UNITED STATES DEPARTMENT OF JUSTICE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
APRIL 6, 2006
__________
Serial No. 109-137
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
C O N T E N T S
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APRIL 6, 2006
OPENING STATEMENT
Page
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Chairman, Committee
on the Judiciary............................................... 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 19
WITNESSES
The Honorable Alberto R. Gonzales, Attorney General, U.S.
Department of Justice, Washington, DC
Oral Testimony................................................. 2
Prepared Statement............................................. 6
APPENDIX
Material Submitted for the Hearing Record
Responses to Post-Hearing Questions for the Record posed to
Attorney General Gonzales...................................... 107
The Washington Post News Article ``Civil Rights Focus Shifts
Roils Staff at Justice,'' dated November 13, 2005.............. 219
Letter from the Honorable John Conyers, Jr., a Representative in
Congress from the State of Michigan, and Ranking Member,
Committee on the Judiciary..................................... 221
UNITED STATES DEPARTMENT OF JUSTICE
----------
THURSDAY, APRIL 6, 2006
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:03 a.m., in
Room 2141, Rayburn House Office Building, the Honorable F.
James Sensenbrenner, Jr., (Chairman of the Committee)
presiding.
Chairman Sensenbrenner. The Committee will be in order. A
quorum for the taking of testimony is present.
Before swearing in the Attorney General and allowing him to
make his opening statement, I would like to talk a little bit
about the ground rules for today's hearing.
The Attorney General's schedule allows him to be here until
3 p.m. It is the Chair's intention to have his opening
statement first, and then the Chair will recognize Members
alternately by side in the order in which they appear. The
Chair intends to enforce the 5-minute rule strictly, meaning
that the Member who has the time will be able to complete the
question and the Attorney General will be able to answer the
question when the red light goes on. But the Chair will, at the
conclusion of the Attorney General's answer, recognize the next
person in line.
The Chair also intends that when we have the votes sometime
around 11:30 to recess the Committee until 15 minutes after the
last of the rolled votes. So I would strongly encourage Members
and staff, if they wish to have lunch, to utilize that time for
that purpose.
If everybody has asked questions, we will go on a second
round of questions, again, strictly enforcing the 5-minute
rule, and I will use the list of Members in the order in which
they showed up at the beginning of the hearing to recognize
Members in the order in which they've received. So--or
appeared. So if you wish to have a second round of questions,
it would behoove you to return promptly when the hearing
resumes, because if you are not there, you will fall to the
bottom of the list.
Are there any questions about this procedure? If there are
not any questions, today we welcome again Attorney General
Alberto Gonzales to appear before the Committee. This is a
general hearing on the operations of the Justice Department,
and, Mr. Attorney General, would you please stand, raise your
right hand, and take the oath?
[Witness sworn.]
Chairman Sensenbrenner. Let the record show the witness
answered in the affirmative.
Mr. Attorney General, the floor is yours.
TESTIMONY OF THE HONORABLE ALBERTO R. GONZALES, ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC
Attorney General Gonzales. Good morning, Chairman
Sensenbrenner, Ranking Member Conyers, and Members of the
Committee. I appreciate this opportunity to discuss a number of
issues that are of vital importance to Congress, the Justice
Department, and the American people.
When I reflect on the 14 months that I have served as
Attorney General and the countless ways the Department impacts
lives across this great Nation, I am reminded that we have a
unique responsibility as stewards of the American dream, the
dream of living and prospering in a safe, secure, and hopeful
society.
Our record in securing this dream I believe is strong. We
have not suffered another terrorist attack here at home, and
our Nation's violent crime rate is at its lowest level in more
than three decades.
But now we have to do more. To guide the work of the
Department, I have established priorities rooted in the pursuit
of the American dream: fight terrorism; combat violent crime,
cyber crime, and drug trafficking; protect civil rights; and
preserve Government and corporate integrity.
In each of these six areas of special emphasis, we have a
plan to secure the hopes and the opportunities and the
cherished values that make our country great.
First, on terrorism, our top priority. The terrorists seek
to destroy the American promise of liberty and prosperity, and
they are determined to attack us again here at home. Thank you
for your multi-year effort to reauthorize the PATRIOT Act. It
was a tough process, but an important one.
We continue to work to prevent another terrorist attack by
prosecuting those who might harm Americans. This fight is not
easy. Terrorism cases are some of the most difficult to
investigate and prosecute, so we have had to adapt our efforts
to a new world of changing techniques and technologies. This
cutting-edge work has led to many successes.
Last week, Ahmed Omar Abu Ali was sentenced to 30 years in
prison for providing support to al-Qaeda, conspiring to
assassinate President Bush, and conspiring to hijack and
destroy commercial airplanes in an attack similar to the
attacks of September 11, 2001. This terrorist will now be
behind bars in a Federal prison where he can't harm American
citizens.
He joins others that the Department has removed from
society, such as Richard Reid, the so-called shoe bomber; John
Walker Lindh, the American Taliban; and members of the Virginia
Jihad Network.
We've broken up terrorist cells in Portland, Oregon,
Brooklyn, and Buffalo, New York, and recently charged three men
in Toledo, Ohio, with conspiring to provide material support to
terrorists and conspiring to commit acts of terrorism against
individuals overseas, including U.S. military personnel serving
in Iraq.
In addition, as you know, the Justice Department has been
authorized to stand up a National Security Division. This will
bring under one umbrella the Department's primary national
security elements, and this fulfills a key recommendation of
the WMD Commission. It's another step in eliminating the
infamous wall between our intelligence and law enforcement
teams.
In addition to our ongoing fight against terrorism, the
Justice Department continues to focus on five strategic
priorities with a targeted agenda focused on producing results.
I thought I would give you a sense of those results just over
the past few weeks. Every American deserves to live free from
the fear of violent crime. We remain focused on reducing gun
crime and liberating communities from the stranglehold of gang
violence.
We are reducing gun crime across the country through the
President's Project Safe Neighborhoods program. The numbers
show that this initiative has been very successful. That is
probably why most U.S. Attorneys across the country have
started to use their PSN programs to target violent gangs
operating in their districts.
We have responded with a comprehensive anti-gang strategy
that uses the successful PSN model to shut down violent gangs
that terrorize our streets, our neighborhoods. Nationwide, the
strategy focuses on prevention, prosecution, and preparing
prisoners for a return to society.
As part of that effort, I was in Los Angeles last week to
announce that L.A. is one of six areas that will participate in
a pilot project to target anti-gang resources in new and
imaginative ways.
In addition to L.A., this program will provide $2.5 million
to implement innovative anti-gang solutions in Cleveland,
Dallas-Fort Worth, Milwaukee, Tampa, and a gang corridor that
stretches from Easton to Lancaster, Pennsylvania, near
Philadelphia.
When we talk about violence, especially keeping our
children safe, we often fear what can happen as they walk to
school or play on a ball field. But recent headlines have
reminded us that our children also can log onto the Internet
and open themselves to new and hidden threats. The Internet
must be safe for all Americans, especially children.
I recently announced a major new initiative: Project Safe
Childhood. The goal of this project is to prevent the
exploitation of our kids over the Internet, to clean up this
new neighborhood just as we've worked to reduce gun crime on
our city streets.
U.S. Attorneys in every district will partner with local
Internet Crimes Against Children Task Forces and community
leaders to develop a strategic plan based on the particular
needs of their communities. They will then share resources and
information to investigate and prosecute more sexual predators
and child pornographers than ever before. And they will
coordinate in seeking the stiffest penalties possible.
Two weeks ago, I announced the indictments of 27 people for
allegedly participating in a pornographic chat room called
``Kiddypics and Kiddyvids.'' Some participants of the chat room
have been charged with using minors to produce images of child
pornography and then making those images, including a live show
of an adult sexually molesting an infant, available to other
members through the Internet.
The Project Safe Childhood initiative will help us target
this kind of horrific behavior and prosecute individuals who
harm our children.
Even as advanced technologies help cultivate new dreams,
too often those dreams are wiped out by the pitfalls of illegal
drug abuse.
No community will fully prosper if drug abuse is rampant.
And that's why we will continue to dedicate ourselves to
dismantling drug-trafficking organizations and stopping the
spread of illegal drugs.
Just last week, I announced the largest narcotics-
trafficking indictment in our history. Fifty members of the
Colombian narco-terrorist group FARC have been indicted for
allegedly importing more than $25 billion worth of cocaine into
the United States and other countries. The FARC is responsible
for overseeing the prosecution of more than 60 percent of the
cocaine imported into the United States.
Several FARC members appear on the Justice Department's
Consolidated Priority Organization Target, or CPOT, List, which
identifies the most dangerous international drug-trafficking
organizations. The list was created at the beginning of the
Administration to ensure that drug enforcement resources were
directed in the most productive fashion possible, and last
year, we dismantled six of these CPOT organizations and
disrupted the operations of six more.
We're also continuing and expanding our work to combat the
spread of methamphetamine across the Nation. Thank you for
passing the Combat Methamphetamine Epidemic Act which provides
law enforcement with additional tools to disrupt the production
and trafficking of meth.
Law enforcement has done a good job of shutting down small
meth labs here in the United States. We need to do more. Also,
production continues in ``super labs'' outside of our borders,
especially in Mexico, and the finished product comes back to
the United States through illegal drug-trafficking routes. We
are working with our counterparts in Mexico to address the
production and trafficking of methamphetamine, including
providing training and equipment to law enforcement teams
across the border.
Forty years ago, the color of your skin was as much of an
obstacle to the American dream as violent gangs, sexual
predators, and drug dealers are today. We've come a long way
from that brand of State-sponsored racism, but we must continue
to safeguard the civil rights that are fundamental to the
opportunities that we cherish in this country.
All Americans should have the same chance to pursue their
dreams. We will continue to aggressively combat discrimination
wherever it is found, and I am pleased that the Department
prosecuted a record number of criminal civil rights cases in
the last 2 years.
This year, we have begun Operation Home Sweet Home. Under
this initiative, we will bring the number of targeted
investigations under the Fair Housing testing program to an
all-time high, ensuring the rights of all Americans to obtain
housing fairly.
We are, of course, also anxious to renew our commitment to
the fundamental right to vote by working with Congress to
reauthorize the Voting Rights Act.
Lastly, human trafficking has emerged as one of the
foremost civil rights issues of our day. Three weeks ago, I was
in Chicago to announce the release of a report detailing the
Justice Department's efforts to halt this pernicious evil.
There is no place in our compassionate society for these
peddlers of broken dreams. President Bush has pledged his
support for this effort, and I have made it a high priority at
the Justice Department.
Millions of people come to America every year to pursue the
American dream because of the rights and liberties we've
guaranteed for generations. And our Government and our economy
are the envy of billions more because we have systems that are
open, honest, fair, and dependable.
Integrity in Government and business is essential for a
strong America. Taxpayers and investors deserve nothing less.
And that's why we will investigate and prosecute corruption
wherever we find it, and we will preserve the integrity of our
public institutions and corporations.
This list of priorities, of course, is not exclusive. We
have other responsibilities that are no less important to the
American dream.
For instance, enforcing our immigration laws will help us
remain an open and welcoming society, by cracking down on
illegal activity and closing our borders to criminals and
terrorists. The President has called for comprehensive
immigration reform policy that is based upon law and reflects
our deep desire to be a compassionate and decent Nation. I join
him in urging Congress to take action that makes sense for
everyone in America.
And a tough and fair sentencing system will give teeth to
our enforcement objectives, improve our deterrence efforts, and
ensure that every American is treated fairly before the bar of
justice.
Before the Supreme Court's decision in United States v.
Booker, the Sentencing Reform Act and the mandatory Sentencing
Guidelines were designed to generate similar sentences for
defendants who commit similar crimes and have similar criminal
records. There is a clear danger that the gains that we have
made in reducing crime and achieving fair and consistent
sentencing will be significantly compromised if mandatory
sentencing laws are not reinstituted in the Federal criminal
justice system.
In these strategic areas, and many more, we are working
hard to protect and preserve the American dream. Crime is down.
