Hearing of the Constitution Subcommittee of the House Judiciary Committee - The Reauthorization of the Civil Rights Division of the Department...

March 2, 2004 Tuesday

HEADLINE: HEARING OF THE CONSTITUTION SUBCOMMITTEE OF THE HOUSE JUDICIARY COMMITTEE

SUBJECT: THE REAUTHORIZATION OF THE CIVIL RIGHTS DIVISION OF THE DEPARTMENT OF JUSTICE

CHAIRED BY: REPRESENTATIVE STEVE CHABOT (R-OH)

WITNESSES: RENE ALEXANDER ACOSTA, ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE

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REP. JERROLD NADLER (D-NY): Thank you, Mr. Chairman. Mr. Chairman, I want to join you in welcoming Assistant Attorney General Acosta and to commend you for scheduling this important and timely oversight hearing. The protection of fundamental civil rights is one of the hallmarks of the American experiment. Without effective protection of our civil rights, many Americans would remain consigned to the margins of our society and unable to fulfill the promise of this great nation.

The ideal of equality and freedom has too often been more an aspiration than a reality for too many of our citizens. Indeed, the history of the United States is reflected in ongoing struggles to make good on the promises made in the Declaration of Independence and the Bill of Rights for everyone. In fact, you can very well read the history of this country as a history of the expanding of the understanding of what was meant in the Declaration of Independence when it was said that all men are created equal.

In 1776 by "all men" they certainly didn't mean African Americans, they didn't mean women, they didn't mean Native Americans. They probably didn't even mean men without property. And the history of this country to a large extent is a history of struggle to expand the meaning to encompass all different groups in our society. That struggle continues today and we have much more to do before it is realized.

In advancing that cause, the Civil Rights Division has a crucial role to play in the enforcement of these rights under the law. As such, the division holds a sacred trust in the fulfillment of our nation's core values. How well it exercises that trust is the subject of today's hearing. I look forward to the testimony of the witness and to the opportunity to engage in a dialogue with our witness. And I thank you again, Mr. Chairman.

REP. CHABOT: Thank you.

REP. NADLER: And I ask for a unanimous consent statement, Mr. Chairman.

REP. CHABOT: Without object.

REP. NADLER: Mr. Chairman, I ask unanimous consent that all members have five legislative days to submit additional questions in writing for Mr. Acosta for written responses for the record.

REP. CHABOT: Without objection, so ordered.

REP. NADLER: Thank you, Mr. Chairman.

REP. JOHN CONYERS JR. (D-MI): Mr. Chairman?

REP. CHABOT: Yes, the gentleman from Michigan is recognized.

REP. CONYERS: Thank you very much. I would like to strike the record-a number of words and make an opening statement.

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REP. NADLER: Thank you, Mr. Chairman.

Mr. Acosta, prior to this hearing our staff has requested data on the dockets for each section of the division. Do you have that material to share with us, or can you get it for us?

MR. ACOSTA: Mr. Nadler, I believe that material was requested last week. It's --

REP. NADLER: Was what?

MR. ACOSTA: It was requested I believe last week. It's quite voluminous and we have not yet been able to compile it.

REP. NADLER: But you will have it for us?

MR. ACOSTA: If the committee would like it, we're certainly willing to provide it.

REP. NADLER: Thank you very much. Second, the attorney general has announced that if passed-that if passed and if upheld by the courts, the Civil Rights Division will be the division charged with enforcing the so-called Partial Birth Abortion Act. Now, first of all, whose civil rights will your division be enforcing in that case?

MR. ACOSTA: Congressman, this Congress passed a statute --

REP. NADLER: But it hasn't-the Senate hasn't passed it yet, has it?

MR. ACOSTA: Yes.

REP. NADLER: Oh.

MR. ACOSTA: Yes.

REP. NADLER: It's accord. I'm sorry, go ahead.

MR. ACOSTA: Pardon me. Yes, Congress passed the statute. It passed by a nearly two-thirds margin. It sets forth the elements of a crime. Our job is to enforce that statute against individuals who meet the elements of that crime.

REP. NADLER: I won't press the subject. The president's Fiscal Year 2005 budget has proposed cuts to the Civil Rights Division of $1.62 million and 15 full-time equivalent positions. First of all, from where would these resources be drawn, especially in light of your presumed additional responsibilities to enforce the Partial Birth Abortion Act?

MR. ACOSTA: Certainly, Congressman. Since 2001 the division has received budget increases providing us 52 additional slots. The president's budget calls for a budget increase of $300,000. Because of increased expenses, that will cause a net shortfall of $2.2 million which has the effect, assuming no decreases, of reducing our FTE by 15.

