The Attorney General

Washington, D.C.

March 26, 2010

The Honorable Jeff Sessions

The Honorable Jon Kyl
United States Senate
Washington, D.C. 20510

Dear Senators Sessions and Kyl:

This responds to your letter, dated March 18,2010, concerning my participation in

amicus briefs while in private practice.

In responding to the Judiciary Committee's questionnaire during my confirmation

process, I inadvertently failed to list several Supreme Court briefs in which I was not counsel but
was one of several former law enforcement officials who served as amicus curiae. In addition, I
failed to list two briefs in one case in which I was counsel. I sincerely apologize for these
omISSIOns.

In late 2008, following the announcement that I would be nominated as Attorncy

General, thc prcsidential transition office assigned a small team of lawyers, including several
from my law firm, to assist me with the confirmation process and to review my lengthy public
record in order to respond to the Committee's questionnaire. Because this activity occurred
during the transition, we did not have access to the Justice Department resources that are
typically devoted to assisting nominees with the questionnaire. Ultimately we submitted to the
Committee over 500 documents totaling over 5000 pages. Although I did not personally
participate in the collection of documents, I reviewed and signed the questionnaire and I take full
responsibility for the omission of the briefs in question.

These omissions appear to have occurred primarily because two sets of reviewers on my
confirmation team worked on the questionnaire at different points in the process, and those
reviewers understood the relevant question in different ways. The reviewers who initially
worked on the questionnaire believed that briefs on which I was an amicus, rather than a lawyer,
were responsive to the questionnaire and therefore listed three such brief,>. These initial
reviewers did not conduct an independent search for such briefs but instead relied on files in my
law office that turned out to be incomplete.

After I first submitted my questionnaire, Senator Specter sent a letter informing me that I
had overlooked certain items, including interviews, opinion pieces, and testimony before
Congress. That letter did not mention any briefs. Another set of reviewers reexamined my
record, focusing on the categories that Senator Specter had identified, and identified other
missing materials. Apparently the second set of reviewers also found additional Supreme Court
briefs, including the briefs in the Jose Padilla litigation in which I was one of several amici.
However, those reviewers concluded that such briefs were not responsive to the relevant
question, which called for briefs associated with my "practice" before the Supreme Court. They
understood that question to call for briefs on which I had been the lawyer, not the client. And
because they focused on the Committee's questions, rather than our initial submission. those
reviewers failed to notice that the earlier team had treated amicus briefs as responsive to the
question.

When I reviewed the questionnaire prior to its submission, I simply did not remember the
additional briefs which the Department has recently provided. Almost all were briefs I had not
written, in which my participation was limited to agreeing to join other former law enforcement
officials as an amicus.

Although it does not excuse my failure to list these briefs, I note that they have always
been included in widely available legal databases, and have never been hidden from public view
at all. The bottom line, of course, is that I should have included these documents in my
submission to the Committee. I am aware of no other inaccuracies in my questionnaire, and
none has been brought to my attention.

With regard to the 2004 brief in the Padilla litigation that you quote in your letter, I see
no contradiction between that brief and my view that, as I have recently noted, "the criminal
justice system has proven to be one of the most effective weapons available to our government
for both incapacitating terrorists and collecting intelligence from them." Feb. 3,2010 Letter to
Senator McConnell et al. at 5. Indeed, that brief discusses at great length the manner in which
law enforcement tools "provide the Executive Branch with broad authority and flexibility to
respond effectively to terrorist threats within our borders." Brief at 3. The brief catalogues the
extensive physical surveillance, electronic surveillance, physical search, subpoena, and
interrogation authorities available to law enforcement in the United States, and discusses a
variety of criminal statutes that may be used to address terrorist threats. Id. at 4-19. As the brief
notes, these investigative, detention, and prosecutorial authorities "have been used in many cases
not only to identify, arrest, and punish terrorist acts, but to disrupt and thwart terrorism before it
can occur." Id. at 21. The brief cites numerous examples of successful terrorism prosecutions
in federal court during the Bush Administration-some of the very same examples I have been
citing as Attorney General in recent weeks to illustrate the importance of retaining law
enforcement as a critical component of our broader counterterrorism efforts. Id. at 22-24.

To be sure, the brief acknowledges the fact that, in light of legal constraints, there might
be "some hypothetical situation" in which it may not be possible to use our numerous law
enforcement tools to arrest and extract information from a U.S. citizen who we suspect is linked
to terrorist activity. Id. at 29-30. This merely states the obvious fact that there may be
limitations upon the ability of the Executive Branch to restrict the liberty of U.S. citizens, at least
absent further authorization from Congress. As noted in that brief, Congress has provided the
President with comprehensive and extraordinary powers to fight terrorism without making
claims that strain the Constitution. Where necessary, the President should work with Congress to
obtain additional authority. For example, the last administration worked with Congress to

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expand the tools available to fight terrorism by passing the USA PATRIOT Act, and we are safer
today because we have those tools. The powers of the Executive Branch are at their height when
the administration and Congress work together, subject to review by the courts.
I continue to have great confidence in the ability of our dedicated law enforcement
professionals and the criminal justice system as a key tool-alongside military, intelligence,
diplomatic, and economic tools-in protecting the country from terrorism. Our criminal justice
system remains a powerful weapon in our arsenal. The amicus brief filed on my behalf in 2004
is fully consistent with this view.
Sincerely,

Eric H. Holder, Jr.