Drug use is declining. Our Nation is more secure today than
ever before. We can, of course, all be proud but not
complacent.
I appreciate your partnership as we strive to build upon
the vital role of the Justice Department in securing this dream
for future generations. Thank you, Mr. Chairman.
[The prepared statement of Attorney General Gonzales
follows:]
Prepared Statement of the Honorable Alberto R. Gonzales
Chairman Sensenbrenner. Thank you very much, Mr. Attorney
General.
The Chair recognizes himself for 5 minutes for questions.
Mr. Attorney General, in early February I sent to you an
oversight letter requesting detailed information on the NSA
terrorist surveillance program. The Department's response has
provided much substantive information on the legal basis for
the program; however, there was one question at the center of
this Committee's jurisdiction over the program that was not
answered adequately. This question related to the legal debate
preceding the implementation of this program and was prompted
by reports that some high-level officials involved in the
discussion over the legality of the program who did not agree
with its legal basis.
Your response in the letter was, ``The President sought and
received the advice of lawyers in the Department of Justice an
elsewhere before the program was authorized and implemented.
The program was first authorized and implemented in October
2001.''
I would like to ask you the question again today, Mr.
Attorney General, so hopefully you can provide a more complete
answer, and there are five parts to the question.
First, please explain how the proposal for the program was
reviewed before it was authorized and initiated.
Second, who was included in this review prior to the
program going into effect?
Third, what was the timeline of discussions that took
place?
Fourth, when was the program authorized?
And, fifth, was the program implemented in any capacity
before receiving legal approval?
Thank you.
Attorney General Gonzales. Mr. Chairman, I don't know that
I have all parts of your question. What I can say is----
Chairman Sensenbrenner. I can help you if you have
forgotten.
Attorney General Gonzales. The program was not implemented
before the President received legal advice regarding the scope
of his authority to authorize this kind of program. The program
was authorized by the President in October of 2001. Mr.
Chairman, the program implicates some very tough legal issues.
It implicates the requirements of the fourth amendment. It
implicates FISA, which is a very complicated statute, the
Foreign Intelligence Surveillance Act. It implicates the
Authorization to Use Military Force. And it implicates the
President's inherent authority as Commander-in-Chief.
And when you have these kinds of issues to be discussed and
analyzed by lawyers, you are going to have good, healthy
debate. We encourage good, healthy debate about tough issues.
That is how you get to the right answers.
What I can say is that there was a great deal of debate and
discussion about the program. The disagreement--and there were
some disagreements. Some of the disagreements have been the
subject of some newspaper publications. What I have testified
before the Senate Judiciary Committee was that the
disagreements that have been the subject of newspaper stories
did not relate to the program that the President disclosed to
the public in his radio address in December of 2005. It related
to something else. And I can't get into that, Mr. Chairman.
Chairman Sensenbrenner. One of the questions that was asked
was who was included in the review prior to the program being
authorized.
Attorney General Gonzales. Mr. Chairman, who is read into
the program is a classified matter so I can't get into specific
discussions about specifically who was involved in reviewing
the legal authorities for the President of the United States in
authorizing this program. What I can say is that lawyers
throughout the Administration were involved in providing legal
advice to the President.
Chairman Sensenbrenner. Mr. Attorney General, how can we
discharge our oversight responsibilities if every time we ask a
pointed question we are told that the answer is classified?
Congress has an inherent constitutional responsibility to do
oversight. We are attempting to discharge those
responsibilities, and I think that saying how the review was
done and who did the review is classified is stonewalling. And
if we are properly to determine whether or not the program was
legal and funded--because that's Congress' responsibility--we
need to have answers. And we're not getting them.
Attorney General Gonzales. Respectfully, Mr. Chairman, our
basis, our analysis of the legality of the program is reflected
in the 42-page White Paper that was provided to the Congress.
Irrespective of who was involved in preparing that analysis,
that analysis represents----
Chairman Sensenbrenner. Respectfully, Mr. Attorney General,
that's your White Paper. We read the White Paper. We have
legitimate oversight questions, and we're told it's classified,
so we can't get to the bottom of this. Maybe there ought to be
some declassification involved.
The gentleman from Michigan, Mr. Conyers, has an opening
statement first, and then I'll recognize him for 5 minutes.
Mr. Conyers. Thank you, Mr. Chairman, and welcome, Mr.
Attorney General.
As we meet today, I believe our Nation is on the verge of a
full-blown constitutional crisis. Time and time again, when
confronted with matters involving balancing the rights and
liberties, the Bush administration has opted not only to
intrude on those liberties, but to do so in secret and outside
the purview of the courts and the Congress.
Those of us who raise these issues and voice these concerns
don't do so because we want to coddle terrorists or criminals.
The opposite. We do so because we have a historic and
legitimate concern regarding the misuse and abuse of Government
powers; not only under the PATRIOT Act but an entire array of
unilateral authorities have been assumed, in my view, by the
Administration since September 11.
When the Justice Department detains and verbally and
physically abuses thousands of immigrants without time limit,
for unknown and unspecified reasons targets tens of thousands
of Arab Americans for intensive interrogations, we see a
Department that has, in effect, institutionally racial and
ethnic profiling, without the benefit of even yielding a single
terrorism conviction.
When the President of the United States can take upon
himself to label United States citizens as enemy combatants
without trial, a lawyer, charges, or access to the outside
world, some of us see an Executive branch that has placed
itself in the constitutionally untenable position of
prosecutor, judge, and jury. When our own Government not only
condones the torture of prisoners at home and abroad and when
we permit the monitoring of religious sites and mosques without
any indication of criminal activity, we undermine our role as a
beacon of democracy and make it much easier for other nations
themselves to flaunt international law and human rights.
When Congress can pass laws that the President can sign on
one hand and then argue does not apply to him on the other
hand, we see an Executive that has cast aside the principle of
separation of powers, the very bedrock on which our Nation was
built.
There is no better illustration of the constitutional
crisis we are in today than the fact that the President is
openly violating our Nation's laws by authorizing the National
Security Agency to engage in warrantless surveillance of United
States citizens, and with all due respect, sir, the Department
has made the situation worse by virtue of a series of far-
fetched and constitutionally dangerous, after-the-fact legal
justifications that you have proffered.
Who can seriously expect Members of Congress to believe
that the use of force resolution that was authorized included
domestic surveillance? When you yourself admitted, and I quote,
``It would have been difficult, if not impossible''--in
quotations--``to amend FISA to provide the wiretap authority.''
In terms of inherent constitutional authority, if the
Supreme Court didn't let President Truman use his authority to
take over the steel mills during the Korean War in 1952 and
wouldn't let President Bush in 2005 use the authority to
indefinitely hold enemy combatants, it is hard to credibly
argue that the Court would permit unauthorized domestic spying
today.
Every Member of this panel wants the Justice Department to
listen in on communications by terrorists. That's why we
created a special FISA Court and created, in addition, a 72-
hour emergency exception to it and made literally dozens of
changes to FISA at your request over the last 5 years. But
don't tell us that you don't have resources to protect our
citizens privacy by completing the FISA paperwork, not when you
have a budget of more than $22 billion and 112,000 employees at
your disposal.
And, finally, Mr. Attorney General, if we are truly
interested in combatting terror in the 21st century, we must
move beyond symbolic gestures and color-coded threat levels and
begin to make the hard choices needed to protect our great
Nation. Let me suggest that if we really want to prevent
terrorists from targeting our cities and our citizens, we need
to stand up to the gun lobby and keep guns out of the hands of
suspected terrorists. If we really want to prevent bombings
like those which have devastated London and Madrid, we need to
challenge the explosives industry to help us regulate sales of
black and smokeless powder. If we want to protect our ports,
our trains and railroads, and other easy terrorist targets, we
need to stop passing new tax cuts for the wealthy and start
fully funding our homeland security needs and effectuate all of
the 9/11 Commission's recommendations.
The reasons the terrorists hate us is because we respect
the rights and liberties of all our citizens and cherish the
rule of law. If we really want to defeat the terrorists, we
should support and honor these strengths, not cast them aside.
When we disobey our own laws, when our Executive branch ignores
Congress and thumbs its nose at the courts, which we've seen in
this domestic spying program, and time and time again over the
last 5 years, we not only make our Nation less free, we make it
less safe.
Thank you, Mr. Chairman.
Chairman Sensenbrenner. Does the gentleman want 5 more
minutes now?
Mr. Conyers. I would like to invite the distinguished
Attorney General----
Chairman Sensenbrenner. The gentleman is recognized for 5--
--
Mr. Conyers [continuing]. To make any responses that he
would like.
Chairman Sensenbrenner. The Attorney General is recognized.
Mr. Conyers. Thank you very much.
Did you hear what I was saying over the Chairman, sir? I'd
like you to feel free to respond to anything that I've said
which you may have agreement or disagreement
Attorney General Gonzales. Thank you, Congressman. I,
unfortunately, have much disagreement with what you said, but I
hope today that we have the opportunity to have an open
dialogue and discussion, not just with you but other Members of
the Committee.
I do not think that we are thumbing our nose at the
Congress, at the courts. With respect to the terrorist
surveillance program, we do believe that the Authorization to
Use Military Force is an example of Congress providing
authority, providing input into what the President should do in
responding to this threat.
Now, we have to remember--I've heard some Members say, ``I
never envisioned that I was authorizing electronic surveillance
when I authorized the President to use all necessary and
appropriate force.'' The Supreme Court in Hamdi, the plurality,
written by Justice O'Connor and then, of course, the fifth vote
to be provided by Justice Thomas, interpreted those words to
mean that what the Congress authorized was all those activities
that are fundamentally incident to waging war. That's what the
Congress authorized when it used those words, ``fundamentally
incident to waging war,'' all activities that are fundamentally
incident. This is what you've authorized. And in the Hamdi
decision, the Court said, therefore, you've also authorized the
detention of an American citizen. Even though the authorization
never used those words, ``detention,'' Justice O'Connor said,
``It is of no moment''--those were her words. ``It is of no
moment that we use those words.'' Congress has authorized the
detention of an American citizen captured on the battlefield
fighting against America because detaining the enemy captured
on the battlefield is a fundamental incident to waging war.
We submit, sir, that the electronic surveillance of the
enemy during a time of war is also fundamentally incident to
waging war. It is an activity that was conducted by Washington
during the Revolutionary War, by President Lincoln during the
Civil War, by President Wilson during World War I, by President
Roosevelt during World War II. It is fundamentally incident to
waging war, and, therefore, we believe that when Congress used
those words, ``all necessary and appropriate force,'' that it
authorized the President to engage in electronic surveillance.
Mr. Conyers. All right. Let me ask you one other question.
Please indicate on the record since the beginning of the Bush
administration our Government has engaged--whether our
Government has engaged in any domestic warrantless surveillance
outside of the emergency surveillance provisions of FISA and
outside of the so-called terrorist surveillance program.
Attorney General Gonzales. Well, of course, Congressman,
the United States Government is engaged in surveillance under
three baskets: one under Executive Order 12333, which is
classified. It has been fully briefed to the Intel Committee.
There are procedures governing the collection of electronic
surveillance, and that also has been fully briefed to the Intel
Committee. Collection is also under FISA. And collection under
the terrorist surveillance program. Those are the ways that
colleague of electronic surveillance is ongoing today, as I
understand it, to my knowledge.
Mr. Conyers. And that is the extent of the surveillance
that is going on.
Attorney General Gonzales. Again, I can only comment as to
what the President has confirmed and as to 12333 and as to
collection under FISA.
Mr. Conyers. Well, let me try for one other question here
within our time. Numerous members of the Bush administration,
including the Vice President and General Hayden, have asserted
that had warrantless surveillance been in place before
September 11, the attack could have been avoided. Given what
the 9/11 Commission has reported about this event and the FBI
Agent Sametz's recent testimony regarding the disarray at the
FBI, do you support their assertions, those of the Vice
President and General Hayden?
Attorney General Gonzales. I've got, of course, a great
deal of respect for General Hayden and for the Vice President.