I'm working with the administrative section of the Civil Rights Division to look into this matter and to reduce expenditures, to streamline and make our process more efficient. I have not examined where and from what sections and what enforcement responsibilities any reductions in FTEs would have to come. I will say this: we have received substantial budget increases and I think the budget is more than sufficient to allow us to satisfy our mission.

REP. NADLER: It's interesting because you said you're now examining all that. So where did the figure come from? Was the figure just taken from some-in other words, the figure does not seem, from what you've just said, to have been drawn from an analysis of what you need. I mean, it was drawn from some other source? The figure of the budget cut --

MR. ACOSTA: Congressman, if I could, the budget allocation is increasing by $300,000. The expenditure side, however, because of salary increases-expected salary increases and other expected increases, is increasing by $2.5 million. The result will be a net shortfall --

REP. NADLER: Of 2.2.

MR. ACOSTA: -- of 2.2. My understanding is that one way to address that net shortfall is to attrit 15 FTEs. That is not the sole way of addressing that shortfall and our administrative staff is looking for other potentials as well.

REP. NADLER: All right. Mr. Attorney General, as part of its legal strategy to defend the constitutionality of the Partial Birth Abortion Act, the Department of Justice has subpoenaed the records of women who had abortions and records of clinics and hospitals around the country in the last two years. That is, records covering the last two years. In those cases the department has argued there is no federal common law doctor-patient privilege. Is that your understanding of current law? Do you believe that patient medical records should be entitled to no doctor-patient privilege whatsoever?

MR. ACOSTA: Mr. Nadler, as you're aware, as part of this Congress' passage of the Partial Birth Abortion ban, Congress held I believe eight years of hearings and found that --

REP. NADLER: Excuse me, but that isn't the question. The question is do you believe that there is no doctor-patient privilege on a federal level with respect to these kinds of medical records?

MR. ACOSTA: With respect to the medical records the plaintiffs have introduced these medical records into the case. The plaintiffs' witnesses are relying on the medical records to disagree with Congress' finding that these procedures are medically necessary. The department is seeking the same access to these medical records --

REP. NADLER: For the same individuals?

MR. ACOSTA: For the same individuals, making clear that we are not looking for any --

REP. NADLER: No, excuse me, but I thought the women are not parties to the case?

MR. ACOSTA: The plaintiffs have --

REP. NADLER: Let me simplify this since we're running out of time --

REP. CHABOT: The gentleman's time --

REP. NADLER: -- as a matter --

REP. CHABOT: -- has expired. The gentleman is granted an additional minute.

REP. NADLER: Thank you.

As a matter of law, do you believe there is and do you believe there should be a patient-doctor privilege at a federal level for medical records?

MR. ACOSTA: As a matter of --

REP. NADLER: Forgetting the question of Partial Birth Abortion. Just do you think there is, and should there be if there isn't?

MR. ACOSTA: I --

REP. NADLER: A patient-a doctor-patient privilege?

MR. ACOSTA: I haven't reviewed doctor-patient privilege, Mr. Nadler.

REP. NADLER: Okay, thank you.

I have one more question, if I may within the minute?

REP. CHABOT: Go ahead.

REP. NADLER: The GAO is conducting a review at the request of members of this committee of reporting voting irregularities. I understand the GAO team has been encountering difficulty getting timely responses from the Civil Rights Division to its request for information and meetings as part of its effort to complete the study. They have not been encountering similar problems with other divisions in the department, such as the Criminal Division. Requests take on average four weeks to fill, if not longer. This includes requests for meetings, files, data runs on matters and cases initiated and copies of documents. From what I understand, these problems are not restricted to this particular study.

In addition to delays in the production of materials and information, GAO analysts report that each request must be made in writing, which has not been the practice in the past. Additionally, each request must undergo multiple layers of review within the division before an answer is forthcoming or a meeting set up. While other divisions have used similar procedures, GAO has not experienced similar delays from other divisions within the department. GAO is an arm of Congress and each request should be treated as coming from the members themselves. Can you commit to me that you'll take steps to ensure somewhat more timely cooperation with the GAO in its work?

MR. ACOSTA: Congressman, absolutely.

REP. CHABOT: The gentleman's time has expired.

REP. NADLER: Thank you very much.

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REP. NADLER: Mr. Chairman, I ask unanimous consent that all members have five legislative days to revise and extend their remarks and to submit additional materials for the record. And I also think we said additional questions?

REP. CHABOT: Yes. Without objection, so ordered.

REP. NADLER: Thank you, Mr. Chairman.

REP. CHABOT: And if there's no further business to come before the committee, we're adjourned.

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