposed by us to Exxon is to

we can.

tally at odds with the facts. The negotiations with regard to a plea were initiated by Exxon. They ultimately found unacceptable the parameters that we were willing to consider and we sought and secured an indictment.

Senator LEAHY. Thank you, Mr. Chairman.
The CHAIRMAN. Thank you.
The Senator from Utah, Senator Hatch.


OPENING STATEMENT OF SENATOR HATCH Senator HATCH. Mr. Chairman, I want to thank you for having the Attorney General here to testify, and I want to welcome you, General Thornburgh, to the committee. Frankly, I have been watching your tenure down there and I think you are doing a great job, and I think most people who have watched feel exactly the same way.

I think that you can do better with regard to judges, but, you know, I think we can do better up here, too. I have seen delays up here that have been really incomprehensible to me from time to time. I am not finding any fault with the chairman because he is trying to move this forward. The CHAIRMAN. Thank you, thank you.

Senator HATCH. I want to make that clear, but I think there are times when this committee could do a better job on some of these appointments as well. So I am pleased to have you here.

I know that last January President Bush warned us that there was a Trojan horse standing at the gates of Congress. He was referring to S. 1970, the crime bill that is shortly going to be considered on the Senate floor.

Now, I would like to just have some quick answers. Doesn't that bill, in fact, expand the availability of Federal habeas corpus, while it purports to limit it?

Attorney General THORNBURGH. That is the interpretation that we have derived from our study of the bill, Senator, yes.

Senator HATCH. Instead of having these appeals be fair and reasonable, they become interminable under current Federal habeas corpus proceedings, and the way this bill is written, it seems to me they are going to become even more interminable. Would you agree or disagree with this characterization?

Attorney General THORNBURGH. We are faced with an explosion of these habeas corpus cases which follow on the termination of often lengthy and exhaustive State proceedings. In the last 45 years, you have seen the number of these habeas corpus cases in the Federal courts—this is according to the Weiss Committee's assessment-go from a little over 500 a year to over 10,000 a year, and that means that court time is being utilized, prosecutor time is being utilized at both the State and Federal level, to the extent that we feel that the recommendations of the Powell Committee, designed to address the question of the interminability of the proceedings and the lack of finality that is built into these cases, are ripe for action.

As indicated in our letter to Senator Thurmond, we support the proposals that he has made, and are skeptical of the proposals which, by our reading, would either maintain the status quo or prolong this process even longer.

Senator HATCH. During the hearings up here, I have cited the Andrews case out in Utah-those were heinous murders committed by the person. Everybody knows it. He has been convicted and sentenced to death. Andrews is now in his 17th year of appeals, using 26 different appeal processes. It is going to go on forever unless we have some reasonable approach toward habeas corpus.

Doesn't this bill actually abolish the death penalty in every State under the guise of promoting racial justice?

Attorney General THORNBURGH. I believe that the so-called Racial Justice Act would have the effect of eliminating the death penalty. And in fairness to those who support it and are opposed to the death penalty, it may be their most effective strategy to use to negate the death penalty.

I don't quarrel with their right to oppose the death penalty, but I do think it is important for us to point out that the so-called Racial Justice Act has very little to do with racial justice and a lot to do with frustrating 37 States and the Federal Government, who have enacted a death penalty.

Senator HATCH. I am interested in your views on the subject of Federal habeas corpus. In 1983, for instance, your predecessor, General William French Smith, wrote that,

The most straightforward solution to the tensions, burdens and inefficiencies presently resulting from habeas corpus would be the simple abolition of Federal habeas corpus for State criminal convicts. Eliminating Federal habeas corpus for State criminals would not upset any deep-seated tradition or historically sanctioned practicc.

Attorney General Smith then concluded that abolishing Federal habeas on a nationwide basis, as we already have done in the District of Columbia, was a reform that, deserves the serious consideration of Congress.

In 1988, Attorney General Meese echoed those sentiments in a report to the Attorney General entitled “Federal Habeas Corpus Review of State Judgments."

Because it is clear to me that there is no genuine intention to really limit the current habeas jurisdiction on the part of those who have recently offered so-called habeas corpus reform bills, I am also considering offering an amendment on the floor of the Senate to accomplish what these two other Attorneys General have suggested—the end of statutory habeas corpus review by lower Federal courts.

Now, would your Department of Justice support such an amendment at this time?

Attorney General THORNBURGH. I think that that alternative would, in fact, provide for a more efficient Federal criminal justice system. But, on balance, I think we have taken the position that the Powell Commission recommendations, which do open the Federal courts for consideration of capital cases, in particular, are an appropriate response to the current heavy caseload on habeas corpus cases.

That is the administration's position, and a position that I think reflects an attempt to balance the concern for efficiency in the Fed

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