I'm not going to dispute their assertion.
Mr. Conyers. I return my time, Mr. Chairman. Thank you.
Chairman Sensenbrenner. The gentleman from Florida, Mr.
Keller.
Mr. Keller. Thank you, Mr. Chairman, and thank you, Mr.
Attorney General, for coming before us today. You've just
testified that you think we must enforce our immigration laws,
and on March 25, President Bush in his radio address mirrored
your comments. He said, ``To keep the promise of America, we
must enforce the laws of America.''
I want to talk to you about one of the most important laws
we have on the books in terms of illegal immigration, and that
is the law dealing with smuggling illegal aliens into the U.S.
for financial gain. As you know, that's a felony and it's
punishable by a minimum of 3 years in prison under Title VIII
U.S. Code Section 1324, which I am holding up.
I want to tell you something which you may not be aware of.
I recently spent a full week on the Mexican-California border
riding around with Border Patrol agents. I was with them 2:00,
3 in the morning as they arrested various illegal aliens and
smugglers, which are also known as ``coyotes.'' I learned some
things from these Border Patrol agents directly that I want to
relay to you.
These coyotes get approximately $1,500 per person that they
illegally smuggle into the U.S. The Border Patrol agents told
me that they have arrested some of these alien smugglers
between 20 and 30 times. They tell me that the U.S. Attorney in
San Diego for the Southern District of California, Carol Lam,
has repeatedly refused to prosecute them, that the prosecutions
have been slashed dramatically, that under the guidelines and
practice of this U.S. Attorney, the only way you're really
going to see a prosecution is if someone dies in the transport
of the illegal aliens or if one of these alien smugglers
attempts to run over someone going through a port.
One example is Antonio Amparo Lopez, who has been arrested
for alien smuggling for financial gain. He has been arrested
more than 20 times. He has a long criminal history. The U.S.
Attorney has refused to prosecute this attorney--this alien
smuggler.
It's a concern not only to me. Congressman Darrell Issa has
been leading the charge on this issue. It's a concern to him.
Chairman Jim Sensenbrenner has raised concerns about it.
Chairman Duncan Hunter has raised concerns. Nineteen members of
the Republican California delegation wrote to you and President
Bush on October 20 of 2005.
The morale is so bad among these Border Patrol agents that
I show you a photograph that they call the ``Wall of Shame.''
It has pictures of over 200 coyotes that have been arrested by
the Border Patrol agents in the Southern District of California
who this U.S. Attorney has repeatedly failed to prosecute.
Here's some straight talk. The pathetic failure of your
U.S. Attorney in San Diego to prosecute alien smugglers who've
been arrested 20 times is a demoralizing slap in the face to
Border Patrol agents who risk their lives every day. It also
undermines the credibility that you and President Bush have
when you talk tough about enforcing the laws, and it renders
meaningless the laws this Congress passes to crack down on
alien smugglers.
Now, as you might imagine, there is a defense that this
U.S. Attorney raises. She and her assistant say, ``Well, we
just don't have the resources to prosecute these coyotes. We
have to focus on other priorities.''
Well, this U.S. Attorney has 120 U.S. Attorneys working for
her, and so I wondered what they are spending their time
prosecuting since this isn't a priority. And I have in my hand
a press release that U.S. Attorney Lam sent out recently on
March 22, 2006, bragging that they have successfully prosecuted
someone who sold a baseball card with Mark McGwire's picture on
it, even though there was a forged signature of the famous
slugger. And if I were Attorney General for a day, I would
probably call up the U.S. Attorney in San Diego and say,
``Here's a tip. Stop worrying about baseball cards and start
worrying about our national security and enforcing our laws.''
Now, my criticism isn't personal to you or President Bush.
I have very high regard for both of you. Very high regard. But
my questions are two, and then I'm going to shut up and give
you the chance to respond.
Question number one: What, if anything, will you do to see
that the U.S. Attorney in San Diego prosecutes those alien
smugglers, at least those who have been repeatedly arrested by
Border Patrol agents?
And, second, what resources, if any, do you need from this
Congress to give to you to make sure these coyotes are
prosecuted and that our laws are actually enforced?
Chairman Sensenbrenner. Mr. Attorney General?
Attorney General Gonzales. Yes, thank you, Congressman. The
enforcement of our immigration laws is important to the
President. It is important to me. I am aware of what you're
talking about with respect to the San Diego situation, and we
are looking into it. We're asking all U.S. Attorneys,
particularly those on our Southern borders, to do more, quite
frankly. We need to be doing more.
There is quite a challenge to some of our officers on the
border. There are five U.S. Attorney districts that handle a
great number of the immigration-related prosecutions, and so it
is a tremendous strain and burden. But I think we have an
obligation to determine the scope of the problem and to see
what we need to address the problem. There are two things that
would be helpful.
One is we hope that the Congress fully funds what the
President has asked for in terms of monies for our U.S.
Attorneys. That'll be very, very important so that we can have
the resources available to prosecute these kinds of cases.
Two, the U.S. Attorneys along the Southern border tell me
that the existing law regarding alien smugglers could be
tighter. There is a discussion and debate now about what that
language should be. No one wants to prosecute those who are
engaged in Good Samaritan activities. Obviously, that's not--
that should not be criminalized. But we believe that the
language could be tighter; that would make it easier to achieve
prosecutions. And we look forward to working with the Congress
to arrive at language that would help us achieve that.
I directed my staff to schedule a meeting with the members
of the California delegation and the DAG. I intend to call
Congressman Issa as well to talk to him about this issue
because I was made aware of this as a big priority for the
Congressman. And we are looking at the situation in San Diego,
and we are directing that our U.S. Attorneys do more, because,
you're right, if people are coming across the border
repeatedly, particularly those who are coyotes and they're
smugglers or they're criminals or felons, they ought to be
prosecuted. And so we need to try to figure out to make our
resources work so that that can happen.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from California, Mr. Schiff.
Mr. Schiff. Mr. General, welcome to the hearing today. I
appreciate all the time you're going to be spending with the
Committee.
My question is really the same question that the Chairman
posed at the outset, and that is, how can we discharge our
oversight responsibilities given some of the positions that the
Justice Department has taken in terms of the information
provided to us? But let me give a little more content to the
specific questions I have.
A year ago, you testified before the Committee urging
Congress to reauthorize the PATRIOT bill. You discussed at
length how important, crucial, various activities and
authorities were to our national security. These included
provisions relating to wiretapping and other electronic
surveillance.
You went at great length to describe the safeguards that
were in place. For example, in discussing multi-point wiretaps,
you stated that the provision ``contains ample safeguards to
protect the privacy of innocent Americans.'' In addition, you
stressed the fact that an independent court had to find
probable cause to believe that the target was either a foreign
power or a foreign agent. And, finally, you argued that the
Federaly courts have found these authorities consistent with
the fourth amendment.
You also discussed how other sections might implicate
personal records of Americans and also had specific language
designed to protect first amendment rights of Americans.
You concluded your testimony with the admonition, pointing
out the existence of thorough congressional oversight, saying,
quote, that you must fully inform the appropriate congressional
Committees with regard to authorities under the PATRIOT Act.
However, we've now learned that the Administration was
engaging in activities that touched on the PATRIOT Act and FISA
but were wholly outside any statute that--statutes that occupy
this field, without informing the very individuals that you
cited in your discussion of congressional oversight. And so
we've now come to realize that the debate that we had over FISA
in the PATRIOT bill, complete with the pledge that you and
others at the Department were, quote, open to any ideas that
might be offered for improving these provisions, and, quote,
would be happy to consult with us and review our ideas, was
somewhat meaningless or duplicitous, or worse.
In the Senate, for example, an Administration witness, when
a Senator asked whether we needed to amend FISA--said, Do we
need to change the standard? Are you having problems with FISA?
The response was, no, FISA was just fine the way it was.
In fact, the answer to our Committee and the answer to the
Senate Committee might as well have been you don't need to
change FISA because, in fact, we don't feel bound by FISA or we
interpret the Authorization to Use Military Force such that
whatever you do here we don't feel bound by. Moreover, even if
it's not in the Authorization to Use Military Force, it's
within our inherent authority as Commander-in-Chief to
disregard what you do on the PATRIOT bill or FISA.
And so it comes back to how do we do our job and why should
we, when you come back to this Committee and ask for further
authority, why should we give the benefit of the doubt to the
DOJ when it may very well be that even without our authority,
you're conducting surveillance that we know nothing about.
And I really--I guess I have a couple specific questions.
I've introduced legislation with Representative Flake, the NSA
Oversight Act, that says basically when we passed FISA in title
III and we said these were the exclusive means of domestic
surveillance, we meant what we said; that the Authorization to
Use Military Force didn't create an exception to that; and that
if you need to change it--and there might be reasons why you
need to change FISA--you should come to us and make the case
for an amendment. I still think that's the right policy.
I have two questions, one of which I asked the Chief of the
Office of Legal Counsel when he briefed our Committee and
really couldn't get an answer from, and that is, do you believe
under Hamdi, under the authority incident to waging war, or
under your inherent authority as Commander-in-Chief, that you
can surveil a purely domestic call between two Americans? The
concern I have is that there's no limiting principle to the one
you've established for doing what you need to do in the war on
terrorism.
And the second question I have is: When you testified
before this Committee last year, were you aware of the NSA
program?
Attorney General Gonzales. When I testified before the
Committee last year, I was aware of the NSA program. Yes, sir,
I was aware. I don't believe that I said anything in that
hearing that was not completely truthful.
Your question was----
Mr. Schiff. Whether a purely domestic call--what are the
circumstances under which you could conclude you don't have to
go to court to tap a purely domestic call, even though it's not
within the program you have now, could you later decide on the
basis of the Authorization to Use Military Force or your
inherent legal authority as Commander-in-Chief, that you have
the authority to take--to tap a purely domestic call between
two Americans.
Mr. Coble. [Presiding.] The gentleman's time has expired,
but you may respond, Mr. Attorney General.
Attorney General Gonzales. What I will say, Congressman, is
that, of course, is a different question than what the
President has confirmed to the American people that this
program includes. The question is whether or not, given what
the Supreme Court has said, the Authorization to Use Military
Force allows the Supreme Court in Hamdi, again, Justice
O'Connor writing for a plurality said that the authorization to
use force was Congress saying to the President of the United
States, you can use or engage in all those activities that are
fundamentally incidental to waging war. That's what the Supreme
Court says that Congress meant when it used those words
``necessary and appropriate force.'' And then the question
becomes whether or not the activity that you're asking about,
is that something that is fundamentally incidental to waging
war against this enemy. You know, that's something that I'd
want to look at, but that's the question that we would have to
answer. Is domestic surveillance of Americans who have some
relationship to al-Qaeda--let's just make it a little bit
easier question, because I think it's a tougher question if it
has no relationship to al-Qaeda, because then you can't tie it
to the Authorization to Use Military Force.
However, if the conversation is one that's domestic and
involving conversations relating to al-Qaeda or affiliates of
al-Qaeda, then you have to answer the--ask the question: Is
that--is the electronic surveillance of that kind of
communication, is that something that's fundamentally incident
to waging war? And you would look at precedent. What have
previous Commander-in-Chiefs done? We know that previous
Commander-in-Chiefs have certainly engaged in electronic
surveillance during--of the enemy during a time of war and have
gone beyond that. President Wilson authorized the interception
of all cables to and from America and Europe without any
limitation based upon the Constitution, his inherent authority
as Commander-in-Chief, and based upon an authorization very
similar to the one passed by this Congress.
Mr. Schiff. So you can't rule out purely domestic
warrantless surveillance between two Americans?
Attorney General Gonzales. I'm not going to rule it out,
but what I've outlined for you is the framework in which we
would analyze that question.
Mr. Coble. The gentleman's time has expired.
The distinguished gentleman from Utah, Mr. Cannon, is
recognized for 5 minutes.
Mr. Cannon. Thank you, Mr. Chairman, and, Mr. Attorney
General, we appreciate your being here. I want you to know that
I share the concerns that have been expressed thus far, but
would like to ask you a couple of programmatic questions.
