Holder Questioned About Voting Rights, Surveillance Reform

, Legal Times

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Attorney General Eric Holder Jr. today appeared on Capitol Hill for an oversight hearing for the first time in nearly a year, giving Senators a wide range of topics—including voting rights and surveillance reform—to discuss with the country’s top prosecutor.

Holder was asked about, among other things, his views on the National Security Agency's bulk collection of telephone records under Section 215 of the USA Patriot Act. Holder was clear in his defense of the controversial program, noting that judges on the secret Foreign Intelligence Surveillance Court have upheld the constitutionality of the surveillance.

Although Section 215 collects phone records such as the date, time and duration of calls, Holder said, analysts must have a predicate to search that database "and that makes it consistent with what has been passed by Congress and upheld by the courts."

"I'd say that 15 judges in the FISA court, two judges, one in California and one in New York, have looked at this question and made the determination the 215 program is in fact constitutional," Holder said. "One judge in Washington D.C. has decided it is not." (The Justice Department is challenging, on appeal, the Washington judge’s decision. The ACLU is fighting the ruling by the Manhattan federal trial judge.)

Holder called the bulk collection of phone data "an appropriate use in a constitutional sense of the government's power. But the question is, and it’s what the president proposed to us: Just because we can do something, should we do it?" Holder, at the request of President Obama, is part of the group that’s studying whether the government should retain control of the database or whether it should be in the hands of a third-party.

Under questioning from Sen. Mike Lee (R-Utah) about the "grave risk of abuse" of the phone database, Holder said he's on finding a mechanism that would allow the appropriate level of protection of the data while not harming the program.

Holder also testified about voting rights and same-sex marriage—two topics that are being litigated in federal courts across the country. In a written statement submitted to the committee, Holder addressed two recent U.S. Supreme Court decisions—U.S. v. Windsor, which extended federal benefits to married same-sex couples, and Shelby County v. Holder, which voided a provision of the Voting Rights Act.

In his testimony, Holder said the department is "working diligently" with federal agencies to implement the Supreme Court’s ruling in United States v. Windsor. Holder echoed Obama’s State of the Union remarks about the need to act on the voting rights front in the wake of the high court's decision. (The Voting Rights Act, Obama said Tuesday night, was "weakened.")

"We are vigorously enforcing federal voting protections—and working with Congressional leaders from both parties to refine and strengthen the proposals this body is currently considering—to help ensure that every eligible American has access to the franchise," Holder wrote in his comments.

Holder's appearance on Capitol Hill comes the same week that prosecutors are expected to announce—by Jan. 31—whether they will seek the death penalty in the case against Dzhokhar Tsarnaev, charged in Boston federal district court for his alleged role in the Boston Marathon bombing in April. "We will be announcing by the deadline," Holder said today.

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