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Holder Sees Constitutional Basis for Obama's Executive Actions

Chris Maddaloni/CQ Roll Call File Photo
Holder spoke about Obama’s use of executive actions in a Senate hearing Wednesday.

Lee said Wednesday that he would continue pressing for the Justice Department to release its legal justification for Obama’s executive actions.

Data Collection in Focus

The debate over executive authority was one of several notable exchanges during the three-hour hearing, in which senators from both parties also pressed Holder for more information about the National Security Agency’s collection of domestic phone records, an anti-terrorism program carried out with the legal backing of the Justice Department under a provision of the 2001 Patriot Act (PL 107-56). Obama on Jan. 17 directed Holder and the department to implement a series of changes to the program amid a bipartisan outcry over privacy concerns and potential constitutional violations.

Senate Judiciary Chairman Patrick J. Leahy, D-Vt., and former House Judiciary Chairman Jim Sensenbrenner, R-Wis., are working to scale back the records collection program. On Wednesday, Leahy was clearly skeptical about Holder’s assertions that the data collection program is authorized by laws passed by Congress.

“Congress could pass a law, for example, that would allow any police officer to seize anybody and lock him up incommunicado for five years. You could pass such a law,” Leahy told Holder. “You’re a former judge. You’re the attorney general of the United States. I think you would agree with me and everybody else that would not pass constitutional tests at all.”

In response, Holder said that 15 judges on the secretive Foreign Intelligence Surveillance Court, as well as federal judges in California and New York, have upheld the NSA program as constitutional. But he acknowledged that a third federal judge in the District of Columbia reached the opposite conclusion in a high-profile ruling in December.

Sen. Orrin G. Hatch, R-Utah, told Holder he has serious concerns about Obama’s proposal to allow private communications providers, rather than the government, to hold onto NSA data records.

“Today there are only 22 individuals at the NSA that have access to this metadata — 22 people,” Hatch, a defender of the NSA program, said. “But there are dozens of phone companies, each of which would have to maintain these records. How could you possibly provide a comparable level of supervision and accountability when this data is stored in numerous different locations and is accessible by far more individuals than it is today?”

Marijuana Concerns

Holder faced a series of pointed questions from Sen. Jeff Sessions, R-Ala., over comments Obama recently made in an interview in which he appeared to downplay the dangers of marijuana. Sessions asked Holder whether he agreed with that characterization, which he called “stunning” and “beyond comprehension” coming from the president.

“I think that the use of any drug is potentially harmful,” Holder responded.

Hatch and the committee’s ranking Republican, Charles E. Grassley of Iowa, also pressed Holder about marijuana, questioning the administration’s decision not to challenge state laws in Colorado and Washington that allow for the recreational use of the drug by adults. Grassley has cited the decision as another example of Obama declining to “faithfully execute” a law passed by Congress, the 1970 Controlled Substances Act, which bans marijuana.

Holder, meanwhile, also confirmed at the hearing that DOJ is investigating the recent consumer data breach at giant retailer Target.

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