Since the 1970's, there have been significant questions
about the accuracy of the National Firearms Act maintained by
the ATF. The Gun Control Act of 1968 provided an amnesty
whereby individuals could come forward and register weapons
which were often war trophies that they got from their parents
who fought overseas.
In 1998, an IG report found that the ATF contract employees
had improperly destroyed NFA records and ATF employees had not
followed proper procedures during the registration. This
bureaucratic mess has left many of my constituents with
potentially illegal guns solely because of ATF mistakes.
Would you support legislation allowing collectors to re-
register so they are in compliance with the law, especially if
they have the appropriate paperwork? And would you agree that
an individual should not be faced with prosecution or the loss
of a valuable weapon because of ATF's negligence?
Attorney General Gonzales. Well, I don't want to prejudge
whether or not there should or should not be a prosecution,
Congressman, without knowing the facts. I'm not familiar of the
incident that you're describing, but I'd be happy to look
into----
Mr. Cannon. It's not an incident. There's a report that
deals with many incidences.
Attorney General Gonzales. I'm not familiar with the
report, but I'm happy to discuss with you and look at
legislation. I want to have the opportunity to look at that
report.
Mr. Conyers. Thank you. We'll follow up on this. It happens
to be--I have just in my district many, many people who have
this problem, and they have paperwork that came from the ATF,
but it's ignored by----
Attorney General Gonzales. That shouldn't be the case.
Mr. Cannon. Thank you. I appreciate your stating on the
record that it should not be the case, and we'll follow up with
that.
Another issue that is not monumental but pretty important
is the Federal Government's stubborn insistence in litigating
to preserve the Federal excise tax on long-distance telephone
service. Last August--this is 7 months ago--Congressman Feeney
and I wrote to you asking that the Government not seek
certiorari in the American bankers case, and notwithstanding
the United States did not seek cert. in the case, the IRS is
continuing to insist that telecommunications carriers collect
the tax, which is, of course, a relic of the Spanish-American
War.
Just this past week, the Sixth Circuit denied the
Government motion to rehear an earlier decision that favored
the taxpayer. The United States is now zero for ten in these
cases with additional appellate losses in both the D.C. and the
Eleventh Circuits.
Given that complaints are being settled at 100 cents on the
dollar, something that strongly indicates the weakness of the
Government's position, why does the Department continue to
litigate these cases?
Attorney General Gonzales. Congressman, all I will say is
that we have a very earnest client and---- [Laughter.]
But, obviously, we need to see whether or not the courts
are giving us a message, and so that position of the United
States, as always, is being evaluated.
Mr. Cannon. Zero and ten makes one understand ``earnest''
to mean that they are intent on continuing to collect revenue,
but perhaps not earnest in fulfilling the law which establishes
their purpose.
Attorney General Gonzales. Well, Congressman, we believe
there are arguments that can be made, but again, this is
something that is under consideration.
Mr. Cannon. Does the Department have a policy to conform to
a judicial opinion and stop litigating if it's faced with a
certain number of adverse decisions? And if so, what is that
number?
Attorney General Gonzales. I don't know--I don't think--
there is not a specific policy. We obviously have very
experienced litigators. This involves folks within the Civil
Division, obviously, and the Solicitor General's office. And so
as I've indicated, this is an issue that we are reviewing at
the highest levels.
Mr. Cannon. Thank you. It's one that is just--it's hard to
invest when you have uncertainty. We have to jerk the
uncertainty out of the system because we're requiring the
telecoms and other communications companies, the cable
companies now, to do extraordinary things with extraordinary
opportunities that will make America a much better place, and
this little uncertainty makes a big difference in the whole
process. I appreciate your willingness to focus on that.
Attorney General Gonzales. I certainly appreciate your
concerns, Congressman.
Mr. Cannon. And recognizing that the yellow light is on,
I'm not going to burden you with another question, but just to
suggest that we ought to take a look at ATF's approach to
absolute requirements of compliance on every particular--for
licensees and I think that's--they've shown extraordinary
recalcitrance to deal with Congress' insertion of the term
``willful'' into the requirement to revoke a license, and I
would appreciate it if you would look at that. Perhaps you can
follow up with a written question on that point.
Thank you, Mr. Chairman. I yield back.
Mr. Coble. I commend the gentleman from Utah. You prevail
over the illumination of the red light.
The distinguished gentlelady from Texas, Ms. Jackson Lee,
is recognized.
Ms. Jackson Lee. Thank you very much, and good morning, Mr.
Attorney General.
Attorney General Gonzales. Good morning.
Ms. Jackson Lee. It's a pleasure to have you here this
morning. We do go back a long way, and we respect the Texas
roots that you have.
Attorney General Gonzales. Thank you.
Ms. Jackson Lee. So I beg your indulgence as I raise a
number of concerns that cause me a great deal of, if you will,
consternation. I agree with you that we are unique and
responsible as stewards of the American dream, and I am
uncomfortable with the fact that we have ignored that dream.
Might I cite for you a historical precedent, and that is,
of course, during the Nixon years in the dark moments of the
Watergate debacle, and when President Nixon asked Attorney
General Elliot Richardson to fire Archibald Cox, he refused and
resigned. Frankly, I think we have come over a number of years,
and some of these issues have preceded you, where it would
warrant the Attorney General of the United States to resign,
whether it was Ashcroft or in this current instance yourself,
out of principle that things were being done wrongly. Let me
quickly go to a series of questions.
We now have seen the end of a tainted period in our
congressional history with the resignation of a particular
Member, but many lives have been impacted negatively by this
influence. I sat in the Justice Department in the fall of 2003
with my colleagues from Texas discussing an untoward map that
retrogressively impacted Hispanics and African Americans. There
were the professional staff and there was a political staff by
the name of Hans Barnes McCoffley, closely to his name. The
eight career staff said that this map should be turned back
because it was retrogressive. I believe that occurred in the
Georgia case as well. They gave us a memo or a memo was written
in December of 2003 that said that this map for Texas was
retrogressive and it would injure African Americans and
Hispanics.
Ultimately, of course, that memo was never seen by those of
us who had to ultimately go to court, and the political
operatives changed and overruled that detailed, thoughtful,
compliance with the Voter Rights Act memo. In addition, they
never wrote a memo to explain why they overturned it.
Of course, you might say that the courts did not allow us
to prevail, but as you well know, Mr. Attorney General, in the
courts the finding is on delusion, not on retrogression, and
it's a much harder test in that instance than preclearance. The
career professionals of the Department of Justice, of which
many, many professionals over the decades have said that
they've never been overturned on these cases, was overturned by
political influence and grandstanding. And the lives of
hundreds of thousands of Hispanics and African Americans in the
State of Texas have been denied their right to be represented
by the person of their choice.
I ask you to respond to that, and let me quickly give you
some other questions.
Under FISA, many different questions have been asked--or
many different statements have been asked about whether or not
this abusive power has been used on Americans. That is our
fear. I lived through, as a Member of the Select Committee on
Assassinations, the investigation into the assassination of Dr.
Martin Luther King. I read FBI files on the COINTELPRO program
that suggested that Mr. King, Dr. King, was a communist, of
which we have found that it was, of course, with no basis
whatsoever.
And so can you say with absolute certainty under oath that
no purely domestic communications are intercepted in connection
with the warrantless surveillance program? And can you give us
details that that is the case?
I also note that in your testimony you were very limited in
your commentary on the voting of New Orleans on April 22nd and
the preclearance that I believe was falsely given, because it
was represented that the Black legislators agreed with the
State of Louisiana. They did not. Can you tell me whether we
can get a review of that since the premise of the preclearance
was inaccurate and allow satellite voting outside of the State
of Louisiana so that hundreds of thousands of Black voters and
others would be able to vote?
And I ask that the General would ask those--answer those
questions, please.
Mr. Coble. Well, the gentlelady's time is about to expire,
but you may respond, Mr. Attorney General.
Attorney General Gonzales. Great. Congresswoman, I must
take issue with you, respectfully, regarding the comparison
between what is ongoing today and what happened during the
Nixon era. President Nixon engaged in conduct I think to hide
conduct related to political enemies. This President came out
immediately after the story ran in the New York Times. He went
before the American people and said, ``I authorized this.''
There was no coverup. He came out and said, ``I authorized
this.''
He did so--he did so upon the advice and recommendations of
folks in the intelligence community who recommended to him that
we needed to have this information to protect America. He did
so upon the recommendation of folks in operations who told him
we have the capability and technology to give you this
information. He did so upon the recommendations of lawyers in
the Administration who said, ``Mr. President, you have the
legal authority under the Constitution to do so.''
And so this is--respectfully, Congresswoman, this is not
even in the same universe as what happened----
Ms. Jackson Lee. And, respectfully, General, my time is
short. Could you answer the question of whether there is
domestic surveillance and what happened with the redistricting
case? I appreciate it.
Attorney General Gonzales. I thought I heard your question
to be whether or not can you assure us that there has not been
domestic surveillance. What I can confirm is what the President
disclosed to the American people. This is what he authorized.
Can I tell you that mistakes have not happened? I can't give
you assurances that the operation has been operated perfectly.
What I can tell you is that we have had the Inspector General
of the NSA involved in this program. We've had the Office of
Oversight and Compliance out at NSA reviewing this program
from--this is from the inception. There are monthly due
diligence meetings involved where the senior officials out at
NSA get together and talk about how the program is operating in
order to ensure that the program is operated in a way that's
consistent with what the President has authorized. That's their
objective. And I've been told by the lawyers at NSA and others
at NSA there has never been a program at NSA that has had as
much oversight and review than this program has.
With respect to New Orleans, New Orleans passed a statute--
the New Orleans legislature passed a statute to allow for an
election. That was precleared. Based upon additional
discussions with the New Orleans Legislature, there was
additional legislation passed. That is currently under review
within the Department of Justice. I take issue with anyone who
says that there's been any politicalization of the office. We
make decisions based on what the law requires, and only that.
We are not going to consider any other factors beyond what the
law requires.
And the protection of civil rights to me is personal. It's
very important to me personally. And I've had numerous
conversations with the head of the Civil Rights Division. He
understands how important this is for me that we get it right
in each and every case. And so I have no reason to believe that
there has been anything but strict adherence to what the law
requires with respect to the New Orleans election.
Ms. Jackson Lee. And the Texas redistricting?
Attorney General Gonzales. Well, the Texas redistricting,
Congresswoman, of course, the decision to preclear was made
before I became Attorney General.
Mr. Coble. Mr. Attorney General, I hate to rein you in, but
we have got a lot of folks waiting to be heard, and we are
going to have a second round. So the gentlelady's time has
expired.
Ms. Jackson Lee. Thank you, Mr. Chairman.
Mr. Coble. I am next in line. Good to have you on the Hill
today, Mr. Attorney General. After the 9/11 attacks, sir, I,
along with others, indicated that one of my great concerns
about subsequent attacks would likely be maritime based or by
water, i.e., port or harbor.
Now, last Monday, sir, I am told that the Attorney General
issued a report indicating that the FBI's efforts may not be as
effective as they could be at various seaports and harbors.
Now, I realize, sir, that there are multifaceted functions
being performed by the Coast Guard, by Customs, by border, and
FBI. How has your Department, Mr. Attorney General, reallocated
its sources to investigate and prosecute offenders under the
Reducing Crime and Terrorism at America's Seaports Act and to
address some of the shortcomings that were raised by the
Inspector General's report?
Attorney General Gonzales. It was a report from the
Inspector General. We are now studying the report. We are
looking carefully at the recommendations, and we look forward
to moving forward and implementing those recommendations, which
will make, in fact, America safer and our ports safer.
With respect to the new authorities provided to us under
the reauthorization of the PATRIOT Act, my understanding is
that we are in the process now of revising the U.S. Attorneys
manual so that we can move forward and prosecute these new
offenses, one relating to seaports. So, Congressman, what I can
say is that we're looking at the recommendations made by the
IG, and we'll be responding appropriately.
Mr. Coble. Well, I am confident that we are now safer than
we were prior to 9/11, but I am equally confident that our
seaports continue not to be invincible. I think there's
vulnerability there, and I'm not blaming you for that. It's
just the nature of the beast, perhaps. But if you could keep us
up to speed on your responses to the IG's report, I would be--I
think the Committee would be appreciative to you for that.
Attorney General Gonzales. I'd be happy to do that,
Congressman.
Mr. Coble. As you pointed out, Mr. Attorney General, and as
others on the Committee have indicated, FISA is indeed
generously laced with complex issues. Let me try to simplify it
and give you a very general question.
What rights does a United States citizen have regarding
information that may be used against him or her under the NSA
surveillance activities? That's a very general question, I'll
admit, but can you give me a general answer?
Attorney General Gonzales. Congressman, can you repeat your
question? I want to make sure that I understand it.
Mr. Coble. Maybe it's too general. What rights does a
United States citizen have regarding information that may be
used against him or her regarding an interception or
surveillance by NSA? And if that's too general, you can be more
specific in your answer.
Attorney General Gonzales. Congressman, I'm afraid that in
this open hearing I'm not comfortable talking about what
happens to the information that's gathered from the program.
What we do with the program has been briefed to the
Subcommittees of the Intel Committee, so they understand what
we do with the information.
I can tell you that, from the outset, we have always been
sensitive to the fact that, with respect to collection under
this authority, as we would be sensitive to collection under
FISA or 12333, that it's done in a way that we don't compromise
prosecutions or compromise investigations. So we are very
sensitive about that.
I don't know if that's responsive to your question. I
apologize if it's not.
Mr. Coble. Well, I think that's maybe as well as you can do
because it is--it's very generously laced with complex matters.
My time is about to expire, and I see the Chairman is back.
Let me put this question--let me throw this to you, Attorney
General, and we can talk about this subsequently. I'm concerned
about intellectual property and the piracy related thereto. But
the red light is about to illuminate. That will be for another
day or maybe later today.
Attorney General Gonzales. Yes, sir.
Mr. Coble. Do you want to say anything quickly about that?
Attorney General Gonzales. Well, intellectual property
protection is, of course, extremely important and something
that's referred to in our Constitution. It's very important for
our economy. We need to encourage ingenuity. Part of
encouraging that is to protect it, and one of the ways we
protect it is through enforcement. And so we are focused on
that. Also, education, quite frankly. I've done two events out
on the West Coast with children, informing them, trying to
educate them that intellectual property is protected and there
are consequences, bad consequences if you steal it.
Mr. Coble. Thank you, Mr. Attorney General.
The distinguished gentleman from California, Mr. Berman, is
recognized.
Mr. Berman. Thank you very much, Mr. Chairman. Thank you,
Mr. Attorney General, for being here. I'm distressed by the
Administration's position and your answer on this issue of the
electronic surveillance program that has come out. I noticed in
response to Mr. Conyers' question you talked about the healthy
debate within the Justice Department. Mr. Delahunt found an
article which--in Newsweek magazine which describes that
healthy debate. A group of Justice Department lawyers involved
in a rebellion that basically--against lawyers centered in the
office of the Vice President, and with the acknowledgment of
the Deputy Attorney General at the time, led resistance against
a President who wanted virtually unlimited powers in the war on
terror, demanding that the White House stop using what they saw
as far-fetched rationales for riding roughshod over the law and
the Constitution. These lawyers found to bring Government
spying and interrogation methods within the law.
The result of this was ostracized, denied promotions, and
otherwise retaliated against for taking their positions.
Attorney General Gonzales. So the story says, sir.
Mr. Berman. That's what the story says.
In response to Mr. Schiff's question, explain to me why my
thinking is wrong here. You're doing these things incidental to
war. Mr. Schiff poses a question: If the President at his
discretion concludes that electronic surveillance of two
persons in the United States is incidental to the war on terror
that we are fighting and that Congress would like to be your
partner on and not simply a potted plant in this fight, if the
President decides in his discretion that this is incidental to
war, and without simply--perhaps by informing some--a few
Members of Congress, does he have the power under your
argument, does he have the authority under your argument to
engage in that kind of surveillance----
Attorney General Gonzales. Congressman----
Mr. Berman [continuing]. Without a warrant?
Attorney General Gonzales [continuing]. Respectfully, we
could spend all day talking about hypotheticals. What I've
outlined is----
Mr. Berman. Well, your argument----
Attorney General Gonzales [continuing]. The framework--the
framework that we would use in analyzing that question.
Mr. Berman. But the question isn't whether you're doing it.
The question is whether you have the authority to do it.
Attorney General Gonzales. Well, again, you're asking me to
provide a legal answer to a question, and what I've given for
you is the framework in which we would analyze----
Mr. Berman. Well, the framework you've given--the framework
you've given, there is a law about detention of people----
Attorney General Gonzales. 4001(a)----
Mr. Berman. Yes, there's a law about detention. The
authorization of the use of force trumps that law because the
President feels that he has the powers incidental to engaging
that war to trump that law.
Attorney General Gonzales. You are mis----
Mr. Berman. To cite President Wilson--to cite President
Wilson and what he did before the Supreme Court ever said that
surveilling conversations between private parties constituted
an unreasonable search and seizures and before there was a FISA
law is not an argument that--you should have at least the
intellectual honesty, it seems to me, to explain why the
intervention of both the Supreme Court decisions on electronic
surveillance and the passage of a FISA law don't affect what
President Wilson might or might not have done or how he did it.
No one wants you--as Mr. Conyers said, no one in this Congress
wants you not to be able to surveil even domestic parties who
are suspected or for whom there's any reasonable belief that
they may be engaged or planning or participating in some way in
terrorist activities. We want you to have that power.
We do think that part of this is having some third party
check whether there's some reasonable relationship between what
the facts are and what you want to do. That's all we're asking
about. And I just--I find your notion that this is somehow
solely within the Executive's prerogatives based on being
incident to a war, it makes the whole debate about the PATRIOT
Act ridiculous.
What are the standards? You come in and you admit last year
that relevance should be a standard for seizing business
records. Why? If it's incidental to war in the minds of the
President, why are we spending time here playing around in
something like a Young Democratic or Young Republican
Convention with resolutions that have no meaning when you have
this inherent power that's incidental to the power of the
Commander-in-Chief during war?
Attorney General Gonzales. But, of course, sir, in that
discussion about business records, we were talking about
business records of everyone for different circumstances. We
weren't limited focused on records relating to al-Qaeda, our
enemy in a time of war. So it's a much different debate, much,
much different debate.
I don't know what you're--I'm sorry if I--your question?
Chairman Sensenbrenner. [Presiding.] The gentleman's time
has expired. The other gentleman from California, Mr. Lungren.
Mr. Lungren. Thank you very much, Mr. Chairman.
I don't know, Mr. Attorney General, whether you enjoy these
functions as well as some of us appear to. I'm going to
disappoint you. I'm not going to ask you whether you think you
should resign. I'm not going to suggest that if we just raise
taxes we'd get rid of our problems in the war on terror. I'm
not going to suggest that you ought to be limited to only
talking about Republican Presidents and not talking about
Democratic Presidents.
But I'd like to talk about something that is current that
goes through a number of Administrations, and that's the
disappointment that some of us have with certain aspects of the
FBI's activities. The case where a Brooklyn grand jury just
returned indictments against a former FBI supervisory agent,
DeVecchio, for his, I'll say, participation in four murders
carried out by organized crime is disturbing, to say the least,
because it echoes some experiences that were brought to light
by Mr. Delahunt in a valiant effort to try and suggest that in
some cases the relationship between or among law enforcement,
local, State, and Federal, is oftentimes skewed in the Federal
direction with a lack of oversight of the FBI.
This Congress has in the past attempted to deal with this
problem by requiring the Department to come up with processes
and procedures that require supervision of agents. It is so
disturbing to me as the former chief law enforcement officer of
the State of California that I've joined with Mr. Delahunt in
introducing legislation that would require the FBI to notify
local or State law enforcement officials, that is, prosecutors,
when there is evidence of a felony being committed with the
acquiescence and knowledge of FBI agents.
And so, Mr. Attorney General, with all due respect, I ask
you what the position of the Administration is on this. This is
not something that's being visited upon your Administration.
This is something that has existed for some period of time.
And, frankly, there is a real frustration from my side--and I
know Mr. Delahunt joins me in this--in a failure of the Federal
Government to understand that, first, in most cases law
enforcement works together, that is, local, State, and Federal;
secondly, that the primary responsibility for prosecution of
most violent crime, particularly homicides, lies with local and
State jurisdictions; and that rogue operations allowed under
the FBI in the guise of pursuing organized crime which allows
organized crime to commit murder is absolutely corrosive to the
process. And I have every intention with Mr. Delahunt to pursue
this legislation. I guess my question would be whether the
Administration would support us in this or oppose us in this.
And if you would oppose us in this, could you give us some idea
as to why you think that the policies in place are sufficient
when we have evidence, at least to the sufficiency of a grand
jury in Brooklyn, to bring an indictment against a former FBI
supervisory agent?
Attorney General Gonzales. Thank you, Congressman. You're
absolutely right. The Federal Government must work close
together and does work close together with State and local
officials. You're right, most violent crime is prosecuted at
the local level, although we're finding more and more times the
local officials, because we have stiffer sentences, are looking
to us to try to handle some of the more difficult prosecutions.
With respect to rogue operations to allow organized crime
to commit murder, which is what I think you said, I would be--
well, I'm not aware that we have such a policy in place. If our
policies allow this kind of conduct to occur, that would be
something I would be very interested in and would look into.
In terms of your legislation, I can't comment as to whether
I would oppose it or support it. I want to make sure that I
understand. If we have a problem with our policy that can't be
solved through our policies, then it may be something that I
would support. But I'd like to get a little bit more
information about where we stand and obviously look at the
details of your legislation before commenting on it. But if we
have a problem here, I'd be happy to work with you on it.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from Massachusetts, Mr. Delahunt.
Mr. Delahunt. Just to follow through on that, Mr. Attorney
General, the Inspector General did a review of the Attorney
General's guidelines and found in terms of the FBI's dealings
with confidential informants. There's a set of guidelines that
have been promulgated by one of your predecessors, Attorney
General Reno. The findings were that there were guideline
violations in 80 percent--87 percent, rather, of the
confidential informant files. And in terms of the notification,
the requirement to notify local, State, and other law
enforcement agencies, there was in excess of 40 percent failure
in that regard. Let me suggest that is a real problem, Mr.
Attorney General, and it's got to be addressed. And I look--you
will be receiving a letter--we will give it to Will Moschella
before he leaves--that is authored by myself and Congressman
Lungren, and we'd like to have some answers in a timely
fashion.
Attorney General Gonzales. Yes, sir. You'll have it.
Mr. Delahunt. Thank you.
You know, you've referenced the fact that the Intelligence
Committee has been briefed on the terrorist surveillance
program, however it might be described. You know, I would
respectfully suggest that it's this Committee that has
jurisdiction over the Department of Justice, that has
jurisdiction and oversight responsibility of the Department of
Justice. What about a regular briefing opportunity for you or
your representatives to come before the Judiciary Committee and
brief us? Is this an idea that you would entertain?
Attorney General Gonzales. Well, Congressman, obviously the
Department does not operate the program. Our role is to provide
legal advice as to the authorities for the program. NSA, as you
know, operates the program. And there is--has been--there were
14 briefings to----
Mr. Delahunt. I'm not interested in how many briefings
there were. I'm interested in knowing the legal basis, and if
you want to do it behind closed doors, that clearly is an
option. But we are here posing questions to you today, and we
keep hearing, I think, the response to critical questions:
``It's classified.''
I have no doubt--and I'm not speaking for the Chairman, but
that most Members of this Committee would be more than welcome
to hear your views in a classified setting to explain the
authorities and the processes that we have expressed concern
about.
Attorney General Gonzales. Congressman, we have laid out
our analysis of the legal authorities. The questions that I'm
demurring on are questions relating to the operations of the
program which are classified and which have been briefed to the
Intel Committee.
But with respect to the legal authorities and our legal
position, I've testified for 8 hours before the Senate
Judiciary Committee. I've testified to Senate Intel, House
Intel. We've laid out the 42-page paper. So our legal
analysis----
Mr. Delahunt. I thank you, Mr. Attorney General. You've
answered the question for me.
Let me go to the Presidential signing statements issue for
a moment.
Attorney General Gonzales. Yes, sir.
Mr. Delahunt. You know, when the President signed the
PATRIOT Act, the recent version, in the signing statement he
said that he would, for all intents and purposes, ignore the
rules if he believed that the national security and foreign
relations and executive operations might be harmed.
Those are rather large loopholes, I'm sure. And, likewise,
when Congress last fall outlawed torture by Government agents,
he signed the statute and then expressed in a signing statement
that he would interpret it as he saw fit if he thought that
national security was at stake.
You know, we're operating in the dark, again. Is there any
mechanism that exists that would inform Congress as to those
provisions that the President would interpret implicated
national security, or are we ever going to know about it? Or is
he, you know--or are we--I guess are we just--we don't want to
be a constitutional nuisance, but at the same time, it's my
belief that as the first branch of Government, we have a right
to know what the President is going to ignore and when he's
going to inform so we can fill--can fulfill our responsibility
for oversight.
Attorney General Gonzales. I want to thank you for the
question. I think there has been a lot of misunderstanding
about signing statements.
First of all, Presidents of both parties have entered into
signing statements, and Presidents of both parties, whether or
not there's a signing statement or not, believe that when they
sign a bill into legislation--legislation into law, that they
are not waiving or giving away any authority they have under
the Constitution. And so that's all those statements mean, is
that to the extent the situation arises where the President, a
President has the duty and has the authority under the
Constitution to take action, he's going to do that, even though
he may have signed legislation.
This President intends to fully comply with the McCain
amendment, the McCain law. He does not believe in torture. We
don't condone torture. The same with respect to the authorities
under the PATRIOT Act. We intend to abide by the requirements
of the PATRIOT Act, the reauthorization requirements. But, on
the other hand, a President of the United States--no President
can give away, certainly for himself or for future Presidents,
his authority under the Constitution. And that's what those
statements in the signing statement relate to.
Chairman Sensenbrenner. The time of the gentleman has
expired.
The gentleman from Ohio, Mr. Chabot.
Mr. Chabot. Thank you, Mr. Chairman, and thank you, Mr.
Attorney General, for being here with us this morning.
I'd like to raise an issue that we've discussed in previous
hearings with former Attorney General Ashcroft and also in my
Subcommittee with Mr. Boyd and others from the Civil Rights
Division. I refer to the Memorandum of Understanding between
the Department of Justice and the city of Cincinnati.
As I've stated before, there have always been concerns
about this agreement's impact on the ability of the police to
effectively combat crime in Cincinnati. For example, we had
specific problems with the Department of Justice's effort to
add overly restrictive mandates on the police related to the
so-called hard hands policy and also the K-9 procedures, and we
worked closely with the Cincinnati police leadership and the
Department of Justice to address these issues.
As you know, Cincinnati has always had an extremely
effective and professional police department. Right now, even
with fewer officers than they truly need, the Cincinnati police
force is doing an incredible job, but they face an increasingly
difficult task.
We've seen increasing violence related in large part to
drug trafficking and a murder rate that is completely
unacceptable--79 murders in 2005, and just last night, a man
was shot in his car in the Over-the-Rhine neighborhood of
Cincinnati. That happens to be the neighborhood that the
Opening Day parade goes through that we just had in Cincinnati
of the first professional baseball team. The President threw
out the pitch there, but this goes right through that
neighborhood. And it was the third fatal shooting in that
neighborhood this week, and we've already had 23 murders in
Cincinnati this year.
Now, it's my understanding that after 3 years, if there's
substantial compliance by the city, the parties can agree to
terminate the agreement, and it's also been brought to my
attention through the city's quarterly reports that the city is
meeting the requirements of the agreement.
Many people in our community would like to put this in the
past and allow the police department to focus on the business
of protecting our citizens. How do you characterize their
substantial compliance and the city's ability to meet the early
termination criteria?
Attorney General Gonzales. How do I characterize it?
Mr. Chabot. Yes.
Attorney General Gonzales. Congressman, I must confess I'm
not intimately familiar with the details of this agreement, and
so I don't know what our position is related to the question
that you have asked. But I will find out and get a response
back to you.
Mr. Chabot. Okay. I would very much like to follow up with
you and the Department, and we've had efforts in the past and
your Department has in many instances worked cooperatively. So
we want to continue that. But I think many want to basically
make sure that the police department are not burdened with
unnecessary paperwork and requirements that really keeps them
from doing proactive police work to make sure that everybody in
the city is protected. So I appreciate your willingness to work
on that.
My second question deals with the Voting Rights Act. Over
the last 6 months, I've chaired ten hearings on the Voting
Rights Act in the Constitution Subcommittee, and during those
hearings, among other things that we've discussed, we discussed
the language provisions of the act. We're reviewing for
reauthorization those temporary provisions, not the permanent
sections of the act, which is section 203.
We have seen increased enforcement and litigation in that
area relative to the language requirements. Could you discuss
the reasons for the increase and if you're working with those
covered jurisdictions so they're able to comply with the act
and the criteria for when litigation is commenced against these
jurisdictions?
Mr. Williams. Well, the reason we're seeing increased
enforcement litigation is because it is the law and we have an
obligation to enforce the law. I think that the right to vote
is perhaps the greatest right that we have. It should be
available to people of all color, all ethnicities. It often
represents freedom, quite frankly. It is a chance to exercise
some degree of control over one's life, no matter how poor, no
matter what community, no matter what background. And so it
needs to be protected.
It is not a--it is not an important or a valuable right if,
in fact, you can't exercise it because you can't understand
English. And for that reason, that's why it's--I believe it's
important that we enforce and protect the rights under section
203.
Mr. Chabot. Thank you, Mr. Attorney General, and I assume
that you'd be willing to go with us back and forth in writing
to make sure that we get all the necessary information relative
to the language requirements.
Attorney General Gonzales. Yes. And, by the way, I do
understand that in certain jurisdictions--I met with the mayor
of New York City recently, and he explained to me there are so
many languages in that city and it creates a tremendous burden.
And I appreciate that, and so that would be something that I
think perhaps that this Committee should look at. Obviously, we
want to protect the ability of people to vote. We want to
ensure that people can vote, irrespective of the fact that they
can't understand or speak English well. But I understand that
there can be and apparently are significant burdens in some
communities.
Chairman Sensenbrenner. The time of the gentleman has
expired.
The gentlewoman from Florida, Ms. Wasserman Schultz.
Ms. Wasserman Schultz. Thank you, Mr. Chairman.
Mr. Attorney General, welcome to the Judiciary Committee.
My question also deals with the terrorist surveillance program,
and the Bush administration has stated that the congressional
war authorization after September 11th provided a legal
justification for the Administration to begin the NSA
wiretapping. And in your essentially non-answers to both the
majority and the minority's questions that we provided to you
in writing, you have further indicated that you think that
that's where your authorization is derived from.
Yet in a December 19, 2005, press briefing, you were asked
why the Administration decided not to amend--come to the
Congress and amend the FISA law so that you could have express
authorization for this program, and I'll read you what your
answer was to that question. You said, ``We've had discussions
with Members of Congress, certain Members of Congress, about
whether or not we could get an amendment to FISA, and we were
advised that that was not likely to be, that that was not
something we could likely get, certainly not without
jeopardizing the existence of the program, and, therefore,
killing the program; and that--and so a decision was made that
because we felt that the authorities--the authorities were
there, that we should continue moving forward with this
program.''
Now, Mr. Attorney General, when my kids, as a Mom, tell me
that the reason that they did something without asking me is
because they thought I would say no, that's really not an
acceptable answer to me when my kids try to do it. So it's not
an acceptable answer when the Administration tells Congress or
indicates that they have not asked for our express authority in
changing the law, that the answer is that you didn't think we
would say yes.
This is a really disturbing program, Mr. Attorney General,
and I'm really confused because you also on the one hand say
that you have the authority expressly granted to you in the war
authorization, yet you say the reason that you didn't ask us to
amend the FISA law to give you that express authority is
because you thought we'd say no.
So which is it?
Attorney General Gonzales. Well, you say it's a disturbing
program. I have heard very few people say this is not a program
that's important for the national security of this country. In
fact, most of the people on both sides of the aisle, virtually
all--everyone who is aware of the parameters of this program
say this is an essential program for the protection of national
security of this country.
There was----
Ms. Wasserman Schultz. Mr. Attorney General, it's a
disturbing program when you don't have express--when there's a
question that has not been answered about whether you have the
express authority to engage in it. That's what's disturbing,
not the program itself. If you've been given that express
authority, that's one thing. So if you could answer my
question, I'd appreciate it.
Attorney General Gonzales. We believe that the authority
does lie within the Authorization to Use Military Force, and
that supplements the President's constitutional authority as
Commander-in-Chief to engage in electronic surveillance of the
enemy during a time of war. We believe that that authority is
there under the Constitution. We also believe that the
authority--that authority is supplemented by the Authorization
to Use Military Force. And whether or not the words are not--
whether or not the words ``electronic surveillance'' are
included in that authorization is of no moment, to quote
Justice O'Connor. The Congress authorized all those activities
that are fundamental incident to waging war----
Ms. Wasserman Schultz. Mr. Attorney General, with all due
respect, I've heard you say and read all those specific
comments about yours and the Justice Department's opinion. But
on December 19, 2005, you specifically said that the reason
that you did not come to Congress to amend the FISA law to
specifically give you that authority is because you didn't
think we would say yes and you didn't think--and you thought
that that would jeopardize your ability to continue and move
forward with this program.
Attorney General Gonzales. That was related to a
conversation that we had with the leadership of the Congress,
and it wasn't just my judgment that legislation was impossible
without compromising the program. It was the collective
judgment of everyone there.
Ms. Wasserman Schultz. Well, I understand that that might
be who you spoke to, but it's irrelevant who you told that to.
There are many Members of Congress that believe that you should
have come to the Congress. There are many people in the general
public that think you should come to Congress and expressly ask
for that authorization.
So if you were given the opinion by some Members of
Congress that we would say no if you asked for that authority,
then why didn't you explore that possibility with other Members
of Congress? I generally believe that if you think you don't
have the authority and you don't ask for it because you think
you'll be told no that that means you don't--you think you
don't have the authority.
Attorney General Gonzales. Well, clearly, Congresswoman,
you know, in a time of war, it's always best in my judgment to
have both the Executive branch and the legislative branch
working together and to be in agreement.
On the other hand, the President is Commander-in-Chief, and
even Congress in the Authorization to Use Military Force
recognized in that authorization that the President does have
the constitutional authority to deter and prevent attacks
against America. And we believe that--again, that we do have
the authority. Obviously, we were aware that there may be
questions about the President's authority and that's why there
were discussions about seeking legislation, and there was a
collective agreement that that process of pursuing legislation
would compromise the effectiveness of this program.
Ms. Wasserman Schultz. Thank you.
Chairman Sensenbrenner. The gentlewoman's time has expired.
The gentleman from Texas, Mr. Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman, and it's good to see
you again, General.
Just to assist in one of the earlier questions from my
colleague from Texas on the other side of the aisle regarding
the redistricting map and the litigation regarding that Federal
approval, I thought it was interesting. Chief Justice Roberts
during oral arguments on that pointed out that under the
disastrously unfair gerrymandering done in 1991, that the
Democrats had way over 20 percent more representation in
Congress than they had Statewide votes; whereas, after the
Republican plan----
Mr. Nadler. Chairman, we can't hear.
Mr. Gohmert. Okay. I'd suggest some people stop talking
over there.
But, anyway, that after the Republican plan last year or
so, there was only a 5-percent disparity, that fortunately
Republicans were taking that in the right way.
But, anyway, I did want to go back to 50 U.S.C. 1861, the
provision of section (a)(1), and I'm going to ask you if you
have a problem with the revision of this nature. You've
indicated that they're nothing but domestic--only domestic
surveillance that is connected to a foreign agent or a known
terrorist have been surveiled. But under the provision of 501,
there is something that nobody has seemed to have pointed out
that I picked up on, especially in view of the discussion about
domestic. But under (a)(1) it says, ``for an investigation to
protect against international terrorism or clandestine
intelligence activities.''
Now, it's not under your Administration or President Bush's
administration that that has ever been used, that clandestine
intelligence activity has ever been used without a foreign
nexus. And that's my understanding. You only pursue that if
there is a foreign nexus. Is that correct?
Attorney General Gonzales. Congressman, you know, I'm not
sure that I understand the question, and I apologize. It's
not----
Mr. Gohmert. Okay. My terminology is exactly from section
501. It says you can pursue an investigation to protect
against, A, international--the ``A'' is mine--international
terrorism or, B, clandestine intelligence activities. Now,
there's no requirement in that provision that there be a
foreign connection. And my understanding is that your office
interprets that to mean, or at least you don't pursue it unless
there is a foreign connection.
Attorney General Gonzales. Congressman, I apologize. I
don't know the--I can't confirm that. I think that's probably
right, but I----
Mr. Gohmert. And I'm not trying to trap you.
Attorney General Gonzales. No, and I understand.
Mr. Gohmert. But from your prior testimony, that was my
understanding, that there had to be a foreign terrorist
connection or you didn't pursue it.
Attorney General Gonzales. What the President has
authorized is the collection of communications where one in the
communication is outside the United States and where we have
reasonable grounds to believe, determined by a career
professional out at NSA who knows about al-Qaeda tactics, about
al-Qaeda communications, about al-Qaeda aims, that that person
believes there's reasonable grounds to believe that one party
to the communication is a member of--a member or agent of al-
Qaeda or of an affiliated terrorist----
Mr. Gohmert. No, I've seen your answers and I understood
that from your answers, and that's why this is not a trap and
it's not something to bully you at all. But I would like to
make sure section 501 is better clarified so that in a
subsequent Administration that somebody doesn't come in and
say, You know what? We're worried this church over here may be
involved in intelligence activities in the community that could
be clandestine. Never mind there's no foreign link. Therefore,
under 501, we think we can go in and start surveilling them.
And so I was interested in protecting against future
Administrations' abusing 501 in an interpretation that has not
ever been done before in adding something like ``foreign'' to
that provision. Would you have a problem with clarifying that
for future use, for future Administrations?
Attorney General Gonzales. I would be happy to work with
you on that.
Mr. Gohmert. All right, thank you.
One other area, back beginning last June, when I'd seen
some newspaper reports that our district attorney in Austin had
indicted corporations and then turns around and said, but you
know what, if you will give $100,000 here to who I tell you to,
I'll dismiss the charge. Not I don't have a case, I'll dismiss
it; not I've got a case I'm moving forward. I'm going to extort
$100,000 from you to pay over here, and if you'll do that, I'll
go ahead and dismiss the charge. Paraphrasing, of course.
And I had pointed that out in a letter to the U.S.
attorney, who kicked it back to Justice here. And then I got a
letter in September indicating that. I subsequently followed up
and pointed out under 18 U.S.C. section 666--interesting
number--that anybody who receives more than 10 grand in Federal
money and solicits money or anything of value on behalf of
anybody, then they could commit a crime and go to prison for 10
years. And if we can't get the Department of Justice to follow
up on what may well be a horrible case of extortion that sends
a terrible message to small-time JPs or prosecutors saying,
hey, you can extort money however you want to because they
won't even pursue $100,000 amount.
And I'm just wondering, are you open to having your Justice
Department look into those type of violations?
Attorney General Gonzales. What I can say, Congressman, is
that the matter is under review.
Mr. Gohmert. It is under review? Thank you.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Attorney General, I have several questions, but just
one quick question on the wiretap, because the debate has
gotten into the question of whether or not the wiretap is a
good idea. The real question is whether or not a wiretap ought
to be done with a warrant or without a warrant. And that's what
we'd like to debate. The basis of your rationale suggests, as
the gentleman from California mentioned, would cover just about
anything without limitation. And the problem we have is that we
really don't know, because of the answers you've given, exactly
what the program is all about.
Attorney General Gonzales. Can I interrupt you just to say
that the limitations that I would offer up would be the fourth
amendment, search must be reasonable. And of course limitations
that the Supreme Court outlined in Hamdi, and that is that the
activity must be fundamentally incidental to waging war. So
there are limitations.
Mr. Scott. And that decision is made without any checks and
balances of a warrant, and that's what the question is. Let
me----
Attorney General Gonzales. Well, the fourth amendment, sir,
doesn't require necessarily a warrant. It requires that the
search be reasonable.
Mr. Scott. Okay. And that question--and once the President
determines that it's reasonable, then that's the beginning and
the end.
Attorney General Gonzales. And the courts have long
recognized that there are special needs outside the----
Mr. Scott. Let me just ask the question. When you do a
wiretap, is the target selected on an individualized basis with
individualized consideration?
Attorney General Gonzales. You mean in connection with this
program?
Mr. Scott. Right.
Attorney General Gonzales. As I indicated, I don't want to
get--I cannot get into the operations of this. But I can
confirm that there is a determination case-by-case, by a career
professional at NSA that a party to the communication is a
member or agent of al-Qaeda or an affiliated terrorist
organization.
Mr. Scott. All that consideration is made on an
individualized basis for an individual wiretap?
Attorney General Gonzales. In connection with an individual
communication, yes, sir.
Mr. Scott. And are there any wiretaps that you're doing
that would not--that you would not be entitled to get a wiretap
warrant for?
If you'd gone to get a warrant, could you have gotten a
warrant?
Attorney General Gonzales. Well, of course, without, you
know, without--I can't--I can't promise you that we--that a
warrant would be approved in every case because obviously it's
going to depend on the circumstances, whether or not you can
satisfy the probable cause standard. So I can't answer that
question.
Mr. Scott. On March 31, 2006, in Los Angeles, California,
you made an announcement of an anti-gang initiative. In that
initiative, you announced $2.5 million grants and insisted that
$1 million of it go to prevention, $1 million go to law
enforcement, and $500,000 to re-entry programs to slow down the
revolving door when people come right back. Can you please
explain to this Committee why a comprehensive approach is
necessary to actually reduce gang membership, because we
apparently haven't gotten that message.
Attorney General Gonzales. I believe, Congressman, that
when you're talking about kids and young adults, if you're in
the area of enforcement, for many of our kids in the Hispanic
community and the Black community, the battle is lost. Their
future is probably lost. And that's why I think it's important
to focus not just on enforcement, which of course is--I think
is an important deterrent, but we need to get to these kids
before they join the gangs. And that's why education and
prevention, I think, is equally important. And of course if we
fail in discouraging kids from getting into gangs and they get
into gangs and we can prosecute them and they go to jail, then
we need to help them become productive members of society. If
they need transitional housing, we need to provide that. If
they need job readiness training, we need to provide that. If
they have a problem with substance abuse, we need to provide--
help them with that. So I think it does require a comprehensive
approach.
Mr. Scott. Is it your testimony that a 60 percent for
prevention and re-entry is a reasonable allocation of our
resources?
Attorney General Gonzales. I couldn't comment on that,
Congressman. What----
Mr. Scott. Well, that's a good--that's not a bad
allocation.
Attorney General Gonzales. What I would say, you know, I'm
the chief law enforcement officer of the country. That's my
primary focus. But I don't think I can be effective in dealing
with this issue if we're not also looking at education and re-
entry.
Mr. Scott. And you can do your job a lot better if you'll
allocate more resources toward prevention. Isn't that right?
Attorney General Gonzales. Well, again, it's Congress's job
to----
Mr. Scott. Just as you have.
Attorney General Gonzales. Congress decides where the
appropriations should go. I do believe that education and
prevention is an important component of addressing the gang
violence.
Mr. Scott. Let me pose two questions to you, since my time
is just about up, and get information back if you don't have
time to respond. One is deaths in custody. Several years ago,
as you know, we passed a bill to report deaths in custody to
the Attorney General. Much of that has come in. We'd like for
you to comment on that after the--later. And we passed
legislation about a year ago on ID theft, which included $10
million to help you investigate consumer ID theft to the extent
that people can do this kind of thing and not get caught
because of the labor-intensive nature of the investigations. Do
you need more money to investigate consumer ID theft?
And if you could respond to those either quickly now or in
writing.
Attorney General Gonzales. On the death in custody, I will
have to. On the ID theft, I'll just say that I'm not here to
ask for more money, but I am here to tell you this is a
serious, serious problem and I'm worried about it.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from Iowa, Mr. King.
Mr. King. Thank you, Mr. Chairman.
And Mr. Attorney General, I do appreciate your testimony
here and I know it can't be an easy day. But we all are
interested in a number of different areas, and you cover such a
broad territory with your responsibilities. I want you to know
I respect and appreciate that and I'll seek to focus on the
things that are of significant interest.
There was testimony before the Crime Subcommittee about
activities with regard to ATF and focusing on participants or
customers in the firearms shows and some discouraging
activities on the part of the ATF that might have--and I want
to lay about three questions out here with regard to some of
these things that have to do with the second amendment,
intimidation, I would call it, of attendees at firearms shows
and in fact encouraging local police officers to conduct
homes--residency checks and inquiries.
Another one would be the accuracy of the reports by the
firearms dealers. And I know we have at least some testimony on
one particular one that had a 4/100ths of a percent margin of
error, a .0004 margin or error, yet was facing and received
revocation of his license. And the position of the AG's office
that no errors are permissible even though the Senate Judiciary
Committee report, and the language that was passed in 1986,
emphasizes that the definition for the word ``wilfully'' with
regard to errors in firearms reports is--and I'll quote--``is
to ensure that licenses are not revoked for inadvertent errors
or technical mistakes.''
Your position on those issues. And I hit that quickly
because I have another subject I hope I can get. Thank you.
Attorney General Gonzales. Well, I'm aware of the situation
that you referred to in Virginia. Obviously there should not be
intimidation. I think what happened there is not going to
happen again, let me just say that.
With respect to the revocation of licenses, there are
limits about what we can do. And I know there's some discussion
about whether or not there should be more discretion given or
alternatives should be pursued in terms of what happens if a
license is inaccurate. And all I can say is I'm happy to look
at that and work with you on that, that issue.
Mr. King. Is it your position that the word ``wilfully''
has a practical significance with regard to interpretation of
the law?
Attorney General Gonzales. Well, I'd like to get back to
you on that.
Mr. King. And I hope we can have a conversation on that and
look forward to that?
Attorney General Gonzales. I would look forward to that.
Mr. King. Okay, and then--let me shift to another subject.
That's section 203 of the Voting Rights Act. You have testified
on that to some degree with Mr. Chabot. And I'm reflecting on
your statement, if you can't exercise your right to vote, then
you can't--if you can't understand English. Well, unless we
have the Voting Rights Act, section 203.
First I'd ask you, with the exception of Puerto Rico, if
you could point out circumstances by which a person would
arrive at voting age and be able to--and not have a significant
command of the English language, at least to the level that
they should be able to vote on a ballot in a voting booth. And
in those circumstances, how does that happen in America?
Attorney General Gonzales. Well, I think you can come of
voting age and become a citizen with a basic level of
understanding of English. But as you know, sometimes when you
get into the voting booth, you can have a long ballot, you can
have some very complicated referendums, and some people are
simply more comfortable if they can read it in a different
language.
My own personal view, Congressman, is, is that English
represents freedom in this country. You need and should be able
to speak English well and read and write in English well. And
so let me emphasize that. And when I talk to Hispanic groups
about this issue, I tell them that's got to be a focus. If we
want our kids to progress, that's important. However, I do
worry about people not feeling totally comfortable when they go
into the voting booth on election day.
Mr. King. Okay, thank you.
And then, with regard to surname analysis, requiring that
they use a surname analysis to determine the concentrations of
certain ethnicities to direct whether the ballots need to be
provided in those languages. And I would point out that,
especially Hispanic surnames, are among the oldest surnames in
the United States of America. People have been here the longest
and may be the most proficient, among the most proficient in
English. And I would submit that that's not a legitimate
evaluation of the proficiency in language and that we do have
census analysis where people self-identify their language
skills. Wouldn't it be more appropriate to use the census
analysis for that purpose rather than just a simple analysis of
surnames?
Attorney General Gonzales. It may be, Congressman. We have
to look at that.
Mr. King. And could we have that conversation as well?
Attorney General Gonzales. Yes, sir.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from Maryland, Mr. Van Hollen.
Mr. Van Hollen. Thank you, Mr. Chairman. And welcome, Mr.
Attorney General.
Our colleague Mr. Berman in his remarks characterized part
of the Administration's legal argument with respect to the
wiretapping debate as a ``lack of intellectual honesty,'' and I
got to tell you, reading the 43-page report and legal analysis,
I think that's an apt characterization. Let me just----
Attorney General Gonzales. Can I interrupt you?
Mr. Van Hollen. Yes, you may.
Attorney General Gonzales. Okay. Can I----
Mr. Van Hollen. But, Mr. Chairman, you may--if it comes out
of my 5 minutes, I really--you can----
Attorney General Gonzales. Well, go ahead.
Mr. Van Hollen. All right. Because I only get 5 minutes,
and your response--but let me ask you this. Ms. Wasserman
Schultz asked you a question regarding this is what you
characterized as a collective agreement between yourself, the
Administration, and certain leaders in Congress, that it would
be difficult to get this authority, this express authority
through Congress.
Now, let me ask you, you would agree----
Attorney General Gonzales. Without compromising the
effectiveness of the program.
Mr. Van Hollen. You would agree with me that if you don't
have that authority, an agreement between yourself and leaders
of Congress doesn't make it okay to go ahead, right?
Attorney General Gonzales. Absolutely. And whether or not
FISA works or not, it wouldn't matter. I mean, that's not the
question. The question is: Does the President have the
authority?
Mr. Van Hollen. Let me ask you this: Who--which--if you
could tell us this collective agreement, what Members of
Congress made this agreement with you?
Attorney General Gonzales. What I can say is that the
leadership----
Mr. Van Hollen. I don't think it's a question of Executive
privilege. This is a discussion with Members of Congress. Can
you tell us which--there is this collective agreement. Who was
it?
Attorney General Gonzales. Certain Members in the House and
certain Members in the Senate----
Mr. Van Hollen. And you're not--you're not willing to tell
us who made the collective agreement?
Attorney General Gonzales. I can say that the leadership of
the Congress and the leadership of the Intel Committees.
Mr. Van Hollen. Democrat and Republican both?
Attorney General Gonzales. Both sides of the aisle.
Mr. Van Hollen. All right. Let me ask you--I'm trying to
understand the extent to which the authorization to use force
in Afghanistan is essential to your argument, so let me give
you a hypothetical. If you had an organization out there that
was not related to al-Qaeda in any way, under your analysis
would the President still have the legal authority to intercept
electronic transmissions if they believed they were someone
wanting to do harm to the United States or involved in some
activity or plot to do harm to the United States, under your
analysis could the President use the NSA program to intercept
those communications?
Attorney General Gonzales. Well, I need to go back and look
at the language, the specific language with respect to
Afghanistan. You're talking about the authorization to use
force----
Mr. Van Hollen. Yeah.
Attorney General Gonzales [continuing]. That passed? Okay.
Okay. And, again, your question, Congressman? I'm sorry.
Mr. Van Hollen. Well, my question goes to what extent does
your argument hinge on the authorization to use force. So if
you had--under the authorization the President has to make a
finding that the organization is somehow related to al-Qaeda,
okay? Let's say you had an organization out there we considered
a terrorist organization, but it had no relationship to al-
Qaeda. We suspect they're involved in a plot against the United
States. Can you use the NSA wiretap?
Attorney General Gonzales. Well, then we're--look, in
evaluating that question, I referred to Justice Jackson in the
Youngstown analysis in terms of whether or not--what is the
scope of the President's power versus congressional power. And
so we believe that--it's a three-part test, as you know, and we
believe that with the authorization to use force, you are in
the first part. Congress--the President is taking action
consistent with the express or implicit approval of Congress.
And there his authority is the greatest.
If you don't have the authorization to use force, that
doesn't mean that the President taking action is unlawful. It
simply means you move into the third part of the Jackson
analysis, where you have the President taking action,
exercising his constitutional authority, minus whatever
constitutional authority Congress might have in the area, and
so we would have to make that evaluation as to whether or not--
could Congress constitutionally limit the President's authority
under the Constitution as Commander-in-Chief to engage in
electronic surveillance of the enemy. That's the analysis that
we----
Mr. Van Hollen. Well, let me just ask you with respect to
that issue. Do you think FISA--I mean, part of your argument
under the authorization to use force is----
Attorney General Gonzales. I think it would--it would raise
serious constitutional concerns, and, you know, I go back to
Judge Silberman's statement in In Re Sealed, the 2002 case of
the FISA Court of Review, where he looked at the--he canvassed
the Court's decisions about the President have authority and
said all the courts that have looked at this issue have found
that the President of the United States has the inherent
authority under the Constitution to engage in electronic
surveillance of the enemy for foreign intelligence purposes.
And assuming that to be true, FISA cannot encroach upon that
authority.
Mr. Van Hollen. Let me ask the last question here, which is
that what is it under the FISA statute, if anything--what kind
of standards or criteria in that statute that would make you
unable to get the authorization from the FISA Court to do the
kind of intercepts that are being done now?
Attorney General Gonzales. I'm not suggesting that we
wouldn't get the authorization. It's a----
Mr. Van Hollen. Let me--could I give you a hypothetical?
Attorney General Gonzales. It's a question of timing.
Mr. Van Hollen. If I--let me just give you a hypothetical.
If we were to take the FISA justices and put them over at the
NSA, in your opinion is there any intercept that you're
receiving now that they would not authorize under the current
FISA statute?
Attorney General Gonzales. Well, that's an impossible
question for me to answer. What I will say is that the question
is not whether or not a FISA Court would approve the
application. The question is the time it would take. We're not
talking--with respect to FISA, in a straightforward case you
may be able to get approval from the Court within a matter of
hours or days, or maybe weeks. But under FISA it could be days,
weeks, months. And so when you're talking about fighting an
enemy that we're fighting today where information is critical,
in certain circumstances that's the problem that we have under
FISA.
But let me just emphasize, FISA in my judgment has been a
wonderful tool. It really has been, and we utilize it all the
time. What people need to understand, though, is FISA--we use
FISA not just for foreign--we use FISA for collections here
within the United States. We use FISA against foreign powers
beyond al-Qaeda. And we use FISA even during peacetime.
And so because of those circumstances, I think the
restrictions that we have in FISA probably make sense when
you're talking about domestic collection in peacetime. And so
when we--when people start talking about amending FISA, I think
people need to understand that FISA covers much more than
simply international communications involving al-Qaeda.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from Virginia, Mr. Forbes.
Mr. Forbes. Thank you, Mr. Chairman, and thank you, Mr.
Attorney General, for being here today.
When I hear some alarming statements like we're headed for
this looming crisis of confidence or this great constitutional
crisis or the sky is falling, they concern me, or at least they
did 35 years ago when I first read about them and I heard them
being made as a political science student in undergraduate
school. And then I quickly realized that every time somebody
didn't like the Administration or they didn't like a particular
law, they reached up and grabbed those off the shelf and used
them, instead of sometimes looking at the facts.
Today, I'd like for you to examine some of the facts. In
section 202 of H.R. 4437, that was where we reformed the anti-
smuggling provisions in the Immigration and Nationality Act,
and specifically two questions.
One is, What problems, if any, are there with the current
anti-smuggling provisions? And would section 202 address those
problems?
And, secondly, we've heard a lot of critics of the House
bill who have alleged that these provisions would be used to
prosecute priests and doctors who provide aid to illegal
aliens. How valid are those allegations?
Attorney General Gonzales. Well, I would be worried about
it if I were a priest or doctor, quite frankly. I know that's
not the intent. As I indicated before in response to an earlier
question, the U.S. Attorneys on the Southern border are
concerned about the current language, the current law, and they
appreciate a tightening up of the language. No one, however,
wants to engage--no one wants to criminalize Good Samaritan
behavior.
The other thing I worry about is creating whole carve-outs,
quite frankly, because we then tell alien smugglers what
conduct they should engage in and they would fall within the
safe harbors provided in the statute.
And so it's a delicate balance and I understand it, but I
think the law can be written in a way that we make it easier
for prosecutors to go after alien smugglers, but we don't
criminalize priests and doctors who simply want to help their
fellow man.
Mr. Forbes. It's been reported that China has over 3,000
front companies in the United States that exist mainly to
obtain sensitive U.S. technology. In February 2006, a Federal
grand jury indicted two men on charges of conspiring to
illegally send military equipment, including an F-16 jet
aircraft engine to China, in violation of the Arms Export
Control Act. Where would you rank China on the list of the top
ten suspicious foreign collection efforts against the U.S.? And
would you consider China to be one of the top
counterintelligence priorities? And how is DOJ responding to
this threat?
Attorney General Gonzales. I would consider China to be one
of the top counterintelligence priorities for the Department. I
would prefer to defer to perhaps the DNI or the CIA Director in
terms of where I specifically would rank China. We have a very
active--regrettably, we have a very active and robust
counterespionage section within the Department because there
are a lot of countries, of course, that are engaged in
espionage against the United States from abroad and here within
the United States. That counterespionage section is going to,
as you know, be merged into the National Security Division.
When that is stood up, I think that that will make us much more
effective. We're asking for additional agents to help us with
this effort. But the bottom line for us is it's a serious
threat to the national security of this country.
Mr. Forbes. The last question I have for you is I am deeply
concerned about the criminal prosecution of obscenity cases,
and we're well aware of the proliferation of trafficking in and
display of obscene material, much of which exploits children,
women, and other innocent victims, and only whets the appetite
of pedophiles and sexual abusers.
Can you outline for the Committee what steps the Justice
Department has taken and will take to increase the
investigation and prosecution of these kind of crimes?
Attorney General Gonzales. Well, it is a serious issue. I
outlined in my opening statement that we've created this new
initiative, Project Safe Childhood, where we want to work with
the Internet Crimes Against Children Task Forces that currently
exist. We want to supplement their efforts. U.S. Attorneys now
understand that this has to be a priority for the Department,
and through that effort we intend to provide planning in terms
of the strategy district by district. We intend to provide
training to State and local prosecutors. We intend to provide
education, which means that we need to alert parents how
serious this threat is to our children.
And so it's something that we are very focused on. We've
created an obscenity prosecution task force within the Criminal
Division of the Department of Justice, and I believe that there
have been 46 prosecutions over the past few years. Sometimes
these can be different cases to make, but we're focused on it.
I think it's important. I've had a lot of parents come up to me
and say they need help in protecting their children, even
within their own homes.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentlewoman from California, Ms. Sanchez.
Ms. Sanchez. Thank you, Mr. Chairman, and thank you, Mr.
Attorney General, for being here.
As you may know, your Department entered into an agreement
with California's Secretary of State to implement HAVA's voter
database requirements, and that's resulting in L.A. County a
rejection rate of 43 percent of all new voter registration
forms. And the registrar recorder of Los Angeles County, the
League of Women Voters, many others, including myself, are very
concerned about the potential disenfranchisement of these
voters that this could cause.
So I'm wondering if you would commit to respond to some
written questions specifically regarding that database and why
the rejection rates are so high.
Attorney General Gonzales. I'd be happy to do that. I was
in Los Angeles just last week. I spent some time with the
mayor, and he didn't raise it with me, but if this is--
obviously
